United States District Court, S.D. New York
Michael H. Sussman Sussman & Associates Goshen, New York
Counsel for Plaintiff.
Michael Davidoff Drew, Davidoff & Edwards Offices, LLP
Monticello, New York Counsel for Defendants.
OPINION AND ORDER
the Court is the motion to dismiss of Defendants County of
Sullivan, Joseph Todora, Lynda Levine, and Joshua Potosek.
accept as true the facts, but not the conclusions, set forth
in Plaintiff's First Amended Complaint. (Doc. 20
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.)
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.)
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.)
7, 2015, after Plaintiffs union president Sandra Shaddock
informed Todora that Plaintiff had been subjected to
“disparate and uncommon” treatment,
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.)
August 15, 2015, the County amended its charges against
Plaintiff, adding seventeen new charges. (Id. ¶
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.
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.)
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.)
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.
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.
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. ¶¶
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.”).)