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Gorman v. Rensselaer County

United States District Court, N.D. New York

March 24, 2017

JOHN GORMAN, Plaintiff,
RENSSELAER COUNTY, et al., Defendants.


          Lawrence E. Kahn U.S. District Judge


         Plaintiff John Gorman commenced the present action against defendants Rensselaer County, Jack Mahar, Anthony Patricelli, Patrick Russo, Tom Hendry, and Kathleen Jimino, alleging civil rights violations under 42 U.S.C. § 1983, disability discrimination in violation of both the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, and the New York Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 et seq., and other state law claims, Dkt. No. 53 (“Second Amended Complaint”). Presently before the Court is Defendants' motion for summary judgment. Dkt. No. 97 (“Motion”). Gorman responded, Dkt. No. 105 (“Response”), and Defendants filed a reply, Dkt. No. 112 (“Reply”). For the following reasons, the Court grants Defendants' Motion.


         A. Factual Background[1]

         Gorman began his employment with the Rensselaer County Sheriff's Department in July 2008. Second Am. Compl. ¶ 2. From 2008 until October 2012, Gorman had an impeccable work record and received numerous performance awards. Id. ¶ 15. Gorman attained the rank of provisional sergeant and was on the civil service list to become a permanent sergeant. Id. ¶ 16.

         Patricelli was the Master Sergeant of the Rensselaer County Sheriff's Department. Dkt. No. 97-1 (“Defendants' Statement of Material Facts”) ¶ 2; Second Am. Compl. ¶ 10. Patricelli had been in a relationship with Gorman's sister for twenty-seven years until October 8, 2012, when Gorman's brother informed their sister that Patricelli had been cheating on her. Second Am. Compl. ¶¶ 18-19. Gorman's sister confronted Patricelli and ended the relationship. Defs.' SMF ¶ 1; Second Am. Compl. ¶ 19.

         Later that day, Patricelli called Gorman at work and, according to Gorman, said, “thank your wife, thank your brother, thank you, you'll pay.” Dkt. No. 109-3 (“Gorman Deposition”) at 24:3-6; Defs.' SMF ¶ 3; Second Am. Compl. ¶ 21. Patricelli asserts that he did not threaten Gorman during this call, though he does not say what he told Gorman. Dkt. No. 98-2 (“Patricelli Affidavit”) ¶ 4. According to Gorman, throughout October 2012, Patricelli followed his every move at work using the facility camera system. Gorman Dep. at 45:4-5; Second Am. Compl. ¶ 30. Patricelli denies this. Patricelli Aff. ¶ 20. Gorman also states that Patricelli would frequently pass by Gorman's work assignment area and shake his head and smile in an aggressive way, Gorman Dep. at 44:18-21; Second Am. Compl. ¶¶ 31, 35, though again Patricelli disputes this, Patricelli Aff. ¶¶ 2, 4, 18. Patricelli was not Gorman's direct supervisor, but according to Gorman, Patricelli would unnecessarily check Gorman's work. Gorman Dep. at 45:19-22; Second Am. Compl. ¶¶ 33-35. Once again, Patricelli says this never happened. Patricelli Aff. ¶ 2.

         From October 2012 through June 2013, Patricelli allegedly continued to harass Gorman during work and at meals, Second Am. Compl. ¶¶ 36-38, 46, 50, 52, 57, 91, though Patricelli claims he “always acted professionally towards [Gorman] at work, ” Patricelli Aff. ¶ 2. On February 15, 2013, Patricelli called Gorman at home and allegedly threatened to break his jaw. Gorman Dep. at 72:11-16; Second Am. Compl. ¶¶ 69, 77. Patricelli says he simply meant to convey that if he had wanted to, he could have broken Gorman's jaw some time ago, but he had no desire to do so now, and in fact he wanted to “keep this out of the workplace.” Patricelli Aff. ¶ 14.

         Sometime before February 8, 2013, Sheriff Jack Mahar, a defendant in this case, spoke to Gorman about a complaint Patricelli had filed against Chief of Corrections Ruth Vibert. Gorman Dep. at 52:3-53:5; Second Am. Compl. ¶ 60. Patricelli alleged that Vibert had revealed to Gorman confidential information about Patricelli's “personal issues and relationship with [Gorman].” Second Am. Compl. ¶ 61. Gorman reports that Mahar asked him to write a statement corroborating Patricelli's allegations. Gorman Dep. at 54:13-19. Gorman told Mahar that he would not give a statement because Vibert had not told him anything about Patricelli's issues. Id. at 54:24-55:12. Mahar was persistent; the meeting lasted “about 40 minutes, ” and “he asked [Gorman] pretty much the same question over and over and over again.” Id. at 54:20-22. Gorman continued to refuse to corroborate the allegations. Id. at 54:24-55:1. In his Second Amended Complaint, Gorman suggests that Mahar was asking him to lie, Second Am. Compl. ¶ 64, though Gorman has not pointed to any evidence in the record suggesting that Mahar knew Patricelli's allegations were false.

         On February 11, 2013, Mahar informed Gorman that “he would no longer be a provisional Sergeant because he was not reachable [for a promotion to permanent sergeant] due to his score on the [civil service] test and that as soon as he is reachable he would be promoted.” Id. ¶ 65; see also Gorman Dep. at 56:5-13. Gorman claims that his being unreachable was an oversight, since one applicant on the list-Jason Lucey-was in fact ineligible for the promotion, having resigned on February 1. Gorman Dep. at 57:23-58:8. Gorman alleges that several of the defendants “maliciously withheld information regarding the noneligibility of this applicant from the certifying authority in order to retaliate against [him].” Second Am. Compl. ¶ 67. Yet Gorman has not pointed to any evidence in the record corroborating this allegation. And according to Mahar's undisputed testimony, the list of candidates he received was forwarded to him by the Civil Service Commission. Dkt. No. 98-1 (“Mahar Affidavit”) ¶¶ 4-5.

         Gorman filed numerous workplace complaints about the harassment to which he was subjected, as well as criminal complaints against Patricelli, id. ¶¶ 25-26, 59, 72, 74, 82, 93, 103, 150, 153, against whom he eventually received an order of protection from the Schaghitcoke Town Court, Gorman Dep. at 79:16-22; Second Am. Compl. ¶ 113. Around February 17, 2013, Gorman filed a criminal complaint against Patricelli with the Schaghticoke police, Defs.' SMF ¶ 13; Dkt. No. 106 (“Gorman Statement of Material Facts”) ¶ 13, though the case was apparently adjourned in contemplation of dismissal, Dkt. No. 109-12 (“Patricelli Deposition”) at 190:17-19. Around February 25, 2013, Gorman “filed a workplace violence complaint with Defendant Tom Hendry, Rensselaer County Director of Human Resources.” Defs.' SMF ¶ 15. He appears to have filed the same complaint with Vibert and Captain Hal Smith. Gorman Dep. at 30:21-31:1. Hendry conducted the investigation and found that none of the witnesses could corroborate Gorman's allegations of harassment. Dkt. No. 97-8 (“Hendry Affidavit”) ¶ 3. Gorman points to several individuals who have suggested that Gorman told them about harassment he had experienced from Patricelli, though he does not indicate whether these witnesses were interviewed by Hendry. Gorman SMF ¶ 18.

         On February 25, 2013, Mahar met with Vibert to discuss her concerns about, among other things, Gorman's safety. Dkt. No. 109-14 (“Vibert Deposition”) at 28:11-16. She tried to get Mahar to read one of Gorman's complaints, but he “instructed [her] to shred the documents and made a statement, ‘Gorman's fucking done, you see to it.'” Id. at 28:17-21. Mahar appears to dispute this account of the meeting. He claims that he “had not discussed those papers [with Vibert]” during the meeting, and that when he did receive them, he immediately sent them to Human Resources. Mahar Aff. ¶ 12. He admits that he asked her to “remove” certain documents, but he asserts that the documents were “State Police investigative materials” that Vibert had no business looking at because she was not supposed to “get into a parallel investigation.” Id. ¶¶ 10-11. Vibert refused to shred the documents, and she was fired “within days” of this incident. Vibert Dep. at 77:22-78:7.

         On March 27, 2013, Gorman received a response to one of his workplace violence complaints indicating that his allegations could not be substantiated. Gorman Dep. at 92:3-5; Defs.' SMF ¶ 17; Gorman SMF ¶ 17. After he received this response, Gorman attempted to set up a meeting with County Executive Kathy Jimino, a defendant in this case, to discuss his complaints. Second Am. Compl. ¶ 97. Gorman was told that “‘someone' would get back to him, ” id. ¶ 98, and on April 1, 2013, Hendry called him and said he was “returning [Gorman's] call on [Jimino's] behalf to answer any questions [he] might have, ” id. ¶ 109. One week later, Gorman wrote Jimino a letter expressing his dissatisfaction with Hendry's handling of the investigation; Jimino never responded. Id. ¶¶ 110-11. The Assistant County Executive, Chris Meyer, later called Gorman and told him that he was following up on his workplace violence complaint. Id. ¶¶ 117-19. Jimino says that she “was not involved in the investigations into Mr. Gorman's various complaints, ” Dkt. No. 97-9 (“Jimino Affidavit”) ¶ 4, and that when she received Gorman's letters, she “immediately delegated to the appropriate department for response, ” id. ¶ 5.

         In March 2013, Gorman informed “Deputy Webster”-the “auditor of the e-justice computer system”-that Patricelli had used the system to do a background check on Peter Colantonio. Second Am. Compl. ¶ 100; Gorman Dep. at 95:2-6. “Background check” is Gorman's phrasing, and Patricelli says that he was simply checking for outstanding warrants. Patricelli Dep. at 62:9-20. Patricelli ran Colantonio's name because he believed that Colantonio was seeing Gorman's sister, Second Am. Compl. ¶ 101, but according to Patricelli it was not simple jealousy. Colantonio had a criminal record, and Patricelli claims that he was primarily concerned that the son he had with Gorman's sister might be in danger. Patricelli Dep. at 172:1-13. Webster investigated Gorman's complaint, and he apparently told Gorman and Gorman's brother-a deputy at the Sheriff's Department, Gorman Dep. at 49:1-4-that the Sheriff's Department would be reluctant to punish anyone involved, so if they wanted something to be done, they would need to notify the Division of Criminal Justice Services (“DCJS”), id. at 95:19-96:11. Gorman and his brother called DCJS and informed them of Patricelli's misconduct, id. at 96:7-11, which eventually led to Patricelli's being suspended from work and facing criminal charges, Second Am. Compl. ¶ 103.

         Gorman links his involvement in the eJustice case to harassment he later experienced at hands of Patricelli's friends. Resp. at 21. He alleges that Sergeants Maselli, Walraed, and Gececwicz-none of whom is a defendant in this case-began to harass him after he reported Patricelli's misconduct. Gorman Dep. at 97:8-12. For example, they ordered him to “take deliveries of milk trucks or bread deliveries” during his lunch break, and they asked him to strip-search inmates. Id. at 98:8-17. On July 6, 2013, Maselli allegedly let a heavy metal door hit Gorman. Second Am. Compl. ¶ 142. Maselli was “leaning against” the door, and “then he just walked away from the door, ” allowing the door to hit Gorman. Gorman Dep. at 128:21-129:4.[2]These are the only instances of harassment Gorman points to as resulting from his decision to bring to light Patricelli's misuse of the eJustice system. Resp. at 19-20.

         Around the same time that Gorman reported Patricelli's misuse of the eJustice system, Gorman filed a complaint with the New York Department of Labor, Health, and Safety, alleging that the Rensselaer County Sheriff's Department had failed to adequately investigate his workplace violence complaint. Gorman Dep. at 92:9-16; Second Am. Compl. ¶ 99. On May 7, 2013, the Department of Labor performed an on-site investigation of the Sheriff's Department, Second Am. Compl. ¶ 125, and on June 27, 2013, Rensselaer County received a citation “for not implementing [its] workplace violence program by not thoroughly investigating the workplace violence complaint, ” id. ¶ 139. According to Gorman, the Department of Labor found that Hendry had failed to interview all parties with relevant information. Gorman Dep. at 92:19-22.

         Undersheriff Patrick Russo, one of the defendants in this case, was “present” during the Department of Labor investigation. Second Am. Compl. ¶ 126. Gorman accuses Russo of “intentionally impeding the investigation by not releasing . . . information, ” including the recording of Patricelli's October 8 phone call. Id. ¶¶ 132-33. Russo, for his part, says that he assisted Hendry in investigating Gorman's workplace violence complaints, and “did nothing to impede that investigation.” Dkt. No. 99-1 (“Russo Affidavit”) ¶ 2. Russo could not substantiate Gorman's allegations of harassment. Id. ¶ 3. For instance, “investigation and review of facility video” confirmed that Maselli did not intentionally allow the heavy metal door to hit Gorman. Id. ¶ 4. Gorman's problem with Russo is essentially that he “had . . . knowledge of everything that was going on, ” yet he “did nothing.” Gorman Dep. at 123:4-5. Gorman attempts to establish Russo's knowledge by pointing to Vibert's testimony that she told Russo about her conversation with Mahar, in which Mahar told her to shred Gorman's complaints and stated that “Gorman's fucking done, you see to it.” Vibert Dep. at 29:10-17.

         By July 2013, the events just recounted had taken a significant toll on Gorman's physical and mental health. On July 14, 2013, Gorman called in sick. Gorman Dep. at 132:23-133:1; Second Am. Compl. ¶ 145. He “felt exhausted and had severe tightness in his chest, ” and he was “suffering great depression.” Second Am. Compl. ¶ 146. The next day, Gorman was admitted to St. Peter's Hospital, where he asked for a psychiatric evaluation “because he was having dark thoughts.” Id. ¶ 147. He stayed at the hospital for three or four days, and he has not returned to work since then. Gorman Dep. at 133:16, 134:7-11. Gorman “has been diagnosed with acute stress disorder, posttraumatic stress, depression, and anxiety.” Second Am. Compl. ¶ 254.

         Gorman applied for 207-c benefits on July 18, 2013. Gorman Dep. at 134:12-18; Second Am. Compl. ¶ 148. It appears that Gorman's application for 207-c benefits was denied. Second Am. Compl. ¶ 194; Defs.' SMF ¶ 28. Sometime between January and May 2014, Gorman applied for workers' compensation benefits. Second Am. Compl. ¶ 178; Gorman Dep. at 199:11-18. On June 23, 2014, Gorman began receiving workers' compensation benefits, which the Workers' Compensation Board granted him because his “condition was caused by [his] employment, specifically by the actions of . . . Patricelli.” Gorman Dep. at 202:9-14. By March 2014, Gorman “had exhausted all of his annual sick and vacation leave time, ” and “[f]rom that point forward the Defendants denied [him] any accrual of sick or vacation time.” Second Am. Compl. ¶ 173. And by January 2014, Defendants had also deprived Gorman “of his bidding rights so that even if his Doctor permitted him to return to work he would have no means by which to bid on another job.” Id. ¶ 175; see also Gorman Dep. at 141:16-21. Gorman filed a grievance about the denial of his bidding rights, which was denied. Gorman Dep. at 142:8-15.

         On June 23, 2014, Russo sent Gorman a letter notifying him that his “employment [would] be terminated effective July 15, 2014.” Dkt. No. 109-26 (“Notice of Termination”) at 1. The letter went on to say that Gorman was being let go because he had “been absent from employment with the County for a cumulative period exceeding one year due to a non-work related injury or disease.” Id. The New York Civil Service Law allows an employee to be fired in this situation, but the employee may be reinstated if she can show that she is medically able to return to duty. Id. The letter also informed Gorman that he was “entitled to a due process hearing prior to termination.” Id. It asked Gorman to request the hearing by July 1, 2014, and if he did not want a hearing, “the effective date of [his] termination [would] be [July 15, 2014].” Id.

         Gorman requested a hearing, which took place on August 14, 2014. Second Am. Compl. ¶¶ 182-83. Gorman's union representative, relying on the decision issued by the Workers' Compensation Board, argued that Gorman's injury was in fact related to his job. Id. ¶ 183. The position of the Sheriff's Department was apparently that the Worker's Compensation Board's decision was irrelevant “because they were appealing it.” Gorman Dep. at 148:9. A decision stemming from the due process hearing was not issued until October 1, 2014, when Gorman received a letter from Russo informing him that he was fired effective that day. Dkt. No. 109-24 (“Termination Letter”) at 1. Gorman appealed the decision to the County Civil Service Commission. Second Am. Compl. ¶ 185. On July 3, 2015, the Commission upheld the decision and told Gorman that if “a doctor determined that he c[ould] return to his prior job . . . the county would take him back.” Id. ¶ 189.

         On May 28, 2015, Gorman filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Dkt. No. 109-25 (“EEOC Letter”) at 2. On June 23, 2015, the EEOC responded to the charge by noting that it was not timely filed, since “the most recent date of harm was June 24, 2014, ” and the charge was filed on May 28, 2015, more than 300 days after the last instance of alleged discrimination. Id. at 1-2. The EEOC therefore dismissed the charge as untimely and gave Gorman a right to sue within 90 days of receiving the letter. Id.[3]

         B. ...

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