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Cotterell v. Gilmore

United States District Court, E.D. New York

December 8, 2014

PAUL COTTERELL, Plaintiff,
v.
JAMES GILMORE, WILLIAM HASTBACK, SUSAN RITCHIE, and JOHN AND JANE DOE (said names being fictitious, the persons intended being those of aided and abetted the unlawful conduct of the named defendants), Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For the Plaintiff: Samuel O. Maduegbuna, Esq., David A. Beach, Esq., William W. Cowles, II, Esq., Of Counsel, Maduegbuna, Cooper LLP, New York, NY.

For the Defendants: Eva L. Dietz, Ralph Pernick, Assistant Attorneys' General, New York State Attorney General's Office, New York, NY.

NO APPEARANCES: John and Jane Doe (said names being fictitious, the persons intended being those who aided and abetted the alleged unlawful conduct of the name defendants).

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MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On August 1, 2012, the Plaintiff Paul Cotterell (the " Plaintiff" ), then an employee of the non-party New York State Department of Environmental Conservation (" DEC" ), commenced this action against the Defendants James Gilmore, William Hastback, and Susan Ritchie (the " Defendants" ) and certain John and Jane Does. The Defendants were at all relevant times employees of DEC. The complaint alleges employment discrimination on the basis of race, color, and national origin under 42 U.S.C. § 1983, 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, and the New York State Human Rights Law as contained in New York State Executive Law § 296 et seq. (the " NYSHRL" ). The Plaintiff also contends that the Defendants caused or perpetuated a hostile work environment against him on the basis of race, color, and national origin and unlawfully retaliated against him for complaining about the alleged unlawful conduct. Of note, however, the Plaintiff does not assert a " failure to promote claim" or a " constructive discharge" claim, or a claim against DEC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e to 2000e-17.

Following discovery, on August 25, 2014, the Defendants moved, pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 56, for summary judgment dismissing the complaint.

For the reasons set forth, the motion is granted in part and denied in part.

I. BACKGROUND

Unless stated otherwise, the following facts are drawn from the parties' Rule 56.1 statements and attached exhibits and are construed in a light most favorable to the non-moving party, the Plaintiff. Triable issues of fact are noted.

A. The Parties

The Plaintiff's color is black, his race is black, and his national origin is Jamaican. He has been employed by New York State for more than twenty years. In particular, he was employed by DEC between May 12, 2011 through September 12, 2012.

The Defendants, each white, were employed by DEC during the entire period that the Plaintiff was similarly employed. Each defendant was stationed in DEC's East Setauket office. In particular, during this time, Gilmore was employed by DEC as the Chief of the Bureau of Marine

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Resources; Hastback was employed by DEC as Acting Shellfisheries Section Head and reported directly to Gilmore; and Ritchie was employed by DEC as Food Inspector 2 in the Shellfish Inspection Unit and reported directly to Hastback. Ritchie was the Plaintiff's immediate supervisor from the beginning of his DEC employment until July 31, 2012, when he was " temporarily reassigned" to report to Lisa Tettelbach.

In the Shellfish Inspection Unit during the time that the Plaintiff was employed by DEC, there were only two other Food Inspector 1s, Peter Usbeck and William Athawes, both white. Athawes began as a Food Inspector 1 in 1998 and Usbeck began in 2000. None of the Defendants interviewed or hired them.

B. The Plaintiff's Work History

The Plaintiff was previously employed by the New York State Office of General Services (" OGS) from 2004 to 2010 as a Food Inspector 1.

DEC hired the Plaintiff as a Food Inspector 1 in the Shellfish Inspection Unit of the Shellfisheries section of DEC's Bureau of Marine Resources to fill a vacancy created when another Food Inspector passed away in January 2011.

The Shellfish Inspection Unit's core functions consist of protecting public health through sanitary and records inspections of shellfish shippers and processors, and also by conforming with the minimum inspection frequencies specified by the National Shellfish Sanitation Program so that approximately 250 shellfish shippers and processors can be allowed to sell their shellfish products in interstate commerce.

DEC hired the Plaintiff from a Civil Service preferred list, on which he was the only person listed. Accordingly, apparently DEC had no discretion as to whether or not to hire the Plaintiff for the position of Food Inspector 1.

Throughout his DEC employment, the Plaintiff was stationed at DEC's office in East Setauket, Suffolk County, approximately 116 miles from the Plaintiff's residence in Dutchess County. The Plaintiff's annual salary from DEC was at the high range for the position of Food Inspector 1, ranging from $51,268 to $65,190.

In or about April 2012, eleven months after the Plaintiff began working for DEC, the Plaintiff took the first steps to search for other employment, even if for less compensation. In the course of this search, the Plaintiff found a civil service posting dated July 3, 2012 for a Food Inspector I (Grade 18) position with the New York State Department of Agriculture and Markets (" A& M" ).

The civil service posting required persons interested in bidding for the position to send a memorandum within ten days after the posting date. The Plaintiff responded to the posting before he received a DEC July 27, 2012 notice of intent to temporarily reassign and before he received a DEC August 3, 2012 notice of discipline, both later described in detail. The Plaintiff applied for the A& M position. He was interviewed, and was informed by a letter dated August 31, 2012 that he received the position effective September 13, 2012. Thus, the Plaintiff had no " break in service" between his September 12, 2012 resignation from DEC and the commencement of his A& M employment on September 13, 2013.

The Plaintiff's starting annual salary at A& M was approximately $65,000, and the Plaintiff also received a $3,096 geographic location pay from both DEC pursuant to a collective bargaining agreement, and from A& M. In addition to receiving the same annual salary from both DEC and A& M,

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the Plaintiff also received the same amount of geographic location pay. The Plaintiff's commute from his Dutchess County residence to his A& M position in Kings County was shorter than his commute from his residence to DEC in East Setauket. The Plaintiff's hiring by A& M, effective September 13, 2012, was subject to a probationary period of no more than 52 weeks and the Plaintiff has continued working to the present for A& M as a Food Inspector 1.

C. DEC's Non-Discrimination Policy

DEC maintains a policy of nondiscrimination in the workplace that seeks " to ensure that Department employees have a workplace that is free from illegal discrimination" and that " prohibits retaliation against individuals who inquire about his or her rights or who makes a complaint of illegal discrimination." (Combined Rule 56.1 Statement, at ¶ 35.) This nondiscrimination policy sets forth internal complaint procedure, advising employees that discrimination complaints could also be filed with the EEOC or New York State Division of Human Rights, although " employees are encouraged to raise such concerns with the appropriate supervisor or the OAA [Office of Affirmative Action]." (Id. at ¶ 36.)

D. The Alleged Discriminatory Conduct

1. The Failure to Notify the Plaintiff of his Hiring for more than Two Weeks After his Interview

On April 25, 2011, the Plaintiff was interviewed by Hastback and Ritchie. The Plaintiff had stated in his DEC employment application that he was not available to begin work until May 3, 2011. The Plaintiff's DEC employment began on May 12, 2011. The Plaintiff maintains that his DEC employment should have begun on May 3, 2011.

The Plaintiff alleges that Hastback and Ritchie informed him that he would be notified of his hiring within a day of his interview. The Plaintiff alleges that by not informing him of his hiring immediately, he was treated less favorably than applicants Athawes and Usbeck, both white, who were officially informed of their hiring sooner relative to their start date.

2. The Failure to Receive a Welcome Letter

The Plaintiff also alleges that, in a display of discriminatory animus, and contrary to the custom and practice as to incoming hires at DEC, the Plaintiff did not a receive a welcome letter from anybody at DEC until several months after his employment commenced.

However, the summary judgment record indicates that, on May 13, 2011, the day after the Plaintiff's DEC employment commenced, Ritchie sent an email to all DEC employees at " Marine-Long Island," asking them to stop in his office to welcome the Plaintiff. On the other hand, Gilmore apparently did not welcome the Plaintiff as he had done with previous subordinates.

Sometime thereafter, DEC sent him a letter confirming his appointment with DEC and welcoming him to the agency. The Plaintiff maintains that, unlike with respect to Athawes and Usbeck, he did not receive the letter until a month subsequent to its written date.

3. The Failure to Evaluate the Plaintiff's Inspections

The Interstate Shellfish Sanitation Conference (" ISSC" ) is a federal-state-industry cooperative body that is composed of state shellfish regulatory officials, industry officials, the FDA, and other federal agencies. The ISSC provides the forum for state regulatory officials to establish uniform

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national guidelines and to exchange information regarding sources of safe shellfish and to ensure that shellfish will be safe and sanitary. An inspector's standardization is for a five-year period.

According to the complaint, Ritchie prevented the Plaintiff from becoming ISSC-compliant because Ritchie refused to evaluate the five inspections performed by the Plaintiff. The Defendants dispute this allegation and deny that it rose to the level of an " adverse employment action" as is necessary to state a claim under certain federal and state anti-discrimination statutes. Further, as admitted by the Plaintiff, the New York State Department of Civil Service's description of the Food Inspector I position made no reference to the ISSC or to ISSC standardization requirements; the Plaintiff's performance standards did not refer to ISCC standardization; the notice of intent to temporarily reassign the Plaintiff made no reference to ISSC standardization; and the notice of discipline issued to the Plaintiff made no reference to ISSC standardization.

4. The Reinspection of Shippers Inspected by the Plaintiff

The Plaintiff contends that he suffered " ridicule" and " great embarrassment" because the other Food Inspector 1s surreptiously reinspected suppliers that the Plaintiff had already inspected. (Compl., at ¶ 29(f).). However, the summary judgment record indicates that reinspections were apparently a " two-way street," as the Plaintiff inspected some facilities that had already been inspected by the other two Food Inspector 1s.

5. Sick Leave

Section 3.5 of DEC's Time and Attendance Manual states, in pertinent part: " In accordance with Civil Service Time and Attendance rules and Collective Bargaining Unit Agreement, the employee's supervisor may require satisfactory proof to justify the use of sick leave credits. Such evidence may include a doctor's certificate, proof of hospitalization, etc." (Combined Rule 56.1 Statement, at ¶ 250.)

During the Plaintiffs' first seven months of his DEC employment, from May 12, 2011 through December 21, 2011, the Plaintiff took 100.5 hours of seek leave. In so doing, the Plaintiff sought medical attention for, among other problems, the possibility of having breast cancer.

By contrast, during the same period, Usbeck did not take any sick leave and Athawes took only 6.5 hours. Further, the Plaintiff's absences became more frequent over time. However, the Plaintiff notes that while he took 49 hours of vacation during this time period, Athawes and Usbeck took 108.5 and 107.5 hours of vacation, respectively.

Nevertheless, prior to May 18, 2012, due to his sick leave absences, the Plaintiff was asked to provide medical documentation, apparently by Ritchie and with input by Hastback. The Plaintiff maintains that he was the only employee in his unit required to divulge medical information. According to DEC policy, employees are not required to provide a note until after they have been placed on " medical notice." Yet, the record shows that the Plaintiff was placed on medical notice sometime on or after May 18, 2012.

At some point, Ritchie began to deny some of the Plaintiff's sick leave requests. The Defendants maintain that some of the Plaintiff's sick leave requests were denied because of the adverse effect his absence had on the ability of the other food inspectors to perform scheduled inspections; the short notice of the requests; and the possible adverse effects on the shellfish shippers

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and dealers if their inspections could not be timely performed.

6. The Performance Evaluations

DEC employees including Food Inspectors are evaluated on an annual basis, and on a semi-annual basis by the employee's immediate supervisor, referred to as " six month recertifications." An employee's date of hire generally serves as the first day of that employee's annual evaluation, with certain exceptions based upon civil service-related matters.

The fact that there was a four-month gap between the termination of the Plaintiff's OGS employment and the commencement of his DEC employment presented an issue for DEC personnel in Albany as to their determination of the Plaintiff's proper date for evaluation purposes. Further, Ritchie was four weeks late in performing the Plaintiff's six-month recertification, in which the Plaintiff received a mark of " Unsatisfactory." However, under DEC policy, this untimeliness entitled him to receive a mark of " Satisfactory,"

The Plaintiff asserts that, in order to avoid this " technicality," Ritchie and Hastback conspired to create an ad hoc probationary period so that his starting date was recast as October 12, 2011. However, Sherri Montross, an Associate Personnel Administer, initially informed the Defendants that there was no probationary period for the Plaintiff.

On January 24, 2012, Montross sent an email to Hastback stating that the Plaintiff's performance evaluation date was October 12, 2011. (Combined Rule 56.1 Statement, at ¶ 231.)

On April 11, 2012, the Plaintiff again received an evaluation of " Unsatisfactory" from Ritchie. This time, Ritchie explained that the Plaintiff had used his time inefficiently; had not always produced clear and concise inspection reports; failed to conduct timely re-inspections; was frequently late for work or absent; had taken a substantial amount of leave time; and had not complied with DEC procedures concerning the use of a personal vehicle and proper recording of time and attendance.

The Plaintiff maintains that these unsupported evaluations precluded him from receiving a monetary bonus and diminished his prospects for advancement. The Plaintiff also maintains that, in violation of DEC policy, Ritchie did not meet with him to discuss his performance.

7. The Search of the Plaintiff's Work Area

On June 4, 2012, while standing outside DEC's East Setauket office, the Plaintiff observed Ritchie, Athawes, and Usbeck searching through his desk. After the Plaintiff entered the building, he opened his desk drawers and saw that his " personal belonging were all ravaged through" but " nothing was missing from me personally." (Pl's Dep., at 43.) According to the Plaintiff, Ritchie told him that she, Athawes, and Usbeck were looking for notepads in his desk. The Plaintiff did not recall having any further conversation with Ritchie about the search, and had not spoken about it with Athawes or with Usbeck.

The Plaintiff alleges that an incomplete inspection report pertaining to a shipper, Aqua Best, had been in his desk. The report was then allegedly taken, copied without his knowledge, and replaced, and that it was used as material to later interrogate him.

Gilmore and Hastback had no advance knowledge or participation in this search.

8. Miscellaneous Alleged Discriminatory Conduct

The Plaintiff also contends that throughout his employment with DEC, he was the

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only Food Inspector I in his unit that was denied reimbursement for using his personal vehicle for work-related duties after being assured by certain of the Defendants that he would be so eligible. The Plaintiff further contends that only he was denied the use of his per diem allowance for meals and lodging. The Plaintiff also asserts that he did not receive adequate training and was excluded from critical meetings.

The Plaintiff further asserts that, despite living farther from DEC's office building than the other Food Inspectors did, he was forced to arrive at work earlier. The Plaintiff contends that the Defendants failed to give him early morning access to the DEC office and, at times, he was forced to relieve himself in the building's shrubbery.

The Plaintiff also points out that he complained about disparate treatment, both in written and oral form, although in general terms, yet the Defendants and others failed to report the Plaintiff's allegations to the OAA, although they had an affirmative obligation to do so under DEC policy.

9. The " Interrogation"

At some point, Gilmore requested in writing to his superiors that disciplinary proceedings against the Plaintiff be commenced. (Flynn Dep., at 35.) On April 6, 2012, Ritchie emailed Patricia Riexinger (" Riexinger" ), the Director of the Division of Fish and Wildlife and Gilmore's direct supervisor, concerning the Plaintiff, describing the problems she perceived with the Plaintiff's inspections. Ritchie also described how she, Athawes, and Usbeck were fearful of the Plaintiff and how the work environment had become " stressful for everyone in the unit." (Pl's Exh. 137) However, Athawes and Usbeck testified that they were not afraid of the Plaintiff, and Usbeck described him as " pleasant." (Athawes Dep., at 65; Usbeck Dep. at 99, 102).

That same day, Riexinger forwarded that email to Theresa Flynn (" Flynn" ), the DEC Labor Representative II; Mark Cadrette (" Cadrette" ), DEC's Director of Office of Employee Relations and Flynn's direct supervisor; Gilmore; Hastback; and Ann Lapinski, a DEC Associate Attorney and Acting Director of Internal Audit and Investigation, asking for a meeting to " address[] this chronic and inexcusable bad work ...


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