United States District Court, N.D. New York
JANE A. TAYLOR, Plaintiff,
THE NEW YORK STATE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, CATHY TURCK, and CATHY LABARGE, Defendants.
W. Sadowski, Esq. Raphael Katz, Esq. Sadowski Katz LLP and
Stephen Bergstein Bergstein & Ullrich, LLP Attorneys for
T. Schneiderman, Attorney General of the State of New York
Michael G. McCartin, Assistant Attorney General Office of the
Attorney General Attorney for Defendants.
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, SENIOR U.S. DISTRICT JUDGE.
Jane A. Taylor brings this action alleging violations of her
rights while she was employed by Defendant New York State
Office for People with Developmental Disabilities
(“OPWDD”). Plaintiff asserts three claims against
OPWDD and its employees Cathy Turck and Cathy LaBarge. (Dkt.
No. 58). In Count I, she alleges that Defendants Turck and
LaBarge retaliated against her for exercising her right to
freedom of speech, in violation of the First Amendment.
(Id. at ¶¶ 50-55). In Count II, she
alleges that Defendant OPWDD unlawfully retaliated against
her in violation of Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq. (Id. at
¶¶ 56-61). In Count III, she alleges that
Defendants Turck and LaBarge “wrongfully aided and
abetted in discrimination against Plaintiff in violation of
New York State Human Rights Law (“NYSHRL”), NY.
Exec. Law § 290 et seq. (Id. at ¶¶
pending before the Court is Defendants' motion seeking
sanctions or alternatively summary judgment. (Dkt. No. 79).
For the reasons stated below, the motion is denied as to
sanctions and granted as to summary judgment.
The Parties' Roles
is a former Residential Habilitation Specialist for Defendant
OPWDD, an agency of the State of New York which coordinates
services for individuals with developmental disabilities.
(Dkt. No. 79-35, ¶¶ 1-2). Plaintiff worked at OPWDD
for 29 years and was scheduled to retire on August 23, 2015.
(Dkt. No. 89-3, ¶ 1). As a Rehabilitation Specialist,
her responsibilities included “taking consumers on
outings, supervising a day classroom and teaching living
skills.” (Id.). Defendant LaBarge is
OPWDD's former Director of Labor Relations; she is now
retired. (Dkt. No. 79-35, ¶ 3). Defendant Turck was a
Treatment Team Leader and Plaintiff's supervisor from
September 2008 until January 2012. (Id. at ¶
to Defendant LaBarge, as Director of Labor Relations, she was
responsible for arranging and assisting in conducting
interrogations, occasionally did some investigations, oversaw
the grievance process and the arrest process for employees,
monitored driver's license suspensions, served Notices of
Discipline, and assisted in arbitration hearings. (Dkt. No.
88-6, p. 12). She states that she was “not personally
involved in any decision to counsel the plaintiff and issue a
Formal Counseling Memo or a Notice of Discipline
(NOD).” (Dkt. No. 79-10, ¶ 9). Defendant Turck
states that, as Treatment Team Leader, she was responsible
for eight Individualized Residential Alternative
(“IRA”) homes, where individuals in the care of
OPWDD (“clients”) live and where professional
care is provided to them. (Dkt. No. 79-12, ¶ 3). When
she was Plaintiffs supervisor, Defendant Turck
“formally counseled her and issued memorandums of such
counselings when the circumstances warranted.”
(Id., ¶ 9).
2004 Notice of Discipline
March 9, 2004, Plaintiff was issued a NOD, which charged her
with making false allegations against a co-worker, Laurie
Zack, on two occasions in 2003. (Dkt. No. 79-3, pp. 5-6). On
September 23, 2005, Plaintiff agreed to a settlement of the
NOD, whereby she received a Letter of Reprimand, which went
into her personnel file, along with the NOD. (Id.,
pp. 1-3). The NOD was supposed to be removed from her file
after a period of two years. (Id., p. 3).
2010 Counseling Memo
3, 2010, Plaintiff was counseled again, and then, on August
25, 2010, she was issued a formal counseling memo regarding
that meeting. (Dkt. No. 79-35, ¶ 35). The counseling
memo, from Defendant Turck, states that Plaintiff was
“being formally counseled for an attitude that bordered
on insubordination.” (Dkt. No. 79-3, p. 8). Defendant
Turck wrote that Plaintiff had improperly authorized the
purchase of an expensive fish tank for an OPWDD client and
when Turck reviewed with Plaintiff the policy and procedure
for such expenditures, Plaintiff “became defensive,
argumentative, and repeatedly interrupted.” (Id.,
p. 7). Plaintiff testified that it was Defendant Turck
who was being “rude” during the meeting. (Dkt.
No. 79-2, p. 70).
filed an administrative grievance about the counseling memo,
requesting that it be removed from her personnel file because
she did nothing wrong. (Dkt. No. 79-3, pp. 10-11). The
grievance was denied and the hearing officer found that
Plaintiff failed to show, among other things, that the
counseling memo was substantially inaccurate or “any
evidence of harassment or retaliatory treatment by
management.” (Id., p. 12).
Plaintiff's Complaints to Ombudsperson
28, 2010, Plaintiff made reports of alleged abuse of OPWDD
clients to the OPWDD Ombudsperson. (Dkt. No. 79-35,
¶¶ 54, 70). According to Defendant Turck, the
Ombudsperson “accepts concerns regarding the
individuals that we provide services to, and then she
follows-up on those concerns.” (Dkt. No. 88-9, p. 25).
The Ombudsperson at the time was Carrie Sonthivongnorath, who
worked for OPWDD. (Dkt. No. 79-2, p. 43; Dkt. No. 88-4, p.
30). Plaintiff told the Ombudsperson about at least three
incidents: on one occasion a co-worker yelled at an OPWDD
client, identified as A.B., for having ice cream in front of
other clients; another time clients were left in a van too
long on a hot day, and further, a co-worker once joked in an
internal email that A.B. “is joining the circus.”
(Dkt. No. 79-35, ¶¶ 56, 58, 60; Dkt. No. 79-2, pp.
103-06). That email arose in a discussion about A.B. refusing
to attend an OPWDD outing to the circus. (Dkt. No. 88-9, pp.
79-80). Plaintiff also apparently complained that A.B. was
not allowed to go to the movies on one occasion, a decision
made by OPWDD officials due to “her recent
non-compliance” with the circus outing. (Id.,
pp. 77-80). Plaintiff testified that it was part of her
duties as an employee of OPWDD to report abuse, including
reporting to the Ombudsperson. (Dkt. No. 79-2, pp. 43-45).
believed that her reports to the Ombudsperson were
confidential. (Dkt. No. 88-13, p. 54). According to Cheryl
Greiner, an official at OPWDD, Ms. Sonthivongnorath informed
her about Plaintiff's concerns, and Ms. Greiner asked
“who was initiating the allegations, so that there
could be a progression of an investigation, and she just told
me.” (Dkt. No. 88-4, p. 25). Ms. Greiner then told the
OPWDD investigative office and initiated an incident report
based on what was being alleged. (Id., pp. 25, 31).
Ms. Greiner testified that she did not report Plaintiffs
identity to any of her subordinates. (Id., p. 25).
On April 26, 2011, the Ombudsperson sent an email to various
OPWDD officials, including Defendant Turck, stating that she
had received some concerns regarding A.B., specifically that
“I am being told that her mother is being prevented
from seeing her as often as she would like.” (Dkt. No.
88-9, p. 76). The email did not mention Plaintiff. Defendant
Turck testified that the Ombudsperson brought to her
attention complaints regarding A.B., but she did not know
that Plaintiff had made them. (Dkt. No. 88-9, pp. 24, 48;
see also Dkt. No. 79-12, ¶ 12).
2011 NOD and Counseling Memo
March 8, 2011, Plaintiff received another NOD, this one
authored by Katherine Bishop, the Director of Program
Development for OPWDD. (Dkt. No. 79-35, ¶¶ 41, 82).
The underlying charge was that on August 18, 2010, Plaintiff
made false allegations that a coworker, Paula Toomey, used
profanity toward her during a telephone conversation. (Dkt.
No. 79-3, p. 32). Defendant Turck states that she had no
personal involvement in this NOD. (Dkt. No. 79-12, ¶
19). According to Defendant LaBarge, she personally served
the March 8, 2011 NOD on Plaintiff, but she had no role in
the decision to issue it. (Dkt. No. 79-10, ¶ 12). The
original version of the NOD also referenced Plaintiff's
2004 NOD. (Dkt. No. 79-3, p. 32). When Plaintiff objected
that the 2004 NOD was no longer supposed to be in her file,
she was issued an amended NOD which did not reference it.
(Dkt. No. 79-3, p. 33; Dkt. No. 79-2, pp. 95-96).
24, 2011, Plaintiff received another formal counseling memo.
(Dkt. No. 79-35, ¶ 38). Defendant Turck wrote in the
memo that Plaintiff was counseled regarding her
“failure to take proper action in reporting an
incident.” (Dkt. No. 79-3, p. 34). Specifically, the
memo noted that on July 28, 2010, Plaintiff “made three
separate allegations of abuse regarding individuals who
reside at the McChesney Ave. IRA in Brunswick, ” which
occurred on April 29, 2010, May 7, 2010, and July 14, 2010.
(Id.). The memo stated that all three allegations,
which Plaintiff had previously made to the Ombudsperson, were
“disconfirmed by the investigator.”
(Id.). The memo faulted Plaintiff for not reporting
the incidents in a timely, consistent, and accurate manner.
to Defendant Turck, she “formally counseled plaintiff
that she was required to report any suspected improper
treatment of individuals in the care of OPWDD in a timely
manner, not after waiting months or weeks.” (Dkt. No.
79-12, ¶ 12). Defendant Turck states that under New York
law, any allegation of abuse was supposed to be reported
immediately, and no later than 24 hours after discovery.
(Id., ¶ 13) (citing 14 NYCRR §
624.5(b)(1)(ii)). The OPWDD Policy Manual also required staff
to immediately report such incidents to supervisors in their
chain of command. (Dkt. No. 79-9, p. 34). Plaintiff testified
that she reported the incidents immediately. (Dkt. No. 79-2,
20, 2011, Plaintiff took a medical leave from work on the
basis of “job stress.” (Dkt. No. 87, ¶ 33;
Dkt. No. 88-13, p. 109).
Complaint to State
around September 6, 2011, Plaintiff filed a complaint with
the New York State Division of Human Rights. (Dkt. No. 79-3,
pp. 35-37). The complaint charged that OPWDD and Defendant
Turck engaged in “an unlawful discriminatory practice
relating to employment in violation of Article 15 of the
Executive Law of the State of New York (Human Rights Law)
because of sex, sexual orientation, disability.”
(Id., p. 35). Plaintiff alleged that Defendant Turck
harassed her because of Plaintiff's disability (corneal
abrasion), that Defendant Turck issued Plaintiff counseling
memos and a NOD “because I am a heterosexual and my
other coworkers, who have engaged in improper conduct, are
homosexual, ” and that Defendant Turck was
“romantically” interested in Plaintiff and made
her “feel uncomfortable.” (Id., pp.
35-36). Plaintiff also alleged that Defendant Turck
retaliated against her “due to sexual
orientation.” (Id., p. 39).
an investigation, the Division of Human Rights determined
that there was no probable cause to believe that OPWDD or
Defendant Turck “have engaged in or are engaging in the
unlawful discriminatory practice complained of.” (Dkt.
No. 79-3, p. 69). Among other things, the Division of Human
Rights could not corroborate Plaintiffs allegations of sexual
harassment and found that Plaintiff had “been counseled
and disciplined for legitimate, nondiscriminatory reasons
relating to her work performance.” (Id., p.
New York Times Article
November 11, 2011, The New York Times published an
article quoting Plaintiff, entitled “For Disabled Care
Complaints, Vow of Anonymity Was False.” (Dkt. No.
79-3, pp. 72-75). The portion of the article relating
directly to Plaintiff reads as follows:
The Times learned of the ombudsman policy after a state
employee, Jane Taylor, approached a reporter and said the
ombudsman in the Albany area, Carrie Sonthivongnorath, had
given her name to department officials.
Ms. Taylor had reported several alleged episodes. In one, she
said, she witnessed a state worker cursing at a resident; in
another, she saw a state worker taking sick residents outside
to sit in a van on a particularly hot summer day. In another,
she was troubled after a state psychologist e-mailed several
colleagues, including her, joking that a misbehaving resident
was “joining the circus.”
Ms. Taylor, who develops and monitors daytime activities for
residents in several group homes, said that not long after
she reported the episodes, in summer 2010, Ms.
Sonthivongnorath told her that she had revealed her name to a
top official in the agency's Albany region.
Ms. Taylor believes she was then retaliated against over
several months. She was required to attend counseling
sessions with a supervisor, Cathy Turck; in a memorandum, Ms.
Turck criticized Ms. Taylor for the way she reported the
three episodes, saying “when reporting an incident, you
must utilize your chain of command.” Ms. Taylor said
she reported episodes to supervisors but was not taken
Ms. Taylor was also served with a formal disciplinary charge
in March, accusing her of making a false claim that a
co-worker swore at her. The disciplinary notice was issued
eight months after the alleged episode occurred, and is
“You're supposed to be able to go to the ombudsman
and report confidentially, but it didn't happen that way
- she turned me in, ” Ms. Taylor said, adding,
“The whole thing, in a nutshell, is that I went to the
ombudsman, and they didn't like it.”
A second state employee who also works in the Albany area
corroborated key parts of Ms. Taylor's story. “She
is being bullied, threatened, and totally retaliated against
in so many different ways, ” the employee said, adding
that Ms. Taylor was having difficulty even getting time off
approved. The employee spoke on the condition of anonymity
for fear of retaliation.
(Id., pp. 73-74).
April 6, 2012, Defendant Turck emailed several OPWDD
officials, including Defendant LaBarge, asking if Plaintiff
would be disciplined for filing false claims against Turck as
part of the complaint with the New York State Division of
Human Rights. (Dkt. No. 88-6, p. 137). Defendant Turck wrote
that “[k]nowing that she continues to follow a pattern
of making false allegations against co-workers, I would think
that we open ourselves up to liability if we do not take
disciplinary action against her and she continues with this
pattern.” (Id.). Defendant LaBarge forwarded
the email to another OPWDD official, writing that “I
wish she (Turck) would just let it go.” (Id.).
around November 6, 2012, Plaintiff reported that a co-worker,
Angela Ertelt, had inappropriate contact with an OPWDD
client. (Dkt. No. 79-3, p. 85). Referring to this allegation,
Defendant LaBarge wrote in an email dated November 23, 2012
that: “This is Ms. Taylor's usual ‘MO' .
. . when she gets angry she files false allegations, which is
actually what two prior NOD's referenced. (the second one
was, unfortunately, removed from her PH file after a certain
period of time. Whomever settled that NOD, I'd like to
smack them.).” (Dkt. No. 88-6, p. 143). In the email
thread, Defendant LaBarge referred to Plaintiff as an
“obnoxious bitch.” (Id., p. 142).
Defendant LaBarge also wrote that “Unfortunately,
Central Office does not see this as a termination or demotion
case.” (Id., p. 154). Defendant LaBarge
testified that she wanted to “smack” the person
who settled Plaintiff's prior NOD because “I
seriously do not agree with removing NODs from personal
history files.” (Dkt. No. 88-6, p. 82). Further, she
testified that some OPWDD officials “were looking to
either demote or terminate Jane Taylor because she had been
experiencing so many issues in our agency.”
(Id., p. 93).