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Mitchell v. Suny Upstate Medical University

United States District Court, N.D. New York

March 17, 2017


          JAMES D. HARTT, ESQ. Attorney for Plaintiff.

          HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendant AIMEE M. PAQUETTE, ESQ Assistant Attorney General.


          Therese Wiley Dancks United States Magistrate Judge.


         Plaintiff Robbie Mitchell commenced this action against Defendant SUNY Upstate Medical Center (“Upstate”), alleging violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (Dkt. No. 1.) Defendant moved to dismiss under Rule 12 of the Federal Rules of Civil Procedure on res judicata and collateral estoppel grounds, based upon the dismissal of Plaintiff's prior Title VII action. (Dkt. No. 7.) The motion was denied by the Hon. Thomas J. McAvoy, Senior District Judge, on the grounds that the claims being asserted by Plaintiff were not actually litigated and decided in the prior action.[1] (Dkt. No. 13 at 4.[2]) Plaintiff thereafter filed a first amended complaint (Dkt. No. 23), and discovery ensued. The matter is now before the Court on Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 37.) Plaintiff has filed a response to the motion. (Dkt. No. 43.) For reasons explained below, Defendant's motion is granted.


         Plaintiff is an African American male who was hired to work at Upstate on September 3, 2009, and continued as an employee until September 25, 2015. (Dkt. No. 37-22 at ¶¶ 6, 153.[3]) According to Renee J. Johnson (“Johnson”), Senior Employee/Labor Relations Representative in the Human Resources Department at Upstate, Plaintiff was hired as a Supply Assistant in the Central Equipment Services Department (“Equipment”). Id. In his response to Defendant's material statement of facts, submitted in the form of an affidavit, Plaintiff contends he was hired as a Supply Assistant in the Central Distribution Service Department (“Distribution”). (Dkt. No. 43-2 at ¶ 2.) Plaintiff also testified at his deposition that he was hired to work in Distribution and worked in Distribution from the time he was hired by Upstate in September 2009 through August 2, 2103, when he was moved to supply assistant in Equipment.[4] (Dkt. No. 37-21 at 27-29, 33.)

         A. August 24, 2012, Notice of Discipline, Interrogation, and Grievance Arbitration

         While employed at Upstate, Plaintiff was represented by the Civil Service Employees Association (“CSEA”) and subject to the provisions of the contract between New York State and the CSEA Administrative Services Unit (“CSEA contract”). (Dkt. Nos. 37-21 at 19; 37-22 at ¶¶ 8-9; 37-23.) The employee disciplinary procedure set forth in Article 33 of the CSEA contract provides for issuance of a Notice of Discipline (“NOD”):

§ 33.3 Disciplinary Procedure
(a) Notice of Discipline
(1) Where the appointing authority or the appointing authority's designee seeks the imposition of a written reprimand, suspension without pay, a fine not to exceed two weeks' lost pay, loss of accrued leave credits, reduction in grade, or dismissal from service, notice of such discipline shall be made in writing and served upon the employee. Discipline shall be imposed only for incompetency or misconduct. The specific acts for which discipline is being imposed and the penalty proposed shall be specified in the notice. The notice of discipline shall contain a detailed description of the alleged acts and conduct including reference to dates, times, and places.

(Dkt. No. 37-23 at 51.)

         Plaintiff was issued an NOD shortly before the third anniversary of his employment at Upstate. (Dkt. No. 37-30.) The August 24, 2012, NOD informed Plaintiff that Upstate proposed terminating his employment for incompetence/misconduct identified as:

1. On or about 7/1/12, you inappropriately placed a hand written note in the locker of your female co-worker, in the Central Distribution Department, which was written in red ink, and stated, Fuck you Bitch I got that Pussy!
2. On or about 7/1/12, you inappropriately used sexually explicit, foul and abusive communication in the workplace, when you placed the written note, as referenced in charge #1 above, in the locker of your female co-worker.
3. On 7/3/12, you caused a disruption to the Central Distribution Department when your co-worker found the note, as referenced above in charge #1, was furious that someone would put such a note in her locker; starting investigating on her own by checking the handwriting in the call-in book to see who was writing with red ink; reported it to the secretary (J.F.); and reported it to a supervisor. (Y.G.).[5]

Id. at 1. Plaintiff was informed in the NOD that the proposed penalty would take effect on September 7, 2012, and that prior to the exhaustion or institution of the grievance procedure set forth in Article 33 of the CSEA contract by Plaintiff, he was being suspended without pay, effective immediately because it had been determined that there was probable cause to believe his continued presence represented “a potential danger to persons or property or would severely interfere with operations.” Id.

         Plaintiff had initially been placed on paid administrative leave on July 5, 2012, as a result of the note. (Dkt. No. 37-22 at ¶ 29.) On July 17, 2012, prior to issuance of the NOD, Johnson had conducted a disciplinary interrogation regarding the note in accordance with § 33.2 of the CSEA contract. (Dkt. Nos. 37-23 at 99; 37-32.) During the interrogation, Plaintiff admitted placing the note in his co-worker's locker but denied that the note was intended for the co-worker. (Dkt. No. 37-32 at 2-3.) According to Plaintiff, he mistakenly put the note, intended for a friend of his, in the locker instead of the note he was writing the co-worker. Id. at 3-4. It was also noted by Plaintiff's representative during the interrogation and acknowledged by Johnson that the co-worker had signed a statement saying she had discussed the note with Plaintiff and understood the mistake and was okay with it. Id.

         After receiving the NOD, Plaintiff filed an August 27, 2012, disciplinary grievance pursuant to § 33.3(c) of the CSEA contract (Dkt. No. 37-23 at 52), requesting that Upstate drop all charges because the charges were not completely factual in that he had statements from his co-worker and the person for whom the note was intended. (Dkt. No. 37-33.) Following the disciplinary arbitration held on the grievance (see Dkt. No. 37-23 at 55-56), the Arbitrator, who found Plaintiff's explanation regarding the note to be not credible, concluded in a June 25, 2013, arbitration award that: (1) Plaintiff was guilty of the charges in the NOD; (2) Plaintiff's suspension was not proper under Article 33.3(g)(1) because Upstate failed to offer proof why Plaintiff's continued presence would cause danger or disruption at work, particularly since once the co-worker learned that Plaintiff had likely put the note in her locker, all disruption ended; and (3) the punishment of termination was too severe, “[g]iven the apparent work environment and tolerances in the Department and the fact that this is Grievant's first offence.” (Dkt. No. 37-34 at 7-10.) The Arbitrator directed that Plaintiff's penalty be his disciplinary suspension without pay until his return to work upon receipt of the arbitration award.[6] Id. at 10.

         B. Equal Employment Opportunity Commission (“EEOC”) Charge, Filed February 11, 2013, and Plaintiff's Initial Title VII Discrimination Lawsuit

         Plaintiff filed a charge of discrimination against Upstate with the EEOC on February 11, 2013, prior to the issuance of the arbitration award. (Dkt. No. 37-37.) Plaintiff claimed discrimination based upon race and retaliation. Id. Plaintiff complained specifically of: (1) his June 5, 2012, suspension with pay by Upstate Director of Equipment and Supply Logistics, Donald Sadeckas (“Sadeckas”); and (2) being charged with incompetency and misconduct and suspended without pay on or about August 28, 2012. Id. Plaintiff complained that a white individual in a similar situation was not treated in the same manner, and he expressed a belief that he was disciplined in retaliation for filing a grievance on July 6, 2011, based on his race in violation of Title VII. Id.

         The EEOC issued a right to sue letter on April 17, 2013 (Dkt. No. 37-38), and Plaintiff thereafter commenced a Title VII discrimination lawsuit against Upstate, Johnson, and Sadeckas. (Case No. 5:13-CV-00823 (N.D.N.Y.) (“Action 1”), Dkt. No. 1.) Plaintiff alleged race discrimination in terminating his employment, failing to promote, unequal terms and conditions of employment, and retaliation. (Action 1, Dkt. No. 1 at 2.) The sole allegation of wrongdoing in the complaint was that “Donald M. Sadeckas wrongful conduct was he committed Race Discrimination. Renee J. Johnson wrongful conduct was she committed conspiracy of Race Discrimination. Mr. Sadeckas and Ms. Johnson both do not want African-Americans to better themselves. When it comes to choices, procedures, promote and discipline, It's not giving out equally.” (Action 1, Dkt. No. 1 at 3.) Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Action 1, Dkt. No. 11-1.) Plaintiff submitted an affirmation and exhibits related to the subject of the August 24, 2012, NOD and his year long suspension, along with another NOD that had been issued after commencement of the discrimination suit. (Action 1, Dkt. Nos. 14 and 15 at 4-5.)

         The District Court granted Defendants' motion to dismiss for failure to state a claim and gave Plaintiff thirty days to file an amended complaint. (Action 1, Dkt. No 15 at 8.) According to the Clerk's docket in the case, Plaintiff did not file an amended complaint.

         C. Plaintiff's Return to Work Following the 364 Day Suspension, Reassignment to Equipment, and the August 2, 2013, NOD

         Following issuance of the June 25, 2013, arbitration award, Sadeckas attempted unsuccessfully to reach Plaintiff by telephone on June 27 and 28, 2013, to arrange for his return to work, and left messages. (Dkt. No. 37-43.) Plaintiff did not receive the messages because the telephone number which Sadeckas would have called was disconnected at the time. (Dkt. Nos. 37-21 at 47; 43-2 at ¶ 55.) Plaintiff had not provided Upstate with a new number. (Dkt. No. 37-21 at 47.)

         Sadeckas sent Plaintiff a letter by certified mail on June 28, 2013, stating:

Pursuant to the Award of Arbitrator Judith LaManna dated 6/25/13, I have attempted to reach you to arrange for your return to work. On 6/27/13 and 6/28/13, I left you telephone messages on your phone number of record stating to contact me at [blacked out]. However, you failed to return my phone calls.
Therefore, this letter is to inform you that your absence as of 6/27/13 is without authorization and you may be subject to disciplinary action, up to and including termination of your employment.
Further, you are hereby directed to contact me directly at [blacked out] no later than 7/5/13, to discuss your employment status.

(Dkt. No. 37-41.)

         Plaintiff received Sadeckas' letter on Saturday June 30, 2013, and according to Plaintiff, he telephoned Sadeckas on the following Monday, July 1, 2013. (Dkt. Nos. 37-21 at 45; 43-2 at ¶¶ 57-58.) An exchange of emails between Sadeckas and Johnson on July 2, 2013, indicates that Plaintiff called Sadeckas on July 2, 2013. (Dkt. 37-42.) When they spoke, Sadeckas told Plaintiff to come back to work that day, and Plaintiff responded that could not happen, and he would return on July 4, 2013, the beginning of a pay period. (Dkt. Nos. 37-21 at 45; 37-42.) Plaintiff could not return until July 4th because he had to find a babysitter. (Dkt. No. 37-21 at 45.)

         According to Sadeckas, he advised Plaintiff during their telephone conversation that any days he did not come into work would be considered unauthorized and could result in disciplinary action. (Dkt. Nos. 37-22 at ¶ 60; 37-83 at ¶ 56.) While Plaintiff affirmed that to be true in his affidavit in response to Defendant's statement of material facts (Dkt. Nos. 37-83 at ¶ 56; 43-2 at ¶ 56), he testified at his deposition that Sadeckas did not tell him during their telephone conversation that the days he was not working would be unexcused absences, and that he was not aware of it until he returned to work. (Dkt. No. 37-21 at 46.)

         During the phone call between Sadeckas and Plaintiff, Sadeckas told Plaintiff he would be working in Equipment on his return. (Dkt. No. 37-42.) In the July 2, 2013, email exchange between Sadeckas and Johnson, Johnson asked Sadeckas about Plaintiff's response to learning that he was being moved to Equipment, and Sadeckas indicated that Plaintiff had said nothing. (Dkt. No. 37-42.) Plaintiff did not say anything about the transfer because he believed Sadeckas' mind was made up, and there was no need to argue on the phone. (Dkt. 37-21 at 31-32.) The parties do not dispute that Plaintiff's work schedule, grade, and pay remained the same in Equipment.[7] Id. at 34. In his first amended complaint, Plaintiff nonetheless alleges that placing him in Equipment was tantamount to a demotion, that Equipment was objectively less desirable than his former position, and that the transfer to Equipment was the first of several retaliatory acts for having filed discrimination complaints against Upstate. (Dkt. No. 23 at ¶¶ 21-22.) Plaintiff also alleges that he did not receive adequate training for the new position and was set up to fail, and that he was not given the thirty day notice he was entitled to under the CSEA contract before being moved into a new department. Id. at ¶¶ 23-25.

         On August 2, 2013, Plaintiff received a NOD relating to time and attendance. (Dkt. No. 37-40.) The NOD stated:

In accordance with the Disciplinary Procedure, Article 33, of the current Agreement between New York State and CSEA, you are hereby informed that we propose to issue you a fine equivalent to a three (3) week suspension without pay for incompetence/ misconduct as indicated below:
Dates Absent:
*Unauthorized Absence
The proposed penalty shall take effect on August 16, 2013.


         Plaintiff filed a grievance pursuant to Article 33.5 of the CSEA contract in response to the NOD. (Dkt. Nos. 37-21 at 50; 37-44.) The grievance indicated that Plaintiff disagreed with the NOD because it was unclear to him when he was to report back to work, and that he had spoken to his boss on July 1st, and it was his understanding that he was to report to work on July 4, 2013. (Dkt. No. 37-44.) Plaintiff prevailed on his grievance. (Dkt. No. 37-45 at 1-3.) The November 3, 2013, decision by the permanent umpire at the time and attendance disciplinary hearing on the grievance noted the Union's position that it was Plaintiff's first time and attendance discipline; that there was confusion as to the start date for Plaintiff to return to work; and that Plaintiff had explained at the hearing that he had been providing childcare to his children during his suspension and had to make other arrangements. Id. at 2. The permanent umpire noted, however, that Plaintiff had not given any reason to Sadeckas for his delayed return to work when they spoke on the phone. Id.

         The permanent umpire, in ruling in Plaintiff's favor, noted that the arbitration award had not quantified the length of the suspension imposed as the penalty and tied the terminus of the suspension to “receipt of this award, ” without stating whether it was Plaintiff's or Upstate's receipt. Id. at 3. The umpire further noted that Sadeckas' June 28, 2013, letter directed Plaintiff to call no later than July 5, 2013, and that Plaintiff had complied with the directive by calling Sadeckas on July 1st. Id. In addition, the umpire reasoned that ‘[g]iven the length of the Article 33 disciplinary suspension and given that there are no restrictions imposed on an individual who is suspended without pay pending resolution of a disciplinary arbitration, it is not unreasonable that Grievant might need a day or two to get himself in a position to return to work upon receiving the Arbitration Award imposing a suspension rather than termination of his employment.” Id.

         In her decision, the umpire found that the period from June 28 through July 3, 2013, was part of the suspension served pursuant to the Article 33 discipline and Arbitrator's June 25, 2013, award, and that as such, those dates did not constitute an “unauthorized absence.” Id. at 3. The umpire dismissed the NOD, and Plaintiff never served the suspension. (Dkt. Nos. 37-21 at 50-51; 37-22 at ¶ 56.)

         D. EEOC Charge Filed on August 29, 2013

         On August 29, 2013, while his grievance was pending on the August 2, 2013, NOD, Plaintiff filed a second charge with the EEOC. (Dkt. No. 37-47.) Plaintiff claimed that he had been suspended effective August 16, 2013, in retaliation for filing a discrimination charge with the EEOC in February 2013 and a lawsuit charging racial discrimination in July 2013. Id. The EEOC issued a right to sue letter on March 13, 2014. (Dkt. No. 37-48.)

         E. December 14, 2013, Incident

         The Decontamination Room Operations policy at Upstate requires that all soiled equipment enter the decontamination room “through the soiled equipment entry door only.” (Dkt. No. 37-54 at 1.) On December 14, 2013, Plaintiff was involved in an incident with another employee, M.F., as Plaintiff was bringing a patient privacy screen to the office to be put away without walking through the decontamination room. (Dkt. Nos. 37-21 at 55; 37-56.) M.F., who believed the screen was dirty, stepped in front of Plaintiff and kept him from entering the department even though Plaintiff tried to explain to him that the screen was clean. Id. at 55-56. Plaintiff told M.F. to “get the fuck out of my way, ” to which M.F. responded “I'm not fucking moving, and I'm going to stand right here.” Id. at 56. M.F. snatched the screen out of Plaintiff's hands and threw it in the decontamination room. Id. at 57. M.F., a Caucasian, was issued an NOD, dated February 7, 2014, proposing termination for swearing at Plaintiff, breaking Upstate equipment, placing dirty equipment in the clean side of the decontamination room, and insulting Plaintiff. (Dkt. No. 37-56.) All charges were dropped against M.F. when Plaintiff failed to appear to give testimony at M.F.'s grievance hearing, despite having been served with a subpoena. (Dkt. No. 37-83 at ¶ 95.) According to Plaintiff, he did not testify because the subpoena had not been legally served. (Dkt. No. 43-2 at ¶ 95.)

         Following the December 14, 2013, incident with M.F., Plaintiff sent a letter to Upstate that was received by the Defendant on December 18, 2013. (Dkt. Nos. 37-22 at ¶ 90; 37-53.) In the letter, Plaintiff addressed a December 10, 2013, incident with M.F. and Maguire, and the December 14, 2013, incident with M.F., writing:

I'm making a complaint against Mr Maguire and Mr. F [blacked out] for rape. It seems to me that they have might want to have some type of sexual feelings for me. I don't understand why they would make it so difficult for me. They are constantly trying to force themselves on my mental status. It's ether (sic) the two or one of them, that are always tying to brake me down. I can't focus anymore on what I'm doing. I have to look over my shoulder every day. I shouldn't have to do that. I am seeking help, so that I can deal with situation.

(Dkt. No. 37-53.)

         The allegation of rape was determined to be unfounded when Plaintiff reported that he had never been sexually or physically assaulted. (Dkt. Nos. 37-22 at ¶ 92; 37-82.) Plaintiff testified at his deposition that he was not claiming that anyone had tried to sexually or physically assault him, explaining that in using the word “rape” he had meant using “mental force of rape, trying to force [him] to do something that [he is] not required to do, and that's what I meant by rape, and I explained that also.” (Dkt. No. 37-21 at 95.)

         F. January 21, 2014, Meeting with Reed.

         According to Plaintiff, on January 21, 2014, Plaintiff's manager, Brian Reed (“Reed”), called Plaintiff into his office and told him that he could write him up and fire him. (Dkt. No. 37-21 at 35, 51.) Plaintiff responded that Reed could not fire him. Id. at 54. Plaintiff was not disciplined in any fashion as a result of the meeting. Id. at 55.

         G. Grievance Received by Upstate on February 7, 2014

         On February 7, 2014, Upstate received a grievance from Plaintiff dated January 29, 2014. (Dkt. No. 37-49.) The grievance complained of two separate incidents. The first incident, with respect to which Plaintiff alleged violation of Article 25.2 of the CSEA contract dealing with discrimination, was the January 21, 2014, incident with Reed. Id. According to Plaintiff, he and Reed had a horrible relationship and Reed was a bully. (Dkt. No. 37-21 at 52.) Plaintiff believed that Reed was discriminating against him based on race. Id.; Dkt. No. 37-49.

         A Step 1 meeting to discuss the grievance attended by Plaintiff and his union representative, Reed, Sadeckas, and Johnson was held on June 5, 2014. (Dkt. No. 37-50.) According to Johnson's June 12, 2014, response denying the grievance, when asked which protected category listed in Article 25.2 the alleged discrimination was based on, Plaintiff said none of them. Id. at 1. Based upon Plaintiff's response, Johnson found that there had been no violation of Article 25.2. Id. Johnson also noted in her grievance response that at the meeting on January 21, 2014, Reed had told Plaintiff he was not meeting the expectations of his job; he could be written up for not performing his duties; and if problems continued, Reed could seek termination of Plaintiff's employment, to which Plaintiff responded there was no way Reed could fire him. Id. at 2.

         The second incident in the grievance occurred on January 25, 2014, when Plaintiff claimed he was forced to work overtime. (Dkt. No. 37-49.) Plaintiff asserted that although he was next on the mandatory overtime list, because there was no state call-in, and the need for someone to work overtime resulted from there being a hole in the schedule that management should have fixed, mandatory overtime did not apply. (Dkt. Nos. 37-50 at 2; 43-2 at ¶ 79.) Johnson found that Plaintiff was properly assigned mandatory overtime under Article 27.1 of the CSEA contract. (Dkt. No. 37-50 at 2.) There is nothing in the record indicating that Plaintiff appealed the Step 1denial of the grievance to Step 2 as authorized pursuant to Article 34.4(b) of the CSEA contract. Id. at 2.

         H. February 12 and 14, 2014, Incidents Between ...

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