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Harder v. New York State

United States District Court, N.D. New York

August 3, 2015

HARRY A. HARDER, Plaintiff,

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[Copyrighted Material Omitted]

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HARRY A. HARDER, Plaintiff, Pro se, Schenectady, NY.

For Defendants: DAVID FRUCHTER, ESQ., Ass't Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, NY.

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DAVID N. HURD, United States District Judge.


Plaintiff Harry A. Harder (" Harder" or " plaintiff" ), proceeding pro se, filed this action pursuant to Title VII of the Civil Rights Act of 1964 (" Title VII" ) against his former employer, defendant New York State Office of Children & Family Services (" OCFS" ) and his former co-worker, Otis Hill (" Hill" ).

The parties completed discovery and have cross-moved for summary judgment pursuant to Federal Rule of Civil Procedure (" Rule" ) 56. Both motions have been fully briefed and will be considered on the basis of the submissions without oral argument.


" OCFS is a New York State agency that provides services for children, families, and

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other vulnerable populations." Chinnery v. N.Y.S. Office of Children & Family Servs., 2014 WL 1651950, at *1 (S.D.N.Y. Apr. 25, 2014) (Report & Recommendation), adopted by 2015 WL 1029601 (S.D.N.Y. Mar. 10, 2015).

On February 3, 2011, OCFS hired Harder as a Youth Division Aide-IV (" YDA" ). Defs.' Statement of Material Facts, ECF No. 45-14, ¶ ¶ 1-2 (" Rule 7.1 Statement" ). YDAs are responsible for supervising violent juvenile felony offenders housed in secure facilities around New York State. See Kaflowitz Decl., ECF No. 45-8, ¶ 4. Among other things, YDAs are expected to establish positive relationships with the youths assigned to their care and, when necessary, restrain individuals who become violent. Id. ¶ 8.

New OCFS employees, such as Harder, must attend a six-week basic training program at Parker Training Academy (" Parker Academy" ). Kaflowitz Decl. ¶ ¶ 3, 9; Rule 7.1 Statement ¶ 3. Parker Academy provides dormitory-style housing facilities and new trainees are apparently expected to share rooms during this six-week period. See Rule 7.1 Statement ¶ 6.

On February 13, 2011, Harder arrived at Parker Academy where he met Hill, a fellow YDA trainee who had been assigned as his roommate for the duration of the training. Rule 7.1 Statement ¶ ¶ 4-6; Kaflowitz Decl. ¶ 9. Unfortunately, this roommate relationship quickly soured. See Fruchter Decl., Ex. A, ECF No. 45-2, 32-35 (" Harder Dep." ). According to plaintiff, Hill directed a continuing series of derogatory, insulting, and sometimes sexually explicit comments toward him on a daily basis. Id.

For instance, Harder claims he and Hill were playing cards with a group of other trainees in a lounge area when Hill used the words " papaya" and " sweet like lemonade or lemon . . . . [i]n connection to the opponents at the table; meaning myself and . . . another gentleman that were playing." Harder Dep. at 60-61. According to plaintiff, comments such as these--made both in his presence and outside his presence to others at Parker Academy--created the decidedly false impression that plaintiff was homosexual.[2] Id. at 41; 81 (" Just for the record, I'm not gay. And no matter how many words you used, it's never going to happen." ).

On February 28, 2011, Harder asserts Hill made an unwanted sexual advance toward him during the evening. Harder Dep. at 42-43. According to plaintiff, he was lying in bed in his dormitory room when Hill, who was intoxicated at the time, entered the room and whispered that " I have a pink towel, too." Id. at 42.[3] As a result of this and other incidents, plaintiff eventually complained to the administrative staff at Parker Academy. Id. at 69.

On March 2, 2011, the same day that Harder complained to administration about Hill, Alan Kaflowitz, Director of Parker

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Academy, held a meeting with Harder and Hill to address plaintiff's complaint. Rule 7.1 Statement ¶ 7; Harder Dep. at 69-70. Norman Tillery, a representative of Parker Academy's Human Resources staff, was also present for this meeting. Rule 7.1 Statement ¶ 7.

Both Tillery and Kaflowitz instructed Hill to refrain from any further comments that Harder might perceive to be derogatory. Kaflowitz Decl. ¶ 11. Hill apologized to plaintiff at this meeting. Id. Plaintiff and Hill were then assigned to different rooms for the remainder of their time at Parker Academy. Rule 7.1 Statement ¶ 8.

On March 25, 2011, both Harder and Hill graduated from Parker Academy and were assigned to work at Brookwood Secure Center (" Brookwood" ), an OCFS-run residential center that provides housing, education, counseling, recreation, health, and dining services for violent youthful offenders. Rule 7.1 Statement ¶ 10; Kaflowitz Decl. ¶ 4; Harder Dep. at 73. According to plaintiff, Hill 's unwanted comments continued and eventually caused staff and residents at Brookwood to become " uncomfortable" working with plaintiff. Harder Dep. at 73, 76, 98. Plaintiff further believes that these comments contributed to at least two violent encounters with facility residents. Id.

On October 1, 2011, Harder was on duty in Brookwood's lounge area when two residents began fighting. Harder Dep. at 99. Plaintiff and his fellow YDAs were required to restrain the residents until order could be restored in the facility. Id. at 100. During the fight, plaintiff sustained an injury to his hand and received immediate treatment at a nearby hospital. Id. at 101-02. According to plaintiff, a supervisory official at Brookwood named John Rockafellow then denied his request to return to work in a " light duty" capacity following two days of medical leave. Id. at 102. Plaintiff " referred" this allegedly improper denial to a worker's compensation administrative law judge, who eventually concluded plaintiff had been improperly denied a light duty assignment.[4] Id. at 103-04.

On October 26, 2011, Harder returned to unrestricted duty at Brookwood. See Rule 7.1 Statement ¶ 9. According to plaintiff, Rockafellow then assigned him to " hard" or " more difficult" units at Brookwood, which consist of units where fights had recently broken out between residents. See Harder Dep. at 103-06 (" Everybody knows, if you go to that unit, there's a high chance that another fight may break out." ).

On December 23, 2011, Harder was on duty in one of these " difficult units" when he was assaulted by a resident after directing him to secure his room. Harder Dep. at 113-14. According to plaintiff, he called for emergency assistance while struggling with this resident but other staff failed to arrive for approximately ten minutes.[5] Id. at 114-15. Plaintiff sustained injuries to his shoulder, head, and leg and again received emergency medical attention at a nearby hospital. Id. at 115-16. Plaintiff was placed on medical leave for approximately two months before returning to active duty at Brookwood. Id. at 116.

Finally, on February 29, 2012, Harder claims Hill mentioned to other staff at Brookwood that he " wanted to take things

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to the parking lot." Harder Dep. at 84. According to plaintiff, this comment was made outside his presence but he became aware of it " because the whole facility was concerned about . . . a fight in the parking lot." Id. Supervisory officials apparently caught wind of this problem and held a meeting the very next day. Id. at 86. According to ...

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