United States District Court, S.D. New York
the plaintiff: John C. Luke, Jr. Jonathan A. Tand Jonathan A.
Tand & Associates, P.C.
the defendants: Dominika Natalia Tarczynska Assistant United
States Attorney Joon H. Kim Acting United States Attorney
OPINION AND ORDER
COTE, UNITED STATES DISTRICT JUDGE.
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
following facts are drawn from the amended complaint and are
construed in favor of the plaintiff. 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.
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.
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.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.
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.
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.
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
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
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. 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
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."
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.
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
• 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
• 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 ...