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Taylor v. The New York State Office For People With Developmental Disabilities

United States District Court, N.D. New York

November 9, 2017

JANE A. TAYLOR, Plaintiff,
v.
THE NEW YORK STATE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, CATHY TURCK, and CATHY LABARGE, Defendants.

          Robert W. Sadowski, Esq. Raphael Katz, Esq. Sadowski Katz LLP and Stephen Bergstein Bergstein & Ullrich, LLP Attorneys for Plaintiff.

          Eric 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

          HON. NORMAN A. MORDUE, SENIOR U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff 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 ¶¶ 117-18).

         Now 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.

         II. BACKGROUND[1]

         A. The Parties' Roles

         Plaintiff 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 ¶ 4).

         According 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).

         B. 2004 Notice of Discipline

         On 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).

         C. 2010 Counseling Memo

         On June 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).

         Plaintiff 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).

         D. Plaintiff's Complaints to Ombudsperson

         On July 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).

         Plaintiff 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).

         E. 2011 NOD and Counseling Memo

         On 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).

         On May 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. (Id.).

         According 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, pp. 111-12).

         On July 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).

         F. Complaint to State

         On or 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).

         After 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. 70).

         G. New York Times Article

         On 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 seriously.
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 unresolved.
“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).

         H. 2012 Events

         On 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.).

         On or 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).

         I. ...


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