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Olivier v. County of Rockland

United States District Court, S.D. New York

March 8, 2017


          Michael H. Sussman, Esq. Sussman & Watkins Goshen, NY Counsel for Plaintiff

          Robert B. Weissman, Esq. Saretsky Katz Dranoff & Glass LLP New York, NY Counsel for Defendants

          OPINION & ORDER


         Plaintiff Frank Olivier (“Plaintiff”) brings this Action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5 et seq., against Defendants County of Rockland and Rockland County Sheriff's Department (“Defendants”) alleging that Defendants engaged in unlawful discrimination against him on the basis of his race. Before the Court is Defendants' Motion To Dismiss. (See Dkt. No. 19.) For the reasons to follow, the Motion is granted in part.

         I. Background

         A. Factual Background

         Because this case comes before the Court on a Motion To Dismiss, the Court takes as true the facts set forth in Plaintiff's Complaint.

         Plaintiff is a black male of Haitian descent who has been employed by Defendants as a correction officer for over 20 years. (See Compl. ¶¶ 1-2 (Dkt. No. 1).) Defendant Rockland County Sheriff's Department is Plaintiff's direct employer. (See Id. ¶ 2.) The basis of this Action is Plaintiff's allegation that “Defendants have subjected [him] to an ongoing series of racially discriminatory actions which constitute a continuing violation of Title VII.” (Id. ¶ 5.)

         On June 27, 2013, Defendants “propounded baseless disciplinary charges” against Plaintiff, alleging that he was “passing several objects” to an inmate the day before and interacting with the inmate in an inappropriate and unprofessional manner. (Id. ¶ 7 (internal quotation marks omitted).) Plaintiff had, in fact, engaged in no inappropriate conduct on that day, nor had he engaged in any conduct that violated the rules promulgated by Defendants. (See Id. ¶ 8.) Defendants had never lodged charges against white officers who engaged in inappropriate conduct at the jail where Plaintiff works. (See Id. ¶ 9.)

         After these charges were issued against Plaintiff, the chief of the jail claimed that Plaintiff had entered into an agreement allowing Defendants “to abrogate his bid assignment and cost him overtime opportunities.” (Id. ¶ 10.)[1] An arbitrator, however, subsequently determined that Plaintiff never made any such agreement. (See Id. ¶ 11.) Nevertheless, in the summer of 2013, Defendants “violated . . . [P]laintiff's bid without any contractual basis or business reason.” (Id. ¶ 12.) Defendants did not behave similarly with respect to similarly-situated white officers. (See Id. ¶ 13.)

         On September 10, 2013, Defendants charged Plaintiff with another set of disciplinary infractions, this time alleging that Plaintiff had violated the jail's social networking and media sites policy. (See Id. ¶ 13A.)[2] The charge arose from an allegation that Plaintiff appeared on a Facebook page “in uniform carrying a weapon.” (See Id. (internal quotation marks omitted).) The charge, however, was without factual basis, and the hearing officer who reviewed the charge on May 28, 2014, concluded that the allegation was baseless and ordered Defendants to pay back the time Plaintiff lost while on unpaid suspension. (See id.) Defendants have treated white officers charged with similar Facebook violations more leniently than they treated Plaintiff. (See Id. ¶ 15.)

         On December 26, 2013, Defendants gave Plaintiff a poor evaluation, highlighting issues that no supervisor had raised with Plaintiff before or during the evaluation period. (See Id. ¶ 16.) The next day, December 27, Defendants charged Plaintiff with using leave without pay absent a prior written request several times in 2013: October 30, and December 2, 4, 5, 6, 9, 10, and 11. (See Id. ¶ 17.) Defendants acknowledged that Plaintiff was sick on these days and that Plaintiff called in to work at least one-half hour prior to his scheduled shift on each day. (See Id. ¶ 18.)

         Additionally, when Defendants brought the charges, they knew that Plaintiff suffered from a “chronic medically verified condition arising from work-related PTSD, ” and that this condition sometimes rendered him unable to report for duty. (See Id. ¶ 19.) The collective bargaining agreement governing the conduct of the Parties also contained a provision warning Defendants against unduly penalizing employees for absences “due to factors of health not within their control.” (Id. ¶ 20 (internal quotation marks omitted).) Moreover, at the time Plaintiff called into work, he had sufficient leave time available to cover the days. (See Id. ¶ 21 (internal quotation marks omitted).) The hearing officer who heard the matter determined that the charges were “patently erroneous.” (Id.)

         On April 14, 2014, Defendants lodged more charges against Plaintiff, this time in relation to his participation in a movie. (See Id. ¶ 22.) According to Plaintiff, Defendants knew about the movie for more than three years before propounding the disciplinary charges, thus making the charges untimely. (See id.) As a result of these charges, Defendants suspended Plaintiff for more than 30 days and have never convened a hearing to adjudicate the charges. (See Id. ¶ 23.) Defendants have not even selected a hearing officer to preside over the hearing. (See Id. ¶ 27.)

         After Defendants suspended Plaintiff without pay following the lodging of the disciplinary charges in April 2014, Plaintiff sought to collect unemployment insurance benefits. (See Id. ¶ 28.) Although Defendants initially opposed Plaintiff's request, (see Id. ¶ 30), after Plaintiff showed them evidence suggesting that the chief of the jail had viewed parts of the movie at issue several years before propounding the disciplinary charges, Defendants withdrew their objection to Plaintiff's request for unemployment insurance benefits, (see Id. ¶¶ 29-30).

         Plaintiff further alleges that, apart from the disciplinary charges brought against him, Defendants have “engaged in a continuing set of harassing practices which demonstrate the intentional[ly] racial bias to which they have subjected [P]laintiff.” (Id. ¶ 31.) Specifically, Plaintiff alleges that:

(1) In June 2013, Defendants assigned Plaintiff to work in the unit of an inmate whom Plaintiff had shot during an escape attempt in 1995 and with whom Defendants knew Plaintiff could not have contact, (see Id. ¶ 31(a));
(2) Defendants suspended Plaintiff without pay and barred him from entering the jail while his disciplinary charges were pending, even though Plaintiff did not pose a threat to the ...

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