United States District Court, S.D. New York
BERNARD W. GOONEWARDENA, Plaintiff,
STATE OF NEW YORK WORKERS COMPENSATION BOARD and WENSTON FARNUM, Defendants.
OPINION & ORDER
ABRAMS, United States District Judge
Bernard Goonewardena brings this discrimination and
retaliation action against his former employer, the New York
Workers' Compensation Board (the "WCB") and his
former supervisor, Winston Farnum. Plaintiff asserts claims
under 42 U.S.C. § 1983, Title VII of the Civil Rights
Act of 1964, the New York State Human Rights Law
("NYSHRL"), and the New York City Human Rights Law
("NYCHRL"). Following a three-day bench trial,
judgment shall be entered for Defendants.
is a 78-year-old native of Sri Lanka who identifies as South
Asian. See Pl. Aff. ¶¶ 1-2. He was
educated in Sri Lanka and moved to the United States in 1968.
See Id. ¶¶ 4, 9. The WCB is a New York
state agency responsible for enforcing New York's
workers' compensation laws. See Aff. of Winston
Farnum ("Farnum Aff.") ¶ 3. Farnum served as a
Compensation Investigator II at the WCB's Bureau of
Compliance from 2001 to 2010. See Id. ¶ 1.
Farnum was Plaintiffs direct supervisor during Plaintiffs
employment with the WCB. See Id. ¶ 9. Farnum
testified that he "is of Barbados ancestry" and
that his "skin is brown, otherwise colloquially known as
'black.'" Id. ¶ 40.
Plaintiffs Hiring and Training
about August or September 2007, Plaintiff applied for a
position as a Compensation Investigator I at the WCB's
Harlem District Office. See Pl. Aff. ¶ 25.
There is no dispute that Plaintiff was qualified for this
position, as he had received a score of 85 percent on his
civil service exam and had experience as a compensation
investigator. See Id. ¶ 26; Defs.' Ex. B at
2. Plaintiff was interviewed by Farnum, Leonard Frasco, and
other WCB employees. See Pl. Aff. ¶ 30.
Plaintiff was hired, and he began work on October 4, 2007.
See Id. ¶ 36; Pl. Ex. 2.
Plaintiffs employment with the WCB, a Compensation
Investigator I was a field investigator responsible for
evaluating businesses' compliance with New York's
workers' compensation laws. See Pl. Aff. ¶
27; Farnum Aff. ¶ 10; Aff. of Leonard Frasco
("Frasco Aff.") ¶ 8. A Compensation
Investigator I was expected to visit businesses to determine
the status of their workers' compensation insurance.
See Pl. Aff. ¶ 27; Farnum Aff. ¶ 10;
Frasco Aff. ¶ 8. A Compensation Investigator I was also
expected to write clear, concise, and accurate reports.
See Farnum Aff. ¶ 10; Frasco Aff. ¶ 8. In
general, a Compensation Investigator I spent two to three
days each week in the field and the remaining weekdays in the
office. See Frasco Aff. ¶ 8; Trial Tr.
("Tr.") at 30:22-25.
starting at the WCB, Plaintiff was given one week of
training, as were other newly hired employees. See
Farnum Aff. ¶ 11; Frasco Aff. ¶¶ 5, 7; Tr. at
27:7-25. This training consisted of, as Plaintiff testified,
an "initial overview" of the responsibilities of a
Compensation Investigator I. Pl. Aff. ¶ 47.
to Plaintiff, he received less training than other newly
hired Compensation Investigator Is. See Id. ¶
48; Tr. at 63:2-24. Farnum and Frasco denied this claim.
See Farnum Aff. ¶ 11; Frasco Aff. ¶¶
5, 7. For several reasons, the Court does not credit
Plaintiffs testimony regarding the differences between his
training and that of other employees. First, Plaintiffs trial
testimony on the issue was vague: when asked to describe the
additional training other employees received, he responded
that he saw Farnum and two other newly hired employees
"standing there [for] 45 minutes going through the
computer screens" but that he "did not know what
they were talking about." Tr. at 62:24-63:7. Second,
Plaintiffs trial testimony conflicted to some degree with his
affidavit: whereas Plaintiffs affidavit states that Farnum
provided additional field training to Josseth Henry and Jamie
Freeberg, see Pl. Aff. ¶ 48, Plaintiff
testified at trial that Edward Peters-not Farnum-provided
additional field training to Henry and Awilda Quiles, without
mentioning Freeberg, see Tr. at 63:19-22. Finally,
no evidence suggests that the WCB had any practice of
tailoring its training for individual employees. Accordingly,
the Court finds that Plaintiff did not receive less training
than other newly hired Compensation Investigator Is.
Plaintiff's Initial Performance
Plaintiffs first several months at the WCB, his performance
was viewed as deficient in several respects. First, Farnum
credibly testified that Plaintiffs investigative reports
often contained significant errors. See Farnum Aff.
¶ 17; Tr. at 176:21-177:6. Indeed, Farnum testified that
approximately 20 to 25 percent of Plaintiff s reports
contained errors, an error rate that was "very
high" when compared to that of his colleagues. Tr. at
179:11-20. While the Court did not have the benefit of
reviewing a large number of Plaintiff s reports, two were
examined closely at trial, and Farnum provided a
reasonable-if debatable-explanation of why one report
contained enough errors to be rejected by a supervisor.
See Tr. at 172:2-23, 173:19-22; Pl. Ex. 13. Frasco
corroborated Farnum's testimony by testifying that he
reviewed examples of Plaintiff s completed reports and
determined that Plaintiff repeatedly made the same mistakes.
See Frasco Aff. ¶ 9.
Farnum credibly testified that, in his view, Plaintiff had
trouble following instructions. See Farnum Aff.
¶ 19. Farnum concluded that Plaintiff either did not
understand his instructions or thought his way was better.
See Id. As a result, Farnum often had to repeat
himself, and Plaintiffs work was not completed on time.
Plaintiffs coworkers reported to his supervisors that
Plaintiff was confrontational and uncooperative. See
Frasco Aff. ¶¶ 10-11. For example, Frasco credibly
testified that Plaintiffs coworkers informed him that
"Plaintiff would ask them questions related to the work
and then invariably reject their answers because Plaintiff
thought that he knew better." Id. ¶ 10.
Frasco further testified that Plaintiffs coworkers complained
that, while in the field, Plaintiff would "openly
disagree" with them in public, which created a
"confrontational and uncomfortable work environment,
" as well as an "unprofessional public
display." Id. ¶ 11. The Court again finds
this testimony credible.
Farnum found that Plaintiffs computer skills were inadequate.
See Farnum Aff. ¶ 18. Farnum estimated that
approximately 60 percent of an investigator's job
involves the use of a computer, and that, in his view,
Plaintiff lacked the skills to use the WCB's computer
system and business databases efficiently. See id.
Court does not doubt that Plaintiff performed well at times.
Plaintiffs affidavit states that, on at least some occasions,
he capably informed various entities about the requirements
of New York's workers' compensation laws.
See PL Aff. ¶¶ 42-A3. Defendants
did not rebut this testimony at trial or demonstrate that
Plaintiff was entirely incapable of doing his job. Rather,
the evidence suggests that Plaintiff may have performed
competently on at least some of his assignments, but that his
overall performance during his first several months was
with Plaintiffs initial performance are reflected in the
First Probationary Report, which Farnum completed on February
27, 2008. See Farnum Aff. ¶ 24; Pl. Ex. 7. In
this report, Farnum gave Plaintiff a rating of
"unsatisfactory" in three of the seven applicable
performance categories. See Pl. Ex. 7. In
particular, Farnum found Plaintiffs performance
unsatisfactory in the categories of "Aptitude, "
"Relationship with Co-workers/Supervisor, " and
"Relationship with Public." See Id. Farnum
gave Plaintiff a satisfactory rating in the categories of
"Quality of Work, " "Work Habits, " and
"Attendance, " and did not provide a rating for the
category of "Quantity of Work." See Id. In
the narrative section of the report, Farnum wrote that
Plaintiff (1) has "[b]elow standard computer skills,
" which he was "very slow to pick up, " (2)
"[h]as difficulty with interpersonal communications with
fellow employees and has difficulty accepting directions from
the supervisor, " and (3) "[n]eeds improvement in
communications with the public and employers."
Id. On the whole, the Court finds that the First
Probationary Report confirms that, in Defendants' view,
Plaintiff performed inadequately during his first several
months of employment.
sure, the First Probationary Report is not a model of
clarity, and Farnum could have been more diligent in
completing it. For example, the dates in the report are
somewhat confusing: the report lists a "due date"
of November 15, 2007, but it was completed in February 2008.
See Id. In addition, a box recommending
"termination" was not checked, see id.,
although Farnum testified that "[b]ased on the problems
noted in the [First] Probationary Report it was being
recommended that plaintiff be terminated, " Farnum Aff.
¶ 25. At trial, these discrepancies were largely
explained. For instance, Farnum testified that supervisors
did not complete a probationary report until Human Resources
delivered a blank copy of the form, see Tr. at
188:17-19, and that Plaintiffs form may not have been
delivered until February 25, 2008, only two days before
Farnum completed it, see Tr. at 221:23-25. Farnum
further testified that, in practice, he typically recommended
terminating a provisionary employee by discussing the matter
with his own supervisor, and not necessarily by checking the
"termination" box in a probationary report.
See Tr. at 189:13-190:11. Furthermore, the report
rates Plaintiffs "quality of work" as
"satisfactory, " which could seem inconsistent with
Farnum's testimony that Plaintiffs work routinely
contained errors. Compare Pl. Ex. 7, with
Farnum Aff. ¶ 17. This potential discrepancy was also
resolved at trial: Farnum consistently, and credibly,
testified that Plaintiffs work in fact contained errors and
that he should have checked "unsatisfactory" in
this field. See Tr. at 135:20-24, 136:2. Overall,
any discrepancies or omissions in the First Probationary
Report do not undermine the Court's finding that this
report accurately reflected Defendants' contemporaneous
belief that Plaintiffs performance was deficient.
December 2007, Farnum met with Frasco and reported his
concerns with Plaintiffs performance. See Farnum
Aff. ¶ 20; Frasco Aff. ¶ 12. The two men decided to
recommend terminating Plaintiffs employment if his
performance did not improve by the end of his first three
months at the WCB-that is, by the end of the first week of
January 2008. See Farnum Aff. ¶ 20; Frasco Aff.
¶ 12. Frasco relayed this recommendation, as well as
Farnum's concerns with Plaintiffs performance, to other
WCB officials. See Tr. at 133:3-14.
Plaintiffs Leave of Absence and Initial Termination
January 17, 2008, Plaintiff began a medical leave of absence
after sustaining a knee injury. See Pl. Aff.
¶¶ 51, 57.
letter dated March 6, 2008, while Plaintiff was on leave, the
WCB informed Plaintiff that his services would be terminated
on March 20, 2008. See Pl. Ex. 5; Pl. Aff. ¶
62; Aff. of Lisa Sunkes ("Sunkes Aff") ¶ 24.
Plaintiff responded by sending a series of letters
challenging the WCB's decision and arguing that he should
be reinstated. See Pl. Aff. ¶ 66; Sunkes Aff.
¶ 25. Some of these letters were lengthy-one contained
29 pages-and included discussions of Plaintiffs prior work
experience and personal life. See Sunkes Aff. ¶
25. In these letters and in other communications with WCB
officials, Plaintiff threatened to take "the story of
[his] termination" to New York newspapers. Pl. Aff.
¶ 68; see also Pl. Ex. 9 at 1. On March 20,
2008, the WCB informed Plaintiff that it had reversed its
prior decision and that he would be reinstated. See
Sunkes Aff. ¶ 30; Defs. Ex. L. According to Lisa Sunkes,
who served as Director of Human Resources Management at the
time, the WCB decided that Plaintiff should be given another
opportunity to succeed. See Sunkes Aff. ¶ 28.
Plaintiff was reinstated but before he returned to work, he
continued to write letters to WCB officials. See Pl.
Aff. ¶¶ 71-72. In some of these letters, Plaintiff
indicated that he had a "normal or cordial relationship
[his] supervisor, " Pl. Ex. 9 at 2, and a "normal
work environment" before his leave of absence, Pl. Ex.
10 at 3. In at least some of these letters, however,
Plaintiff also alleged-for the first time-that he was
subjected to discrimination and that he feared he would be
subjected to retaliation. See, e.g., Pl. Ex. 10 at
2-3. For example, in a letter dated April 13, 2008, Plaintiff
wrote that the reason given for his initial termination was
"totally false given [his] outstanding performance in
all jobs [he] held in New York state service" and that
his termination "was done for discriminatory
reasons." Pl. Ex. 11 at 4. Plaintiff added that he had
been "accorded differential treatment than other
American born employees." Id. Plaintiff
indicated that, if he were terminated on the basis of
"another negative performance evaluation, " he
would "fil[e] a case of discrimination based on national
origin, age, harassment, and retaliation." Id.
Defendants did not find Plaintiffs complaints credible and
did not investigate further. See Sunkes Aff ¶
35; Tr. at 254:6-8, 295:13-296:2.
Plaintiffs Return and Final Termination
April 17, 2008, Plaintiff returned to work. See Pl.
Aff. ¶ 74; Farnum Aff. ¶ 30. Plaintiffs affidavit
asserts that, on his first day back at work, Farnum
"angrily stated that [his] 'days are going to be
numbered.'" Pl. Aff. ¶ 74. Plaintiff also
claims that, at some point after he was reinstated, Farnum
showed Plaintiff the letters he had sent to Sunkes and
stated, "They are not going to believe anything that you
have to say against me." Id. ¶ 82. The
Court does not credit this testimony. Other than Plaintiffs
own testimony, no evidence adduced at trial suggests that
Farnum acted with the "nasty and aggressive and
hostile" attitude Plaintiff described. Tr. at 72:16.
Indeed, although Farnum found Plaintiffs work product
unsatisfactory, he expressed genuine respect for Plaintiff as
a person-even referring to him as "brilliant." Tr.
at 198:10-11. Plaintiffs testimony is particularly incredible
in light of Farnum's demeanor at trial: Farnum appeared
candid and matter-of-fact, even when discussing his concerns
with Plaintiffs performance and Plaintiffs allegations of
discrimination, and exhibited no apparent hostility towards
Plaintiff. Indeed, no evidence suggests that Farnum expressed
any frustration with Plaintiff through aggressive behavior or
threats, as Plaintiff claims that he did.
testified that Plaintiffs performance did not improve after
his reinstatement. See Farnum Aff. ¶ 32. He
recalled that Plaintiffs reports continued to contain errors
and that Plaintiff continued to have trouble using the
WCB's computer system and databases. See Id.
Farnum also described continued complaints from Plaintiffs
coworkers, who explained that Plaintiff was
"disruptive" on field assignments, refused to
follow directions, and spoke over his colleagues. See
Id. ¶ 33. Farnum ultimately concluded that
Plaintiff was "incapable of performing his job
responsibilities independently." Id. ¶
2008, several WCB officials held a conference call to discuss
Plaintiffs performance. See Farnum Aff. ¶ 34;
Sunkes Aff. ¶ 36. The group decided that, since
Plaintiffs performance had not improved, his employment would
be terminated. See Farnum Aff. ¶ 34; Sunkes
Aff. ¶ 36.
30, 2008, Farnum completed a Second Probationary Report.
See Farnum Aff. ¶ 35; Pl. Ex. 12. The report
stated that Plaintiffs performance was unsatisfactory in four
of the seven applicable performance categories. See
Farnum Aff. ¶ 35; Pl. Ex. 12. In the narrative section
of the report, Farnum elaborated on the problems with
Plaintiffs performance. With respect to "Quality of
Work, " Farnum wrote that Plaintiffs reports "have
many errors." Pl. Ex. 12. Specifically, Farnum noted
that nine of twelve reports recently submitted by Plaintiff
were returned to him for corrections. See Id. With
respect to "Quantity of Work, " the report noted
that Plaintiff "works slowly" and that "his
work production falls behind that of his co-workers."
Id. With respect to "Aptitude, " the
report explained that Plaintiff "was slow to learn the
various databases which are used by the investigators"
and "demonstrated a lack of understanding of some of the
basic legal concepts used in our investigations."
Id. Finally, with respect to "Relationships
with Co-workers/Supervisor, " Farnum wrote that
Plaintiff "has cultivated adversarial relationships with
his co-workers and his supervisor." Id. The
report further explained that Plaintiffs coworkers
"don't trust him" and "feel that his
conduct while in the field with them can result in an unsafe
work environment." Id. The Court finds that the
Second Probationary Report accurately reflects
Defendants' view of Plaintiff s performance following his
again, however, Farnum's completion of this report was
flawed in some respects. For example, unlike in the First
Probationary Report, the category "Relationship with
Public" was marked as "satisfactory" in the
Second Probationary Report, although the narrative section of
this report states that Plaintiff "has disagreements
with [his coworkers] in the presence of the public."
See Id. At trial, Farnum testified that Plaintiffs
relationship with the public was in fact unsatisfactory, a
view that he expressed through the narrative section of the
report. See Tr. at 192:3-8. The Court finds that,
although Mr. Farnum could have been more conscientious in
completing the Second Probationary Report, the report
nonetheless reflected his contemporaneous belief that
Plaintiffs performance was deficient following his
Second Probationary Report recommended terminating Plaintiffs
employment. See PL Ex. 12. On July 1, 2008, Sunkes
approved Plaintiffs termination. See Sunkes Aff
¶ 38. Plaintiffs termination became effective on July 9,
2008. See PL Aff. ¶ 96; PL Ex. 15.
Alleged Incidents of Discrimination
Plaintiff claims that, after he was reinstated but before his
final termination, Farnum made several negative comments
about his race, national origin, and age. See Pl.
Aff. ¶¶ 75-79. In particular, Plaintiff testified
that Farnum told him that he came "from the third world,
" that he was "senile, " and that he "was
black . . . not white." Id. ¶¶ 75-76.
Farnum denies making these remarks. See Farnum Aff.
Court does not credit Plaintiffs claim that Farnum made
discriminatory statements about his race, national origin, or
age. This credibility finding is based in part on Plaintiffs
demeanor while testifying. It is also based on the timing of
events and the fact that Plaintiff himself testified that
Farnum did not make any discriminatory statements
prior to his initial termination. See Tr. at
51:13-21. Indeed, Plaintiffs contemporaneous letters
indicated that his relationship with Farnum during the first
several months of his employment was "normal or
cordial." Pl. Ex. 9 at 2; see also Pl. Ex. 10
at 2-3 ("I want a normal work environment and
relationship as that existed before my absence from
work."). Plaintiff did not explain why, after several
months of a normal or cordial relationship, Farnum would
begin to make discriminatory remarks. Finally, the
Court's credibility finding is based on some of the
alleged remarks themselves. For example, Plaintiff claims
that Farnum stated, "You are no diplomat.... My daughter
is a ...