United States District Court, N.D. New York
Plaintiff: Drita Nicaj Law Offices of Drita Nicaj.
Defendants: Letitia James Attorney General of the State of
New York Lynn Knapp Blake Assistant Attorney General.
MEMORANDUM-DECISION AND ORDER
K. Sannes, U.S. District Judge.
Devin Cusher brings this action against Defendants Asghar
Farooq Mallick, Mikki Judge, Melissa Moreno, Anthony Lucky,
and the New York State Office of Children and Family Services
(“OCFS”) (“Defendants”), alleging
claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.; 42 U.S.C. § 1983;
New York State Executive Law § 296, et seq.
(“NYSHRL”); and state “whistleblower
statutes.” (Dkt. No. 1). Specifically, Plaintiff
alleges: (1) Title VII claims against OCFS for gender
discrimination and retaliation (First and Second Claims), (2)
§ 1983 claims against Mallick, Judge, Moreno, and Lucky
(“Individual Defendants”) for gender
discrimination and retaliation, in violation of the
Fourteenth Amendment (Third Claim),  (3) NYSHRL claims against
all Defendants for gender discrimination and retaliation
(Fifth and Six Claims), and (4) state
“whistleblower” claims against all Defendants
(Seventh Claim). (Id.). Defendants move for summary
judgment under Rule 56 of the Federal Rules of Civil
Procedure, (Dkt. No. 62), which Plaintiff opposes. (Dkt. No.
72). For the reasons below, the motion is granted in part and
denied in part.
was hired by OCFS in February 1994 and has worked at the
Highland Residential Center (“Highland”) as a
Youth Counselor 2 (“YC2”) since 2007. (Dkt. No.
71-2, ¶ 3; Dkt. No. 62-3, at 24). Highland is a
“limited secure residential center for post-adjudicated
youth placed with OCFS by family courts.” (Dkt. No.
62-6, ¶ 9). The highest-level supervisor on site at
Highland is the Facility Director. (Id. ¶ 46).
There are four Assistant Directors, who report directly to
the Facility Director. (Id. ¶ 49). Among other
things, Assistant Directors supervise YC2s and complete their
“performance evaluations, six month certifications, and
Corrective Action Plans” and “monitor the time
and attendance of said YC2's, as well as their use of
sick, personal, and annual leave.” (Id. ¶
50). YC2s supervise Youth Counselor 1s (“YC1”).
(Id. ¶ 56). If a YC1 needs “time off or a
work schedule adjustment, ” this request is either
approved by their supervising YC2 (if present) or the
Assistant Director in their chain of command. (Id.).
was the Facility Director from May 2002 until July 2015 and
supervised Plaintiff from May 2010 until October 2010.
(Id. ¶¶ 5, 29). Plaintiff was then
supervised by Assistant Director Judge from September 2011
until June 2012, Assistant Director Moreno from July 2013
until December 2015, and Assistant Director Lucky from
January 2016 until May 2016. (Dkt. No. 62-8, ¶ 7; Dkt.
No. 62-10, ¶¶ 12, 127; Dkt. No. 62-12, ¶ 9).
After Mallick was promoted in 2015, Judge took over as
Facility Director. (Dkt. No. 62-8, ¶ 4).
addition to overseeing YC1s, Plaintiff's role as a YC2
includes “supervising either a unit or multiple units .
. . overseeing the program, and . . . overall daily
functioning of the unit.” (Dkt. No. 62-3, at 25-26).
Additionally, YC2s work shifts as the Administrator on Duty
(“AOD”), who is in charge of the “daily
operation of the facility.” (Dkt. No. 62-6, ¶ 24).
There is only one AOD per shift. (Id.). Previously,
both YC1s and YC2s served as AODs. (Id. ¶ 19).
In 2014, the administrative team at Highland implemented a
new policy allowing only YC2s to be scheduled as AODs.
(Id. ¶ 44). A “new AOD schedule [was]
established, and in January 2014, all YC2's on the AOD
rotation bid for his schedule based on seniority.”
(Id. ¶ 14). At the time of the shift bid,
Plaintiff had the least seniority of the relevant YC2s.
(Id. ¶ 16). YC1s still served as AODs “in
the event there [was] an unscheduled absence.” (Dkt.
No. 71-2, ¶ 140). At some point after June 2014, YC1s
were allowed to serve as AODs again.
at Highland can be “granted temporary adjustments to
their assigned work schedules” for “a variety of
reasons including the need to attend to personal and/or
family matters, including by not limited to childcare”
at their supervisor's discretion. (Dkt. No. 62-6, ¶
27). Supervisors consider several factors, including
“the needs of the facility and the employee's time
and attendance.” (Id.)
at Highland are expected to “hold their staff members
accountable under the governing policies and rules and to
take appropriate action when said policies and/or rules are
not followed.” (Dkt. No. 62-6, ¶ 61). When an
issue arises, supervisors have the discretion to issue
counseling memos. (Id.). Additionally, supervisors
may implement a Corrective Action Plan (“CAP”)
and conduct “follow-up meetings . . . to monitor the
employee's progress and to see if there is
employee has “time and attendance problems, ”
OCFS “has a three step progressive process, ”
(Id. ¶ 62), including “informal
counseling, ” “formal counseling, ”
“requiring the employee to provide documentation for
any further unscheduled absence, ” and
“disciplinary action.” (Id.). When there
is employee misconduct, the Facility Director or a supervisor
“initiates an inquiry and assigns a staff member to
conduct an investigation into the occurrence.”
(Id. ¶ 63). The Facility Director then reviews
the investigation and recommends discipline (where
appropriate), which can include a specific recommended
penalty. (Id. ¶ 64; Dkt. No. 71-1, at 617-18).
OCFS Labor Relations then decides what disciplinary action is
appropriate, and the Facility Director signs and serves a
Notice of Discipline (“NOD”) on the employee.
(Dkt. No. 62-6, ¶ 66).
alleges that “Highland's female employees, who are
mothers, are routinely accommodated in connection with the
hours worked in order to care for their children.”
(Dkt. No. 71-2, ¶ 12). Specifically, Plaintiff alleges
that Defendants Judge and Moreno were given accommodations.
(Dkt. No. 62-3, at 75). He also alleges that other
co-workers, including Gail Babcock, Kelly Hicks, Mary
Pazienza,  Nicole Romano,  and Katy Carson were also
given accommodations. (Id. at 205, 283-84). During
the time period in question, Gail Babcock was a Youth
Division Aide (“YDA”),  Kelly Hicks was a YC1 and
then a Youth Recreation Specialist 3,  Mary Pazienza was
a unit clinician,  Nicole Romano was a unit clinician,
and while the record is somewhat unclear, Katy Carson appears
to have been an Assistant Director. Gail Babcock does not
have children, (Dkt. No. 62-21, ¶ 4), and Mary Pazienza
did not have childcare needs when she worked at Highland
because her children were adults. (Dkt. No. 62-22, ¶ 4).
recalled an incident in 2014 when there was a snowstorm and
he arrived late to work because his son's daycare was
closed. (Dkt. No. 62-3, at 285). When he arrived, Mallick
told him that he needed to get there earlier “when it
snows.” (Id.). Plaintiff testified he
“noticed over time, that during snowstorms . . . they
did not make an issue with female staff who called out when
their kids' school and/or day care was canceled.”
(Id. at 285-86).
Plaintiff's Paternity Leave
2010, Plaintiff's spouse was pregnant. (Dkt. No. 62-3, at
47-48). Plaintiff requested six weeks of paternity leave from
Mallick. (Id. at 48). Mallick expressed “his
displeasure that [Plaintiff] was taking paternity
leave” and “told [Plaintiff] women - not men
should be taking” parental leave. (Dkt. No. 71-2,
¶ 7). Mallick granted Plaintiff's request, and
Plaintiff was on leave from August 23, 2010 until October 4,
2010. (Dkt. No. 62-6, ¶ 30). Mallick “repeatedly
pressured [Plaintiff] to end [the paternity leave]
early.” (Dkt. No. 1, ¶ 11). Prior to taking the
leave, Mallick “said he needed [Plaintiff] back before
the six weeks” and twice called Plaintiff and
“told [him] he needed [him back].” (Dkt. No.
62-3, at 48-49). Plaintiff came into work on one occasion
during his leave. (Dkt. No. 62-7, at 4-5).
Plaintiff was on leave, Mallick “supervised the time
and attendance of the staff that [Plaintiff] supervised and
discovered several problems.” (Dkt. No. 62-6, ¶
32). He issued three counseling memos to Plaintiff during his
leave about (1) “staff under his supervision not
properly documenting their time worked, ” (id.
¶ 35; Dkt. No. 62-7, at 13), (2) “his failure to
timely complete performance evaluations and six month
re-certifications for employees under his supervision,
” (Dkt. No. 62-6, ¶ 36; Dkt. No. 62-7, at 15), and
(3) “his failure to counsel or discipline staff for
time and attendance issues.” (Dkt No. 62-6, ¶ 37;
Dkt. No. 62-7, at 17).
Plaintiff's Schedule and Work Performance
Plaintiff returned from paternity leave, he worked two late
night and three day shifts, which was the “practice for
YC2s” at Highland during that time. (Dkt. No. 62-3, at
70). As his supervisor, Judge approved several schedule
adjustments for Plaintiff between October 2011 and February
2012. (Dkt. No. 62-8, ¶¶ 16-23). When Moreno became
his supervisor, she approved Plaintiff's request to leave
the facility for an hour each day to walk his dog. (Dkt. No.
62-10, ¶ 20; Dkt. No. 62-3, at 160-61).
2012, Mallick received an email from a YC2, who
“expressed his feeling that Plaintiff should be removed
from the schedule because the AOD's could not depend upon
him to be at work.” (Dkt. No. 62-6, ¶ 25; Dkt. No.
62-7, at 2)
Plaintiff's 2011-2012 evaluation, Judge wrote that
Plaintiff “adjust[s] and request[s] time off for a
number of personal issues regularly” and that
“[t]his makes [his] reliability questionable at
times.” (Dkt. No. 62-19, at 107). He received an
overall rating of “Satisfactory.” (Id.
at 105). In November 2013, Moreno placed Plaintiff on a CAP
with the goal of, inter alia, “working [his] assigned
schedule.” (Dkt. No. 62-19, at 109).
2014, Plaintiff and his wife separated, and he was granted
permanent custody of their child. (Dkt. No. 71-2, ¶ 9).
In January 2014, Moreno issued another CAP to Plaintiff
“because there was a lack of progress towards his goals
in the 2013 CAP.” (Dkt. No. 62-10, ¶ 25). The new
CAP “stated that plaintiff was expected to work his
assigned schedule unless authorized by the AOD or AD
Treatment, and that a leave request must be submitted and
approved prior to changes in plaintiff's assigned work
schedule.” (Id.) Moreno issued Plaintiff a
counseling memo on January 22, 2014, which documented his
attendance and tardiness issues. (Dkt. No. 62-11, at 14).
This included ten days of unscheduled absences and leaving
the grounds without permission in December 2013.
(Id.). Moreno advised Plaintiff that, because he
indicated he was having trouble working his scheduled hours
due to personal reasons, “it is recommended that you
follow up with . . . EAP for possible assistance.”
January 2014, after the new policy allowing only YC2s to be
scheduled as AODs was implemented, a shift bid took place and
“all YC2's on the AOD rotation bid for his schedule
based on seniority.” (Dkt. No. 62-6, ¶ 14).
Plaintiff, who had the least seniority, was assigned a work
schedule that included four late-night shifts per week.
(Id. ¶ 17). This was the first time Plaintiff
had “seen a schedule of four 10-hour days” for
any AOD. (Dkt. No. 62-3, at 153). The new schedule went into
effect on February 20, 2014. (Dkt. No. 62-6, ¶ 17).
Plaintiff's childcare needs, this new schedule was a
“hardship.” (Dkt. No. 62-3, at 157). When he
communicated this difficulty to Mallick, Mallick told him
that if he could not work his scheduled shifts, he should
resign. (Dkt. No. 62-3, at 155-56). On February 9, 2014
Plaintiff requested a temporary accommodation in connection
with his new work schedule, which Mallick, Judge, and Moreno
denied. (Dkt. No. 62-3, at 65-67; Dkt. No. 71-2, ¶ 10).
being denied this accommodation, Plaintiff told Mallick and
Judge that he “had observed female coworkers receiving
more favorable treatment than [he] was receiving. [He] told
them that female employees who were mothers were routinely
accommodated the times they worked.” (Dkt. No. 71-2,
¶ 13). Plaintiff asked Mallick why Judge (who had a
child) “did not work at least one late night as
required. Instead of addressing [his] concerns, [Mallick]
became visibly angry and started shouting at
[Plaintiff].” (Id. ¶ 15).
February 2014, Plaintiff applied for leave under the Family
Medical Leave Act (“FMLA”) in order to care for
his son. (Dkt. No. 62-19, at 4). The OCFS Bureau of Personnel
denied Plaintiff's application because he had
“requested leave for care for a child with no illness,
which is not covered by [the] FMLA.” (Dkt. No. 62-18,
Medical Documentation Status
March 2014, Moreno issued Plaintiff a memo “warn[ing]
him about his time and attendance” because he
“had more than seven unscheduled absences in twelve
months.” (Dkt. No. 62-10, ¶ 30). He was placed on
“doctor's certification status for three months in
accordance with OCFS policy.” (Id.).
2014, Nanette Wright issued Plaintiff a yearly performance
evaluation. (Dkt. No. 71-1, at 68-69). Moreno provided input
into the evaluation, and Mallick reviewed it. (Dkt. No.
62-10, ¶ 69). Plaintiff received an
“unsatisfactory” rating in four out of seven
areas. (Id. ¶ 70). The evaluation noted
attendance issues, including Plaintiff's absence from the
facility for 32 days since February 2014 for personal and
family issues. (Dkt. No. 62-19, at 120). Plaintiff disputed
the performance evaluation and was prepared to appeal. (Dkt.
No. 71-1, at 32). Mallick overturned the performance
evaluation and rated Plaintiff as “satisfactory.”
Incident with Highland Resident
3, 2014, “two codes were issued indicating an
increasingly escalating situation” involving a Highland
resident. (Dkt. No. 62-17, at 24). When Plaintiff arrived at
the scene, the resident was trying to get out of a van and
shouted “[g]et out of my way or I'll fuck you
up.” (Id. at 25). Plaintiff pushed the
resident back into the van and yelled “[i]f you hit me,
I will kill you.” (Id.).
the incident, “[t]he Justice Center was contacted to
investigate the situation, as is typical with cases of
possible improper use of force against a person with
disabilities.” (Dkt. No. 62-17, at 26). “OCFS
used the investigation materials supplied by the Justice
Center to assess wrongdoing by [Plaintiff].”
(Id.). On May 6, 2015, Mallick served Plaintiff with
a Notice of Discipline for this incident from OCFS Labor
Relations proposing a four-month suspension without pay.
(Dkt. No. 71-1, at 53). Plaintiff grieved the notice, and on
March 7, 2017, an arbitrator “determined that Plaintiff
was guilty of some of the charges and implemented a penalty
of a $1000 fine.” (Dkt. No. 62-16, ¶ 19).
Additional Schedule Changes
shift bid took place in June 2014, and Plaintiff was assigned
to work two day shifts and three evening shifts per week.
(Dkt. No. 62-10, ¶ 31). In October 2014, Plaintiff
requested a change to his work schedule, which Moreno
approved. (Id. ¶ 32).
March 8, 2015, Plaintiff brought an iPad into Highland. (Dkt.
No. 71-1, at 465). This violated a 2014 “Clear
Bag” policy issued to employees via memo that
“prohibited electronic devices in the facility.”
(Dkt. No. 62-6, ¶ 82; Dkt. No. 62-7, at 33). Plaintiff
denies receiving the memo. (Dkt. No. 71-1, at 467). A
co-worker, Eric Newton, also does not recall receiving the
memo. (Id. at 770-71).
Plaintiff brought in the iPad, the security guard asked
“Are these allowed?” (Dkt. No. 62-3, at 224).
Plaintiff replied, “I think so. I'm not
sure.” (Id.). The guard then allowed him to
enter with the iPad. (Id.). The guard reported the
incident to the Highland administration. (Dkt. No. 62-10,
¶ 95). Moreno was assigned to investigate. (Id.
¶ 94). On March 10, 2015, “Mallick told
[Plaintiff] that he was going to issue a counseling
memorandum” for bringing the iPad into Highland. (Dkt.
No. 71-2, ¶ 24). On March 17, 2015, “Moreno
confirmed that [Plaintiff] would be issued a counseling
memorandum.” (Id. ¶ 25). On March 26,
2015, Moreno submitted her narrative report, concluding that
Plaintiff should be subject to discipline, (Dkt. No. 62-10,
¶¶ 98- 99). Judge reviewed this determination.
(Dkt. No. 62-8, ¶ 45). Mallick forwarded the
investigation packet to OCFS Labor Relations and recommended
that Plaintiff be disciplined. (Id. ¶ 46).
Plaintiff alleges Mallick recommended a penalty of a
four-month suspension without pay. (Dkt. No. 70, at
40-41). On July 29, 2015, OCFS Labor Relations
issued Plaintiff a Notice of Discipline charging him with
violating Highland policy and proposing a four-month
suspension without pay. (Dkt. No. 71-1, at 202). Plaintiff
grieved the Notice of Discipline. (Dkt. No. 62-16, ¶
22). An arbitrator issued a decision on July 14, 2017,
finding Plaintiff guilty of violating the policy but that the
four-month penalty was “not appropriate” and that
the “appropriate penalty is a written reprimand.”
(Id.; Dkt. No. 62-17, at 50, 52).
Unauthorized Leave and Schedule Adjustment
her investigation into the iPad incident, Moreno discovered
that Plaintiff had left the facility on March 9, 2015 without
notifying her or the AOD. (Dkt. No. 62-10, ¶ 100).
According to Moreno, since Plaintiff “was scheduled to
work an eight hour shift per day” and “does not
receive time for a lunch break, ” this discovery
prompted her “to further review the schedule that
plaintiff was working.” (Id.). On April 6,
2015, Moreno provided an investigative narrative to Mallick
stating that Plaintiff “continuously adjusts his
schedule and leaving [sic] without informing his supervisor,
” and had “used a total of 26 leave hours on his
approved timesheets between January 1, 2015 and March 11,
2015, without prior approval or informing his supervisor
and/or the AOD.” (Dkt. No. 62-11, at 116-18). Moreno
recommended Plaintiff be disciplined. (Id. at 118).
Mallick submitted Moreno's investigation report to OCFS
Labor Relations on April 7, 2015 and proposed a Letter of
Reprimand and a one-month suspension without pay. (Dkt. No.
71-1, at 41).
Labor Relations determined that “it is evident that
[Plaintiff] has an issue with time and attendance, but the
evidence does not suggest discipline at this time.”
(Dkt. No. 71-1, at 43). OCFS Labor Relations further noted
that a number of Plaintiff's unauthorized absences were
due to “a coding error.” (Id.). As a
result, Plaintiff was issued a counseling memo and put on
medical documentation status “for a period of three
Plaintiff's March 22 Complaint
Moreno conducted her investigations regarding the iPad
incident and Plaintiff's unauthorized leave and time
adjustments, Plaintiff requested to work 9:00 to 5:00 for one
week “due to personal reasons.” (Dkt. No. 71-1,
at 34). On March 17, 2015, Moreno denied his request via
email and wrote that “a schedule adjustment is not
authorized however, if you need to request time off you can
submit a leave request and use accrued time.”
(Id.). In a reply on March 22nd, copying Mallick and
Judge, Plaintiff wrote: “I feel as if I am being
discriminated against. I only asked for accommodation for a
short period of time. I see women in this facility who are
accommodated due to the fact they have young children at
home.” (Id.). He also wrote that Moreno had
previously been accommodated with an accelerated work week
and “there are YDAs who are supposed to work 3-11 shift
(which the bided [sic] for) but have been accommodated and
now work 7a-3p for child rearing reasons, ”
(id.), and “[t]here are Senior staff members
on the facility schedule who are supposed to work 1 late
night a week and never have.” (Id.). He
concluded that “[a]s a single father with full physical
custody of my 4 year old son I am requesting the same
accommodation that I have witnessed my Female colleagues and
co-workers receive.” (Id.). Plaintiff did not
receive a response. (Dkt. No. 71-2, ¶ 32).
Plaintiff's March 24 Complaint
March 24, 2015, Plaintiff emailed Moreno telling her that he
had come in early that day and that he had to pick his son up
at daycare at 5:30 p.m. the following day. (Dkt. No. 71-1, at
37). Plaintiff also inquired about meeting with Moreno and
Mallick. (Id.). Mallick, who was copied on the
email, replied that Plaintiff was not allowed to change his
schedule without prior approval and that he had a
“persistent pattern of working [his] own
schedule.” (Id.). Mallick also stated that if
Plaintiff could not work his late nights, he must put in a
leave request and seek approval. (Id.).
response, Plaintiff wrote that he wanted to work something
out and “[i]f [he] has to work a reduced work week
without pay [he] will do that.” (Id.). He also
wrote “I have made a request and was denied by across
the board OTHERS are being accommodated for their children.
If I was a woman it would be different?”
March 26, Moreno and Plaintiff met to discuss Plaintiff's
schedule. (Dkt. No. 62-11, at 34). According to a memorandum
Moreno issued to Plaintiff recounting their meeting, they
agreed that Plaintiff would put in leave requests for the
times he could not work. (Id.). Specifically, they
agreed Plaintiff would work Monday through Wednesday, 2:00pm
until 5:00pm, and Thursday 9:00am until 5:00pm. Plaintiff
would submit leave requests for his full shift on Sunday and
5:00pm to 10:00pm Monday through Wednesday. Moreno noted that
“it is expected that [Plaintiff would] submit for a
Reduced Work Schedule” and that they would
“assist [Plaintiff] until a decision is made regarding
[Plaintiff's] formal request of a Reduced Work
Schedule.” (Id.). Plaintiff, however,
“never submitted a request to work a reduced
schedule.” (Dkt. No. 62-10, ¶ 40). Plaintiff also
continued to adjust his schedule without submitting leave
requests. (Dkt. No. 62-11, at 36). As such, he was required
to resume his normal schedule in May or June (which had been
in place since February 1, 2015). (Dkt. No. 62-10,
¶¶ 35, 40).
18, 2015, Moreno began “an audit of staff timesheets
reviewed and submitted by the three YC2's under [her]
direct supervision: [P]laintiff, Eric Newton, and Ray
Rutland.” (Dkt. No. 62-10, ¶ 87). Moreno
interrogated both Plaintiff and Newton after she
“discovered errors on timesheets reviewed and
approved” by them. (Id. ¶¶ 89-90).
When Newton asked why he was being audited, Moreno replied,
“It's not you.” (Dkt. No. 71-1, at 760).
According to Newton, “in essence, [Moreno] said that
[Newton] wasn't the target” and Newton interpreted
Moreno's statements to mean that Plaintiff was the
target. (Id. at 755). Newton called Plaintiff and
told him Moreno had said “don't worry about it,
we're only interrogating you so [Plaintiff] doesn't
cry harassment.” (Id. at 432).
“recommended that plaintiff be disciplined because he
approved falsified time sheets submitted by staff members he
supervised.” (Dkt. No. 62-10, ¶ 91). On July 22,
2015, Judge sent the investigation to OCFS Labor Relations
and recommended that Plaintiff be demoted from his YC2
position. (Dkt. No. 71-1, at 192). Judge did not recommend
discipline for Newton. (Dkt. No. 71-1, at 618-19). OCFS Labor
Relations “lost the investigation” and
“after they discovered it, it was beyond a year. So
[Plaintiff] did not get a discipline based on that
technicality.” (Id. at 564). Instead, OCFS
Labor Relations directed that Plaintiff received a formal
counseling memo in connection to his failure to adhere to
time and accrual records policies. (Dkt. No. 62-9, at 25).
Plaintiff's May 28 Complaint
28, 2015, Plaintiff wrote an email to Moreno and Judge,
copied to Mallick, complaining that a co-worker, Ms. Hicks,
was “not working her late nights, ” and that
“Moreno had approved this.” (Dkt. No. 71-1, at
49). Plaintiff wrote that “I am a single father of a
little boy as Ms. Hicks is a single mother. Why is it that
accommodation is [sic] made for a woman who is a single
mother but not me . . . I would like to be accommodated
also.” (Id.). He also wrote that “it has
come to my attention that non clinical assistant directors
are to be working two 2pm-10pm shifts a week” but that
Judge did not seem to be doing so and inquired whether it was
because she had a young child at home. (Id.).
responded that if Hicks “is not working her schedule,
” Plaintiff, as Hicks's supervisor, “need[ed]
to counsel her on adhering to her schedule.” (Dkt. No.
71-1, at 51). He advised Plaintiff that “Judge is no
concern to you as you are a YC2 and she is your
supervisor.” (Id.). He further stated that:
If you spent more time on your job and your task standards
you would be a more productive employee. If you have concerns
regarding your personal schedule you need to file for
reasonable accommodation. I'm tired of seeing you send
the same emails out every other week attacking female
employees of this facility.
(Id.). Plaintiff replied and asked “[w]hy
would you say that my supervisor has no issue with my job
performance. Is that comment retaliation for asking a
question about gender equality?” (Id.).
2015, Moreno wrote and Mallick reviewed Plaintiff's June
2014 to June 2015 performance evaluation. (Dkt. No. 62-10,
¶ 75; Dkt. No. 62-11, at 86). One week before issuing
the evaluation, Moreno told Plaintiff he was doing an
“excellent job.” (Dkt. No. 71-1, at 434; Dkt. No.
71-2, ¶ 39). In the evaluation, however, Plaintiff
received unsatisfactory ratings in six out of seven areas.
(Dkt. No. 62-11, at 83-86). Plaintiff suspected Judge had
written his evaluation rather than Moreno. (Dkt. No. 71-2,
¶ 42; Dkt. No. 71-1, at 434). Moreno “told
[Plaintiff] that she was going to change [his] evaluation
because [Moreno] made mistakes in
‘judgment.'” (Dkt. No. 71-2, ¶ 42).
Moreno amended the evaluation by changing some of the
narrative and rating Plaintiff as satisfactory in four out of
seven areas. (Dkt. No. 62-11, at 88- 91). When Plaintiff
continued to disagree with the evaluation, Moreno changed it
again to give him an unsatisfactory in six out of seven
areas, as she “had done originally.” (Dkt. No.
62-10, ¶ 77).
Mallick's Conversation with Frank Tamburro
before June 2015, Mallick had a conversation with Frank
Tamburro (an OFCS employee) about Plaintiff. (Dkt. No. 71-2,
¶ 34; Dkt. No. 71-1, at 700-01). Tamburro had noticed
tension between Plaintiff and Mallick and he wanted to help
“rectify the issues.” (Dkt. No. 71-1, at 701).
Mallick told Tamburro that “he was not happy with
[Plaintiff's] performance” and he thought Plaintiff
should take a lower position at another facility,
(id. at 703-704), with a 9 to 5 schedule, unlike
Plaintiff's current position. (Dkt. No. 62-6, ¶ 53).
When Tamburro indicated that Plaintiff would be unlikely to
take a demotion, Mallick “got extremely agitated,
slammed his hand on the desk and said ‘He needs to take
that position or I'm going to fire his dumb
ass.'” (Dkt. No. 71-1, at 704). Mallick encouraged
Tamburro to give Plaintiff the message. (Id. at
705). Tamburro reported this conversation to Plaintiff in
June 2015. (Dkt. No. 71-2, ¶ 34).
2015, Plaintiff's paycheck was missing “more than
$1200 in pay.” (Dkt. No. 71-2, ¶ 44). Plaintiff
brought the issue to Moreno's attention. (Dkt. No. 62-10,
¶ 106). The error was “an attempt to rectify
inaccuracies in plaintiff's timesheet.”
(Id.). Mallick helped to arrange a salary advance to
“ameliorate the impact of the error on
[P]laintiff.” (Dkt. No. 62-6, ¶ 86). Plaintiff
claims he was taxed at a higher rate because of the mistake,
which resulted in having an extra $175.00 withheld. (Dkt. No.
71-2, ¶ 45).
Plaintiff's June 28 Complaint
28, 2015, Moreno issued Plaintiff two counseling memos
regarding his unscheduled absences between March 26, 2015 and
May 4, 2015 and tardiness between March 1, 2015 and April 13,
2015. (Dkt. No. 62-10, ¶¶ 41-42; Dkt. No. 62-11, at
36, 39). The unscheduled absences memo documented 17
occasions during which Plaintiff did not work his assigned
schedule. (Dkt. No. 62-11, at 36-37). The tardiness memo
documented nine occasions on which Plaintiff arrived late to
work. (Id. at 39-40). Plaintiff signed the tardiness
memo and handwrote: “I would hope this is for everyone.
I feel I am being targeted. All staff flex there
[sic] schedule without this Harassment [sic] . . . This is
continued discrimination.” (Dkt. No. 62-11, at
40). Moreno informed Mallick of Plaintiff's allegations
the next day. (Dkt. No. 62-10, ¶ 44).
July Counseling Memo
26, 2015, Moreno issued Plaintiff a counseling memo regarding
“a pattern of excessive unscheduled and unauthorized
tardiness and absences.” (Dkt. No. 62-10, ¶ 46).
Moreno again placed Plaintiff on medical documentation status
for all future absences. (Id.). On August 6, 2015,
Plaintiff grieved the memo and argued that OCFS policies for
time and attendance had been violated. (Dkt. No. 62-11, at
49-52). The grievance was reviewed and denied by OCFS Labor
Relations. (Id. at 57-62).
September 2015, there was a mock audit of Highland, during
which Moreno “discovered razors in the desk of an
employee under [P]laintiff's supervision.” (Dkt.
No. 62-10, ¶ 115). The razors were in an unlocked desk
in a secured area. (Dkt. No. 71-1, at 780-81; Dkt. No. 71-2,
¶ 47). Moreno “secured the razors in
[Plaintiff's] office” and “told [him] to
secure them.” (Dkt. No. 62-10, ¶ 115).
informed Judge of the incident, and Judge directed Moreno to
further investigate. (Id. ¶ 116). At the time
of the audit, there was no local operating policy regarding
securement of razors at Highland. (Dkt. No. 71-1, at
584-86). A local policy regarding razors was
approved shortly after the mock audit. (Id. at 217).
prepared a report, which she sent to Judge, following her
investigation in which she concluded that Plaintiff
“demonstrates an inability to supervise staff.”
(Dkt. No. 62-11, at 129). After reviewing the report, on
October 20, 2015, Judge recommended to OCFS Labor Relations
that Plaintiff be terminated. (Dkt. No. 62-8, ¶ 50; Dkt.
No. 71-1, at 220).
testified that during the audit, it was discovered that
another employee had not followed protocols regarding fire
extinguishers, and she wanted “that matter
examined.” (Dkt. No. 71-1, at 595). Following an
inquiry into the matter, Judge determined that the employee
had knowingly put inaccurate inspection dates on the fire
extinguishers. (Id. at 596). Judge stated that the
employee “was formally counseled on the matter.”
September 30, 2015, a YDA under Plaintiff's supervision
was assigned to carry an EpiPen but left it in the staff
office. (Dkt. No. 62-12, ¶ 20). Another staff member
found the pen and gave it to Plaintiff. (Id.).
Plaintiff secured the EpiPen in his office and did not inform
anyone where it was before leaving for the day.
(Id.). The next morning, Plaintiff returned the
EpiPen to the Medical Department. (Dkt. No. 62-13, at 30).
Lucky was assigned to investigate the incident. (Dkt. No.
62-12, ¶ 18). Lucky determined that Plaintiff had failed
to follow his EpiPen training and had “failed to use
good judgment by leaving the facility and not informing staff
that the [EpiPen] was secured in his office.”
(Id. ¶ 21). On January 14, 2016,  Judge (who
reviewed Lucky's investigation materials) recommended to
OCFS Labor Relations that Plaintiff receive a three-month
suspension. (Dkt. No. 62-8, ¶ 57; Dkt. No. 71-1, at
Plaintiff's EEOC Charge
filed an Equal Employment Opportunity Commission
(“EEOC”) complaint on December 2, 2015, alleging
discrimination and retaliation. (Dkt. No. 62-15, at 94).
now Plaintiff's supervisor, issued Plaintiff several
memos in February 2016. (Dkt. No. 62-12, ¶¶ 30-32).
Two of these memos, issued on February 10 and 11, concerned
Plaintiff's failure to “acquire a doctor's note
for a staff under [his] supervision, ” who had been
absent for ten days, and Plaintiff's “unscheduled
absence” on February 11th. (Dkt. No. 62-13, at 36-38).
On February 21st, Lucky issued Plaintiff a “Formal
Counseling” memo regarding his failure to have 25% sick
leave accruals and placed Plaintiff on medical documentation
status. (Id. at 40).
March 9, 2016, Robert Wilson from the OCFS's Equal
Opportunity and Diversity Development Office
(“EODD”), interviewed Mallick, Judge, and Moreno
concerning an “investigation to assist agency counsel
in responding to EEOC charge of discrimination.” (Dkt.
No. 71-1, at 379). Wilson interviewed Plaintiff on March 14,
also interviewed Tamburro in the course of his investigation.
(Dkt. No. 71-1, at 707-08). Tamburro told Wilson about the
conversation he had with Mallick during which Mallick
threatened to fire Plaintiff unless Plaintiff took a
demotion. (Id. at 709). At some point after his
interview with Wilson, in “early spring of 2016,
” Tamburro's job duties were removed and he was no
longer allowed to go any facilities, including Highland.
(Id. at 710-11). Tamburro testified that his
supervisor told him that he “had no idea” why
Tamburro's responsibilities were removed. (Id.
at 711). Tamburro continued to be paid but “came to
work every day and sat at [his] desk for eight hours a day
and had nothing to do.” (Id. at 715). His
supervisor actively attempted to get work for him but those
attempts “were constantly rejected.”
(Id. at 717). Tamburro attributes having his
responsibilities removed to “either meeting with Mr.
Wilson” or his friendship with Plaintiff. (Id.
Justice Center Investigation
March 15, 2016, following a complaint by a resident at
Highland concerning an employee that Plaintiff supervised,
Plaintiff was interrogated by the Justice Center for the
Protection of People with Special Needs (“Justice
Center”). (Dkt. No. 71-2, ¶ 69). The resident had
made the same complaint to at least five other staff members,
none of whom reported the complaint to the Justice Center.
(Id. ¶ 70). Plaintiff asked Lucky and another
Assistant Director if he should report the complaint to the
Justice Center and did not get a response. (Id.
¶ 71). Plaintiff was then reported to the Justice Center
for failing to report the incident. (Id. ¶
72). On The Justice Center investigation did
not find Plaintiff guilty of any wrongdoing. (Id.).
Inspection of Plaintiff's Unit
March 16, 2016, one week after the EODD interview, Mallick,
accompanied by Lucky, conducted an unscheduled inspection of
Plaintiff's unit. (Dkt. No. 71-2, ¶¶ 62, 109;
Dkt. No. 62-12, ¶¶ 23-24). Mallick told Lucky to
check Plaintiff's unit every day going forward, (Dkt. No.
71-2, ¶ 62), and Lucky did so. (Id. ¶ 63).
Lucky issued Plaintiff a counseling memo regarding the state
of his unit. (Dkt. No. 62-13, at 34). According to Tamburro,
the unit looked unclean because there was an issue with a
mechanical air handler in Plaintiff's unit, which was
“not pressured right” and was “drawing
debris, lint fabrics and stuff, from the rooms, pulling it
into the hallway.” (Dkt. No. 71-1, at 747-48). When
Tamburro informed Lucky of the problem, Lucky replied that
Plaintiff is “not keeping the unit clean, he's not
doing what he's supposed to be doing.”
(Id. at 748).
Report to Justice Center
“reduced the number of employees in [Plaintiff's]
unit from three to two per shift making it impossible for
staff to perform the work required.” (Dkt. No.
71-2, ¶ 67). On March 29, 2016, Plaintiff “learned
that because of Lucky's unreasonable demands to staff, an
employee was forced to leave another staff member who was not
supposed to be left alone with youth unsupervised.”
(Dkt. No. 71-2, ¶ 73). This created “a significant