New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2003-010-011, Claim No. 103491


Defendant employer not liable to employee for conduct of coworkers where there was no showing that employer either encouraged or condoned conduct.

Case Information

STEPHEN BROWN By stipulation of the parties, so ordered May 15, 2002, the cause of action asserted on behalf of Joan Brown was discontinued and the caption amended accordingly. Additionally, the Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
By stipulation of the parties, so ordered May 15, 2002, the cause of action asserted on behalf of Joan Brown was discontinued and the caption amended accordingly. Additionally, the Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 27, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, who was employed as a construction coordinator at the State University of New York at Purchase (SUNY), alleges that he was harassed and threatened by two employees under his supervision and that SUNY was negligent in allowing the offending behavior to continue. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that he was hired as the construction manager at SUNY in mid- 1999. Claimant's responsibilities included overseeing the work of outside contractors who performed small and medium size projects on campus. When claimant was initially hired, there were no employees under his direction. In 2000, Ozzie Mazzari and Pete Fabrizzio were assigned to work under claimant's supervision.
From the outset,
claimant had problems with Mazzari, who left early and took long lunches. Claimant gave Mazzari verbal warnings about his job performance. In response, Mazzari made remarks expressing his displeasure. According to claimant, these comments turned threatening in August 2000. After claimant altered one of Mazzari's time sheets to reflect a proper record, Mazzari telephoned claimant at his home on August 23, 2000 and said, "I'm gonna get you when you get in" (T:11).[1] The following day, when claimant arrived at work, Mazzari stated, "nobody takes my time away. You're gonna get yours and I'm gonna get you" (T:12). Claimant testified that he felt threatened and feared for his physical safety. On August 22, 2000, claimant gave Mazzari a written warning (Ex. 3).
Claimant acknowledged that when he complained to his supervisor, Steve Dorso, about Mazzari's absences, Dorso sometimes held meetings.
In late May 2000,
claimant also began to have difficulty with Fabrizzio. Fabrizzio complained that he was not being treated fairly in his job and that he always dealt with such problems in a violent manner (T:15). This led claimant to believe that Fabrizzio was a violent person. On June 7, 2000, claimant tried to counsel Fabrizzio who was scheduled for evaluation. Fabrizzio lost control and warned claimant, "don't f-f-ing, you know, mess with my grade, my 12" (T:16). Claimant reported the incident verbally to Kevin Hellriegel, the SUNY Director of Facilities Management and in writing to Hellriegel and Dorso (Ex. B). The following day, June 8, 2000, a meeting was held with Hellriegel, Dorso, Fabrizzio and claimant. Hellriegel reprimanded Fabrizzio. Claimant maintains that Dorso said that there was no choice but to transfer Fabrizzio from claimant's unit. Claimant replied, "so be it" and left on a short vacation. When he returned, there had been no change and according to claimant, Dorso indicated that the transfer could not be done (T:27).
claimant testified that he was not satisfied with the meeting on June 8, 2000, he wrote a note to Hellriegel on the bottom of a copy of the original e-mail complaining about the June 7, 2000 incident. In his own handwriting, claimant stated:
"[t]hanks for the prompt attention to above matter; and knowing how precious your time is, I feel it was a good investment. I'm sure that Pete feels the same way, and that this went a long way in resolving some of his issues. Steve B."

(Ex. B).
recalled several other incidents with Fabrizzio. On June 15, 2000, Fabrizzio and claimant had a heated conversation regarding an automobile accident Fabrizzio had witnessed on campus. Fabrizzio rejected claimant's suggestion to report the accident and claimant filed his own report. Fabrizzio told claimant to stay out of everybody's business and claimant interpreted this admonition as threatening.
Claimant further testified that on June 29, 2000, he and Fabrizzio went to a lumberyard to buy materials for a project. A disagreement ensued about the purchase and Fabrizzio began arguing in a loud irritated manner. Claimant tried to persuade Fabrizzio to end the public discussion, but was unsuccessful. As they drove back to SUNY, Fabrizzio continued the argument. He cursed, yelled and pounded his fists on the dashboard. Fabrizzio screamed that he needed respect and warned that, "if you continue to do it, make me look like a fool in front of other people *** you're not ever gonna be able to do that again" (T:20). Claimant testified that Fabrizzio continued to act in an agitated way and claimant felt consistently threatened. When questioned for exact instances, claimant responded that it was difficult to reconstruct.
Regarding the allegation of harassment, claimant acknowledged that he was aware that there were informal ways to discipline employees at SUNY. Despite his awareness of the Department of Human Resources, claimant never initiated formal charges through the department against Fabrizzio or Mazzari. Claimant explained that he thought he was going through the proper channels and that he could get relief from Dorso and Hellriegel.
Claimant submitted a letter of resignation to SUNY dated July 18, 2000. He expressed his frustration of the "utter impossibility to motivate employees" and "severe breakdowns in discipline" (Ex. F). Despite these statements, he concluded:
"[y]our [Hellriegel] eventual financial help and moral support, (especially that of Steve Dorso), in getting us up and running and manned was greatly appreciated. There's no doubt that you couldn't find a better, more loyal boss than Steve D. He has always gone the extra step to provide me with the support, both moral and resource-wise, along with just the right amount of leadership, to make my time here an overall positive experience"

After he resigned,
claimant completed a counseling form about Mazzari's behavior (Ex. 3). Claimant's last day of work was August 31, 2000.
Kevin Hellriegel testified that he has been the Director of Facilities Management at SUNY since 1995. He recalled the June 8
th meeting regarding claimant's complaints about Fabrizzio. Hellriegel had a follow-up conversation with Dorso in which they agreed that Fabrizzio should be transferred. Claimant never asked Hellriegel to transfer, fire or discipline Fabrizzio.
Steve Dorso testified that he has been the Associate Director of Facilities Management since 1990. He recalled that he had been verbally advised by
claimant that Mazzari was often late, absent frequently, and had left his assigned location. Claimant, however, did not indicate that he had been threatened by Mazzari. When Dorso received complaints, he called meetings with Mazzari and claimant. He directed Mazzari to follow claimant's instructions.
Dorso recalled the June meeting regarding the complaints about
Fabrizzio. Dorso testified that, he told Fabrizzio that he must respect his supervisor and defer to claimant. Fabrizzio appeared agreeable. Dorso testified that after a subsequent problem, Dorso discussed with claimant the prospect of transferring Fabrizzio and claimant was opposed to the transfer (T:73). Claimant never asked for Fabrizzio to be transferred and never filed any written complaints about Fabrizzio.
Lawrence Mills testified that he had been the Director of Human Resources at SUNY in 2000. He was involved in the disciplinary process and helped supervisors address employee problems. Mills recalled several meetings with
claimant where they had general discussions relating to supervisory issues. These were informal, rather than scheduled meetings. Claimant never indicated that he had been harassed by an employee. Mills maintained that he would have considered such complaint a trigger necessitating a referral to the Affirmative Action Officer. Mills testified that he would have taken the allegation seriously since it would put the administration on notice. Mills outlined the available procedures both formal and informal for disciplinary problems. No formal charges were ever initiated by claimant. Mills further stated that normal procedure is that issues are resolved by immediate supervisors and only after they are unsuccessful are the issues then brought to Mills' attention.
Claimant has failed to meet his burden of establishing any basis upon which to hold defendant liable for the conduct of its employees (see Matter of State Div. of Human Rights (Greene) v St. Elizabeth's Hosp., 66 NY2d 684, 687 [employer not liable for employee's conduct where complained of conduct was neither encouraged, condoned nor approved of by employer] ). In the instant case, the evidence established that once claimant made defendant aware of the complained of conduct of its employees, defendant responded in a timely and appropriate manner (see Martinez v Triangle Maintenance Corp., 293 AD2d 721, 722 [defendants established that they took appropriate remedial action]). Indeed, claimant expressly indicated, on more than one occasion, his satisfaction with defendant's actions.
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


March 27, 2003
White Plains, New York

Judge of the Court of Claims

[1] All references to the trial transcript are preceded by the letter "T."
[2] In light of this Court's determination, defendant's jurisdictional argument, raised in the post-trial memorandum, need not be addressed.