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Frezzell v. New York State Department of Labor

United States District Court, N.D. New York

November 2, 2017





         Plaintiff James R. Frezzell commenced this employment discrimination action against his former employer, New York State Department of Labor (“DOL”), as well as current and former DOL employees Sara Harms, Justin Heinbuch, Heather Romano, Margaret Sheehan-Nolan, John Triller, Marty Selleck, Symone Wango, and Robert Young. Dkt. Nos. 1 (“Complaint”), 25 (“Amended Complaint”). Plaintiff alleges unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the New York State Human Rights Law (“HRL”), N.Y. Exec. Law § 290 et seq. Am. Compl. ¶¶ 36-97. Presently before the Court is Defendants' motion for summary judgment. Dkt. Nos. 91 (“Motion”), 91-1 (“Statement of Material Facts”), 91-2 (“Memorandum”). For the reasons that follow, Defendants' Motion is granted.


         A. Factual Background

         The facts below are drawn primarily from Defendants' Statement of Material Facts. Local Rule 7.1 requires a party opposing a summary judgment motion to submit a response to the movant's statement of material facts, admitting or denying the movant's factual assertions. L.R. 7.1(a)(3). Each denial must include a specific citation to the record. Id. “The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” Id. Despite receiving an extension of time in which to respond to Defendants' Motion, Dkt. No. 94 (“May 2017 Order”), Plaintiff has not submitted any response and does not dispute any assertions in Defendants' Statement of Material Facts, Docket. Therefore, the Court deems all “properly supported facts set forth in the Statement of Material Facts” as admitted. L.R. 7.1(a)(3).

         1. Plaintiff's Employment at DOL

         Plaintiff is an African American man. Am. Compl. ¶¶ 4, 37. From 2003 until July 28, 2014, Plaintiff was employed by DOL as a Local Veterans Employee Representative (“LVER”) in the Albany Career Center. SMF ¶¶ 1-2. As an LVER, Plaintiff's primary responsibility was providing support services to veterans seeking employment and “referring them to jobs.” Dkt. No. 91-34 (“Frezzell Transcript”) at 23:23-25. Sara Harms was Plaintiff's supervisor from May 2012 until his departure in 2014. SMF ¶¶ 2, 4. John Triller managed the Albany Career Center and was Harms's supervisor. Id. ¶ 3. Plaintiff is the only employee who has ever complained to Triller that Harms used racially offensive language at work. Id. ¶ 23.

         In August 2013, Plaintiff requested permission to attend an event called the African American Family Day. Am. Compl. ¶ 25; Frezzell Tr. at 156:12-157:12. DOL denied Plaintiff's request because the event did not focus on either jobs or veterans and, having participated in previous African American Family Days, DOL did not believe many veterans seeking employment would attend the event. SMF ¶ 46. Also in 2013, DOL implemented a new initiative which aimed to find employment for all Career Center veteran customers. Id. ¶¶ 51-52. As part of this initiative, DOL increased accountability and reporting requirements for offices charged with finding jobs for veterans, including the Albany Career Center. Id. ¶¶ 56-57. As a result, LVERs such as Plaintiff were subject to increased oversight and scrutiny, which caused multiple employees to tell Harms they felt “singl[ed] . . . out for scrutiny.” Id. ¶¶ 58-59. The concerns were not specific to employees of a particular race or sex. Id. ¶ 60. Harms told these employees that she was more closely managing all staff members in order to meet the office's employment initiative goals. Id. ¶ 61.

         Plaintiff's 2012, 2013, and 2014 performance evaluations reveal numerous concerns regarding his performance and professionalism at the Albany Career Center. For example, Plaintiff received an unsatisfactory rating for “Problem Solving/Decision Making” in his September 2012 evaluation, which described “[h]is decision to tell a customer he was another employee who no longer work[ed in the office]” as “poor judgment.” Id. ¶ 48. The evaluation also noted that Plaintiff had “frequent unscheduled absences” and that he “resists supervision and direction, and can be argumentative and uncooperative.” Id. A 2013 evaluation included similar concerns, stating that Plaintiff “needs to continue to give his supervisor advance notice when he wants time off, ” “sometimes openly challenges his supervisors' directive prior to making suggested changes, ” and that he needed to “[c]ontinue working on quality OSOS data entry/SMART subscriptions and to work on developing a good rapport with his customers.” Id. ¶ 49. Similar deficiencies were noted in subsequent evaluations. E.g., id. ¶¶ 65, 160. In the summer of 2013, Plaintiff regularly failed to provide mandated services to veteran customers, properly document services provided, or properly schedule follow-up services. Id. ¶ 67. He also “became increasingly resistant to requests that he correct mistakes and comply with program requirements.” Id. On several occasions, Plaintiff reported completing activities that he had not in fact completed. E.g., id. ¶¶ 68-70, 149-50. In 2013 and 2014, he was “consistently late for work, ” id. ¶ 106, “increasingly disrespectful and disruptive in the office, ” id. ¶ 124, regularly failed to complete required tasks, e.g., id. ¶¶ 167-68, 194, and repeatedly refused to follow directions, id. ¶¶ 178-80. Harms documented numerous other concerns with Plaintiff's job performance in 2013 and 2014. E.g., id. ¶¶ 119-24, 136-40, 178-91. Plaintiff's employment was terminated on July 28, 2014. Id. ¶ 196.

         Plaintiff alleges that Harms treated him unfairly because of his race and gender. Specifically, he claims that she “overly scrutinized [his] work, ” reprimanded him in front of coworkers “when white . . . coworkers were not subject to the same treatment, ” and gave him “the evil eye.” Frezzell Tr. at 98:21-99:2. His claims are premised on alleged “racial slurs, derogatory comments and verbal abuse” by Harms and other DOL employees. Am. Compl. ¶ 17. Plaintiff also alleges that Defendants retaliated against him when he complained of discrimination. E.g., id. ¶ 27. The acts forming the basis of Plaintiff's claims are summarized below.

         2. The Birthday Card Incident

         In 2013, Harms purchased a birthday cake and card to celebrate the birthday of an African American employee who worked in the Albany Career Center. SMF ¶¶ 15-16. The card read, “For your birthday we couldn't get just any card . . . we needed one with a little more room.” Id. ¶ 17 (alteration in original). The card featured a number of monkeys standing squished together on the front, then the card folded out, giving each monkey more room. Id. Harms selected the card because it was large enough to accommodate the estimated twenty-five short notes and signatures from each of the employees in her office. Id. ¶ 17. She circulated the card to her staff, which included multiple African American employees, and no one indicated that the card was inappropriate or offensive. Id. ¶ 20. Plaintiff signed the card and did not say that he found the card to be racist or insensitive. Id. ¶ 21. Plaintiff signed the card “D-Money 14 Enjoy James F.” Id. ¶ 22.

         3. Mr. Wigger

         In June 2013, Plaintiff emailed Triller to request a meeting because another LVER named Gary Clark referred to a customer as “Mr. Wigger.” Id. ¶ 25. Plaintiff's email stated, “I am requesting a meeting with Gary Clark and yourself regarding a comment voiced by Gary in reference to Mr. Wigger, JFV Appointment-6/3/13, and his name, rhyming with a derogatory and offensive word that is used to defame Afro-Americans.” Id. Triller forwarded Plaintiff's email to DOL's Division of Equal Opportunity Development (“DEOD”), which is charged with investigating complaints of racial harassment and discrimination at DOL. Id. ¶ 8. DEOD instructed Triller to meet with Plaintiff to assess the facts of his complaint. Id. ¶ 26.

         Upon investigation, Triller learned that the customer referred to as “Mr. Wigger” was in fact named Wigger. Id ¶ 27. Triller brought Plaintiffs concern to Clark, who stated that he referred to the customer as “Mr. Wigger” because Wigger was his last name and did not intend any derogatory or offensive meaning. Id. When Triller met with Plaintiff and Clark to discuss the incident, Plaintiff admitted that he had not known that the customer's name was actually Wigger. Id ¶ 28. Plaintiff said the situation was a misunderstanding and that he did not believe it was necessary to submit a complaint. Id ¶ 29.

         4. The Black Hat Incident

         In December 2013, at the office holiday party, Harms gave a black Santa hat that said “bah humbug” to an employee named Diaz. Id ¶ 30. Harms presented the hat because there was a running joke in the office that Diaz was the “office scrooge.” Id Diaz found the gift amusing and asked Harms if she had gotten the hat from her house, to which Harms responded that she did not have “black hats” in her house. Id Plaintiff misheard Harms's comment and thought she had said she did not allow “black cats” in her house, meaning African American men. Id ¶ 31; Frezzell Tr. 41:10-43:14. Plaintiff initially complained to coworkers that Harms had made a racist comment, but later conceded that he had misheard her and notified DEOD that he did not wish to file a complaint about the incident. SMF ¶¶ 36-37. DEOD nonetheless investigated Plaintiffs informal complaint and determined that Harms had not made any inappropriate comments at the holiday party and that Plaintiff had misheard her when she said “black hat.” Id. ¶ 38.

         5. Sexual ...

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