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Goonewardena v. State of New York Workers Compensation Board

United States District Court, S.D. New York

June 28, 2017

BERNARD W. GOONEWARDENA, Plaintiff,
v.
STATE OF NEW YORK WORKERS COMPENSATION BOARD and WENSTON FARNUM, Defendants.

          OPINION & ORDER

          RONNIE ABRAMS, United States District Judge

         Plaintiff 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.[1]

         FINDINGS OF FACT

         A. The Parties

         Plaintiff 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.

         B. Plaintiffs Hiring and Training

          In or 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.[2]

         During 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.

         Upon 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.

         According 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.

         C. Plaintiff's Initial Performance

         During 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.

         Second, 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. See id.

         Third, 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.

         Fourth, 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.

         The 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 subpar.

         Concerns 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.

         To be 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.

         In 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.

         D. Plaintiffs Leave of Absence and Initial Termination

          On January 17, 2008, Plaintiff began a medical leave of absence after sustaining a knee injury. See Pl. Aff. ¶¶ 51, 57.

         In a 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.

         After 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.

         E. Plaintiffs Return and Final Termination

         On 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.

         Farnum 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. ¶ 32.[3]

         In June 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.

         On June 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 reinstatement.

         Once 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 reinstatement.

         The 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.

         F. 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. ¶ 39.

         The 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 ...


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