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
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"
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
"[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."
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
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
"[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
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
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
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.
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.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO.