United States District Court, N.D. New York
JAMES R. FREZZELL, Plaintiff,
NEW YORK STATE DEPARTMENT OF LABOR, et al., Defendants.
MEMORANDUM-DECISION AND ORDER
LAWRERICE E. KAHN U.S. DISTRICT JUDGE
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.
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).
Plaintiff's Employment at DOL
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.
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.
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.
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.
The Birthday Card Incident
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.
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.
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.
The Black Hat Incident
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.