New York State Court of Claims

New York State Court of Claims

CLAUBERG v. THE STATE OF NEW YORK, #2009-015-141, Claim No. 112241, Motion No. M-75788


Defendant's motion for summary judgment dismissing claim alleging employment discrimination was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Cronin & Byczek, LLPBy: Rocco G. Avallone, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant moves for summary judgment pursuant to CPLR 3212 dismissing the instant claim alleging employment discrimination in violation of the New York State Human Rights Law (Executive Law § 296). Claimant, a Correction Officer employed by the Department of Correctional Services (DOCS), alleges he was the victim of unlawful discriminatory conduct as a result of DOCS' policy and practice of allowing and condoning discriminatory and retaliatory conduct in the workplace. The incidents upon which this claim is based occurred at Sing Sing Correctional Facility (CF), Sullivan CF and the Willard Drug Treatment Campus (Willard). As set forth in the claim, claimant is a white, Irish-American male whose employment with DOCS commenced in 1997.

The Alleged Unlawful Conduct

Claimant alleges that during his tenure as a Correction Officer at Sing Sing CF his supervisor, Lieutenant Phipps (then a Sergeant), made racially and ethnically insensitive remarks toward African-Americans, Hispanics, Catholics and persons of Irish descent. Examples include references to the claimant’s wife, who is a Hispanic Correction Officer, as a “half bred spic” and a “dumb spic” and to the claimant, an Irish-American, as a “dumb mick” and a “grease ball wop” (defendant's Exhibit A, amended claim, ¶ ¶ 3, 5). The claimant also alleges that Lieutenant Phipps referred to an African-American Correction Officer as a “slug” and other African-Americans as “black boys” (defendant's Exhibit A, amended claim, ¶ 4). Claimant alleges that Lieutenant Phipps referred to the late Pope John Paul II as a “money hungry old man”, stated that all priests are “child molesters” and that the claimant "must have been molested" because he was an alter boy growing up (defendant’s Exhibit A, amended claim, ¶ 6; see also claimant’s Exhibit DD, pp. 152-160) . Claimant alleges that he advised Deputy Superintendent of Security William Connolly of Lieutenant Phipps' offensive conduct and filed complaints with both DOCS' Office of Diversity Management and Commissioner Brian Fischer. It is alleged in the claim that no action was taken by DOCS in response to claimant's complaints (defendant's Exhibit A, ¶ 4) and that Phipps retaliated against the claimant by modifying his work schedule to 8:00 a.m. - 4:00 p.m. from 7:00 a.m. - 3:00 p.m. (defendant's Exhibit A, amended claim, ¶ 8). In a memorandum to Superintendent Brian Fischer dated July 30, 2002 claimant stated that Phipps’ explanation for the schedule change was a “smoke screen to try to hide his malice towards me for reporting his racist comments” (claimant’s Exhibit C). In the memorandum, claimant also complained of the “unprofessional, vindictive, and racist actions” of Lieutenant Phipps (id.). Superintendent Fischer treated the memorandum as a harassment complaint and forwarded it to Charles Harvey, Director of Diversity Management for review (see defendant’s Exhibit E). Claimant also filed a complaint dated January 8, 2003 with the New York State Division of Human Rights regarding Phipps’ conduct.

By letter dated July 17, 2003, almost one year after the original complaint was made, Mr. Harvey responded in pertinent part as follows:
“Based on the results of our investigation, your allegations of racial harassment by Sergeant Phipps could not be substantiated. There were no witnesses to the alleged actions and comments you attribute to Sergeant Phipps. Our investigation did, however, substantiate that Sergeant Phipps allows joking and the telling of ‘off-color’ jokes in his presence, which is in violation of Department policy. Accordingly, appropriate administrative action will be taken to deal with the issue. . . Although no further action will be taken and we have closed this case, you should feel free to contact this office . . .” (defendant’s Exhibit E).
Mr. Harvey also sent a letter dated July 17, 2003 to Superintendent Fischer advising that although the claimant’s allegations of racial harassment by Phipps could not be substantiated, his office was able to confirm that Phipps “participates in and allows the telling of ‘off-color’ jokes that contain racially sensitive terms and expressions" and requested that Phipps be informally counseled that this was a violation of certain DOCS' policies (defendant's Exhibit E, letter to Supt. Fischer dated July 17, 2003). Claimant alleges that no corrective measures were taken against Phipps, who continued to make racially offensive remarks.

The affidavit of George Cruz, a Correction Officer at Sing Sing CF, substantiates certain of the allegations made by claimant with regard to the conduct of Phipps. Mr. Cruz avers that “[a]s a result of [claimant’s] complaints against Sgt. Phipps, I witnessed a hostile work environment full of harassment and retaliation by Sgt. Phipps . . . An attempt was made to change [claimant’s] tour after he filed his complaints with Sgt. Phipps’ supervisors.”

Claimant requested a transfer to Sullivan CF in June 2002, allegedly because of ongoing harassment by Sergeant Phipps, and transferred to that facility in either January or February 2003. He testified at a deposition that he and his wife moved to Liberty, New York in October or November, 2002 in anticipation of the transfer (claimant’s Exhibit DD, p. 32-34).[1]

Claimant alleges that it became obvious upon his arrival at Sullivan CF that word had spread of his “whistle blowing” (defendant’s Exhibit A, amended claim, ¶ 16). He testified at an examination before trial that as a result of the complaints he had filed regarding Phipps while at Sing Sing CF he was harassed daily by his supervisors and other staff at Sullivan CF (claimant’s Exhibit DD, EBT transcript, p. 46). Claimant testified that on his first or second day of work at Sullivan CF his supervisor, Sergeant Maxwell, informed him “ ‘up here in the mountains we don’t play that race card shit’ ” (claimant’s Exhibit DD, EBT transcript, p. 189) and stated words to the effect that claimant's time at Sullivan CF would be difficult (claimant’s Exhibit DD, EBT transcript, p. 190). He alleges in the verified claim that Maxwell told him that "This isn't Sing Sing . . . you'll have to watch your ass if you mess with superiors like I heard you did at Sing Sing" and that the "bullshit racial card doesn't work in the mountains" (defendant's Exhibit A, amended claim, ¶ 17). Thereafter, on June 21, 2003 Maxwell accused claimant of insubordination and threatened disciplinary measures arising from an incident involving an inmate (defendant's Exhibit A, amended claim, ¶18). Claimant complained about Maxwell's conduct in a memorandum to Superintendent Walsh date-stamped June 23, 2003 (defendant’s Exhibit F). The matter was investigated and Superintendent Walsh responded that while there was no evidence of insubordination, it “appears likely that the manner in which you interacted with the Sergeant was not appropriate” (defendant’s Exhibit F, Memorandum dated July 23, 2003). However, he indicated that the informal manner in which the matter was handled was appropriate and no formal disciplinary action was taken (id.).

Claimant alleges that in August 2003 he signed up to work "overtime for the 6:00 a.m. - 2:00 p.m. shift . . . " (defendant's Exhibit A, amended claim, ¶ 27). Claimant reported to work at approximately 6:30 a.m. but was later advised by Sergeant Hornbeck that he would be paid for overtime beginning at 7:30 a.m. stating, "you want to write up sergeants and expect to get away with it? Go ahead and keep writing up sergeants and we’ll keep making sure things don’t go good for you” (claimant’s affidavit, ¶ 4; see also defendant’s Exhibit A, amended claim, ¶ 27). Claimant avers that he immediately contacted his union delegate who advised him that he would handle the situation. Sergeant Hornbeck approached the claimant 45 minutes later yelling, “You’re writing up Maxwell and some Sgt. [f]rom Sing Sing because you want to play some nigger loving shit?” and “You better learn quick that you’re not in Sing Sing anymore and nothing but trouble will come to you if you don’t go with the flow in the jail” (claimant’s affidavit, ¶ 4; see also defendant’s Exhibit A, amended claim, ¶ 27-28).

Thereafter in September 2003 copies of a hostage photo of the claimant were improperly removed from a secure location and posted in the Sullivan CF break room/lineup room with the words "rat", "don't dare say a racial slur or I'll go tell" and "bitch" written on them (defendant's Exhibit A, amended claim, ¶ 29; see also claimant's affidavit, ¶ 5). Copies were placed on a time clock where 45-50 correction officers clocked in for work and in an area where the photograph could be seen by both inmates and correction officers (claimant's affidavit, ¶ 5). After the claimant reported to his post, Correction Officer Randy Armstrong and Sergeant Wayne Jordan attempted to stare him down and Correction Officer Armstrong said "Yeah I did it, you're a rat and you should transfer back to Sing Sing" (claimant's affidavit, ¶ 5). Correction Officer Armstrong then walked over to the claimant and said "What are you going to do about it rat?" (id.). As the claimant was leaving the area, Sergeant Jordan and Correction Officer Armstrong started laughing and Sergeant Jordan said "You think he realizes nobody wants him here?" (id.). Later that day the claimant spoke privately with Sergeant Jordan and advised him that he was not going to be bullied into leaving the jail. Sergeant Jordan told him "Well you're not winning over anybody by not dropping these complaints of racism. This could get ugly before it gets better and if I were you I would think about transferring to another jail like Eastern, because people stick together around here" (id.; see also defendant's Exhibit A, amended claim, ¶ 33). Claimant testified at a deposition that Lieutenant Jordan was the Watch Commander on the date of the above incident and the only officer with access to his hostage photo. According to the claimant, approximately 50 officers witnessed the photo and he verbally complained to Superintendent Walsh regarding Armstrong's conduct (Exhibit DD, pp. 66, 68). He also testified that Superintendent Walsh should have disciplined these officers but did not (claimant's Exhibit DD, pp. 65-67).

Claimant alleges he complained about Maxwell's harassment and intimidation to Lieutenant Keenan, one of his other supervisors, but that Keenan disregarded his complaints and condoned Maxwell's conduct (defendant's Exhibit A, amended claim, ¶ ¶ 35-36). In addition, it is alleged that Keenan himself continuously made derogatory and racial remarks to claimant and others. Claimant alleges that Keenan referred to another African-American correction officer as a "fucking mulie", to a female correction officer of Arabic heritage as a "camel jockey" and that he made obscene gestures in front of female staff who said nothing for fear of retaliation (defendant's Exhibit A, amended claim, ¶ 37-39; claimant's Exhibit N). It is also alleged that Keenan referred to African-American inmates as "porch monkeys" and that he stated he was "tired of dealing with these niggers" and "in Attica, niggers knew their place" (defendant's Exhibit A, amended claim ¶ 40; claimant's Exhibit M). Keenan allegedly asked the claimant "be honest, why do you care about porch monkeys that should have that cabbage on their heads pulled out?" and indicated that the supervisors claimant was "writing up" had a long memory (claimant's affidavit,¶ 7; defendant's Exhibit A , amended claim, ¶ 42 ). Claimant asserts that from May 17, 2004 through July 17, 2004 Lieutenant Keenan continuously made racist and derogatory remarks at Sullivan CF (claimant's affidavit, ¶ 8). He also testified that he was threatened and subjected to unprofessional conduct by supervisors on a daily basis (Exhibit DD, pp. 46-50).

In June or July of 2004 claimant alleges that Keenan referred to the claimant as the "Reverend Al Clauberg" and another correction officer advised claimant "You don't want to be mistaken for Sharpton, he already got what he deserved when he got stabbed" (defendant's Exhibit A, amended claim, ¶ 43; claimant's affidavit, ¶ 11).

On August 5, 2004 there was an incident at the rear gate regarding the entry of civilian workers into the facility, which resulted in a formal counseling by Maxwell (see defendant's Exhibit G). Claimant complained to Superintendent Walsh, who had the matter investigated. Upon completion of the investigation, the Superintendent concluded that formal counseling was warranted due to the manner in which claimant conducted himself while interacting with Maxwell. Some of the witnesses to the occurrence indicated that Maxwell was questioning Clauberg in a loud confrontational manner regarding construction personnel at the rear gate before they proceeded to the office (id.). In fact, Correction Officer Tyler testified at a deposition that Maxwell appeared unduly agitated and aggravated with claimant and that in his opinion the claimant should not have been disciplined (claimant's Exhibit FF, pp. 22, 78). Clauberg requested that the union intercede on his behalf and a meeting was held with two union representatives and Superintendent Walsh. Superintendent Walsh allegedly advised the union representatives that although the allegation of insubordination could not be substantiated, he had to stand by Sergeant Maxwell in the matter (claimant's Exhibits O and P). Claimant alleges that Maxwell's conduct was unwarranted and retaliatory (defendant's Exhibit A, amended claim, ¶ 44).

On September 22, 2004 the New York State Division of Human Rights issued a report containing the results of its investigation of claimant's complaint regarding events at Sing Sing CF, which found "there is probable cause to believe that the respondent has engaged in or is engaging in the unlawful discriminatory practice complained of" (claimant's Exhibit L). The complaint filed with the Division of Human Rights was dismissed for administrative convenience on October 20, 2005 at the claimant's request.

Claimant alleges that various complaints made by him or on his behalf regarding the conduct of Maxwell and Keenan were ignored (defendant's Exhibit A, amended claim, ¶ ¶ 54-59).

On November 19, 2005 claimant found and removed an allegedly racist cartoon in the visitor processing area of Sullivan CF and gave it to Sergeant Hornbeck (defendant's Exhibit A, amended claim, ¶ 61; claimant's Exhibit DD, pp. 70, 73; claimant's Exhibit NN). He testified that he wrote a memo complaining about the cartoon (claimant's Exhibit DD, p. 76). Claimant also found an article entitled "How To Keep A Black Man Down From One White Slave Owner To Another" at the officers' desk and complained about it as well (claimant's Exhibit OO).

Claimant alleges that on December 2, 2005 he was harassed and assaulted by Correction Officer Leaney-Levenson "as a result of claimant's whistle blowing regarding racial slurs and his complaints of harassment and retaliation"(defendant's Exhibit A, amended claim, ¶ 62). However, Correction Officer Leaney-Levenson pursued charges against the claimant following the incident which ultimately resulted in claimant's conviction for Harassment in the second degree in violation of Penal Law § 240.26 (1) (defendant's Exhibit I). Prior to the conviction, claimant entered into a Disciplinary Settlement Agreement with DOCS in which he agreed to a two-week suspension without pay in full satisfaction of a Notice of Discipline issued on December 6, 2005 (defendant's Exhibit H). Claimant alleges that he was treated differently than other similarly situated correction officers (defendant's Exhibit A, amended claim, ¶ ¶ 64-65; claimant’s affidavit,¶ 12) and that the finding of guilt at his criminal trial was due to the improper conduct of DOCS officials in attempting to influence both the Assistant District Attorney handling the matter and the Court (defendant's Exhibit A, amended claim, ¶ 75-77).

On June 23, 2006 claimant received a copy of his yearly employment evaluation, which he alleges had been altered after he signed it (defendant's Exhibit A, amended claim, ¶ 84-85). Claimant complained regarding the alleged alteration in a memorandum to the Deputy Superintendent of Security and, according to the claimant, a subsequent investigation substantiated his allegation that the document was altered. However, the supervisors responsible for the alteration were given only verbal counseling (defendant's Exhibit A, amended claim, ¶ 87).

Claimant alleges that on April 7, 2007 Lieutenant Wayne Jordan asked the claimant "When are you going to stop running around like a rat bitch telling people I assaulted Pisall?" (defendant's Exhibit A, amended claim, ¶ 92). Claimant allegedly responded by saying,"I reported the assault to Superintendent Walsh verbally and in writing" (id.) Lieutenant Jordan then allegedly stated "Don't you get it, nobody is going to do anything. You ran around to everyone in the State that would listen about Supervisors calling employees niggers and spics with proof and they still didn't do anything, so what makes you think Walsh is going to discipline me . . . Keep up your bullshit and I'll find a way to lock you out again" (id.)

Among the papers submitted in opposition to the instant motion is an affidavit from Epifanio Tolentino, a Correction Officer at Sullivan CF. Officer Tolentino avers that he witnessed "numerous discriminatory actions" by supervisors at Sullivan CF (affidavit of Tolentino, ¶ 2). He states that he filed a complaint on June 9, 2004 with Deputy Superintendent Decker and Superintendent Walsh regarding "harassment, retaliation and racial comments made by Alfred Clauberg's supervisor, Sgt. Joseph Maxwell" (Id. at ¶ 3). Tolentino avers that he witnessed Sergeant Maxwell make "racial and derogatory comments against myself and talk negatively and in a threatening manner towards Alfred Clauberg because of C.O. Clauberg's prior complaints that he had made against other supervisors and Sgt. Maxwell" (Id. at ¶ 4). Tolentino states that Maxwell "had it in for C.O. Clauberg almost immediately upon his arrival" at Sullivan CF (Id. at ¶ 5). He states that Maxwell and other supervisors at Sullivan CF "have a propensity to discriminate and retaliate against anyone who has the guts to confront them because of their unlawful discrimination and retaliation. I myself am a victim of such retaliation and harassment by Sgt. Maxwell and other DOCS supervisors. . ." (Id. at 6). He states specifically that Maxwell's accusations of misconduct against claimant on August 5, 2004 were false and that Clauberg properly complied with regulations regarding entry of civilian workers into the facility. He states that "[n]umerous Correction Officers witnessed Sgt. Maxwell's belligerent and hostile conduct towards C.O. Clauberg despite C.O. Clauberg being calm, respectful and subordinate" (Tolentino Affidavit, ¶ 8).

Letters from Sergeant John B. Hoefling of Sullivan CF and Jessica Petrie were also submitted in opposition to the instant motion and corroborate Lieutenant Keenan's use of racial epithets and offensive conduct toward women (claimant's Exhibits M and N).

Claimant alleges that because of the retaliatory conduct he encountered at Sullivan CF he and his family bought a house in Interlaken, New York, a three-hour commute from Sullivan CF, in December 2006 (defendant's Exhibit A, amended claim, ¶ 89). In February 2007 claimant filed a request that he be permitted to transfer to either the Willard Drug Treatment Campus or Five Points Correctional Facility (defendant's Exhibit A, amended claim, ¶ 91). The request was granted and the claimant and his wife were both transferred to Willard Drug Treatment Campus in May 2007 (claimant's Exhibit DD, p. 75). Claimant testified that he requested the transfer because of the hostile environment at Sullivan CF (claimant's Exhibit DD, p. 74).

Claimant alleges that immediately upon his arrival at Willard he was harassed by his supervisors and other correction officers concerning the prior complaints he had filed (defendant's Exhibit A, amended claim, ¶ 94). He alleges he was told by Sergeant Post that "we have all heard you are suing supervisors and officers for some racism stuff" and "Your time here could be difficult in this jail because I heard you bought a house out here and you'll be here a while and I used to work at maximum security jail and understand there's a different mentality there and no offense, but I know you're from the city and you guys tend to be more sensitive to comments made " (defendant's Exhibit A, amended claim, ¶ 95). Claimant alleges that he filed a complaint about receiving telephone calls in which he was called a "Rat, IG, asshole" (defendant's Exhibit A, amended claim, ¶ 96; claimant's Exhibit DD, p. 99). Upon his transfer to Willard, claimant was assigned to the arsenal to be trained by Correction Officer Bower. Claimant testified that Officer Bower cursed at him during his first three weeks there and called him "a piece of shit" and "IG"(claimant's Exhibit DD, p. 84). After approximately his third week of work at the arsenal, he was suspended, without pay, for disciplinary reasons. Claimant was charged with leaving his assigned post without authorization, leaving the facility arsenal with a secure key, and addressing a fellow officer in a threatening and profane manner (defendant's Exhibit J). On the date this incident occurred Lieutenant Rivera gave the claimant an opportunity to explain what happened and he was ordered to return to his post in the arsenal. Claimant started to cry uncontrollably, however, and received permission to go to the medical department. It is alleged in the claim that claimant "left Willard on stress leave due to the hostile work environment" (defendant's Exhibit A, amended claim, ¶ 111). On or about May 30, 2007 claimant was diagnosed with anxiety and depression due to work-related stress (defendant's Exhibit A, amended claim, ¶ 113). While the claimant was out on medical leave he received notice that he was being suspended without pay "due to [claimant's] leaving assigned post with a secure key" (defendant's Exhibit A, amended claim, ¶ 116). Termination of claimant's employment was recommended.

Pursuant to the terms of the collective bargaining agreement, the matter was submitted to arbitration for resolution. The issues submitted to the arbitrator were whether or not DOCS had just cause to issue the notice of discipline and, if so, whether the penalty, dismissal from service with loss of annual leave, was appropriate. The arbitrator found the claimant guilty of all three charges but, due to mitigating circumstances, concluded that the penalty of termination was overly severe (defendant's Exhibit J). The arbitrator ruled that the appropriate penalty was a suspension without pay from June 6, 2007 through December 20, 2007.

Claimant also alleges that since the filing of his complaints of discrimination and retaliation, the defendant's has continuously denied him a promotion to the rank of sergeant despite high scores on the qualifying examination and an unblemished record of service (defendant's Exhibit A, amended claim, ¶ 118; claimant's Exhibit DD, pp. 132-133).

The Court previously granted claimant’s motion to amend the claim to add certain allegations of employment discrimination occurring both before and after the date the claim was filed and served and denied the defendant’s cross-motion to dismiss the claim as untimely (Clauberg v State of New York (19 Misc 3d 942 [2008]). In doing so, the Court held that the claim was timely because it was a statutory cause of action controlled by the six-month limitations period set forth in Court of Claims Act § 10 (4). Additionally, the Court noted that the claim was timely in any event under the continuing violation doctrine because it “is premised upon the contention that DOCS created a hostile work environment, not upon a discrete instance of discrimination”, which accrues on the date the wrongful act occurs (Clauberg v State of New York, 19 Misc 3d at 950).

The defendant moves for summary judgment dismissing the claim to the extent it is premised upon certain discrete acts of retaliation and argues that the alleged illegal conduct complained of fails as a matter of law to rise to the level of a hostile work environment.

The Retaliation Claim

In order to establish a prima facie case of retaliation the claimant must show that "(1) [he] has engaged in protected activity, (2) [his] employer was aware that [he] participated in such activity, (3) [he] suffered an adverse employment action based upon [his] activity, and (4) there is a causal connection between the protected activity and the adverse action" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004]).[2] Once this burden is met, the employer then "has the burden of articulating a legitimate, non-retaliatory reason for the complained of action" (Quinn v Green Tree Credit Corporation, 159 F3d 759 [2d Cir 1998]; see also Hardy v General Elec. Co., 270 AD2d 700, 701 [2000], lv denied 95 NY2d 765 [2000]; Di Mascio v General Elec. Co., 27 AD3d 854, 855 [2006]). If the employer meets its burden, claimant must then adduce evidence sufficient to raise a question of fact as to whether the employer's reason was merely a pretext for the retaliation (Quinn v Green Tree Credit Corporation, 159 F3d at 769; see also Ferrante v American Lung Assn., 90 NY2d 623 [1997]; Forrest v Jewish Guild for the Blind, 3 NY3d at 305; Nelson v HSBC Bank USA, 41 AD3d 445 [2007]; Thide v New York State Dept. of Transp., 27 AD3d 452 [2006]; Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 238 AD2d 704 [1997]).

A protected activity includes “opposing or complaining about unlawful discrimination” (Forrest v Jewish Guild for the Blind, 3 NY3d at 313; Executive Law § 296 [1] [e] and [7]). The complaint must be based upon a reasonable good faith belief that the conduct upon which the complaint is based is unlawful (Matter of Board of Educ. of New Paltz Cent. School Dist. v Donaldson, 41 AD3d 1138, 1140 [2007], lv denied 10 NY3d 706 [2008]). Thus, a claim for retaliation does not necessarily fail by reason of a subsequent finding that the underlying discrimination complaint upon which the retaliation claim is based lacked merit (Modiano v Elliman, 262 AD2d 223 [1999]). Moreover, so long as there is a reasonable belief that the conduct complained of is unlawful, it is of no consequence that the complaint was made for the protection of others. As stated by the Appellate Division, Third Department, in Matter of New York State Off. of Mental Retardation & Dev. Disabilities (Staten Is. Dev. Ctr.) v New York State Div. of Human Rights (164 AD2d 208, 210 [1990]):
"Considering the remedial nature of the Human Rights Law and an explicit statutory admonition to construe the law liberally (see, Executive Law § 300), it strikes us that a person who suffers retaliation after reasonably acting to protect others from forbidden discrimination should be protected. Otherwise, employees would be hesitant to raise objections to questionable practices, a result contrary to the purposes of the Human Rights Law.”
Defendant argues that the retaliation claim must be dismissed because the claimant did not engage in a protected activity nor did he suffer an adverse employment action as the result of engaging in a protected activity. As set forth above, however, to the extent the claimant complained of unlawful discriminatory conduct, not only for the protection of himself but others as well, he engaged in a protected activity under the statute. The Court agrees with the defendant, however, that no materially adverse employment action resulted from the one-hour schedule change at Sing Sing CF or the informal counseling on June 21, 2003 and the formal counseling on August 5, 2004 at Sullivan CF.

Under the standard articulated by the Supreme Court in Burlington Northern & Santa Fe Railway Co. v White (548 US 53 [2006]) an employment action is "materially adverse" in the retaliation context if it " 'might have dissuaded a reasonable worker from making or supporting a charge of discrimination' " (Id. at 68, quoting Rochon v Gonzales, 438 F3d 1211 , 1219 [DC Cir. 2006]; see also Kessler v Westchester County Dept. of Social Servs., 461 F3d 199, 210 (2d Cir. 2006). Since the goal of the anti-retaliation provision is to prohibit employer conduct likely to deter complaints, material adversity is required to separate significant from trivial harms (id). "[N]ormally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence" (Burlington Northern & Santa Fe Railway Co. v White , 548 US at 68; cf. Forrest v Jewish Guild for the Blind, 3 NY3d at 306). Nor may a supervisor’s general negative treatment constitute material adverse changes in employment (see Weeks v New York State (Div. of Parole), 273 F3d 76 [2d Cir 2001]; Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 53 AD3d 823 [2008]). Applying this standard, the one-hour change in the claimant’s work schedule does not, standing alone, constitute a material adverse change in employment. As a result, defendant’s motion for summary judgment is granted to the extent the retaliation claim is premised upon the conduct of Phipps in changing or attempting to change claimant's work schedule by one hour. [3]

The Court also agrees that neither the informal counseling on June 21, 2003 nor the formal counseling on August 5, 2004 constitute a materially adverse change in claimant's working conditions sufficient to support a claim for retaliation. Claimant failed to establish how or why the effect of the verbal counseling on June 21, 2003 by Sergeant Maxwell or the formal counseling memorandum of August 5, 2004 created a materially adverse change in his working conditions (see Weeks v New York State [Div. of Parole], supra). Accordingly, this conduct may not, without more, form the basis for a claim of retaliation.

Defendant next contends that the two-week suspension from duty at Sullivan CF, which arose from the incident involving Correction Officer Leaney-Levenson on December 2, 2005, was the result of claimant's misconduct, not retaliation, and therefore constitutes a legitimate, non-retaliatory reason for the disciplinary action complained of. In support of this contention defendant points to the conviction of the claimant for Harassment in the second degree in violation of Penal Law § 240.26 (1). In finding the claimant guilty of the charge, a violation, the criminal court, sitting without a jury, concluded that the claimant "did make several threats of physical harm [to Correction Officer Leaney-Levenson], such as kick your ass fat boy, I'll break your jaw and finally, fag" (defendant's Exhibit I).

Defendant argues the claimant is collaterally estopped from relitigating the issue of his guilt of the criminal charge in the Court of Claims. However, the Court of Appeals in Gilberg v Barbieri, 53 NY2d 285 [1981] addressed the collateral estoppel effect of the identical Penal Law violation[4] and concluded, contrary to the defendant's contention, that such a conviction does not preclude relitigation of the issue in a subsequent civil suit. Among the reasons articulated by the Court were the fact that the charge was only a petit offense tried without a jury and the reality that the relative insignificance of the outcome afforded neither party the incentive to litigate the matter thoroughly. Accordingly, the determination of guilt of the petit offense of Harassment in the second degree does not preclude the claimant from relitigating the issue in the instant action.

The defendant also argues that the claimant's voluntary acceptance of the two-week suspension from duty at Sullivan CF precludes a finding that the suspension was the result of retaliation (see defendant's Exhibit H). By its express terms, the settlement agreement constituted a "full satisfaction of the Notice of Discipline issued to Correction Officer Alfred Clauberg on December 6, 2005" (defendant's Exhibit H). However, by signing the agreement claimant did not waive his right to dispute the truth of the charges. Unlike the facts in Rolon v Ward ( ___F Supp 3d ___, 2008 WL 4700705, * 20 [SD NY 2008]), the express terms of the agreement did not include an admission of guilt of the disciplinary charges brought against him. Moreover, as noted by the Court in Rolon (supra at * 20), by entering into such a settlement, the claimant does not waive his right to challenge the fact that the defendant's decision to bring the charges was retaliatory (see also Russo v City of Hartford, 419 F Supp 2d 134, 149 (D. Conn 2006) [rejecting argument that two-day suspension was not an adverse employment action where it was the result of a settlement]). Claimant alleges in this regard that other correction officers involved in similar conduct have not been disciplined whereas he was charged with misconduct and threatened with dismissal (see claimant's affidavit, ¶ 12). Indeed, the Notice of Discipline indicates that claimant would be dismissed from service and lose his accrued annual leave absent a timely grievance of the charges (defendant's Exhibit H). As a result, material questions of fact exist as to whether or not the disciplinary charges, which resulted in the two-week suspension from service, were retaliatory. Accordingly, claimant's retaliation claim may stand to the extent it is premised upon the charges of misconduct arising from the December 2, 2005 incident.

Defendant next contends that the claimant is collaterally estopped from relitigating the arbitrator's findings of guilt regarding the disciplinary charges which resulted in the claimant’s six-month suspension from service at Willard. It is well settled that collateral estoppel is "applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies . . .when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law" (Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]; see also Clemens v Apple, 65 NY2d 746 [1985]). "The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action" (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985]). Defendant satisfied its burden of demonstrating the identity of the issue in the present and prior litigation through the submission of the arbitrator’s determination which found the claimant guilty of misconduct, i.e., the suspension from service at Willard was for just cause. In opposition to the motion claimant failed to establish the absence of a full and fair opportunity to litigate the issue in the arbitration proceeding.

Whether the first proceeding provided a full and fair opportunity to litigate an issue requires consideration of "the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation" (Ryan v New York Tel. Co., 62 NY2d at 501). Here, claimant's job was at stake in the arbitration proceeding. As a result, he clearly had incentive to diligently defend himself against the charges (see Samhammer v Home Mut. Ins. Co. of Binghamton, 120 AD2d 59 [1986]). The claimant was represented by counsel at the hearing and the arbitrator was mutually selected by the parties. The hearing lasted three days, during which time the parties were provided the opportunity to present evidence, examine and cross-examine witnesses and submit briefs in support of their respective positions (see defendant's Exhibit J, pp. 1-2). In addition, the instant litigation was not only foreseeable, it had already been commenced at the time the hearings occurred. Thus, the claimant had a full and fair opportunity to litigate the issue of guilt in relation to the misconduct with which he was charged. The claimant is therefore precluded from relitigating that issue here (see Cooks v New York City Tr. Auth., 289 AD2d 278 [2001]; Matter of Metro-North Commuter R.R. Co. v New York State Exec. Dept. Div. of Human Rights, 271 AD2d 256 [2000]; Shekhman v New York City Tr. Auth., 237 AD2d 592 [1997]; but see Collins v New York City Transit Authority, 305 F3d 113 [2d Cir 2002] [arbitrators finding of just cause for disciplinary action is highly probative of absence of a causal link between the termination and the alleged illegal motive requiring "strong evidence" that the decision was wrong as a matter of fact or that the impartiality of the proceeding was compromised). Inasmuch as it has already been determined that the claimant's six-month suspension from service at Willard was for just cause, the claimant cannot establish that the suspension was in retaliation for his complaints of discrimination and the defendant's motion for summary judgment is therefore granted with respect to this portion of the claim.

The Hostile Work Environment Claim

Defendant also argues that the alleged conduct complained of fails to rise to the level of a a hostile work environment. A hostile work environment exists “ ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment’ " (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004]), quoting Harris v Forklift Sys., Inc., 510 US 17, 21 [1993]; see also Kapchek v United Ref. Co., Inc., 57 AD3d 1521 [2008]; Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 53 AD3d 823 [2008]; Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 28 AD3d 906 [2006]; Matter of Anagnostakos v New York State Div. of Human Rights, 46 AD3d 992 [2007]). Determining whether the alleged conduct was sufficiently severe or pervasive to be actionable depends upon the totality of the circumstances (Harris v Forklift Sys., Inc., 510 US at 21; Vitale v Rosina Food Prods., 283 AD2d 141 [2001]). Circumstances considered by the courts in reaching this determination include the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employees's performance" (Id. at 23). While isolated incidents generally do not rise to the level of a hostile work environment, it has been recognized that "even a single incident of sufficient severity may so alter the terms and conditions of employment as to create such an environment" (Patterson v County of Oneida, 375 F3d 206, 227 [2d Cir 2004]).

In determining whether the claimant established a prima facie case of discrimination based on a hostile work environment, consideration must be given to what conduct may properly be considered in support of his claim. In the Court’s view, a hostile work environment claim may not be supported by reference to derogatory racial remarks allegedly made toward minorities without establishing some logical connection between those remarks and the claimant, a white Irish-American male (cf. Sidari v Orleans County, (2000 WL 33407343). The Second Circuit Court of Appeals has held on a number of occasions that evidence of racial harassment directed toward other minorities is relevant to a claim asserting the existence of a hostile work environment. In Cruz v Coach Stores, Inc., (202 F3d 560 [2000]) the Court made clear that “[r]emarks targeting members of other minorities . . . may contribute to the overall hostility of the working environment for a minority employee" (Id. at 570; see also Schwapp v Town of Avon, 118 F3d 106 [1997]; Whidbee v Garzarelli Food Specialties, Inc., 223 F3d 62 [2000]). However, the Second Circuit has also made clear that a plaintiff in a sex discrimination case who was not herself the victim of harassment may not prevail where she failed to prove that the harassment of other women adversely affected her employment (Leibovitz v New York City Transit Authority, 252 F3d 179 [2001]). Here, claimant completely failed to show how evidence of racial animus toward minorities adversely affected his employment (see Murphy v Board of Education of the Rochester City School District (273 F Supp.2d 292 [WD NY 2003], affd 106 Fed Appx 746 [2d Cir 2004]). Unlike the claimants in Cruz, Schwapp and Whidbee, all of whom were minorities, here claimant is a white Irish-American who could not reasonably feel threatened by expressions of a supervisor's hostility toward minorities. In fact, at his deposition the claimant acknowledged that he did not consider himself a "minority officer" (Exhibit DD, p. 151). As explained by the Court in Murphy at 313:
“The rationale behind [the rule in Cruz, Whidbee and Schwapp] has far less application . . . when a non-minority plaintiff alleges that his supervisor has directed hostility toward minority employees. An African-American employee, for example, might well feel threatened by a supervisor's expressed hostility toward Hispanics; it would not be unreasonable to assume that the supervisor might be prejudiced against other minorities as well. But it is difficult to see why a white employee would feel similarly threatened when his African-American supervisor directs racial epithets at other blacks.”

Thus, the discriminatory remarks regarding racial and ethnic minority groups of which the claimant is not a member, which claimant alleges occurred in the workplace, may not be considered in determining whether the claimant has established the prima facie elements of a hostile work environment claim for purposes of the instant motion for summary judgment.

Moreover the derogatory remarks regarding the claimant's national origin and religion were neither sufficiently severe nor pervasive to give rise to a claim for a hostile work environment. Claimant alleges that between 1999 and June 2002 Phipps discriminated against him based upon his national origin by referring to him as a "dumb mick" and stating "Irish drunks get their strength from the bottle" and "the micks are nothing but North Atlantic spics" (defendant's Exhibit A, amended claim, ¶ ¶ 3, 10; claimant's Exhibit DD, p. 21). Claimant also alleges that Phipps denigrated his religion by stating that the late Pope John Paul II was a "money hungry old man", that "all priests are child molesters" and that claimant "must have been molested" because he was an alter boy growing up (defendant's Exhibit A, amended claim, ¶ 6). In the Court's view these remarks were not sufficiently severe or pervasive to alter the conditions of the claimant's employment and form the basis for a hostile work environment. In this regard it is noted that all these comments are attributed to Lieutenant Phipps and occurred at Sing Sing CF over a period of three years between 1999 and 2002. Rather, such isolated incidents constitute no more than offensive utterances which, viewed objectively, could not unreasonably interfere with an employee's performance. Accordingly, the claimant's allegations of discrimination based upon national origin and religion may not form the basis for a hostile work environment claim.

Nevertheless, the Court finds claimant sufficiently established his claim alleging a retaliatory hostile work environment. "Retaliatory actions that are not materially adverse when considered individually may collectively amount to a retaliatory hostile work environment" (Billings v Town of Grafton, 515 F3d 39, 54 n 13 [1st Cir 2008], citing Noviello v City of Boston, 398 F3d 76, 88-90 [1st Cir 2005]; see also Velez v Marriott PR Management, Inc., 590 F Supp 2d 235 [D Puerto Rico 2008]). Whether the cumulative effects of multiple retaliatory incidents amount to a hostile work environment is determined by reference to the standard utilized in evaluating hostile work environment claims generally, i.e., a workplace "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the terms and conditions of employment" (Kapchek v United Ref. Co., Inc., 57 AD3d 1521, 1522 [2008] [internal quotation marks and citation omitted]; see also Dixon v City of New York, ___F Supp 3d ___, 2008 WL 4453201 [ED NY 2008]; Thomas v iStar Fin. Inc., 438 F Supp 2d 348, 365 [SD NY 2006]).

Claimant's first written complaint regarding the alleged abusive and racially offensive remarks by Phipps occurred in May 2002 and Phipps allegedly retaliated shortly thereafter by attempting to change his work schedule by one hour. This retaliatory conduct was substantiated, at least in part, by the affidavit of George Cruz, a fellow correction officer. The offensive conduct allegedly continued, unabated, despite claimant's complaints to both the Superintendent and the New York State Division of Human Rights.

Claimant alleges that immediately upon his arrival at Sullivan CF, word had spread of his complaints against Phipps and the retaliatory harassment by supervisors and others continued. Claimant avers that he was verbally threatened and harassed daily by his supervisors and others at Sullivan CF and these allegations are, once again, substantiated, at least in part, by the affidavit of Epifanio Tolentino who indicates that he witnessed claimant's supervisor, Sergeant Maxwell, make racial and derogatory remarks and talk in a negative and threatening manner toward the claimant.

In addition to verbal threats by several supervisors, copies of the claimant's hostage photo were posted with the words "rat" "don't dare say a racial slur or I'll go tell" and "bitch" written on them and racist literature and cartoons were found at the facility (see Exhibits NN and OO). Claimant alleges that his supervisors were the only ones with access to his hostage photo, however, despite his complaints, no disciplinary action was taken. Additional allegations of retaliation at Sullivan CF include Sergeant Hornbeck's attempt to deprive claimant of overtime, referring to the claimant as the Reverend Al Clauberg and insinuating that the misfortune of the Reverend Al Sharpton in getting stabbed may be his as well, the alleged informal and formal counseling disciplinary action by Maxwell, and the two-week suspension from service for the alleged altercation with Correction Officer Leaney-Levenson.

Subsequent to his transfer to Willard claimant alleges that the hostile environment continued, though as indicated previously, claimant is precluded from relitigating the issue of whether or not his six-month suspension from service at Willard was for just cause. Claimant alleges that he was verbally abused and called a "rat" and "IG" (Inspector General) by Correction Officer Bower and that defendant has denied him a promotion to the rank of sergeant despite high scores on the qualifying examination.

Based upon the totality of circumstances the Court finds that questions of fact were raised regarding whether the aforementioned conduct resulted in a retaliatory hostile work environment. Lastly, the defendant moves for dismissal of the claim as untimely to the extent it is premised upon instances of discrete retaliatory conduct occurring during the course of the claimant’s tenure as a Correction Officer at Sing Sing CF. In this regard the defendant points to the alleged conduct of Lieutenant Phipps in changing the claimant’s schedule from the 7:00 a.m. - 3:00 p.m. shift to the 8:00 a.m. - 4:00 p.m. shift, an act which allegedly occurred approximately four years before the claim was filed and served. However, this Court previously denied defendant's cross-motion to dismiss the claim on the ground that it was untimely filed and served, noting that the claim is premised upon a hostile work environment, not discrete acts of discrimination. In any event, this branch of defendant's motion is moot in light of the Court's determination that the one-hour schedule change does not rise to the level of a material adverse change in the conditions of employment so as to support a claim for retaliation. Thus, although this allegation may support a claim of a retaliatory hostile work environment when considered collectively with the claimant's other allegations, it does not, standing alone, support a claim for retaliation (see generally Natl. R.R. Passenger Corp. v Morgan, 536 US 101 [2002]; Ledbetter v Goodyear Tire & Rubber Co., Inc., 550 US 618 , 127 S Ct 2162 [2007]). Consequently, to the extent defendant moves to dismiss this allegation as time-barred, the motion is denied.

Based on the foregoing defendant's motion for summary judgment dismissing the claim is granted to the extent indicated herein and is otherwise denied.

March 30, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 30, 2008;
  2. Affirmation of Michele M. Walls dated October 30, 2008 with exhibits;
  3. Affidavit of Peter B. Brown sworn to October 30, 2008 with exhibits;
  4. Memorandum of Law of Michele M. Walls received November 3, 2008;
  5. Affirmation of Rocco G. Avallone dated December 9, 2008 with exhibits;
  6. Affidavit of Alfred Clauberg sworn to December 12, 2008;
  7. Affidavit of George Cruz sworn to December 11, 2008;
  8. Affidavit of Epifanio Tolentino sworn to December 11, 2008;
  9. Memorandum of Law of Rocco G. Avallone received December 16, 2008.

[1]. The claimant’s request for a transfer is dated November 22, 2002.

[2]. The standards for recovery under the Human Rights Law are the same as the federal standards under title VII of the Civil Rights Act of 1964 (Forrest v Jewish Guild for the Blind, 3 NY3d 295, [2004]; Schenkman v New York Coll. of Health Professionals, 29 AD3d 671 [2006] ).

[3]. This holding does not foreclose the admission of evidence at the time of trial of the discriminatory incidents at Sing Sing CF in support of the claimant’s hostile work environment claim.
[4]. Penal Law § 240.25 was renumbered in 1992 and is now § 240.26.