New York State Court of Claims

New York State Court of Claims
CLAUBERG v. THE STATE OF NEW YORK, # 2010-015-510, Claim No. 112241

Synopsis

Following trial, Court determined that claimant failed to establish a claim for retaliation or retaliatory hostile work environment under the New York State Human Rights Law.

Case information

UID: 2010-015-510
Claimant(s): ALFRED CLAUBERG
Claimant short name: CLAUBERG
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112241
Motion number(s):
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Cronin & Byczek, LLP
By: Rocco G. Avallone, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 18, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, a White Irish-American Correction Officer employed by the Department of Correctional Services (DOCS), brings this claim alleging employment discrimination in violation of the New York State Human Rights Law (Executive Law 296). Claimant alleges that 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 case proceeded to trial on June 19, 2009.

Claimant Alfred Clauberg testified that he first became employed by DOCS in 1997. He had previously served in the United States Army from 1987 to 1990 and upon beginning employment with DOCS provided proof of his former service through submission of a Certificate of Release or Discharge from Active Duty (Exhibit 44). He also submitted correspondence received from the Department of Veterans' Affairs certifying that the claimant "is in receipt of disability compensation on account of service-connected disability rated at less than 30 percent" (Exhibit 6). Mr. Clauberg related his employment history with DOCS stating that he was first assigned to Sing Sing Correctional Facility (Sing Sing) in February 1997. He transferred to Sullivan Correctional Facility (Sullivan) in early 2003 and thereafter transferred to the Willard Drug Treatment Campus (Willard) during 2007. Mr. Clauberg later accepted a temporary appointment as a sergeant at Ulster Correctional Facility (Ulster) in December 2008 before returning to Willard in February 2009.

While at Sing Sing, claimant secured a "bid job" (Tr. 1, p. 28) as a paint gang officer. According to Mr. Clauberg, he sought the position primarily because the hours, 7:00 a.m. to 3:00 p.m., allowed him to avoid morning traffic. In addition, as a paint gang officer he was able to work outside and was not limited to one particular place or assignment within the facility. During the two-year period he was a paint gang officer at Sing Sing the claimant's direct supervisor was Sergeant Lawrence Phipps. According to Mr. Clauberg, at some point Sergeant Phipps informed him that the hours of his bid job would be changed from 7:00 a.m. to 3:00 p.m. to 8:00 a.m. to 4:00 p.m. The claimant testified that Sergeant Phipps told him "because I wanted to start trouble, he would start some trouble" (Tr. 1, p. 33). Mr. Clauberg contends that this comment was a reference to prior verbal complaints the claimant had made to Sergeant Josey and Lieutenant Michael Capper against Sergeant Phipps alleging he used inappropriate racial and religious comments in the workplace. In particular, claimant stated Sergeant Phipps used various racist language regarding African Americans ("[p]orch monkey, nigger, slave master, he referred to himself as a slave master"); Hispanics (referred to the claimant's wife and Correction Officer George Cruz as "dumb spic[s]"); made fun of Pope John Paul; indicated that the claimant must have been molested as a child because he was an altar boy; referred to a correction officer of Italian decent as a "guinea"; and, finally, referred to the claimant's Irish heritage stating: "I was a North Atlantic spic" and "the Irish get their strength . . . from a bottle" (Tr. 1, p. 35).

On May 31, 2002 the claimant authored a memorandum addressed to Sergeant E. Josey and Deputy Superintendent of Security W. Connolly, registering his complaints regarding the shift change on his bid job (Exhibit 12). Although the May 31, 2002 memorandum does not reference harassment by Sergeant Phipps, claimant offered a second memorandum dated July 30, 2002, regarding the shift change and addressed to Superintendent Brian Fischer (Exhibit 27). In the memorandum claimant alleges that Sergeant Phipps initiated the shift change as a result of "malice towards me for reporting his racist comments." Mr. Clauberg states in the memorandum that he "relinquished [his] bid due to constant harassment of Sgt. Phipps" and requested "that this supervisor . . . be held accountable for his unprofessional, vindictive, and racist actions." At trial the claimant testified that he relinquished his bid job when "[t]he retaliation and harassment got to a fever pitch" (Tr. 1, p. 43). He alleged Sergeant Phipps was "nit-picking at me, harassing me, threatening me, and it got to a point where I just said, you know what, this isn't worth it" (Tr. 1, p. 43). When asked whether Superintendent Fischer ever conducted an investigation of his complaints regarding Sergeant Phipps, the claimant replied "He never did" (Tr. 1, p. 45).

On February 5, 2003 Mr. Clauberg signed a statement on DOCS Office of Diversity Management stationery relating the nature of the racist and religious statements made by Sergeant Phipps. According to the claimant, this statement was the outgrowth of a formal complaint he had made regarding the subject at a meeting with Superintendent Fischer in July 2002. On page three of the statement claimant identified various individuals alleged to have witnessed or overheard Sergeant Phipps' racist comments (Exhibit 54). Exhibit 33 is correspondence dated July 17, 2003 addressed to the claimant from Charles R. Harvey, Director, Office of Diversity Management, which relates the following:

"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 this issue."

On that same date Mr. Harvey wrote a memorandum to Superintendent Brian Fischer relating the results of his office's investigation of claimant's complaint against Sergeant Phipps (Exhibit 64). The report states the following:

"Our investigation did, however, substantiate that Sergeant Phipps participates in and allows the telling of 'off-color' jokes that contain racially sensitive terms and expressions to take place in his presence which is in violation of Section 2.6, Communication, and Section 2.12, Language, of the Department's Employees' Manual. Accordingly, please informally counsel Sergeant Phipps regarding his negative behavior and conduct. Also, as a supervisor, he should not knowingly allow inappropriate acts or behavior to occur."

In correspondence dated March 19, 2004 Mr. Harvey indicates "Sergeant Lawrence Phipps was verbally counseled regarding the telling of and/or allowing the telling of off-color jokes on July 28, 2003" (Exhibit 37).

Mr. Clauberg requested a transfer from Sing Sing to either Sullivan or Woodbourne Correctional Facility on November 22, 2002 (Exhibit 46). According to the claimant, he requested the reassignment because Sergeant Phipps continued to harass him by, for example, telling other supervisors the claimant was a "crybaby" (Tr. 1, p. 47). Claimant's request for a transfer to Sullivan was approved and his transfer was accomplished sometime during the early portion of February 2003.

Following his transfer to Sullivan the claimant was approached by Sergeant Joseph Maxwell who "referred to my complaint in Sing Sing and continued on saying that Sing Sing was nothing but monkeys running monkeys, and that we don't play that bullshit race card here in the mountains" (Tr. 1, p. 63). Following this conversation with Sergeant Maxwell, the claimant states that he met with Superintendent Walsh and complained regarding Maxwell's comments. Subsequently, claimant spoke to Officer Gary Dahlman, the then chief steward for the New York State Correction Officers and Police Benevolent Association" (NYSCOPBA) at Sullivan, regarding the lack of action or follow-up to his meeting with Superintendent Walsh. In a memorandum to Correction Officer Dahlman dated June 22, 2003 the claimant asked that Officer Dahlman request a meeting with Superintendent Walsh "to try to resolve this obvious harassment from Sgt. Joseph Maxwell" (Exhibit 17). The memorandum relates the above comments allegedly made by Sergeant Maxwell and concludes:

"I would also like to talk to him about the false charges of insubordination by Sgt. Maxwell that were dismissed by the watch commander because it was obvious the charges had no merit. The incident in D-south."

On June 22, 2003 the claimant also wrote a separate memorandum addressed to Superintendent Walsh and Chief Union Steward Gary Dahlman (Exhibit 20) relating a confrontation between himself and Sergeant Maxwell which occurred in the D-South area of the prison on June 21, 2003. The memorandum describes the incident and states "unfortunately I have been singled out by one supervisor [Sergeant Maxwell] since I addressed a [sic] overtime issue concerning [Sergeant] Hornbeck a couple of weeks ago."

At trial, the claimant related that the incident began when an inmate who was attending feed-up stole some cheese and thereafter became disruptive and abusive. According to the claimant, he attempted to lock the inmate in his cell "but he went in the wrong cell to try to be - because we have double bunk cells. He went in the wrong cell to try to be further, you know, abusive. We had to open that cell and put him in another cell. Sergeant Maxwell came over to me and was screaming at me . . ." (Tr. 1, p. 73). Mr. Clauberg testified that he asked Sergeant Maxwell to lower his voice and informed him he was making a scene. Sergeant Maxwell then ordered the claimant to leave the housing block and the claimant complied. Outside the housing block Sergeant Maxwell later informed the claimant that he was "going to lock me out of the jail" and that "he was going to take the matter to the Watch Commander, Lieutenant Carter" (Tr. 1, p. 74). Lieutenant Carter met with both individuals separately and then together, ultimately instructing both men to work together and directing Sergeant Maxwell not to take disciplinary action against the claimant.

Mr. Clauberg went on to describe various subsequent incidents beginning with the posting of a "hostage photo" of the claimant during "the fall of 2003" (Tr. 1, p. 76). According to the claimant, each individual correction officer has a hostage photo taken "because if the jail is taken over, our special units need to come in and know who's who" (Tr. 1, p. 76). He described the hostage photos as being kept under lock and key but also stated that the photographs may be accessed by "any supervisor any day" (Tr. 1, p. 77). One day as the claimant joined his fellow correction officers for a pre-duty lineup, the claimant observed copies of his hostage photo posted on a timecard machine. Written on the photo were the words "rat, bitch, IG and nigger lover" (Tr. 1, p. 79). Copies of the photograph were also posted on the vending machines, on the doors and in the locker room. The claimant estimated a total of 20 copies of the photograph were posted in the area. The claimant removed the photographs and reported the incident to the Watch Commander, Lieutenant Lombardo, who directed the claimant to prepare a to/from memo regarding the incident. Claimant prepared the memorandum and discussed the matter with Superintendent Walsh using the Superintendent's "open-door policy". According to Mr. Clauberg, Correction Officer Armstrong later informed him, in the presence of Lieutenant Jordan, that he was the individual who had posted the claimant's hostage photo and that "I was a rat piece of shit, IG" (Tr. 1, p. 81). Again, using the open-door policy, the claimant informed Superintendent Walsh that Correction Officer Armstrong had admitted to posting his hostage photo. According to the claimant, Mr. Walsh stated that he could not substantiate claimant's allegations and that no action would be taken.

On December 30, 2003 the claimant submitted a Security Employee Reassignment Request form seeking a transfer back to Sing Sing (Exhibit 48). Mr. Clauberg testified that he requested the transfer because "I was just overwhelmed with distress at Sullivan, and I just felt that if I stayed at Sullivan, I may lose my career" (Tr. 1, p. 83).

Claimant testified to another incident in June or July 2004 in which Lieutenant Keenan referred to him as "Reverend Al" and asked him,"Reverend Al Clauberg, where's Jessie Jackson and the rainbow coalition?" (Tr. 1, p. 84). At that time another unidentified individual made derogatory comments regarding Reverend Sharpton. Mr. Clauberg testified "Then after they were joking, Lieutenant Keenan came up, you know, kind of on my shoulder, come on, we're just joking with you, you stubborn Irishman" (Tr. 1, pp. 84-85). Claimant reported the statements to Superintendent Walsh who he testified "did nothing" (Tr. 1, p. 85).

The claimant testified regarding a further incident which occurred on August 5, 2004. On that date the claimant was one of two correction officers posted at the rear gate at Sullivan. Claimant was charged with controlling the movement of civilians into a sally port or truck trap at the rear gate and the second officer provided security at that location. The claimant testified:

"I have to wait for the tower officer to go up, arm the post, load up the weapons, stack them in the stacking shelves, radio in to turn the zone off, then I'm clear to let civilians into the sally port, where I was working, the truck trap.

What happened was the officer upstairs opened the gate a little bit to let an officer in that was going to be working with the construction crew setting up the construction ID's. While the officer came in, the civilians basically marched into the gate" (Tr. 1, p. 86).

As the claimant was instructing the civilians to exit the area, Sergeant Maxwell confronted him and "started screaming at [him], why was [he] letting the civilians in, in front of other officers and the civilian staff" (Tr. 1, p. 86). The incident was witnessed, according to the claimant, by Correction Officers Michael Scarzafava, Serth Smith, Patty Barrett, Ricky Tyler and Officer Lowitz. In describing the significance of security at the rear gate, the claimant explained that DOCS directives require:

"[n]o civilians will be allowed in until an arm[ed] post is actually locked and loaded, loaded up, and the zones are radioed off. There was actually a terrorist plot to get into Arthur Kill Correctional Facility. So it's a real concern . . . [T]he back area where the trucks process would be the worst area to get control of" (Tr. 1, pp. 87-88).

Mr. Clauberg testified that Sergeant Maxwell approached him while the civilians were within the truck trap and began berating him. He described the incident stating "he's yelling at me in front of civilians now. He's screaming at me, I'm going to lock you out, you're done, you're insubordinate, I'm tired of this, tired of dealing with you" (Tr. 1, p 89). Claimant denied that he addressed Sergeant Maxwell in an unprofessional manner or that he ever raised his voice. Sergeant Maxwell relieved the claimant of his post and the claimant went to see Lieutenant Porter and described to him the situation involving Sergeant Maxwell. Lieutenant Porter also spoke to Sergeant Maxwell regarding the incident and instructed the claimant to return to his post. Sergeant Maxwell later called the claimant into the Captain's Office and verbally counseled him regarding the matter. Claimant also received a formal written counseling memo regarding the incident at the rear gate (Exhibit H, memorandum dated August 5, 2004). After speaking to Sergeant Maxwell and receiving the verbal counseling, the claimant informed Sergeant James Dunn that he needed to go to the infirmary because he was shaking and his blood pressure was high. He began hyperventilating while at the infirmary and received permission to leave Sullivan to seek additional medical treatment.

Following the rear-gate incident the claimant met with Superintendent Walsh and submitted a complaint to his union. Claimant also authored a memorandum to Superintendent Walsh dated August 10, 2004 requesting "a formal investigation be conducted concerning the events that transpired at the rear gate on August 5, 2004" and alleging a continuing pattern of harassment by Sergeant Maxwell (Exhibit 16). On November 8, 2004 the claimant wrote to DOCS Deputy Commissioner Lucien LeClaire requesting a formal review of "an invalid, inappropriate, and unjustified counseling session initiated by Sergeant Joseph Maxwell at Sullivan Correctional Facility on August 5, 2004" (Exhibit 9). While claimant received no response to his correspondence addressed to Mr. LeClaire, he testified that he, Gary Dahlman and another union representative met with Superintendent Walsh concerning the matters addressed in claimant's memorandum (Exhibit 16). Sometime thereafter the claimant filed a complaint alleging the use of racially sensitive terms and epithets by Lieutenant Jeffrey Keenan with the Department of Correctional Services Office of Cultural Diversity.

Claimant also described an incident in "2004 to 2005" (Tr. 1, p. 101) in which a cartoon involving Jessie Jackson was found in a desk at the Sullivan visitors' processing station. The claimant complained to a sergeant regarding the cartoon and it was removed.

The claimant next described a further incident in December, 2005 involving Correction Officer Leaney-Levenson which occurred while the claimant was attempting to secure a disruptive inmate in his cell. Claimant activated an alarm and Correction Officer Leaney-Levenson responded to the scene. Once the inmate was placed in a cell and the cell door was locked "Officer Levenson started getting in my face, cursing at me and then assaulting me . . . He got belligerent and was cursing at me and he pushed me and I pushed him back" (Tr. 1, p. 107). Both Officer Leaney- Levenson and the claimant were summoned to Lieutenant Jordan's office and provided their respective descriptions of the incident. Lieutenant Jordan instructed the claimant to prepare a to/from memorandum regarding the event and contacted Deputy Superintendent for Security Decker. Approximately 20 minutes later the claimant was informed that he would be locked out of the jail pending termination. According to the claimant this action was taken because he pushed Officer Levenson and "Officer Turk [sic] had testified that Officer Levenson had never pushed me back" (Tr. 1, p. 111). Subsequently, the claimant was charged in Fallsburg Town Court with harassment, a violation, regarding the incident involving Correction Officer Leaney-Levenson.

Claimant testified that in February, 2006 he received a copy of his annual employee evaluation rating for 2005 (Exhibit 30). Claimant signed the form on February 1, 2006. At that time, claimant's rating for item three on page one of the evaluation regarding his relationship with fellow employees was indicated as good on a scale of responses from outstanding through unsatisfactory. In addition, the space provided for comments involving areas in need of improvement in section four (performance rating) of the form was blank. In May or June 2006 the claimant was approached by Sergeant Huckeba and asked to again sign his evaluation form. At that time the claimant noticed the original form had been modified and that the rating in item three on page one regarding his relationship with fellow employees was reduced from good to "needs improvement." In addition, on page two of the form, the following had been entered in the space provided for comments regarding areas in need of improvement: "CO Clauberg is highly encouraged to interact and cooperate with all fellow employees in a positive and professional manner in order to accomplish the mission of the Dept." (Exhibit 30). On June 23, 2006 claimant submitted a memorandum addressed to Deputy Superintendent of Security Patrick Griffin complaining that his "performance evaluation was altered and added to after [he] already had signed it in good faith" (Exhibit 31).

Claimant went on to testify regarding an incident in which he discovered racist literature in another correction officer's desk drawer (Exhibit 1). Claimant and Correction Officer Tolentino reported their discovery of the literature to Lieutenant Haynal and the claimant submitted a memorandum regarding the incident to Lucy Buther-Jones of the DOCS Office of Diversity Management (Exhibit 2).

At some point the claimant transferred to Ulster Correctional Facility. He thereafter took a sergeant's exam for which he received an additional five points as a result of a credit provided disabled military veterans. Claimant was appointed to the rank of sergeant and transferred from Willard to Ulster. Following his transfer to Ulster, claimant was notified that he, in fact, did not qualify for the additional veterans' points he had claimed on the sergeant's examination. He was advised that he would be reassigned from Ulster to Willard where he would assume his previous status as a correction officer. Exhibit 49 is an Authorization for Disability Record form from the Division of Testing Services, Department of Civil Service. The document, dated October 19, 2001 and signed by the claimant on October 31, 2001, reflects that the claimant claimed additional credits as a disabled veteran on a New York State Civil Service Examination. Part 2 of Exhibit 49, completed by the United States Department of Veterans' Affairs, confirms claimant's status as a veteran having a war-incurred disability which arose during one of the defined periods of "time of war" as listed on the form. Exhibits 51 and 52 are DOCS forms indicating that the claimant was demoted from sergeant to correction officer and directed to return his sergeant badge. Exhibit 52 is dated February 18, 2009 and Exhibit 51 on March 10, 2009.

Claimant testified he was denied the disabled wartime veterans' credit and consequently demoted because he did not possess an expeditionary medal as required. According to the witness, Sergeant Gus Agostinoni informed him that such a circumstance had never occurred before and that the lack of an expeditionary medal qualifying him for veterans' credit should have been determined prior to his promotion to sergeant.

On cross-examination the claimant testified with regard to events at Sing Sing that he first complained, verbally, concerning Sergeant Lawrence Phipps sometime in May 2002. At that time Sergeant Phipps had been claimant's direct supervisor for approximately three months. On May 31, 2002 claimant submitted a written complaint regarding Sergeant Phipps changing his paint gang shift from 7:00 a.m. to 3:00 p.m. to 8:00 a.m. to 4:00 p.m. According to the claimant, his was the only shift change directed by Sergeant Phipps. Apparently, other work gangs at the facility already worked bid job hours from 8:00 a.m. to 4:00 p.m. Claimant contended that his job bid was guaranteed in that "it's an agreement between the union and the Department of Corrections that you'll work those hours" (Tr. 1, pp. 168-169). Claimant testified that bid job hours could only be changed as a result of issues pertaining to safety and security of the facility.

"We're talking about jail takeovers, we're talking about, you know, the next day maybe SERT finds out. Intelligence, that a gang is going to take over the jail. It would never happen" (Tr. 1, p. 169).

Claimant acknowledged that he filed a complaint alleging harassment by Sergeant Phipps in relation to the hours worked by the paint gang with Superintendent Brian Fischer on July 30, 2002 (Exhibit 27). The complaint, entitled "Harassment", alleges, in part:

"My bid job #367 facility paint gang was changed from 7 AM to 3 PM to 8 AM to 4 PM in early June of 2002. My job was changed according to my supervisor Sgt. Larry Phipps because 'Mueller is startin [sic] that black shit' and that 'he didn't want the black boys from the union to fuck with him.' "

The memorandum complaint concluded:

"I'm asking for this supervisor to be held accountable for his unprofessional, vindictive, and racist actions. Thank you for your time and cooperation in this serious matter."

When asked what steps were taken by Superintendent Fischer to investigate the matter claimant stated "I can't tell you what Superintendent Fischer did. I just can just tell you nothing happened" (Tr. 1, p. 170). Mr. Clauberg thereafter became aware that the DOCS Office of Diversity Management was investigating his complaint alleging harassment and the making of racial statements by Sergeant Phipps. In correspondence dated July 17, 2003 (Exhibit 33), Charles R. Harvey, Director of the Office of Diversity Management, advised Mr. Clauberg of the results of its investigation:

"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 this issue."

Correspondence dated March 19, 2004 from Mr. Harvey to Janet Curley, a Human Rights Specialist at the New York State Division of Human Rights, provided certain information concerning the complaint investigated by his office (Exhibit 37). In item "4" of the letter, Mr. Harvey indicates "Sergeant Lawrence Phipps was verbally counseled regarding the telling of and/or allowing the telling of off-color jokes on July 28, 2003."

When asked whether the Office of Diversity Management investigation was undertaken in response to his written complaint to Superintendent Fischer (Exhibit 27) the claimant responded "I don't know who forwarded it" (Tr. 1, p. 172).

Turning to events which occurred following his transfer to Sullivan, the claimant testified that he first complained verbally to Superintendent James Walsh concerning his allegations of harassment by Lieutenant Maxwell during the spring of 2003. His first written complaint regarding Sergeant Maxwell was made in correspondence received by Superintendent James Walsh on June 23, 2003 (Exhibit G). The memorandum, addressed to Superintendent Walsh and Chief Union Steward Gary Dahlman and entitled "Harassment," relates the facts of a confrontation between the claimant and Sergeant Maxwell on June 21, 2003 and states that the claimant had "been singled out by one supervisor since I addressed a [sic] overtime issue concerning Sargeant [sic] Hornbeck a couple of weeks ago." Claimant testified that the incident arose when he was attempting to lock an inmate in his cell. According to the claimant Sergeant Maxwell became belligerent and stated "I'm going to take your job, I'm going to lock you out of this facility" (Tr. 1, p. 183). After some difficulty negotiating the sally port, Sergeant Maxwell and the claimant went to see the Watch Commander. The claimant denied he ever raised his voice in speaking to Sergeant Maxwell and testified that he was not counseled or otherwise disciplined as a result of the matter. Claimant agreed that the first written complaint to Superintendent Walsh regarding harassment by Sergeant Maxwell was made immediately following the altercation with Sergeant Maxwell on June 21, 2003.

Next, discussing the rear-gate incident which occurred on August 5, 2004, the claimant testified that the post he occupied that day was located at or near a two-story building. Claimant occupied the lower level of the building and a weapons officer occupied the second level. Claimant was assigned the duty of processing construction workers by checking their photo ID's as they entered the facility through the rear gate. When Sergeant Maxwell arrived at the rear gate on the date of the incident civilian construction workers were located in the middle of the truck trap between the gates. When asked why the weapons officer would open the gate when his station was not manned and ready the claimant responded "I can't answer for what he would open the gate for. He shouldn't open the gate - - it's two officers, two officers working that area" (Tr. 1, p. 197). Sergeant Maxwell began to yell at the claimant and continued yelling when they entered the office located in the lower portion of the building. Present inside the building were CO's Ricky Tyler, Michael Scarzafava, and others. Sergeant Maxwell prepared a formal written counseling memorandum concerning the events at the rear gate, which the claimant refused to sign (Exhibit H). On August 10, 2004 the claimant authored a memorandum to Superintendent Walsh requesting a formal investigation of the incident at the rear gate (Exhibit 16). In his response, Superintendent Walsh indicated that an investigation conducted by Lieutenant Porter determined that "there is no indication that there was any abuse, harassment, misconduct or disregard for security" by Sergeant Maxwell and stated that "[a] counseling memo was surely warranted" with regard to the claimant's behavior. This was the second formal investigation of claimant's complaints regarding Sergeant Maxwell and alleged harassment. Superintendent Walsh had communicated the results of an investigation into claimant's initial allegations of harassment with regard to the D-block incident in June 2003. In a memorandum relating the results of that investigation Superintendent Walsh concluded:

"While I find no evidence of any clear insubordination, it seems likely your interactions with supervisors was inappropriate. They chose to handle it informally. I find no evidence of any harassment and no need for any further action" (Exhibit G, Memo dated July 23, 2003).

The incident involving Correction Officer Leaney-Levenson occurred on December 2, 2005. When the claimant became concerned for his own safety because of an inmate who became non-compliant, he attempted to lock the inmate in his cell because he was "afraid of getting assaulted by the inmate . . . " (Tr. 1, p. 208). He activated his personal alarm and Correction Officer Leaney-Levenson appeared at the scene to provide assistance. The two began yelling and pushing each other, according to the claimant. Claimant admitted that he pushed Correction Officer Leaney-Levenson but only after Leaney-Levenson began yelling and pushed him first. Although claimant acknowledged that various correction officers submitted memoranda which portrayed events in a manner other than as described by the claimant at trial (see Exhibit I), the claimant described these officers as "racist COs" (Tr. 1, p. 212).

Mr. Clauberg admitted he received a notice of discipline concerning the events involving Correction Officer Leaney-Levenson on December 12, 2006 (Exhibit J). That matter was later settled when the claimant agreed to a fourteen-day suspension and a one-year period of probation.

Two months following the incident with Correction Officer Leaney-Levenson, the claimant received and signed a copy of his 2005 Security Services Unit Employee Performance Evaluation rating. That form (Exhibit 30) provided claimant an overall performance rating of "excellent." Claimant testified that item three on page one of Exhibit 30, regarding claimant's relationship with fellow employees, was altered sometime after his original signature to rate his performance as "in need of improvement," rather than "good" as initially indicated. On June 23, 2006 the claimant complained regarding alteration of his performance evaluation to Deputy Superintendent of Security Patrick Griffin. Claimant acknowledged that the evaluation rating form was later modified and returned to the rating as it existed at the time claimant originally signed it.

Finally, the claimant testified that he scored an 85 on his sergeant's exam and that, in his view, he was entitled to an additional five points as a result of his veteran status. Claimant has appealed the determination denying him the additional five points, which qualified him for his provisional appointment to sergeant.

On redirect examination the claimant testified that when he returned to Willard from Ulster he requested to return to his prior bid job, but was advised by Lieutenant Patricino and Captain McCauley that the job he held prior to his transfer to Ulster had already been bid to another correction officer.

Regarding his complaints against Sergeant Phipps, claimant testified that although Mr. Harvey in the Office of Diversity Management indicates in his letter to the claimant dated July 17, 2003 that "[t]here were no witnesses to the alleged actions and comments you attribute to Sergeant Phipps" (Exhibit 33), he had in fact provided the Office of Diversity Management the names of eight or nine witnesses. In his letter to Janet Curley of the New York State Division of Human Rights on March 19, 2004, Mr. Harvey notes four witnesses who were interviewed as a part of his office's investigation of claimant's complaint. Claimant noted Correction Officer Smalls and George Cruz as individuals whom he had identified as witnesses but were not on the list provided by Mr. Harvey in his March 19, 2004 correspondence.

With regard to the claimant's 2005 employee evaluation form, claimant testified that following his complaint Deputy Superintendent of Security Griffin directed that the original unaltered evaluation should be the one placed in the claimant's file.

The claimant next called Correction Officer Wilfredo Perez, who testified that he first became employed by the New York State Department of Correctional Services on November 17, 1997. Mr. Perez was assigned to Sing Sing in 1998 and continued working there as a correction officer until his election as a Steward for the New York State Correction Officers and Police Benevolent Association (NYSCOPBA) in 2003. Mr. Perez has also served as a Vice President of NYSCOPBA since 2002.

The witness testified that in 2002 he became aware of complaints regarding racial and religious comments made by Sergeant Lawrence Phipps. He testified that "we started to receive complaints, whether it was verbal or written, from members at Sing Sing giving us complaints in regards to individuals such as Phipps, and their conduct and hostility towards people of color" (Tr. 2, p. 248). A meeting involving the Executive Board of the National Latino Officers Association and approximately 150 to 180 black and Hispanic officers was convened to discuss these complaints, including those made by the claimant. Mr. Perez testified that the claimant had personally complained to him regarding comments made to him by Sergeant Phipps. As a result of this and other complaints, Mr. Perez participated in a series of meetings involving DOCS Commissioner Devane, Associate Commissioner Kevin Breen and Superintendent Brian Fischer, the Superintendent of Sing Sing. During the course of the meetings the alleged retaliation by Sergeant Phipps against the claimant, in the form of changing his shift time, was brought to Superintendent Fischer's attention. According to the witness, the Superintendent indicated he would investigate the matter. Sometime in 2003 he was made aware that the Office of Diversity Management was conducting an investigation of the claimant's allegations against Sergeant Phipps. Mr. Perez received a copy of the final report prepared by the Office of Diversity Management concerning claimant's complaint which he said "caused another series of meetings" (Tr. 2, p. 258) related to the finding that Sergeant Phipps permitted the telling of "off-color" jokes in the workplace (Exhibit 33). Following receipt of the July 17, 2003 letter, Mr. Perez participated in a series of meetings with Superintendent Fischer and had "regular meetings with the upper echelon which is Commissioners Devane and Breen" regarding the claimant's allegations of retaliation by Sergeant Phipps (Tr. 2, p. 266). The witness estimated a total of "at least a half dozen meetings we were having back and forth" (Tr. 2, p. 267).

Mr. Perez described "bid jobs" as permanent positions which provide correction officers certainty regarding work hours and assignments. According to the witness, the bid job process is memorialized in Article 24, Section 24.3, of the Collective Bargaining Agreement between NYSCOPBA and the State of New York (Exhibit 55). Section 24.3 states, in part, the following:

"The Employer shall have the right to make any job or shift assignment necessary to maintain the services of the department or agency involved. However, job assignments and shift selection shall be made in accordance with seniority provided the employee has the ability to properly perform the work involved" (Exhibit 55, 24.3).

The witness testified that Mr. Clauberg also sought his assistance in resolving the revocation of his promotion to sergeant and subsequent reassignment back to Ulster as a correction officer. Mr. Perez spoke to Superintendent(1) Fischer and Sergeant Warren Agostinoni regarding the claimant's concerns. Superintendent Fischer indicated he would review the matter and respond to Mr. Perez although, according to Mr. Perez, no response was provided. Mr. Perez testified that he was not aware of any other instance in which a promotion to sergeant has been revoked as it was for Mr. Clauberg. He also stated his opinion that "in most facilities"a bid job is not available immediately after it is vacated (Tr. 2, p. 297). The newly vacant position must be posted for 30 days "and then you have another 14 days on top of that before the officer actually assumes the responsibilities of that post" (Tr. 2, p. 297). Mr. Perez did not describe the source of his knowledge with regard to these issues or cite any authority relating the time frames discussed above. When asked previously on direct examination whether DOCS directives addressed the issue of changing shift hours, he responded "[t]here probably is. Off the top of my head, I don't recall" (Tr. 2, p. 284). The witness went on to state his opinion that when the claimant returned to Willard following the revocation of his promotion to sergeant, DOCS was required to "[m]ake him whole, meaning giving him back his job as if it never occurred" (Tr. 2, p. 299). When asked if he was aware whether claimant's prior bid job was open at the time he was reassigned to Ulster the witness replied "[n]o" (Tr. 2, p. 300).

On cross-examination the witness testified that the sergeant's exam is administered and scored by the Department of Civil Service. He agreed that the Department of Civil Service then creates a list of eligible individuals and provides it to DOCS. Through his contact with Sergeant Agostinoni he became aware the Department of Civil Service determined that Mr. Clauberg was not entitled to an additional five points added to his score of 85 on the sergeant's exam. Once it was determined that the claimant was not entitled to the additional points, he moved down the list of individuals eligible for appointment as a sergeant and was replaced by individuals earning a higher final score. He further agreed that the appointment to sergeant is nondiscretionary and that the individual with the highest test score and seniority was entitled to the position. When asked whether the Department of Correctional Services was obligated or required to restore claimant to his prior bid job at Ulster upon his return to that facility the witness responded in the negative, stating "No, there's nothing to compel them" (Tr. 2, p. 310).

Returning to the issue of Sergeant Phipps changing claimant's bid job work hours by one hour in 2002, Mr. Perez testified that any such change would "absolutely" entitle the claimant to file a grievance regarding the matter (Tr. 2, p. 313). Specifically, the witness testified that such a change in claimant's hours would constitute a violation of Section 24.3 of the Collective Bargaining Unit and could be grieved as a result.

On redirect examination Mr. Perez testified that although there is no requirement that would compel DOCS to return claimant to his prior bid job upon his return to Ulster, he is aware through his experience of other instances in which DOCS has accommodated such moves.

Claimant called Gary Dahlman to the stand, who testified that he has been employed by DOCS at Sullivan for the past twenty-three years. Officer Dahlman is currently the NYSCOPBA Assistant Chief Steward at Sullivan. He could not recall receiving the memorandum from Mr. Clauberg dated June 22, 2003 asking that he request a meeting with the Superintendent concerning harassment by Sergeant Joseph Maxwell. His only recollection of events involving the claimant concern the incident which occurred at the rear gate and resulted in the issuance of a counseling memo. Mr. Clauberg requested that Officer Dahlman meet with Superintendent James Walsh to have the counseling memo deleted from his personnel file. The witness met with Superintendent Walsh and asked that the counseling memo be removed from claimant's file or, at least, that the references to insubordination contained within the memorandum be deleted. Superintendent Walsh indicated, according to Officer Dahlman, that although he did not find evidence of insubordination by the claimant, the counseling letter would not be removed from claimant's file. Officer Dahlman was unaware whether references to insubordination by the claimant were ever deleted from the counseling memorandum.

The witness testified that he was not present at the time of the rear-gate incident and that he met with Superintendent Walsh concerning the counseling letter issued to the claimant approximately one month following the incident. He distinguished the counseling memorandum from disciplinary action, which would be characterized by issuance of a notice of discipline.

Claimant next called Correction Officer Leslie Hendrix, who testified that he has been employed by DOCS since March, 1985 and was assigned to Sullivan in August, 1985, where he currently works as a correction officer. The witness testified that he was involved in an altercation several years ago in which he pushed another correction officer. As a result of the incident he received both a verbal and written counseling, but did not receive a notice of discipline. He was neither suspended from his employment nor did he lose any pay. On cross-examination the witness testified that the incident occurred in the line-up room where no inmates were present.

The claimant next called Warren Agostinoni who testified that he is employed by the Department of Correctional Services as the Assistant Director of Personnel. He held that same position in December 2008.

The witness testified that the New York State Department of Civil Service administers a correction sergeant examination every four years. The Department scores the results of the examination and provides a formal list of rankings to DOCS. A joint DOCS/Department of Civil Service computer program then automatically prepares a final list ranking candidates in order based upon their examination results and contract seniority.

Candidate examination scores may be modified, for example, by additional credits provided to those having veteran status. Veterans' credits may be claimed by a candidate at the time he or she applies to take the examination by completing [an] XD-5 card (Exhibit E). Mr. Agostinoni testified that a claim of veterans' status is not verified until a candidate is selected from the eligible list for a permanent sergeant's position. He testified "[W]e don't do no checking ahead of time. Some of these folks aren't even reachable, why we waste our time, they can be ranked Number 2000" (Tr. 2, p. 370). With regard to the claimant, the witness testified that Mr. Clauberg executed [an] XD-5 card at the time he applied to take the sergeant's examination. He was promoted to sergeant on a temporary basis on December 11, 2008. According to Mr. Agostinoni, veterans' status was not required to be checked at that time because it was a temporary and not a permanent promotion. Instead, claimant's claimed veteran's status was investigated sometime shortly before his contingent permanent promotion, which was effective January 15, 2009. The Department of Civil Service is only involved in confirming the status of individuals claiming credits as disabled veterans. Civil Service requirements mandate that DOCS verify an individual's veterans' status, for purposes of veterans' credits on the sergeant's examination score at the time an individual is permanently promoted from the eligible list.

Mr. Agostinoni testified that the claimant scored 85 on his sergeant's exam. At the time he applied for the examination he completed an XD-5 form which indicated he was a disabled veteran. As a result, the claimant was provided an additional five points, which raised his score to 90. Without these additional five points, claimant was ranked 1,777th on the eligible sergeant's list. The additional five points raised his score to 729A on the list. Because he was reachable as a result of the additional five points added to his examination score, Mr. Agostinoni contacted the claimant and offered him a temporary promotion to sergeant "which 90 percent or more initially start that way, temporary" (Tr. 2, p. 383). Once an individual appointed as a temporary sergeant is designated for a contingent permanent assignment, DOCS is required by Civil Service to canvas the candidate and confirm his status as a disabled veteran. Although Mr. Agostinoni agreed that the claimant was a disabled military veteran, he did not qualify for the additional five points provided to disabled veterans on the sergeant's examination because he did not receive an expeditionary medal as required for individuals, such as the claimant, who participated in the Panama Campaign. Veterans' credits on the sergeant's exam are provided only for individuals meeting the discrete requirements set forth on the back of the XD-5 form, which requires that veterans of the Panama Campaign hold an expeditionary medal in order to qualify for veterans' credits. Mr. Agostinoni testified:

"It's right on the XD-5. When you take an examination, it clearly states, if you are claiming veterans' credits, in Box Number 7, please flip to the back side, and it shows you a breakdown of each campaign, and what is needed to achieve any additional points. It couldn't be more clearly spelled out on the XD-5 . . ." (Tr. 2, p. 392).

The witness testified that it was determined by reference to claimant's Certificate of Release from Active Duty (Form DD-214, Exhibit 44) that the claimant did not hold the expeditionary medal required for veterans of the Panama Campaign to receive additional veterans' credits. In particular, Mr. Agostinoni referenced Box 13 of Exhibit 44, which indicates the decorations, medals and other citations earned by the claimant during his period of military service. Box 13 does not indicate the claimant received an expeditionary medal for the Panama Campaign.

The witness testified the Department of Correctional Services promotes approximately 120 individuals to the rank of sergeant each year. According to Mr. Agostinoni, many individuals given the temporary rank of sergeant later voluntarily return to their previous position as a correction officer. The witness was not aware whether any such individual has been returned to the rank of correction officer as a result of a determination that he did not qualify for veterans' credits on the sergeant's examination. Mr. Agostinoni also testified that although voluntary demotions occur for various reasons, he could not recall other involuntary demotions of the sort experienced by the claimant. Following claimant's demotion, the witness attempted to assist him in returning to his prior bid job at Ulster but "[h]is bid was, unfortunately, awarded to a different officer when he was gone" (Tr. 2, p. 415). When asked whether the appointment of the claimant to the temporary sergeant's position was a mistake, Mr. Agostinoni stated "[a] mistake on Mr. Clauberg's part, not knowing he's entitled to the veterans' credits that clearly states it on the XD-5" (Tr. 2, p. 416).

On cross-examination the witness testified that Exhibit F is a copy of the XD-5 form (Promotion/Transition Examination Application) completed by claimant prior to taking the correction sergeant promotion exam scheduled for November 16, 2005. Box 7 of Exhibit F is titled "War Time Veterans' Credits Claimed" and provides boxes where an individual can claim credits as a disabled or non-disabled war veteran. Under the title in Box 7 the form indicates "[f]irst read instruction 7."(2) Exhibit F indicates the claimant claimed credit as a disabled war veteran. Again, Mr. Agostinoni testified that neither he nor DOCS questioned the claimant's general status as a disabled veteran. Quite simply, according to the witness, the additional five-point credit on the New York State correction sergeants examination is only available to those disabled veterans meeting certain discrete requirements. In the case of the claimant's service during the Panama Campaign, Civil Service requirements entitle only those individuals holding an expeditionary medal to credit on the sergeant's examination. An investigation conducted when claimant was designated for a conditional permanent position revealed that he did not possess the required medal.

The claimant called Correction Officer George Cruz, who testified that he has been employed by DOCS since February 7, 1994. He was at that time assigned to Sing Sing where he remained until May 23, 2005. During the period 2001 - 2003 Sergeant Phipps was Officer Cruz's immediate supervisor on those days he was assigned to the facility's hospital basement housekeeping unit. During this time Officer Cruz testified he heard Sergeant Phipps use various racial epithets, including referring to the claimant as "a dumb spic lover", in reference to his Hispanic wife (Tr. 2, p. 433). At some point Officer Cruz learned that the claimant had filed a complaint regarding Sergeant Phipps' use of racially insensitive language. He testified that thereafter, in his view, Sergeant Phipps' attitude toward the claimant changed. Officer Cruz testified, "When Officer Clauberg used to try to get his attention as far as some job duties for the day, he was totally ignored . . . Sergeant Phipps just walked away from him" (Tr. 2, p. 436). The witness was then asked the following question and provided the response indicated (Tr. 2, p. 437):

"Q. . . . Did you hear Sergeant Phipps say anything after changing Clauberg's hours and changing his bid job? Did you hear him say anything, or did you observe him do anything with respect to Clauberg?

A. No."

On cross-examination, Officer Cruz testified he worked with Sergeant Phipps in the hospital basement housekeeping unit until June 2002 when he received a one-year suspension for accidentally removing the wrong inmate from the facility. Obviously Officer Cruz was not at the facility to observe Sergeant Phipps during the one-year term of his suspension from June 2002 through June 2003.

Claimant's next witness was James J. Walsh, who testified he has been the Superintendent of Sullivan since December 1999. Superintendent Walsh identified Exhibit 20 as a memorandum he received from the claimant on June 23, 2002 alleging he was the subject of harassment by Sergeant Maxwell. Superintendent Walsh spoke to both the claimant and Sergeant Maxwell regarding the incident and directed staff to perform an investigation. The results of that investigation were communicated to Mr. Clauberg in a memorandum dated July 23, 2003, which states, in part:

"Taking into account the nature of the statements you made to the Captain during the interview, as well as the reports from the Lieutenant and Sergeant, it appears likely that the manner in which you interacted with the Sergeant was not appropriate. They chose to address it by having a discussion with you and then considered the matter closed" (Exhibit 18).

According to the witness, the above portion of the investigation report was based upon a report filed by Lieutenant Porter, indicating that the claimant was "loud, he was boisterous, he wasn't listening to what they were trying to talk to him about . . . There's a certain conduct that's expected of correction officers when interacting with supervisors, and it appeared that his was not what it should be" (Tr. 2, p. 469). Superintendent Walsh's memorandum to Officer Clauberg concluded:

"Finally, every institution has its own organizational culture, identity and history. It might not be what you are used to or what you would prefer it to be. I suggest you would be best served by understanding this concept" (Exhibit 18).

The witness explained that in his conversations with Mr. Clauberg, and in certain written documents, the claimant "repeatedly referenced Sing Sing and how things were at Sing Sing . . . And he made a lot of references to criticisms about the prison, in general, and comparing them to Sing Sing" (Tr. 2, p. 475). He explained that in referencing the unique organizational cultures at various correctional facilities he intended to convey that each institution is distinct as a result of its geographical location, the age of the workforce and other various factors.

Referring to Exhibit 20 regarding the D-Block incident, Mr. Walsh testified that he spoke to both the claimant and Sergeant Maxwell and discussed with Sergeant Maxwell his understanding of the term insubordination. In the witness' view, the events recounted in the counseling memorandum did not rise to the level of insubordination.

The witness reviewed various to/from memoranda prepared by correction officers stationed at or near the rear gate on the date of the incident, which appear to indicate that Sergeant Maxwell interacted with the claimant in a loud and agitated manner (see Exhibits 21 - 26). He testified that the actions ascribed to Sergeant Maxwell did not lead him to believe the Sergeant should have been counseled or otherwise addressed regarding his interaction with Mr. Clauberg. He assumed that Sergeant Maxwell was frustrated as a result of the claimant's failure to follow his instructions regarding access for construction workers at the rear gate. By memorandum dated September 28, 2004, Superintendent Walsh responded to claimant's request for an investigation of the rear-gate incident. The memorandum concludes:

"Based on the description of the interaction with you and the sergeant, both in the Truck Trap Office and in the Captain's Office, you were clearly not receptive to the sergeant's attempts to counsel and your comments and gestures were inappropriate. A counseling memo was surely warranted.

I concur with the Lieutenant's determination that there is no indication that there was any abuse, harassment, misconduct or disregard for security" (Exhibit H).

Mr. Walsh testified that he met with Sullivan NYSCOPBA Chief Steward Dahlman on several occasions concerning the claimant. He recalled a meeting with Mr. Dahlman in September 2004 following the rear-gate incident in which Officer Dahlman requested that the formal counseling memo be removed from the claimant's file. During the meeting Superintendent Walsh indicated to Mr. Dahlman that he did not believe the claimant had been insubordinate as related in the counseling memo, but he denied the request that the memo be removed from the claimant's file. Mr. Walsh testified "while I did acknowledge that there was no clear insubordination, I thought that there was inappropriate interaction between an officer and a supervisor that needed to be documented" (Tr. 2, pp. 506-507). He agreed that after eighteen months a correction officer may request that a counseling memo be removed from his file and that the claimant made such a request with regard to the counseling memo from Sergeant Maxwell regarding the rear-gate incident. Superintendent Walsh denied the request (Exhibit 59).

The witness testified that he was aware of an incident between the claimant and Officer Leaney-Levenson in December, 2005 which resulted in the claimant's suspension from duty. He also was aware that Officer Leaney-Levenson, who was not suspended or disciplined, later filed charges against the claimant in local criminal court. The witness reviewed Exhibit 57, correspondence from DOCS Deputy Commissioner and Counsel Anthony Annucci, to the Honorable Bart Rasnick of the Fallsburg Town Court regarding the issuance of judicial subpoenas to eight correction officers employed at Sullivan. Superintendent Walsh testified that he requested counsel's office to address the matter with the court because of the large number of staff affected by the subpoenas in the Leaney-Levenson criminal matter. Superintendent Walsh testified that he also contacted Assistant District Attorney Joey Drillings, the individual prosecuting the claimant, regarding the subpoenas (Exhibit 58).

According to the witness, he authored a memorandum requesting that the claimant provide him a copy of the decision and/or disposition of the criminal matter upon its conclusion (Exhibit 39). The memo was sent following a request from the DOCS Office of Labor Relations that they be provided documentation regarding the outcome of the criminal proceedings. After receiving claimant's June 11, 2006 response referencing DOCS employee manual Sections 2.2 and 2.3, he responded by letter dated June 12, 2006 indicating the original memorandum was sent at the request of DOCS Labor Relations personnel and that "this direction was issued in error" (Exhibit 41).

The witness testified he was unsure how he came to learn of the posting of claimant's hostage photo stating "I don't believe I received a complaint directly about it. But I was aware that it happened, it was taken down" (Tr. 2, p. 523). He described the posting of claimant's hostage photo as "definitely inappropriate" (Tr. 2, p. 524).

The witness concluded his direct examination by acknowledging that Sergeant Joseph Maxwell's wife is his secretary at Sullivan.

On cross-examination, Superintendent Walsh testified that defendant's Exhibit G includes documents generated during the course of an investigation performed at the request of the claimant following the June 21, 2003 D-Block incident. The witness directed Captain Geoghegan to undertake the investigation and his findings were set forth in a memorandum dated July 16, 2003. The witness reviewed the subject documents prior to relating to the claimant his conclusion regarding claimant's complaint of harassment by Sergeant Maxwell. Upon reviewing the documents at trial, the witness testified that it was his conclusion that while Mr. Clauberg was not insubordinate, his behavior toward his superior officers, including both Sergeant Maxwell and the Watch Commander, concerned him. The investigation found the claimant was yelling at Sergeant Maxwell during the attempt to informally counsel him and that this behavior continued when he met with the Watch Commander who is in charge of the day-to-day operation of the shift.

Superintendent Walsh explained that there are two different forms of counseling: informal counseling, which he described as a verbal attempt to change a particular officer's behavior, and formal counseling, which consists of a written report of employee misconduct which is filed with the Office of Labor Relations. Following such a formal counseling "[the Office of Labor Relations] make[s] a determination as to whether disciplinary charges are warranted and, if they issue a Notice of Discipline, there's a formal process that would need to take place before a penalty is imposed" (Tr. 3, p. 544). The verbal counseling administered by Sergeant Maxwell following the June 21, 2003 incident was not a disciplinary action. Superintendent Walsh explained that Sergeant Maxwell did not have the authority to lock an officer out of the jail, i.e., deny him entry to the facility. In fact, a correction officer can be "locked out" only in instances in which he or she has been suspended or placed on administrative leave. Only the Superintendent, with the approval of the Office of Labor Relations, has the authority to lock out an employee.

Superintendent Walsh testified that following the investigation of the rear-gate incident, which occurred on August 5, 2004, it was his conclusion that claimant's behavior was, again, inappropriate. While he did not feel that a breach of security had occurred, in his opinion Sergeant Maxwell acted appropriately in ordering that the civilians be permitted entry into the facility. There had been a concern at the executive level that it was taking too long to process civilians into the facility and a memorandum had been issued that everything possible was to be done to expedite civilian entry (see Exhibit G). Superintendent Walsh testified he has the authority to determine whether or not a written counseling memorandum is warranted and that he found issuance of such a memorandum following the rear-gate incident to be appropriate under the circumstances. This was the second instance in which the claimant had resisted Sergeant Maxwell's direction and there appeared to be a confrontation. If a sergeant asks an officer to do something, he should comply. If the claimant felt the order given by Sergeant Maxwell was inappropriate, he should have complied and filed a grievance afterward. Although the grievance process is generally designed to deal with contract violations, there is a clause concerning safety and security which permits a broad range of complaints not pertaining to a specific contract violation.

The witness explained that when a correction officer files a grievance, it goes to the Superintendent who sends it to the Deputy Superintendent for Security. The Deputy Superintendent then meets with the grievant and a union representative to discuss the matter and attempt to resolve it. Following the meeting, the Deputy Superintendent for Security issues a decision which is reviewed by the Superintendent and then provided to the grievant and the union. If the grievant and/or the union feel the matter was not satisfactorily resolved it can be referred to the Office of Labor Relations. If not resolved to the satisfaction of the grievant and/or the union, the matter can be arbitrated.

Turning to the incident involving Officer Leaney-Levenson on December 2, 2005, the witness testified that an investigation was automatically triggered because "[t]here was an officer who claimed that another officer assaulted him on a housing unit while dealing with an inmate, and several staff members indicated they saw the same thing" (Tr. 3, p. 557). In addition, the use of force on an inmate automatically requires certain paperwork and reports to be filed. Mr. Clauberg had also "pulled his pin", which set off an alarm indicating that an officer requires assistance (Tr. 3, p. 565). This, coupled with the use of force, would trigger an investigation. The witness testified that Exhibit I consists of reports, generated following the incident between the claimant and Officer Leaney-Levenson, which were forwarded to the Office of Labor Relations. The witness testified that the Office of Labor Relations is notified when there is evidence of significant misconduct. The Office of Labor Relations then reviews the paperwork provided and determines whether further action is required. With respect to the incident involving the claimant and Officer Leaney-Levenson, the Office of Labor Relations determined that claimant's conduct warranted a suspension. The witness identified defendant's Exhibit J as the Notice of Discipline issued following the incident involving the claimant and Officer Leaney-Levenson. He testified that the matter was resolved when a settlement was reached in which the claimant agreed to a two-week suspension (Exhibit K). As to the testimony regarding an altercation between Officer Hendrix and another officer in which Officer Hendrix received only a written counseling, the witness testified that the Hendrix incident occurred in an area accessible primarily by staff. According to Superintendent Walsh "[t]he difference with this issue is it was an inmate area and an inmate was involved, an inmate housing area where 64 inmates, many of them out for the meal, and it involved use of force and an apparent assault and a verbal barrage that was reported, that in that setting was quite serious" (Tr. 3, p. 567). There is no mess hall in the housing unit where this incident occurred. As a result there were approximately 69 inmates out of their cells eating in an area staffed by only two correction officers. Given this circumstance, there was a concern that the incident involving the claimant could have escalated if the inmates felt the actions taken toward the inmate involved were unjust. The fact that the incident between Mr. Clauberg and the inmate started when the inmate was locked in his cell and continued after he was released also raised a concern that the situation was permitted to escalate to the point that the use of force was required.

Superintendent Walsh testified that the Deputy Superintendent brought to his attention the claimant's allegation that his 2005 performance evaluation was altered. Normal procedure requires a sergeant to evaluate an officer and then pass his recommendations along to a lieutenant. Sergeant Huckeba, who performed the claimant's evaluation was a relatively new sergeant at the time. After the performance evaluation had been signed by the claimant, the claimant complained that the section regarding his relationship with fellow employees had been changed from "good" to "needs improvement" (Tr. 3, p. 575-576). After the complaint, it was decided that Mr. Clauberg was correct and the evaluation should not have been changed. It was therefore changed back to reflect the prior rating of "good" in this category (Tr. 3, p. 576).

Turning to the incident involving the claimant's hostage photo, the witness explained that a hostage photo is used to identify individuals entering or exiting the facility and to identify staff members in the event of an incident. The photos are kept in several locations, including his office, the Deputy Superintendent of Security's office, the Watch Commander's office, the control room, the entrance to the facility and the rear gate. The hostage photos are kept in a card file but are not placed under lock and key so that they are accessible in case the need to use them arises. Many correction officers have access to the photographs, including those located at the rear gate and the control room.

On redirect examination the witness testified that there are approximately 401 security staff members at Sullivan. Staff members undergo a four-hour period of what was once called diversity management training, the latest such session occurring within the past year.

With reference to the D-Block incident, the witness testified that he ordered an investigation be conducted regarding claimant's allegations. The claimant was interviewed as part of the investigation and the results of the interview are described in a memorandum to the witness from Captain Geoghegan dated July 16, 2003 (Exhibit G). No additional written statement other than his initial complaint was obtained from Mr. Clauberg during the course of the investigation. Following the D-Block incident, Mr. Clauberg was given an informal counseling for interacting with his supervisor, Sergeant Maxwell, in an inappropriate manner. Sergeant Maxwell was not counseled.

With regard to the rear-gate incident, Superintendent Walsh explained that once an officer enters the secured area upstairs there is not much to do except load his or her weapon and put it in the rack. Once the officer is secured in the room, there is no reason to delay opening the gate. Loading a shotgun takes approximately one minute and the officer would then be cleared to open the gate. The witness testified that the issue of not being ready to open the rear gate was "overblown and exaggerated because there wasn't anything to get ready for" (Tr. 3, pp. 598-599). The witness concluded that the formal counseling given to the claimant was, in his view, proper.

Addressing the Leaney-Levenson incident, Superintendent Walsh testified that the Notice of Discipline (Exhibit J) issued to the claimant was based upon the investigation conducted by the facility, the results of which were provided to the DOCS Office of Labor Relations. The witness' recollection is that the incident was not a "pushing match" between two individuals; rather it involved one individual, the claimant, pushing another individual, Officer Leaney-Levenson (Tr. 3, p. 605). He testified that, in addition to the physical altercation, staff and inmate reports generated during the investigation of the incident indicated the possibility that Mr. Clauberg had purposely released the inmate from his cell in order to set him up. Superintendent Walsh concluded that the incident "was probably mishandled right from the beginning, and it culminated in an incident in a housing area that . . . was very serious, and it had the potential to be more serious" (Tr. 3, p. 609).

Regarding the hostage photo incident, the witness testified that there may be a DOCS Directive addressing where they may be stored. The witness did not believe that the Directive addresses who may have access to the photographs, although possession of the photographs without good cause is prohibited.

Superintendent Walsh testified that the incident involving changes to the claimant's employee performance evaluation was brought to his attention because "Mr. Clauberg had a history of taking everything that happened, and making it, in my mind, a much bigger issue than it was, and he claimed that it was done as a result of his 'whistle blowing' and it was retaliation, and so being very sensitive to those allegations, the Deputy Superintendent felt it appropriate to let me know what the issue was, and I think that was an appropriate decision" (Tr. 3, p. 613).

Claimant called as his next witness Epifanio Tolentino. Mr. Tolentino has been employed by the Department of Correctional Services for 19 years, the past 18 years at Sullivan Correctional Facility. Officer Tolentino testified that Sergeant Maxwell has made racially inappropriate comments in his presence. Sergeant Maxwell would make fun of the witness' skin complexion such as "how come I was dirty" (Tr. 3, p. 617). He filed a complaint regarding this conduct. Officer Tolentino testified that he first learned the claimant was coming to Sullivan when Sergeant Maxwell "made it known" (Tr. 3, p. 618). According to the witness, Sergeant Maxwell stated that "[Clauberg] was a piece of shit admin. transfer" (Tr. 3, p. 620)(3) . Following Mr. Clauberg's arrival at Sullivan, the witness overheard a conversation between Sergeant Maxwell and Lieutenant Jordan in which Maxwell stated that he was "tired of [Clauberg's] complaints, that he was going to try to be at the north complex so he could have his job" (Tr. 3, p. 621). Lieutenant Jordan responded that "he was tired of his complaints, as well, and that if he [Maxwell] didn't do it, he was" (Tr. 3, p. 621).

Officer Tolentino testified that he found racial literature (Exhibit 1) in a desk at Sullivan. He prepared a to/from memorandum to Lieutenant Haynal complaining about the literature. He never determined how the literature came to be in the desk.

The witness recalled seeing claimant's hostage photo posted in the lineup room but was unable to remember exactly what was written on the photographs. He recalled seeing the word "rat" and racial slurs or something to the effect of "I will get you" (Tr. 3, pp. 623-624). He testified that the photographs were posted on the soda machines, by the time clock and in the locker room. Supervisors were present but he was unaware whether they took any action.

On cross-examination Officer Tolentino described his relationship with Mr. Clauberg as "just a co-worker" (Tr. 3, p. 627). When he saw the hostage photographs of the claimant posted in the lineup room he did not take them down, he did not report it to anyone nor did he know who put them up. Officer Tolentino testified that he had been counseled at Sullivan regarding magazine subscriptions he had ordered for Sergeant Maxwell, without his knowledge, which he contended was done "out of frustration of what I was going through" (Tr. 3, p. 629).

Claimant's counsel called Commissioner Brian Fischer to the stand.(4) Commissioner Fischer began his employment with DOCS in 1975. In 1990 he was transferred to Queensborough Correctional Facility where he was the Superintendent for ten years. In 2000 he was transferred to Sing Sing and in 2007 he was promoted to the position of DOCS Commissioner.

Commissioner Fischer testified that although he was aware the claimant was employed at Sing Sing during his tenure as Superintendent there, he could recall no verbal complaints by the claimant with respect to racial comments made by Sergeant Phipps. Nor did he recall meeting with Willie Perez concerning claimant's allegations of racial discrimination. The witness also did not recall receiving a copy of a memorandum from the claimant to Sergeant Josey and Deputy Superintendent of Security William Connolly (Exhibit 12). The only complaint he recalls receiving from the claimant is the three-page document dated July 30, 2002 received in evidence as claimant's Exhibit 27. On August 5, 2002 Superintendent Fischer transmitted claimant's complaint to the Office of Diversity Management for investigation (Exhibit 66). No investigation was conducted by personnel at Sullivan in accordance with the then existing policy that such matters be referred to the Office of Diversity Management. The witness had no further involvement with Mr. Clauberg's complaint until he received a memorandum from Charles R. Harvey, Director of the Office of Diversity Management, dated July 17, 2003 (Exhibit 64) and a copy of the letter from Mr. Harvey addressed to the claimant of the same date (Exhibit 33). In the memorandum, Mr. Harvey indicates that the Office of Diversity Management's investigation substantiated that "Sergeant Phipps participates in and allows the telling of 'off-color' jokes that contain racially sensitive terms and expressions to take place in his presence . . ." (Exhibit 64). Mr. Harvey requested in the memorandum that Phipps be informally counseled and that written documentation be provided when this action was completed. The witness confirmed that Phipps was informally counseled as recommended in Mr. Harvey's memorandum.

Commissioner Fischer testified he could recall no complaints from Willie Perez regarding discrimination by Phipps and that he was not aware of a complaint by the claimant regarding supervisors referring to him as the Reverend Al.

Commissioner Fischer testified that the policy of DOCS set forth in the 1997 version of Section 2.1 of Exhibit 29 entitled "Conduct And Activities Of Employees" has not changed. That section states "No employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or its personnel. " The witness agreed that officers may be disciplined for conduct occurring off-duty. He recalled that he forwarded Exhibit 50, which consists of a memorandum from the claimant dated June 3, 2009 with a photograph attached, to the Office of Diversity Management for review.

Commissioner Fischer testified that he is aware Mr. Clauberg's promotion to temporary Sergeant was revoked. He stated that in such a case, where an individual is returned to their former rank and their bid position has been filled, there is not much that can be done because the bid process is outlined in the collective bargaining agreement. If the union was in agreement on attempting to accommodate an officer's request to return to his former bid position, and it would not negatively impact any other officer, DOCS would generally acquiesce.

On cross-examination Commissioner Fischer explained that the reason for referring a complaint to the Office of Diversity Management is to avoid allegations of bias in the investigation. On redirect the Commissioner stated that this policy has changed because experience has shown that some issues, particularly those involving personality conflicts, can be best resolved at the facility level. Defendant called Arthur Leaney-Levenson to the stand. The witness is employed by the Department of Correctional Services as a Correction Officer and has been so employed for approximately 14 years, beginning at Sing Sing where he worked for a short period before transferring to Sullivan. On December 2, 2005 Officer Leaney-Levenson worked in the Chapel from 1:00 p.m. to 4:00 p.m. and then proceeded to A-Control to work in the showers. After completion of his shower duties, he proceeded to A-North to perform the count and "feed-up" (Tr. 3, p. 632). At approximately 4:45 p.m. Officer Leaney-Levenson exited A-Control and proceeded to A-North where he completed the inmate count. Mr. Clauberg, who was also performing a count, had "some words" with an inmate housed in cell 138 (Tr. 3, p. 633). As he was leaving following completion of the inmate count the witness observed the claimant had returned to cell 138 and was again having more words with the inmates housed there. At approximately 5:00 p.m. Officer Leaney-Levenson returned with the feed-up wagon and began distributing the keeplock feed-up trays. As the inmates were released from the west side cells, which included cell 138, the claimant began having words with Inmate Brown, one of the inmates housed in cell 138. Inmate Brown came through the feed-up line and sat down in the east side area. Approximately two minutes later the witness overheard an argument between the claimant and Inmate Brown. As he was coming out of the pit, Officer Leaney-Levenson heard a Code 1 call for A-North, indicating an officer was in trouble. When he arrived at the top of the steps, Inmate Brown was complying with claimant's order to place his hands in his pockets while being escorted to his cell. The claimant placed one hand on the inmate's shoulder and one hand on his arm and both officers escorted him to his cell. The witness testified that he noticed during this time that the inmates were "watching very closely" (Tr. 3, p. 634). Once the inmate was locked in his cell, Officer Leaney-Levenson instructed claimant to back away from the cell because it appeared to him that he was intent on engaging in further conversation with the inmate "and there was a lot of other inmates out during chow" (Tr. 3, p. 635). According to the witness, "The inmate was locked in his cell. There was really no issue, so there was no need for him to be in front of the cell to continue harassing the inmate" (Tr. 3, p. 635). The witness testified that after he told the claimant to back away from the cell door, Mr. Clauberg shoved him and said "I'm for blue, what do you want to suck his dick too" (Tr. 3, p. 636). The witness told Mr. Clauberg to back away for a second time and Mr. Clauberg shoved him again. When Officer Leaney-Levenson told him for a third time to back away, Mr. Clauberg shoved him again and said "I'll take you outside and I'll break your jaw" (Tr. 3, p. 636). He described Mr. Clauberg as irate and yelling at the time. The witness testified he did not push Mr. Clauberg nor did he threaten him with violence.

Following the incident, both officers were required to report to the Watch Commander's office and complete memoranda regarding the events. On Monday of the following week he spoke with the Deputy Superintendent for Security and asked if the facility was going to press charges against Mr. Clauberg. The Deputy Superintendent advised him the facility would not be filing legal charges against the claimant but that he was free to do so if he chose. Officer Leaney-Levenson was not encouraged to press charges nor was it suggested that he do so. On that same day, the witness filed a police report but did not, at that point, press charges. He "filed the charges" a day or two later after speaking with family members (Tr. 3, p. 639).

On cross-examination Officer Leaney-Levenson testified that he was the senior officer and was therefore in charge of the situation when Mr. Clauberg pulled his pin. He testified that he never touched Mr. Clauberg nor threatened him in any way.

Officer Leaney-Levenson reported the incident to police and Mr. Clauberg was charged with harassment, a violation. When asked whether he reported the incident because he was afraid the claimant was going to sue him, Officer Leaney-Levenson responded "Not completely, no. The main reason was because he shouldn't have done that to me" (Tr. 3, p. 645). He was aware that the claimant could face disciplinary action as a result of the bringing of legal charges against him. Officer Leaney-Levenson was not injured or otherwise harmed during the incident. He did not work with Mr. Clauberg before the incident and has not worked with him since. Although he had heard rumors that the claimant had filed complaints against the facility, the rumors did not involve Sergeant Maxwell or discrimination.

On redirect examination, the witness testified that there was no reason for Mr. Clauberg to continue the confrontation with Inmate Brown once he was locked in his cell. If the inmate was misbehaving at that point, he should have been keeplocked and a misbehavior report issued. Officer Leaney-Levenson testified that he feared for his safety on the day of the incident because there were over 60 inmates out of their cells when the confrontation occurred.

The defendant called Lieutenant John Patrick Maxwell as its next witness.(5) Sergeant Maxwell testified that he has worked at Sullivan since it first opened in 1985. He also worked at Woodbourne, Fishkill and Sing Sing Correctional Facilities. He attained the rank of sergeant when he transferred to Sing Sing in 2001, where he worked for only a few months before returning to Sullivan. Sergeant Maxwell was not aware Officer Clauberg was going to be transferred to Sullivan prior to his arrival and he denied any discussion with Mr. Clauberg in which he stated that he knew of Clauberg's prior complaints against supervisors at Sing Sing.

With regard to the incident in D-Block on June 21, 2003, the witness testified that he was speaking to an officer near the desk area when he observed the claimant yelling at an inmate. When he noticed the claimant was locking the inmate in the wrong cell, Sergeant Maxwell went over and assisted him in locking the inmate in the correct cell. He testified that the claimant was yelling at the inmate and right on the inmate's heels as they were going up the stairs to lock him in his cell. With approximately 64 inmates out of their cells, and only two staff members present, he was concerned that the situation could have escalated if other inmates took offense to the way in which claimant was treating the inmate. When he tried to talk to him, the claimant started yelling and screaming at the witness in front of the inmates. At some point, the claimant joined Maxwell in the hallway where he continued "yelling and screaming" (Tr. 3, p. 661). The witness then instructed the claimant to follow him to the Watch Commander's office. At no time did Sergeant Maxwell threaten to lock the claimant out of the facility. Following this incident, Maxwell wrote a memorandum describing the incident to Lieutenant Card (Exhibit G, memorandum dated June 24, 2003). He felt Mr. Clauberg was being insubordinate because when he asked him to leave D-Block he didn't and because he was yelling at him, a superior officer.

Addressing the rear-gate incident which occurred on August 5, 2004, Sergeant Maxwell testified that he was instructed by his captain to be present at the rear gate while construction workers were being processed into the facility. The rear gate is an area consisting of an inner gate and an outer gate. The inner gate opens only after the outer gate closes. There is an upper control area where an officer controls the gates, and a lower control area where an officer checks trucks entering the facility for contraband. Upon arriving at the rear gate at approximately 7:18 a.m., the witness observed Mr. Clauberg "sending all of the construction people out of the outer gate and the rest of the officers were just standing there" ( Tr. 3, p. 667). He was concerned because a memorandum had been issued stating that civilian construction workers were not being processed into the facility quickly enough with the result that they were not working a full eight-hour day. The memorandum dated July 9, 2004 from Captain Geoghegan directs that "Processing of workers (construction) through Rear Gate" shall commence at 7:20 a.m. (see Exhibit H). Sergeant Maxwell testified that he "called into [sic] Officer Clauberg to try to find out what was going on" (Tr. 3, p. 668). He approached Mr. Clauberg and asked him to go into an office to have a private conversation with him. He inquired of the claimant why he had ordered the construction workers to exit the gate. The claimant responded that Officer Lowitz, who was stationed in the upper control area, was not yet ready. Sergeant Maxwell asked the claimant whether he was going to follow the memorandum written by Captain Geoghegan regarding the admission of civilian construction workers at the rear gate and the witness testified that it was clear he was not. As a result, Sergeant Maxwell brought the claimant to the Watch Commander's office and later issued a formal counseling memorandum regarding the incident (Exhibit H, memorandum dated August 5, 2004).

Although Sergeant Maxwell testified that he did not yell at the claimant while at the rear gate, some of the other officers present described him as "agitated" (Smith/Tyler) and "confrontational" (Scarzafava) in memoranda prepared following the event (see Exhibit H). According to Sergeant Maxwell, he simply was trying to get the claimant's attention.

The witness testified that he met Sergeant Phipps for the first time in Court on the day of trial. He testified that he knows the claimant's wife, Opal Clauberg, and stated that he never used racial or derogatory terms in referring to her. Nor did he ever refer to the claimant as "Reverend Al" (Tr. 3, p. 679).

On cross-examination, the witness denied he was aware the claimant was transferring to Sullivan prior to his arrival at the facility. The only reason Sergeant Maxwell knew claimant had previously worked at Sing Sing was because he overheard him talking about a court case involving that facility and Sergeant Phipps as he was passing through the Cross Gates area of the facility.

With regard to the incident in D-Block, Sergeant Maxwell testified he issued the claimant a written counseling memo as a result of the incident although he was unaware whether the written memorandum was placed in claimant's personnel file. He stated that he defined insubordination to include a lower ranking officer yelling over him and ignoring him when he is attempting to give that officer direction. He testified that he was unaware whether insubordination was a ground for termination. While Sergeant Maxwell testified that he does not have the authority to lock an officer out of the facility, he agreed he does have the authority to go to the next level of the administrative hierarchy and suggest that an offense deserving of such a penalty has been committed.

As to the rear-gate incident, Sergeant Maxwell testified that he did not have a confrontation with the claimant at the rear gate. Rather, he was trying to get the claimant's attention. He described Officer Scarzafava's statement that he was interacting with the claimant in a confrontational or agitated manner as a matter of perception. He had the same response to the allegations of Officers Barrett and Smith that he was upset while dealing with the claimant.

Sergeant Maxwell testified that Officer Lowitz, who was manning the upper control station, never stated that he was not ready to permit the entry of the construction workers. The witness' recollection was tested with reference to claimant's Exhibit 22, the statement of Officer Lowitz which, to the extent read into the record, states, "Clauberg asked them to step back out until we were prepared. They complied. I closed the gate. I now went about my business of . . .loading my weapon and starting the logbook" (Tr. 3, p. 708-709). Sergeant Maxwell then stated that he was unclear whether Officer Lowitz was ready to permit entry of the civilians. He testified, however, that while he prefers the weapons to be loaded before the outer gate is opened, the applicable Directive on the subject does not specifically require it. The witness identified Exhibit H as including a copy of a memorandum from Captain Geoghegan regarding the entry of construction workers through the rear gate. He was unaware whether or not Officer Clauberg had received a copy of the memorandum.

According to the witness he never heard anyone at Sullivan refer to the claimant as "Reverend Al" (Tr. 3, p. 719). With respect to the hostage photo incident, Sergeant Maxwell testified that he had only heard about the incident within the past year. He stated that hostage photographs are accessible by any correction officer.

The witness was at some point asked to investigate a complaint by Officer Tolentino regarding racist literature found in his desk. He testified that "[i]t was about slave literature, blacks" (Tr. 3, p. 723). When asked whether he considered the material to be racist, he replied "I don't know if it's racist material, or if it was school material, or what it was" (Tr, 3, p. 724).(6) Sergeant Maxwell stated that he was aware that Mr. Clauberg filed a complaint charging him with discrimination and that this occurred prior to the incident at the rear gate.

On redirect examination the witness testified with respect to the D-Block incident that although D-Block was noisy, he could hear claimant's voice clearly. Regarding the rear-gate incident, he testified on re-cross-examination that he counseled the claimant because it was his belief that there was no reason for him to have refused the construction workers' entry through the gate. He stated that this was contrary to the Captain's memorandum and that the workers should have been allowed in. He then clarified that in his view the weapons were secure when the weapons officer was "closed in the room upstairs" (Tr. 3, p. 734). He was then asked whether he had testified previously at an examination before trial that the weapons must be loaded and secured on the rack before civilians are permitted to enter the facility through the rear gate. He responded that "I said I prefer that" (Tr. 3, p. 734). In fact, he gave the following testimony at his examination before trial:

"Answer: When they go to the post, they pick up the weapons at the front gate and come around and put the weapons in the back and they load the weapons. They secure the weapons on the rack.

Question: That's done right before . . . they go on duty, the first thing they do?

Answer: That should be the first thing they do before they let anybody in the gate.

Question: So if the weapons are not secured, then no one should [be] allowed into the gate, correct? Answer: No one.

Question: No civilians, correct?

Answer: No. The gate should not be opened."

Defendant called as its next witness Lawrence Phipps. He testified that he worked at Sing Sing from 1997 to 2008 and was promoted from the rank of sergeant to lieutenant in July, 2004.(7) Sergeant Phipps testified that he was the claimant's direct supervisor at Sing Sing beginning in 2000. At that time the witness was in charge of the facility gangs as well as the facility mental health unit. When he first met the claimant he was assigned to the resource pool. When claimant later received a job bid as a paint gang officer Sergeant Phipps became his direct supervisor. According to Sergeant Phipps, all gang officers, including those supervising the paint gang, were scheduled to work from 8:00 a.m. to 4:00 p.m. Sergeant Phipps had no authority to change an officer's bid hours. In May, 2002, the witness was directed to enforce the bid hours for all gang officers and a meeting to address the issue was held with all the gang officers, including the claimant. Immediately after the meeting, claimant advised the witness that he had a job as a security guard at a local hospital which required him to leave the prison at 3:00 p.m. He asked Sergeant Phipps if he would "cover for him from 3:00 p.m. to 4:00 p.m. if anything would come up" (Tr. 4, p. 751). The witness informed the claimant that "if he wanted to compromise his job, he was more than welcome, but he was not going to get me involved in compromising mine" (Tr. 4, p. 751). The claimant filed a complaint shortly thereafter in which he complained that his bid hours had been changed. Sergeant Phipps testified that he was not aware of any complaints made against him by the claimant prior to the meeting in which he advised the gang officers that the bid hours would be strictly enforced. Within two weeks following the meeting the claimant changed his bid because he was unable to work the assigned 8:00 a.m. to 4:00 p.m. shift.

Sergeant Phipps testified that he never directed the term "half breed spic" at any particular individual but "I did, in fact, say those [words] in certain context as a result of the duties . . ." (Tr. 4, p. 753). He also stated that he never referred to the claimant's girlfriend, Opal Rivera, as a "dumb spic" , although he did refer to himself as a "dumb mick, " and he does not recall specifically using the term "grease ball wap" (Tr. 4, p. 754). When asked whether or not he ever referred to Officer Fleetwood as a "slug black boy" he said he "never called him a 'black boy,' no" (Tr. 4, 754).

Sergeant Phipps testified that at one time, he and the claimant "had quite a social calendar" (Tr. 4, p. 754). They golfed and fished together and the witness was invited to claimant's apartment and to his parent's house on Long Island. Sergeant Phipps was interviewed by someone from the Office of Diversity management following claimant's complaint and later he had a meeting with Deputy Superintendent Connolly in which he was advised that he allowed too many "off-color remarks" and too much "adult humor" in the work place (Tr. 4, p. 756). He testified that, in fact, the claimant was the one making 90 % of the jokes and comments. Claimant's remarks included "shanty Irish", "mud sharks" (referring to African Americans) and other such terminology. According to the witness, such remarks were used "quite a bit" on the golf course "where we were playing, good natured kidding between each other, you know, beer drinking. Just adult humor" (Tr. 4, p. 758). Claimant was an active participant in these conversations and at no time objected. Sergeant Phipps testified that he never counseled the claimant or recommended that he be disciplined.

On cross-examination the witness testified that one of the golf outings he referred to on his direct examination was an event sponsored by DOCS. He estimated there were approximately a dozen other golf outings involving him and the claimant. On those other outings, the claimant drove to the golf course in the witness' vehicle. They also went on overnight fishing trips in which claimant rode with Sergeant Phipps in his vehicle.

Sergeant Phipps denied the claimant had ever complained about him verbally prior to the meeting in which he directed all gang officers to work their assigned shift. The first time he became aware there was a complaint against him was following the meeting with the gang officers. Sergeant Phipps denied that he ever used abusive language but admittedly used adult language which some might call "obscene" (Tr. 4, p. 764). He testified that "[A]dult language" was used in informal candid conversations with staff but not during any official meeting or gathering (Tr. 4, p. 768). Sergeant Phipps denied directing the term "nigger" toward anyone in particular (Tr. 4, p. 770). He stated that the only individual to confront him about the use of abusive or foul language was Officer Smalls, who was a born-again Christian. The claimant was with him at the time and Officer Smalls asked both of them to stop the use of such language.

Exhibit 64 is correspondence from Mr. Harvey of the Office of Diversity Management informing Superintendent Fischer that its investigation of claimant's complaint revealed Sergeant Phipps' use of "off-color jokes" in the workplace (Tr. 4, p. 775). Sergeant Phipps admitted he may have used the term "spic" (Tr. 4, pp. 775-776), "guinea" (although not in the facility) (Tr. 4, p. 777), "mic" (Tr. 4, p. 778) and "nigger" (Tr. 4, p. 778) and had overheard others using such language, including inmates. He testified that claimant worked the 8:00 a.m. to 4:00 p.m. shift from the time he received the paint gang bid until the point he encountered financial difficulties and needed to work a second job. At that point he asked the witness to "cover him" from 3:00 p.m. to 4:00 p.m. but the witness refused (Tr. 4, p. 783).

The Retaliation Claim

Executive Law 296 (1) (e) and (7) declare that it is an unlawful discriminatory practice for an employer to discharge, expel, retaliate or otherwise discriminate against any person "because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article." "The standards for recovery under the New York State Human Rights Law (see Executive Law 296) 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, 305 [2004] [n 3] [citations omitted]; Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326 [2003]; Schenkman v New York Coll. of Health Professionals, 29 AD3d 671 [2006]).

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 at 313; Kessler v Westchester County Dept. of Soc. Servs., 461 F3d 199 [2d Cir 2006]). "[T]here are two distinct ways for a [claimant] to prevail -'either by proving that a discriminatory motive, more likely than not, motivated the defendants or by proving both that the reasons given by the defendants are not true and that discrimination is the real reason for the actions' " (Gordon v New York City Bd. of Educ., 232 F3d 111, 117 [2d Cir 2000], quoting Fields v N.Y. State Office of Mental Retardation & Developmental Disabilities, 115 F3d 116, 121 [2d Cir 1997]).

In its prior Decision and Order partially granting the defendant's motion for summary judgment, the Court dismissed the claim to the extent it relied on certain discrete instances of alleged retaliation. Applying the standard articulated by the Supreme Court in Burlington Northern & Santa Fe Railway Co. v White (548 US 53 [2006]), that 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, [internal quotation marks and citation omitted], the Court dismissed the retaliation claim to the extent it was premised upon the alleged one-hour schedule change by Sergeant Lawrence Phipps at Sing Sing, the issuance of the informal counseling memo on June 21, 2003 or the formal counseling on August 5, 2004.(8) The Court found, however, that while these incidents, standing alone, were not sufficiently adverse to support a claim of retaliation, they may be considered in support of the claim alleging a retaliatory hostile work environment.

With respect to claimant's two-week suspension from duty at Sullivan, which arose from the incident involving Officer Leaney-Levenson on December 2, 2005, the Court found material questions of fact precluded summary judgment on the issue of whether the disciplinary charges were the result of claimant's misconduct or were motivated by retaliation for prior complaints of unlawful discriminatory conduct.(9) Based upon the evidence adduced at trial, the Court now finds that the claimant failed to establish by a preponderance of the credible evidence that the incident and the disciplinary penalty which followed were motivated by retaliatory animus.

A causal connection between engagement in a protected activity and a subsequent adverse employment action can be established directly, through proof of retaliatory animus, or indirectly, by a showing that the protected activity was followed closely by retaliatory treatment or through evidence of disparate treatment of employees who engaged in similar conduct (McCowan v HSBC Bank USA, N.A., ___F Supp 2d ___, 2010 WL 550235 [2d Cir. 2010]; Gorzynski v Jetblue Airways Corp. 596 F3d 93 [2d Cir 2010]; Sumner v United States Postal Serv., 899 F2d 203, 209 [2d Cir 1990]). Here, there is no direct evidence of retaliatory animus. Claimant's only direct evidence in this regard is contained in his own written statement, provided as part of the investigation performed following the incident, in which he stated "I can only guess the officer [Leaney-Levenson] assaulted me due to a strong bond to inmates or one of the supervisors in my federal case are his friends" (Exhibit I). Claimant's "guess" that retaliatory animus may have played a part in Officer Leaney-Levenson's conduct is insufficient to support the conclusion that retaliatory animus was either the cause of the incident or the motivating factor behind the disciplinary penalty subsequently imposed on the claimant. There being no direct evidence of retaliatory animus, the Court will examine the sufficiency of the circumstantial evidence presented.

The only circumstantial evidence that the disciplinary penalty imposed upon the claimant was motivated by retaliatory animus is the testimony of Officer Hendrix that he received a verbal and written counseling following an incident in which he pushed another correction officer in the line-up room at Sullivan. No notice of discipline was issued as a result of the incident involving Officer Hendrix as was the case following the altercation between the claimant and Officer Leaney-Levenson. The testimony of Superintendent Walsh makes clear, however, that the altercation involving Officer Hendrix occurred in an area not frequented by inmates, whereas the incident involving the claimant unfolded in front of approximately 64 unconfined inmates. He explained that a more severe penalty was warranted following the incident involving the claimant because the use of force on an inmate together with "an apparent assault and a verbal barrage" upon Officer Leaney-Levenson could have sparked a very serious event (Tr. 3, p. 567). The Court credits this testimony and concludes that the claimant failed to establish either by direct or indirect evidence that the disciplinary penalty imposed upon the claimant following the altercation with Officer Leaney-Levenson was motivated by retaliatory animus.

Even if a causal connection could be inferred from the facts of this case, which it clearly cannot, the defendant established a legitimate, nondiscriminatory reason for the disciplinary action taken. By all accounts (other than the claimant's), Mr. Clauberg's conduct was clearly inappropriate, to say the least. In a memorandum describing his observations of the incident Sergeant LoVerde stated he observed the claimant pointing at Officer Leaney-Levenson while making the statement "I want him off the Block! I'm trying to lock an inmate in his cell and this fag is trying to push me out of the way!" (Exhibit I). Another witness to the incident, Correction Officer Loughrey, stated:

"I responded to a Code 1 in A-North and upon entering the sally port I could hear a lot of yelling in the block. Upon entering the [block] I saw CO A. Clauberg screaming at CO Levenson, push him and threaten to take Levenson to the parking lot and break his jaw. A. Clauberg continued to scream at Levenson causing the block to stop eating and watch and become very uneasy" (Exhibit I).

Correction Officer Terk gave the following account of the incident:

"While trying to get response team into A North, CO Levenson came out of pantry area to assist CO Clauberg in securing & escorting the inmate to his cell. Inmate was secured in his respective cell; CO Clauberg turns to CO Levenson, and with both hands, pushes CO Levenson in his chest while yelling at him" (Exhibit I).

It also appears to be the consensus of the inmate witnesses interviewed that there was a loud exchange of words between Officers Clauberg and Leaney-Levenson and at least one inmate stated that "[Clauberg's] conduct could have caused a riot" (Exhibit I, memorandum from Jeffrey Culbreath dated December 3, 2005). Moreover, Correction Officer Leaney-Levenson credibly testified that the claimant continued to harass the inmate involved after he was locked in his cell. The witness testified claimant pushed him several times, engaged in a verbal barrage of insults and threatened to break his jaw. The Court credits the testimony of Superintendent Walsh that under the circumstances then existing, i.e., the presence of approximately 64 unconfined inmates observing the incident closely, such conduct could have sparked a much more serious incident. The Court is persuaded that the distinction between the environments in which the respective incidents took place adequately explains the disparity in the disciplinary penalties imposed upon Officers Clauberg and Hendrix. As a result, the Court finds that the claimant failed to prove by a preponderance of the credible evidence that the disciplinary penalty imposed upon the claimant following the incident with Officer Leaney-Levenson was motivated by retaliatory animus.

The Retaliatory Hostile Work Environment Claim

"[R]etaliatory 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]; see Gorzynski v Jetblue Airways Corp., 596 F3d at 102-103; Noviello v City of Boston, 398 F3d 76, 88-90 [1st Cir 2005]; Richardson v N.Y. State Dept. of Corr. Servs., 180 F3d 426 [2d Cir 1999], abrogated on other grounds by Burlington Northern & Santa Fe Railway Co. v White, supra). 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 conditions of the victim's employment and create an abusive working environment" (Forrest v Jewish Guild for the Blind, 3 NY3d at 310, quoting Harris v Forklift Sys., Inc., 510 US 17, 21 [1993]; see also Kapchek v United Ref. Co., Inc., 57 AD3d 1521, 1522 [2008]; Dixon v City of New York, 2008 WL 4453201 [ED NY 2008]; Thomas v iStar Fin. Inc., 438 F Supp 2d 348, 365 [SD NY 2006]). "Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, including '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 employee's work performance . . .' " (Forrest v Jewish Guild for the Blind, 3 NY3d at 310-311, quoting Harris v Forklift Sys., Inc., 510 US at 21). The cumulative effects of such conduct, if sufficiently severe, may together qualify as an adverse employment action, the third criteria necessary to establish a prima facie case of retaliation (see e.g. Richardson v N.Y. State Dept. of' Corr. Servs., 180 F3d at 446) . To prevail, however, claimant must nonetheless establish that the alleged incidents were motivated by retaliatory animus imputable to the employer (id.).

The Schedule Change By Phipps

While claimant alleges that the one-hour schedule change by Sergeant Phipps was in retaliation for claimant's prior complaints regarding his use of racist comments, the record evidence discloses that the first written complaint from the claimant is dated May 31, 2002 (Exhibit 12), subsequent to the date of the schedule change. Thus, no causal connection between the filing of this complaint and the one-hour schedule change was established.

Claimant's next complaint regarding the schedule change by Sergeant Phipps came in a memorandum dated July 30, 2002 (Exhibit 27). In this memorandum, claimant indicates that the explanation for the schedule change provided by Sergeant Phipps, that " 'Mueller is startin [sic] that black shit' and that 'he didn't want the black boys from the union to fuck with him' ", was nothing more than a "smoke screen to try to hide his malice towards me for reporting his racist comments" (Exhibit 27). In the same memorandum, claimant requested that Sergeant Phipps "be held accountable for his unprofessional, vindictive, and racist actions." Superintendent Fischer forwarded claimant's complaint to Charles Harvey, Director of Diversity Management, noting that while the complaint stems from a schedule change, the complaint includes allegations of racial discrimination (Exhibit 66). Charles Harvey responded to both the claimant and Superintendent Fischer on July 17, 2003 that the claimant's "allegations of racial harassment by Sergeant Phipps could not be substantiated" (Exhibit 33; Exhibit 64). He also indicated, however, that the results of the investigation substantiated Sergeant Phipps' use of " 'off-color jokes' that contain racially sensitive terms and expressions", a violation of DOCS policy, and requested that Sergeant Phipps be informally counseled (Exhibit 64). Sergeant Phipps was verbally counseled on July 28, 2003 (Exhibit 37; Tr. 4, p.756).

While claimant's July 30, 2002 memorandum complaining of Sergeant Phipps' racist conduct is a protected activity which may form the basis for a later claim of retaliation, it forms no basis for the claim that the one-hour schedule change was motivated by retaliatory animus.

To the extent claimant testified that he verbally complained to both Sergeant Josey and Lieutenant Capper concerning Sergeant Phipps' use of racist language prior to the schedule change, the Court does not find his testimony credible. Notably, claimant failed to call either Sergeant Josey or Lieutenant Capper to testify at trial, leaving only the claimant's self-serving testimony on this critical point. Moreover, claimant's testimony in this regard was contradicted by Sergeant Phipps who testified that he was aware of no such complaints, and to a lesser extent, by Superintendent Fischer, who testified that he did not recall receiving complaints from the claimant prior to the July 30, 2002 memorandum. While Officer Perez testified that he became aware of claimant's complaints regarding Phipps' hostility toward people of color in 2002, absent a more specific time frame regarding when this information was conveyed, the Court is unable to conclude that they preceded the schedule change by Phipps. As a result, claimant failed to establish a causal connection between the schedule change by Phipps and any of the complaints regarding racial discrimination.

Even if such a causal connection could be inferred, however, the defendant established a legitimate nondiscriminatory reason for the alleged change in claimant's schedule from 7:00 a.m to 3:00 p.m. to 8:00 a.m. to 4:00 p.m. Sergeant Phipps testified that the bid schedule was always 8:00 a.m. to 4:00 p.m. While, in practice, some officers may have varied the schedule, strict enforcement of the bid schedule was mandated following the discovery of a correction officer in the parking lot, off his post, in civilian clothes selling merchandise. In the Court's view, the defendant established a legitimate nondiscriminatory reason for the schedule change, if such occurred at all.

The Claimant's Transfer To Sullivan

Claimant transferred from Sing Sing to Sullivan in February 2003. He testified that he requested the transfer because Sergeant Phipps "was nit-picking at me, harassing me, threatening me" (Tr. 1, p. 43). The harassment consisted of, for example, telling other supervisors that the claimant was a "crybaby" (Tr. 1, p. 47).

The law is settled that an involuntary transfer may constitute an adverse employment action if the claimant shows "that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination" (Burlington Northern & Santa Fe Railway Co. v White, 548 US at 68 [internal quotation marks omitted]; Kessler v Westchester County Dept. of Soc. Servs., 461 F3d 199, supra. Claimant admittedly requested the transfer to either Sullivan or Woodbourne Correctional Facilities on November 22, 2002 and received the transfer in February, 2003 (Exhibit 46). To the extent the transfer was voluntary, it cannot constitute a materially adverse employment action. Constructive transfer has, on rare occasions, been recognized as a basis for finding an adverse employment action (see e.g. Barclay v Michalsky, 451 F Supp 2d 386 [D. Conn. 2006]). To prevail, the claimant would have to establish that the harassment at Sing Sing was so intolerable that he was forced to transfer (id. at 398; cf. Terry v Ashcroft, 336 F3d 128,151-152 [2d Cir 2003]). The harassment which purportedly led to the claimant's request for a transfer does not rise to that level. Rather, viewing the alleged harassment from the perspective of a reasonable employee (Burlington Northern & Santa Fe Railway Co. v White, 548 US at 68), it constitutes nothing more than a petty slight or minor annoyance, which is insufficient to fulfill the requirement of material adversity (id.). In the Court's view, the type of harassment described by the claimant, such as referring to him as a "crybaby", fails to rise to the level of material adversity such as would force a reasonable employee in the claimant's position to seek a transfer. Moreover, the transfer itself was a lateral move and no evidence was proffered that the terms or conditions of claimant's employment were negatively affected.

The Incident In D-Block

Claimant alleges that the June 21, 2003 incident in D-Block, in which a confrontation occurred between the claimant and Sergeant Maxwell, was motivated by retaliatory animus. Paragraphs 16 and 17 of the claim allege, in this regard, the following:

"16. Immediately upon arriving at the Sullivan Correctional Facility in January 2003, word had already spread of Claimant's whistle blowing with reference to the conduct of his supervisors at the Sing Sing Correctional Facility.

17. Upon Claimant's arrival at the Sullivan Correctional Facility, Lt. Joseph Maxwell began to harass Claimant by making the following statements: '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.' Lt. Joseph Maxwell also stated that he heard that Claimant 'wrote up a Sergeant at Sing Sing.' Claimant responded 'the Sergeant at Sing Sing was a racist.' Lt. Joseph Maxwell then stated, 'Sing Sing had the monkeys running the monkeys.' Lt. Joseph Maxwell also stated to Claimant that the 'bullshit racial card doesn't work in the mountains.'"

Importantly, while the claimant contends the D-Block incident was the result of retaliatory harassment, his own complaint concerning the incident indicates otherwise. In the complaint, authored following the incident and date-stamped June 23, 2003, the claimant states "Unfortunately I have been singled out by one supervisor since I addressed [an] overtime issue concerning Sargeant [sic] Hornbeck a couple of weeks ago . . ." (Exhibit G, Memorandum from C.O. A. Clauberg ). By his own admission, then, claimant was singled-out, not because of his prior complaints at Sing Sing, but because he addressed an overtime issue concerning Sergeant Hornbeck. Based on the claimant's own characterization, the Court finds no causal connection between the prior complaints at Sing Sing and the incident of June 21, 2003.

In addition, the evidence adduced at trial indicates that Sergeant Maxwell had a legitimate non-discriminatory reason for his conduct. In Sergeant Maxwell's opinion, the claimant mishandled the situation in D-Block, first by yelling at the inmate while so many other inmates were present and out of their cells and, second, by placing the inmate in the wrong cell. According to Sergeant Maxwell's testimony, when he attempted to counsel the claimant privately, the claimant redirected his anger by yelling and screaming at him. While this version of the events was contradicted by the claimant, who testified that Maxwell yelled at him on the housing block and privately threatened to lock him out of the jail, the investigation revealed that, at the very least, claimant interacted with his superior officers, including both Sergeant Maxwell and the Watch Commander on duty at the time, in an inappropriate manner.

Following the claimant's complaint to Superintendent Walsh regarding the D-Block incident, an investigation was conducted, which included interviews of the claimant, Sergeant Maxwell and Lieutenant Card, the Watch Commander on duty at the time. In his response to the claimant's complaint, Superintendent Walsh states "The Watch Commander reports that during your explanation of what happened, you became loud and boisterous, and he told you that your demeanor was inappropriate" (Exhibit G, Memorandum from James J. Walsh dated July 23, 2003). Following the incident Sergeant Maxwell authored a memorandum dated June 24, 2003 accusing the claimant of having been insubordinate (Exhibit G). Superintendent Walsh ultimately reached the conclusion that while the claimant was not insubordinate, his interaction with Sergeant Maxwell "was not appropriate" (id.).

In the Court's view the defendant established a legitimate, nonretaliatory basis for Sergeant Maxwell's actions and the administrative response taken in relation thereto. It appears that the claimant's interaction with his superior officers was loud, inappropriate and disrespectful. Accordingly, the Court finds that the incident of June 21, 2003 was not motivated by retaliatory animus.

The Hostage Photo Incident

By all accounts, the posting of claimant's hostage photograph with the words "rat, bitch, and nigger lover" was inappropriate and undoubtedly the result of co-worker harassment. However, co-worker harassment "without the knowledge or acquiescence of the employer does not constitute an unlawful discriminatory practice actionable under the State Human Rights Law . . . For an 'employer cannot be held liable . . . for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it' " (Forrest v Jewish Guild for the Blind, 3 NY3d at 311, quoting Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687 [1985] [other citations omitted]; Gorzynski v Jetblue Airways Corp., 596 F3d at 103; Vitale v Rosina Food Prods., 283 AD2d 141, 143-144 [2001]). As explained by the Second Circuit Court of Appeals in Richardson v N.Y. State Dept. of Correctional Servs. (180 F3d at 446):

"An employee could suffer a materially adverse change in the terms and conditions of her employment if her employer knew about but failed to take action to abate retaliatory harassment inflicted by co-workers. Just as an employer will be liable in negligence for a racially or sexually hostile work environment created by a victim's co-workers if the employer knows about (or reasonably should know about) that harassment but fails to take appropriately remedial action . . . , so too will an employer be held accountable for allowing retaliatory co-worker harassment to occur if it knows about that harassment but fails to act to stop it" [citations omitted].

Here, claimant failed to establish DOCS' knowledge or acquiescence in co-worker harassment. Claimant presented no evidence to show that facility supervisory staff were aware the photos would be used in such a manner. Claimant's testimony that the hostage photographs were kept under lock and key and could have been accessed by "any supervisor any day" was belied by the testimony of Superintendent Walsh and Sergeant Maxwell, both of whom testified that hostage photos are kept in several different locations throughout the prison and are maintained, not under lock and key, but in an unlocked cabinet and are, therefore, accessible by any correction officer present at such location.(10) Neither party provided a copy of, or a citation to, applicable department directives governing access to hostage photos or the manner in which the photos are to be maintained at the facility. Absent proof that DOCS knew of or otherwise condoned retaliatory harassment by claimant's co-workers, claimant cannot prevail on a retaliatory hostile work environment claim with respect to the posting of his hostage photo (cf. Kapchek v United Ref. Co., Inc., 57 AD3d 1521 [2008]).

The Rear-Gate Incident

With respect to the claimant's complaint that the rear-gate incident on August 5, 2004 was retaliatory, claimant failed to establish a causal connection between the adverse employment action and a protected activity. While such a connection may be established indirectly, by proof "that the protected activity was closely followed in time by the adverse action." (Cifra v General Electric Co., 252 F3d 205, 217 [2d Cir 2001]; see also Gorzynski v Jetblue Airways Corp., 596 F3d at 110), no such proof was offered in this case. Rather, the last complaint filed by the claimant prior to the rear-gate incident was on June 23, 2003. In the absence of evidence that Sergeant Maxwell's conduct followed closely on the heels of the prior complaint, the Court may not infer that his conduct was motivated by retaliatory animus (see Pace v Ogden Servs. Corp., 257 AD2d 101 [1999] [retaliation claim was dismissed based upon absence of evidence to support finding that alleged acts of retaliation took place within two months following plaintiff's complaint to her employer]). Again, as with claimant's prior complaints regarding Sergeant Phipps and the D-Block incident, an investigation was undertaken. Lieutenant Porter obtained written statements from each of the witnesses identified by the claimant in his complaint to Superintendent Walsh dated August 10, 2004. In his report, Lieutenant Porter concluded that "while some of the Officers felt that Sgt. Maxwell's questioning of C.O. Clauberg was in [an] agitated manner I found no evidence to support C.O. Clauberg's claims of abuse, harassment, misconduct, or disregard for security" (Exhibit H, memorandum dated September 16, 2004). To the extent the investigation disclosed that Sergeant Maxwell may have overreacted or exercised poor judgment in handling the situation, that fact alone provides no basis for a finding of retaliation. As stated by the Court of Appeals in Forrest v Jewish Guild for the Blind (3 NY3d at 309) "mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code" (citation and internal quotation marks omitted).

Based upon the results of the investigation conducted by Lieutenant Porter, Superintendent Walsh determined that given the prior incident involving Sergeant Maxwell and "[b]ased on the description of the interaction with you and the sergeant . . . you were clearly not receptive to the sergeant's attempts to counsel and your comments and gestures were inappropriate. A counseling memo was surely warranted" (Exhibit H, memorandum dated September 28, 2004). From the proof submitted at trial the Court can find no reasonable basis to conclude that the finding reached by Superintendent Walsh was affected by any improper motive.

The Performance Evaluation

Claimant also seeks to attribute the alteration in his performance evaluation to retaliation for prior protected activity. In this regard it was established at trial that when claimant signed his performance evaluation on February 1, 2006 the category for "[r]elationship with fellow employees" was rated "Good". In May or June, 2006 Sergeant Huckeba asked the claimant to re-sign the form, at which time he observed that the entry had been changed to "Needs Improvement" (Exhibit 30 and 31). In addition, a comment had been added to the revised evaluation encouraging claimant to interact and cooperate with fellow employees in a "positive and professional manner" (Exhibit 30). Notably, claimant's complaint regarding the alteration made no mention of retaliatory motive (Exhibit 31) and, given the nearly two-year gap from the date of the claimant's prior complaint of harassment, retaliation may not be inferred. There is simply no evidence that the modification of claimant's evaluation was motivated by retaliatory animus. In fact, the changes made to claimant's 2005 evaluation form are hardly surprising in light of his involvement in two prior incidents involving Sergeant Maxwell and the December 2005 altercation with Correction Officer Leaney-Levenson. Based upon the proof submitted at trial, the Court finds claimant failed to establish that the modification of claimant's evaluation form, which was ultimately rescinded, was the result of a desire or intent to retaliate against him for engaging in an activity protected under the Human Rights Law.

The Revocation Of Claimant's Promotion To Sergeant

The evidence adduced at trial indicates that a promotion to the rank of sergeant is a non-discretionary determination based solely on the candidates test score, seniority and the application of available credits. Warren Agostinoni explained that an employee may claim the benefit of veterans' credits when he or she applies to take a promotional examination by completing an XD-5 form. Once an employee is designated for contingent permanent assignment, DOCS is then required to canvas the candidate and confirm his eligibility for the veterans' credits claimed in the XD-5 form. Following the usual procedure, Mr. Agostinoni testified that DOCS discovered claimant was not eligible for the additional five-point veterans' credit added to his examination score because he did not receive an expeditionary medal as required of individuals participating in the Panama Campaign. He testified that the criteria for eligibility is clearly spelled-out on the reverse side of the XD-5 form and that the claimant claimed the benefit of the credit in error.

These facts provide no basis for an inference that the revocation of claimant's promotion to sergeant was caused by retaliatory animus. Rather, the evidence established that promotions to the rank of sergeant are based solely on objective criteria, which the claimant did not meet. As a result, the conduct of DOCS in revoking the claimant's promotion to the rank of sergeant fails to support a retaliatory hostile work environment claim.

The Alleged Racist Remarks And Conduct Of DOCS Employees

The Court of Appeals has cautioned that the use of one racial epithet is inexcusable and that employers are well advised to adopt a policy of zero tolerance (see Forrest v Jewish Guild for the Blind, 3 NY3d at 310). While strict enforcement of the antidiscrimination laws is required to "root out this scourge whenever it occurs", the laws are not a code of general civility (Id. at 298). Thus, although derogatory racial remarks in the work place are reprehensible, they are not actionable absent a logical connection between the remarks and the claimant.(11) On this basis, the Court granted the defendant's motion for summary judgment to the extent the claimant alleged that the use of racial epithets contributed to a hostile work environment. In so doing, the Court found that the claimant, a White Irish-American, failed to show how the use of racial epithets against minorities adversely affected his employment (see Clauberg v State of New York, Ct Cl, March 30, 2009 [Claim No. 112241, Motion No. M-75788, UID #2009-015-141] Collins, J, unreported(12) , citing Murphy v Board of Educ. of the Rochester City School Dist., 273 F Supp 2d 292 [WD NY 2003], affd 106 Fed Appx 746 [2d Cir 2004]; cf. Cruz v Coach Stores, Inc., 202 F3d 560 [2000]; Schwapp v Town of Avon, 118 F3d 106 [1997]; Whidbee v Garzarelli Food Specialties, Inc., 223 F3d 62 [2000]). To the extent the claimant filed complaints regarding such conduct, however, the Court found this was a protected activity so long as there was a reasonable good faith belief that the conduct was unlawful (citing, inter alia, 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]; Executive Law 296 [1] [e] and [7]; see also Gorzynski v Jetblue Airways Corp., 596 F3d at 110).

At trial, claimant established two serious incidents of racist conduct, the first occurring on July 27, 2006 when racist literature entitled "How To Keep A Black Man Down From One White Slave Owner To Another" was found by Officer Tolentino on his desk (Exhibit 1). The second incident occurred on May 18, 2009 when a photograph of the Reverend Al Sharpton standing next to two similarly posed Orangutan Apes was sent by Correction Officer Fitsik to the claimant, among others, via cell phone (Exhibit 50). The claimant filed complaints regarding both the slave literature incident (Exhibit 2) and the cell phone incident (Exhibit 50). Although the claimant established that he engaged in a protected activity by filing the complaints, he completely failed to establish any adverse employment action as the result of this activity. Retaliation based on the filing of these complaints was therefore not established.

Lastly, to the extent claimant proffered evidence of verbal harassment, such as DOCS employees referring to him as "the Reverend Al", the Court finds that such conduct was not sufficiently severe or pervasive as to alter the claimant's working conditions (Harris v Forklift Sys., Inc., 510 US at 21).

Based on the foregoing, The Court concludes that the claimant failed to establish a claim for retaliation or a retaliatory hostile work environment by a preponderance of the credible evidence. Accordingly, the claim is dismissed. Any motions on which the Court may have previously reserved decision and which were not determined herein, are denied.

Let judgment be entered accordingly.

May 18, 2010

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims


1. Brian Fischer was appointed Commissioner of the Department of Correctional Services effective January 1, 2007 (New York Red Book, p. 673, 2007-2008).

2. Only the front portion of the XD-5 form was offered in evidence.

3. An administrative transfer means "you're transferred because you either complain about a situation or you're just unwanted in the facility" (Tr. 3, p. 619).

4. Although Commissioner Fischer was called as a witness for the claimant, to accommodate his schedule, he was the last witness to testify at trial.

5. Lieutenant Maxwell will be referred to as Sergeant Maxwell, the rank he held at the time of the events at issue, for purposes of the decision herein.

6. The material is entitled "How to Keep A Black Man Down From One White Slave Owner To Another" and was apparently written in 1712 by William Lynch (claimant's Exhibit 1).

7. Lieutenant Phipps will be referred to as Sergeant Phipps, the rank he held at the time of the events at issue, for purposes of the decision herein.

8. The Court also held that the claimant was collaterally estopped from relitigating an arbitrator's findings that claimant's suspension from service at the Willard Drug Treatment Campus was for just cause and dismissed the retaliation claim to the extent it was based on this employment action.

9. In so holding, the Court rejected the defendant's argument that the claimant is collaterally estopped from relitigating the issue of claimant's misconduct by virtue of claimant's conviction for the petit offense of Harassment in violation of Penal Law 240.26 (1). The Court also rejected the argument that the claimant's agreement to settle the disciplinary charges against him as the result of this incident precludes a finding that the suspension was the result of retaliation. Significantly, the agreement included neither an admission of guilt of the disciplinary charges nor a waiver of the claimant's right to dispute the truth of the charges.

10. There is also no proof, other than claimant's own testimony, establishing that prison officials were ever formally notified of the incident, even following its occurrence. Although claimant testified he verbally advised Lieutenant Lombardo of the posting of his hostage photo, Lieutenant Lombardo was not called as a witness at trial. Although claimant testified that he prepared a memorandum concerning the incident at Lieutenant Lombardo's suggestion, the memo was not offered in evidence at trial. Although claimant testified he met with Superintendent Walsh to discuss the posting of his hostage photo, Superintendent Walsh did not recall such a meeting and, in fact, testified he did not receive a complaint regarding the incident.

11. The examination before trial testimony of Opal Clauberg (Exhibit 61) regarding retaliation against her for complaints she made regarding sexual harassment are irrelevant to the claimant's claim.

12. Unreported Court of Claims decisions are available at Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us.