United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
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.
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.
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.
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. ¶
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.
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.
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.
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.
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.
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.
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.
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.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.
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.
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.
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.
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.
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.
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.
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.