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Cusher v. Mallick

United States District Court, N.D. New York

January 9, 2020

DEVIN CUSHER, Plaintiff,
v.
ASGHAR FAROOQ MALLICK, MIKKI JUDGE, MELISSA MORENO, ANTHONY LUCKY, and THE NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, Defendants.

          For Plaintiff: Drita Nicaj Law Offices of Drita Nicaj.

          For Defendants: Letitia James Attorney General of the State of New York Lynn Knapp Blake Assistant Attorney General.

          MEMORANDUM-DECISION AND ORDER

          Brenda K. Sannes, U.S. District Judge.

         I. INTRODUCTION

         Plaintiff 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), [1] (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.

         II. FACTS [2]

         A. Highland Operations

         Plaintiff 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.).

         Mallick 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).

         In 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[3] 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.[4]

         Employees 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.)

         1. Employee Discipline

         Supervisors 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 improvement.” (Id.).

         When an 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).

         2. Co-Workers

         Plaintiff 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, [5] Nicole Romano, [6] 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”), [7] Kelly Hicks was a YC1 and then a Youth Recreation Specialist 3, [8] Mary Pazienza was a unit clinician, [9] Nicole Romano was a unit clinician, [10] and while the record is somewhat unclear, Katy Carson appears to have been an Assistant Director.[11] 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).

         Plaintiff 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).

         B. Work-Related Issues

         1. 2010-2013

         a. Plaintiff's Paternity Leave

         In 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).

         While 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).

         b. Plaintiff's Schedule and Work Performance

         Once 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).

         In 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)

         In 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).

         2. 2014

         a. CAP

         In 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.” (Id.).

         b. Schedule Change

         In 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).

         Due to 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).

         After 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).

         c. FMLA request

         In 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, ¶ 9).

         d. Medical Documentation Status

         In 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.).

         e. Performance Evaluation

         In June 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.” (Id.).

         f. Incident with Highland Resident

         On June 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.).

         After 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).

         g. Additional Schedule Changes

         Another 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).

         3. 2015

         a. iPad Incident

         On 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).[12]

         When 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).[13] 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).

         b. Unauthorized Leave and Schedule Adjustment Investigation

         During 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).

         OCFS 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 months.” (Id.)

         c. Plaintiff's March 22 Complaint

         While 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.”[14] (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).

         d. Plaintiff's March 24 Complaint

         On 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.).

         In 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?” (Id.).

         On 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).

         e. Timesheet Audit

         On May 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).

         Moreno “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).

         f. Plaintiff's May 28 Complaint

         On May 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.).

         Mallick 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.).

         g. Performance Evaluation

         In June 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).

         h. Mallick's Conversation with Frank Tamburro

         Sometime 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).

         i. Paycheck incident

         In June 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).

         j. Plaintiff's June 28 Complaint

         On June 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).

         k. July Counseling Memo

         On July 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).

         l. Razor Incident

         In 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).[15] Moreno “secured the razors in [Plaintiff's] office” and “told [him] to secure them.” (Dkt. No. 62-10, ¶ 115).

         Moreno 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).[16] A local policy regarding razors was approved shortly after the mock audit. (Id. at 217).

         Moreno 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).

         Judge 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.” (Id.).

         m. EpiPen Incident

         On 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, [17] 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 241).

         n. Plaintiff's EEOC Charge

         Plaintiff filed an Equal Employment Opportunity Commission (“EEOC”) complaint on December 2, 2015, alleging discrimination and retaliation. (Dkt. No. 62-15, at 94).

         4. 2016

         a. Counseling Memos

         Lucky, 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).

         b. EEOC Investigation

         On 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, 2016. (Id.).

         Wilson 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. at 713).

         c. Justice Center Investigation

         On 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).[18] On The Justice Center investigation did not find Plaintiff guilty of any wrongdoing. (Id.).

         d. Inspection of Plaintiff's Unit

         On 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).

         e. Report to Justice Center

         Lucky “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.”[19] (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 threat ...


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