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Whittle v. County of Sullivan

United States District Court, S.D. New York

November 8, 2017


          Michael H. Sussman Sussman & Associates Goshen, New York Counsel for Plaintiff.

          Michael Davidoff Drew, Davidoff & Edwards Offices, LLP Monticello, New York Counsel for Defendants.


          CATHY SEIBEL, U.S.D.J.

         Before the Court is the motion to dismiss of Defendants County of Sullivan, Joseph Todora, Lynda Levine, and Joshua Potosek. (Doc. 23.)

         I. BACKGROUND

         I accept as true the facts, but not the conclusions, set forth in Plaintiff's First Amended Complaint. (Doc. 20 (“AC”).)

         A. Facts

         Plaintiff, who is sixty-seven years old and African-American, worked at the County of Sullivan (“County”) Department of Social Services (“DSS”) as a caseworker for twenty-four years. (Id. ¶¶ 1, 2, 8.) At all relevant times, Defendant Joseph Todora was the County's Acting Commissioner of the DSS, Defendant Lynda Levine was the County's Commissioner of Personnel, and Defendant Joshua Potosek was the County Manager. (Id. ¶¶ 3-5.)

         During his time at DSS, Plaintiff received strong performance reviews and no disciplinary notices until March 13, 2015, at which time he received a “contrived counseling memorandum.” (Id. ¶ 8.) On the morning of May 29, 2015, Plaintiff made a verbal request to his acting supervisor, Rachel Innella, to use two hours of personal leave time at the end of that day, which she approved. (Id. ¶¶ 9-10.) Plaintiff alleges that Innella was authorized to, and frequently did, approve such requests. (Id. ¶ 11.) Sometime before 3:00 p.m., Innella's supervisor, Kathi Hitt, refused to sign a form “approving the already approved leave.” (Id. ¶¶ 12-13.) Hitt did not tell Plaintiff that he could not go on leave or that he would be punished if he did, just that she would “dock him for the time he was taking leave.” (Id. ¶¶ 13, 15.) Plaintiff alleges that County policy and practice did not require employees to justify a request for personal leave; it was “liberally authorized and not unreasonably denied.” (Id. ¶ 16.)

         Apparently in response to his taking the two-hour personal leave, Plaintiff was charged with insubordination. (Id. ¶ 18.) Plaintiff alleges that each Defendant sustained that charge, despite knowing that Plaintiffs leave had been approved, that Hitt had not ordered Plaintiff to remain in the office, and that Hitt allowed similarly situated Caucasian employees “to use personal time in such circumstances without any negative consequence.” (Id. ¶ 19.)

         On July 7, 2015, after Plaintiffs union president Sandra Shaddock informed Todora that Plaintiff had been subjected to “disparate and uncommon” treatment, [1] Plaintiffs union filed a grievance against the County and accused it of violating the collective bargaining agreement. (Id. ¶¶ 20-21.) Shaddock further stated, “There have been many occasion [sic] where people have left the office, leaving no one on site - and just about every employee on the second floor would attest to that. I have not been a party of any negotiation which would have made any requirement for people to be in the office - or any sort of a schedule for who is in the field.” (Id. ¶ 22.) Levine denied the union's “Step 2” grievance on August 3, 2015. (Id. ¶ 23.)[2]

         On August 15, 2015, the County amended its charges against Plaintiff, adding seventeen new charges. (Id. ¶ 24.)[3] On August 20, 2015, Potosek denied Plaintiff's “step III” grievance, finding that “the needs of the department provided a reasonable basis for the denial of the personal time [P]laintiff sought and was approved for on May 29, 2015.” (Id. ¶ 25.) In October 2015, Plaintiff's union reiterated its demand for factual evidence substantiating Potosek's finding. (Id. ¶ 27.) In so doing, Shaddock wrote Potosek that “[t]he County has thus far failed to demonstrate that ALL workers were in the field as alleged. The union has witnesses to the contrary - and there should be proof in the form of case notes or mileage vouchers, etc. which would provide [sic] if this was the case.” (Id. ¶ 28.) Plaintiff alleges that “[n]o such proof was ever provided” and that Defendants knew Hitt subjected him to treatment inferior to that of similarly situated white employees, (id. ¶ 29), although he does not state how they knew that.

         “In tandem with denying” Plaintiff's grievance, Todora, with the approval of Potosek and Levine, continued to pursue disciplinary charges against Plaintiff and sought his dismissal. (Id. ¶ 26.) After June 2, 2015, Potosek and Todora “maintained [P]laintiff out of work.” (Id. ¶ 30.)[4]

         On November 4, 2015, the County withdrew the additional seventeen charges. (Id. ¶ 32.) After three days of hearings on unknown dates, “the [C]ounty's hand-picked hearing officer” sustained a single charge of insubordination against Plaintiff and recommended termination. (Id. ¶ 33.) On February 5, 2016, acting on behalf of the County, Todora terminated Plaintiff's employment. (Id. ¶ 34.) In March 2016, Plaintiff's union appealed this decision, challenging Plaintiff's termination and the County's findings of guilt regarding Plaintiff's alleged insubordination. (Id. ¶ 35.) Levine upheld the findings and Plaintiff's termination “in conclusory fashion” on May 24, 2016. (Id. ¶ 36.) Potosek later also upheld the termination. (Id. ¶ 37.) Both Levine and Potosek had been advised that Plaintiff's leave had been approved and that there was no factual basis for rescinding it, either because someone else from Plaintiff's unit was at the workplace while Plaintiff took his leave or because there was no requirement that someone be there. (Id. ¶¶ 35, 37.)

         Plaintiff alleges that similarly situated Caucasian employees (1) were “permitted to take personal leave without question and without reference to supposed departmental needs, ” (id. ¶ 38); (2) did not have a second supervisor reconsider a grant of leave, (id. ¶ 39); and (3) were not terminated after their first disciplinary charge, (id. ¶ 40). Plaintiff further alleges that Defendants “ratified and condoned [Hitt's] disparate treatment of [P]laintiff and [did not] intervene[] to overrule the discipline.” (Id. ¶ 42.)

         B. Procedural History

         1. EEOC Charge

         Plaintiff submitted a claim of discrimination to the Equal Employment Opportunity Commission (“EEOC”) on June 27, 2016. (Id. ¶ 6; Doc. 30 (“Whittle Aff.”) Ex. 1.) In it, Plaintiff claimed that “there was presumptive discrimination in one or many factors.” (Whittle Aff. Ex. 1 at 2.) He stated that, “I am a Jamaican native of African origin 67 years old and have questioned certain practices by the Sullivan County Department of Family Services.” (Id.) Plaintiff received a Notice of Right to Sue on November 21, 2016. (Id. Ex. 3 at 2.) The Notice did not specify the basis for discrimination that the EEOC investigated. (See id.)

         2. Federal Action

         Plaintiff filed this action on January 31, 2017. (Doc. 1.) On March 16, 2017, Defendants filed a letter requesting a pre-motion conference. (Doc. 17.) Plaintiff filed a response on March 20, 2017, (Doc. 19), and the parties appeared for a pre-motion conference on April 12, 2017 to discuss the instant motion, (Minute Entry dated Apr. 12, 2017). Plaintiff filed his AC on April 18, 2017, (Doc. 20), bringing claims alleging race discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) against the County and under the Equal Protection Clause of the Fourteenth Amendment, enforced through 42 U.S.C. § 1983, against the individual Defendants, (id. ¶¶ 46-47).

         Defendants filed the instant motion to dismiss on June 30, 2017. (Doc. 23.) They argue that Plaintiff failed to (1) exhaust his administrative remedies because his EEOC charge alleged discrimination on the basis of national origin, not race, (2) state a claim for disparate treatment under Title VII and the Fourteenth Amendment because he did not plausibly plead similarly situated comparators who were treated differently, and (3) allege the personal involvement of Potosek. (See Doc. 25 (“Ds' Mem.”).) Plaintiff responds that his letter to the EEOC reporting discrimination referenced race, that he has sufficiently pleaded similarly situated Caucasian comparators who engaged in similar behavior and were not treated as harshly, and that he has properly pleaded Potosek's personal involvement. (See Doc. 29 (“P's Opp.”).)

         II. ...

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