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Farsetta v. Department of Veterans Affairs

United States District Court, S.D. New York

August 24, 2017

DEPARTMENT OF VETERANS AFFAIRS and DAVID J. SHULKIN, in his capacity as Secretary of the Department of Veterans Affairs, Defendants.

          For the plaintiff: John C. Luke, Jr. Jonathan A. Tand Jonathan A. Tand & Associates, P.C.

          For the defendants: Dominika Natalia Tarczynska Assistant United States Attorney Joon H. Kim Acting United States Attorney



         Joseph Farsetta ("Farsetta") alleges that he was discriminated against and subjected to a hostile work environment based on his age, race, and sex while employed at the Department of Veteran's Affairs (the "VA"). He also brings a claim for "free speech retaliation" under the First Amendment. For the reasons that follow, the defendants' motion to dismiss is granted.


         The following facts are drawn from the amended complaint and are construed in favor of the plaintiff.[1] See Keiler v. Harlequin Enters. Ltd., 751 F.3d 64, 68 (2d Cir. 2014) . Farsetta is a fifty-seven-year-old white male. He has worked in the VA for approximately six years. He is currently working as a GS13 career employee with the title Program Specialist Series 0301. He suffers from several serious health ailments and experienced a heart attack in 2013.

         Farsetta's grievances arise from the period following a restructuring at the VA in 2014. Farsetta was assigned a new supervisor, Jadwiga Kustra ("Kustra"), a female who is younger than Farsetta. Her race is not specified. Kustra became the Deputy Director of the NCO-3 Region. Farsetta alleges that after the reorganization, Kustra and his former supervisor, Yolanda Borges ("Borges"), "began eliminating opportunities for males within the department." Borges is now the Director for the NCO-3 Region.

         Beginning in late 2014, Kustra began imposing "unreasonable workloads" on Farsetta in order to make him fail. These changes to his job duties were in violation of "mandatory OPM guidelines." The new work included "menial clerical work far below his pay grade" and work Kustra herself was supposed to do, specifically supervising contract employees. Kustra denied Farsetta's request for training in Excel that would have been helpful in performing the clerical work and "OSHA 30" training.[2]Kustra was aware that Farsetta was in poor health, and this extra work worsened his medical condition. Farsetta's evaluation for the year 2015 listed goals for the position of 0343 Data Analyst, but correctly identified his job title. Despite this inconsistency, Farsetta "was intimidated into signing the document." In January 2015, Kustra began requiring Farsetta to use his "unlimited" sick leave in lieu of his vacation time, which was capped at six weeks a year, when he needed to take days off for doctors' appointments or to care for his ill wife. Farsetta asserts that this practice violated his union contract and meant that Farsetta "could not accrue any more" vacation time.[3]

         In February 2015, Farsetta complained to Borges that the workload of a "black female supervisor" was reduced through the reorganization. Farsetta characterizes this as a "reward" given by management for that employee's poor performance.

         In June 2015, Farsetta complained to Borges that female staff in the office were given preferential treatment and that he was being targeted for harassment as the "oldest white male" in the office. Farsetta threatened to complain to the VA's Equal Employment Opportunity Office (the "EEO"). On June 27, 2015, Farsetta emailed Cherie Widger-Kresge ("Widger-Kresge"), a director for NCO-2, about his workload and sick time issues, and Kustra's "overall hostility" towards him.

         On July 7, Kustra told Farsetta "in an angry and aggressive manner" that she would be reducing his workload and also that he would have to complete the work currently being performed by contract employees who were slated to be released. Two days later, Farsetta told Kustra that she was imposing "wholly unrealistic goals and setting him up to fall short." Kustra immediately called Farsetta to her office, closed the door, and told him in an "angry and aggressive manner", "who do you think you are[?]" and "how dare you". She called him "disrespectful" and "insubordinate" when he requested union representation. Kustra pointed in Farsetta's face, "scream[ed] at him, and stepped around her desk to approach Farsetta." Farsetta fled to Borges' office and told her "that the whole exchange had caused his blood pressure to spike so high that he feared he would have a stroke." Farsetta went to a hospital emergency room, where he stayed for approximately seven hours.

         A few days later, on July 12, Farsetta was hospitalized for "unstable angina." Farsetta took several weeks of medical leave. Kustra did not fill out the necessary forms for Farsetta's leave immediately but "eventually acquiesced". Among these forms was a request for "Workers['] Compensation, " in which Kustra "denied the incident occurred in the workplace" and gave a "wholly false account of the events of July 9." Farsetta was denied Workers' Compensation. On August 21, 2015, Farsetta filed an informal complaint with the EEO, alleging discrimination based on age, race, and sex.[4]

         Farsetta returned to work on September 21, 2015. Despite a request from his psychiatrist that Farsetta not be supervised by Kustra, he was not assigned a new supervisor immediately. On September 22, Widger-Kresge told Farsetta that if he wanted to transfer to another office he would have to drop his EEO complaint.[5] On September 23, she changed her mind and advised Farsetta that she would begin the transfer process. Although Farsetta was informed that he would be transferred shortly after October 1, the transfer did not occur until December. During this time he was shunned by upper management.

         On October 30, Kustra issued Farsetta a Letter of Counseling with an inaccurate account of the July 9 events. When Farsetta wrote a letter rebutting Kustra's version of the incident, Kustra "questioned why he believed that he had the right to respond to her letter."

         More recently, Farsetta has been denied the opportunity to transfer from contracting to another department. Farsetta alleges that he met the posted job requirements, but that the VA determined that Farsetta was "not qualified" and he was not "afforded the opportunity for an interview." Instead, the VA hired a young, black female. The amended complaint does not identify the position or department to which Farsetta wished to move, when he applied for the transfer, or explain how he was disadvantaged by a denial of this opportunity.

         Farsetta alleges generally that Kustra and Borges demoted or harassed male or white or older employees. Most of the examples given in support of this assertion focus on gender discrimination and describe instances in which women employees were promoted or in which men were not treated as well as women. The specific examples are as follows:

• Orlando Nieves (a male whose age, race, and title are not plead) was given a supervisory position, was "set up to fail in that position", was replaced by a younger female employee, and was demoted without being afforded "graduated discipline".
• John Hurban (a male contract review attorney whose age and race are not plead) declined the job of Division Chief because he would have had to travel from his home in Putnam County to work in Northport, New York. That position was given instead to Sherin Rabadi (a "series 1102K specialist" whose race and age are not plead), who was allowed to work at a Bronx office of the VA. Rabadi was given this position even though she had no supervisory experience. Rabadi had reported to a male supervisor in health care acquisitions named Selah Scott (whose race and age are not plead), but Scott was demoted. In addition, when Hurban injured himself on the job, Kustra denied that the injury occurred at work. This resulted in Hurban being denied Workers' Compensation. In contrast, Kustra had submitted Workers' Compensation forms for a woman "despite the fact that no one at the VA witnessed her injury."
• A supervisory position was held open for Stephanie Bellanger (another "series 1102K specialist" whose age and race are not plead) until she could complete the college degree that the position required. She later left that position.
• After the VA required that supervisors have a college degree, a male supervisor was demoted because he lacked a degree, but a female supervisor without a degree was allowed to retain the position.
• Borges and Kustra promoted four other women (whose titles, ages, and race are not plead) to supervisory roles even though the women possessed no supervisory experience. They performed ...

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