Taylor v. New York State Office for People with Developmental Disabilities et al
MEMORANDUM-DECISION & ORDER: denying 79 Motion for Sanctions and granting the # 79 Motion for Summary Judgment. Therefore it is Ordered that the Third Amended Complaint is DISMISSED WITH PREJUDICE. Signed by Senior Judge Norman A. Mordue on 11/9/2017. (jmb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JANE A. TAYLOR,
THE NEW YORK STATE OFFICE FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES, CATHY TURCK,
and CATHY LABARGE,
Robert W. Sadowski, Esq.
Raphael Katz, Esq.
Sadowski Katz LLP
11 Broadway, Suite 615
New York, NY 10004
Bergstein & Ullrich, LLP
5 Paradies Lane
New Paltz, NY 12561
Attorneys for Plaintiff
Eric T. Schneiderman,
Attorney General of the State of New York
Michael G. McCartin,
Assistant Attorney General
Office of the Attorney General
Albany, NY 12224
Attorney for Defendants
Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Jane A. Taylor brings this action alleging violations of her rights while she was
employed by Defendant New York State Office for People with Developmental Disabilities
(“OPWDD”). Plaintiff asserts three claims against OPWDD and its employees Cathy Turck
and Cathy LaBarge. (Dkt. No. 58). In Count I, she alleges that Defendants Turck and LaBarge
retaliated against her for exercising her right to freedom of speech, in violation of the First
Amendment. (Id. at ¶¶ 50–55). In Count II, she alleges that Defendant OPWDD unlawfully
retaliated against her in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
701 et seq. (Id. at ¶¶ 56–61). In Count III, she alleges that Defendants Turck and LaBarge
“wrongfully aided and abetted in discrimination against Plaintiff” in violation of New York
State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq. (Id. at ¶¶ 117–18).
Now pending before the Court is Defendants’ motion seeking sanctions or alternatively
summary judgment. (Dkt. No. 79). For the reasons stated below, the motion is denied as to
sanctions and granted as to summary judgment.
A. The Parties’ Roles
Plaintiff is a former Residential Habilitation Specialist for Defendant OPWDD, an
agency of the State of New York which coordinates services for individuals with developmental
disabilities. (Dkt. No. 79-35, ¶¶ 1–2). Plaintiff worked at OPWDD for 29 years and was
scheduled to retire on August 23, 2015. (Dkt. No. 89-3, ¶ 1). As a Rehabilitation Specialist, her
responsibilities included “taking consumers on outings, supervising a day classroom and
The facts stated herein are drawn from the parties’ submissions, including their Statements of Material
Facts and Responses, as well as exhibits that the parties have submitted, to the extent that they are
admissible as evidence. Where facts stated in a party’s L.R. 7.1(a)(3) Statement are supported by
testimonial or documentary evidence and denied with only a conclusory statement by the other party, the
Court has found such facts to be true. See N.D.N.Y. L.R. 7.1(a)(3); Fed. R. Civ. P. 56(e).
teaching living skills.” (Id.). Defendant LaBarge is OPWDD’s former Director of Labor
Relations; she is now retired. (Dkt. No. 79-35, ¶ 3). Defendant Turck was a Treatment Team
Leader and Plaintiff’s supervisor from September 2008 until January 2012. (Id. at ¶ 4).
According to Defendant LaBarge, as Director of Labor Relations, she was responsible
for arranging and assisting in conducting interrogations, occasionally did some investigations,
oversaw the grievance process and the arrest process for employees, monitored driver’s license
suspensions, served Notices of Discipline, and assisted in arbitration hearings. (Dkt. No. 88-6,
p. 12). She states that she was “not personally involved in any decision to counsel the plaintiff
and issue a Formal Counseling Memo or a Notice of Discipline (NOD).” (Dkt. No. 79-10, ¶ 9).
Defendant Turck states that, as Treatment Team Leader, she was responsible for eight
Individualized Residential Alternative (“IRA”) homes, where individuals in the care of
OPWDD (“clients”) live and where professional care is provided to them. (Dkt. No. 79-12, ¶
3). When she was Plaintiff’s supervisor, Defendant Turck “formally counseled her and issued
memorandums of such counselings when the circumstances warranted.” (Id., ¶ 9).
B. 2004 Notice of Discipline
On March 9, 2004, Plaintiff was issued a NOD, which charged her with making false
allegations against a co-worker, Laurie Zack, on two occasions in 2003. (Dkt. No. 79-3, pp. 5–
6). On September 23, 2005, Plaintiff agreed to a settlement of the NOD, whereby she received
a Letter of Reprimand, which went into her personnel file, along with the NOD. (Id., pp. 1–3).
The NOD was supposed to be removed from her file after a period of two years. (Id., p. 3).
C. 2010 Counseling Memo
On June 3, 2010, Plaintiff was counseled again, and then, on August 25, 2010, she was
issued a formal counseling memo regarding that meeting. (Dkt. No. 79-35, ¶ 35). The
counseling memo, from Defendant Turck, states that Plaintiff was “being formally counseled
for an attitude that bordered on insubordination.” (Dkt. No. 79-3, p. 8). Defendant Turck wrote
that Plaintiff had improperly authorized the purchase of an expensive fish tank for an OPWDD
client and when Turck reviewed with Plaintiff the policy and procedure for such expenditures,
Plaintiff “became defensive, argumentative, and repeatedly interrupted.” (Id., p. 7). Plaintiff
testified that it was Defendant Turck who was being “rude” during the meeting. (Dkt. No. 79-2,
Plaintiff filed an administrative grievance about the counseling memo, requesting that it
be removed from her personnel file because she did nothing wrong. (Dkt. No. 79-3, pp. 10–11).
The grievance was denied and the hearing officer found that Plaintiff failed to show, among
other things, that the counseling memo was substantially inaccurate or “any evidence of
harassment or retaliatory treatment by management.” (Id., p. 12).
D. Plaintiff’s Complaints to Ombudsperson
On July 28, 2010, Plaintiff made reports of alleged abuse of OPWDD clients to the
OPWDD Ombudsperson. (Dkt. No. 79-35, ¶¶ 54, 70). According to Defendant Turck, the
Ombudsperson “accepts concerns regarding the individuals that we provide services to, and then
she follows-up on those concerns.” (Dkt. No. 88-9, p. 25). The Ombudsperson at the time was
Carrie Sonthivongnorath, who worked for OPWDD. (Dkt. No. 79-2, p. 43; Dkt. No. 88-4, p.
30). Plaintiff told the Ombudsperson about at least three incidents: on one occasion a co-worker
yelled at an OPWDD client, identified as A.B., for having ice cream in front of other clients;
another time clients were left in a van too long on a hot day, and further, a co-worker once joked
in an internal email that A.B. “is joining the circus.” (Dkt. No. 79-35, ¶¶ 56, 58, 60; Dkt. No.
79-2, pp. 103–06). That email arose in a discussion about A.B. refusing to attend an OPWDD
outing to the circus. (Dkt. No. 88-9, pp. 79–80). Plaintiff also apparently complained that A.B.
was not allowed to go to the movies on one occasion, a decision made by OPWDD officials due
to “her recent non-compliance” with the circus outing. (Id., pp. 77–80). Plaintiff testified that it
was part of her duties as an employee of OPWDD to report abuse, including reporting to the
Ombudsperson. (Dkt. No. 79-2, pp. 43–45).
Plaintiff believed that her reports to the Ombudsperson were confidential. (Dkt. No. 8813, p. 54). According to Cheryl Greiner, an official at OPWDD, Ms. Sonthivongnorath
informed her about Plaintiff’s concerns, and Ms. Greiner asked “who was initiating the
allegations, so that there could be a progression of an investigation, and she just told me.” (Dkt.
No. 88-4, p. 25). Ms. Greiner then told the OPWDD investigative office and initiated an
incident report based on what was being alleged. (Id., pp. 25, 31). Ms. Greiner testified that she
did not report Plaintiff’s identity to any of her subordinates. (Id., p. 25). On April 26, 2011, the
Ombudsperson sent an email to various OPWDD officials, including Defendant Turck, stating
that she had received some concerns regarding A.B., specifically that “I am being told that her
mother is being prevented from seeing her as often as she would like.” (Dkt. No. 88-9, p. 76).
The email did not mention Plaintiff. Defendant Turck testified that the Ombudsperson brought
to her attention complaints regarding A.B., but she did not know that Plaintiff had made them.
(Dkt. No. 88-9, pp. 24, 48; see also Dkt. No. 79-12, ¶ 12).
E. 2011 NOD and Counseling Memo
On March 8, 2011, Plaintiff received another NOD, this one authored by Katherine
Bishop, the Director of Program Development for OPWDD. (Dkt. No. 79-35, ¶¶ 41, 82). The
underlying charge was that on August 18, 2010, Plaintiff made false allegations that a coworker, Paula Toomey, used profanity toward her during a telephone conversation. (Dkt. No.
79-3, p. 32). Defendant Turck states that she had no personal involvement in this NOD. (Dkt.
No. 79-12, ¶ 19). According to Defendant LaBarge, she personally served the March 8, 2011
NOD on Plaintiff, but she had no role in the decision to issue it. (Dkt. No. 79-10, ¶ 12). The
original version of the NOD also referenced Plaintiff’s 2004 NOD. (Dkt. No. 79-3, p. 32).
When Plaintiff objected that the 2004 NOD was no longer supposed to be in her file, she was
issued an amended NOD which did not reference it. (Dkt. No. 79-3, p. 33; Dkt. No. 79-2, pp.
On May 24, 2011, Plaintiff received another formal counseling memo. (Dkt. No. 79-35,
¶ 38). Defendant Turck wrote in the memo that Plaintiff was counseled regarding her “failure to
take proper action in reporting an incident.” (Dkt. No. 79-3, p. 34). Specifically, the memo
noted that on July 28, 2010, Plaintiff “made three separate allegations of abuse regarding
individuals who reside at the McChesney Ave. IRA in Brunswick,” which occurred on April 29,
2010, May 7, 2010, and July 14, 2010. (Id.). The memo stated that all three allegations, which
Plaintiff had previously made to the Ombudsperson, were “disconfirmed by the investigator.”
(Id.). The memo faulted Plaintiff for not reporting the incidents in a timely, consistent, and
accurate manner. (Id.).
According to Defendant Turck, she “formally counseled plaintiff that she was required
to report any suspected improper treatment of individuals in the care of OPWDD in a timely
manner, not after waiting months or weeks.” (Dkt. No. 79-12, ¶ 12). Defendant Turck states
that under New York law, any allegation of abuse was supposed to be reported immediately,
and no later than 24 hours after discovery. (Id., ¶ 13) (citing 14 NYCRR § 624.5(b)(1)(ii)). The
OPWDD Policy Manual also required staff to immediately report such incidents to supervisors
in their chain of command. (Dkt. No. 79-9, p. 34). Plaintiff testified that she reported the
incidents immediately. (Dkt. No. 79-2, pp. 111–12).
On July 20, 2011, Plaintiff took a medical leave from work on the basis of “job stress.”
(Dkt. No. 87, ¶ 33; Dkt. No. 88-13, p. 109).
F. Complaint to State
On or around September 6, 2011, Plaintiff filed a complaint with the New York State
Division of Human Rights. (Dkt. No. 79-3, pp. 35–37). The complaint charged that OPWDD
and Defendant Turck engaged in “an unlawful discriminatory practice relating to employment
in violation of Article 15 of the Executive Law of the State of New York (Human Rights Law)
because of sex, sexual orientation, disability.” (Id., p. 35). Plaintiff alleged that Defendant
Turck harassed her because of Plaintiff’s disability (corneal abrasion), that Defendant Turck
issued Plaintiff counseling memos and a NOD “because I am a heterosexual and my other
coworkers, who have engaged in improper conduct, are homosexual,” and that Defendant Turck
was “romantically” interested in Plaintiff and made her “feel uncomfortable.” (Id., pp. 35–36).
Plaintiff also alleged that Defendant Turck retaliated against her “due to sexual orientation.”
(Id., p. 39).
After an investigation, the Division of Human Rights determined that there was no
probable cause to believe that OPWDD or Defendant Turck “have engaged in or are engaging in
the unlawful discriminatory practice complained of.” (Dkt. No. 79-3, p. 69). Among other
things, the Division of Human Rights could not corroborate Plaintiff’s allegations of sexual
harassment and found that Plaintiff had “been counseled and disciplined for legitimate,
nondiscriminatory reasons relating to her work performance.” (Id., p. 70).
G. New York Times Article
On November 11, 2011, The New York Times published an article quoting Plaintiff,
entitled “For Disabled Care Complaints, Vow of Anonymity Was False.” (Dkt. No. 79-3, pp.
72–75). The portion of the article relating directly to Plaintiff reads as follows:
The Times learned of the ombudsman policy after a state employee, Jane Taylor,
approached a reporter and said the ombudsman in the Albany area, Carrie
Sonthivongnorath, had given her name to department officials.
Ms. Taylor had reported several alleged episodes. In one, she said, she witnessed
a state worker cursing at a resident; in another, she saw a state worker taking sick
residents outside to sit in a van on a particularly hot summer day. In another, she
was troubled after a state psychologist e-mailed several colleagues, including
her, joking that a misbehaving resident was “joining the circus.”
Ms. Taylor, who develops and monitors daytime activities for residents in several
group homes, said that not long after she reported the episodes, in summer 2010,
Ms. Sonthivongnorath told her that she had revealed her name to a top official in
the agency’s Albany region.
Ms. Taylor believes she was then retaliated against over several months. She
was required to attend counseling sessions with a supervisor, Cathy Turck; in a
memorandum, Ms. Turck criticized Ms. Taylor for the way she reported the three
episodes, saying “when reporting an incident, you must utilize your chain of
command.” Ms. Taylor said she reported episodes to supervisors but was not
Ms. Taylor was also served with a formal disciplinary charge in March, accusing
her of making a false claim that a co-worker swore at her. The disciplinary
notice was issued eight months after the alleged episode occurred, and is
“You’re supposed to be able to go to the ombudsman and report confidentially,
but it didn’t happen that way - she turned me in,” Ms. Taylor said, adding, “The
whole thing, in a nutshell, is that I went to the ombudsman, and they didn’t like
A second state employee who also works in the Albany area corroborated key
parts of Ms. Taylor’s story. “She is being bullied, threatened, and totally
retaliated against in so many different ways,” the employee said, adding that Ms.
Taylor was having difficulty even getting time off approved. The employee
spoke on the condition of anonymity for fear of retaliation.
(Id., pp. 73–74).
H. 2012 Events
On April 6, 2012, Defendant Turck emailed several OPWDD officials, including
Defendant LaBarge, asking if Plaintiff would be disciplined for filing false claims against Turck
as part of the complaint with the New York State Division of Human Rights. (Dkt. No. 88-6, p.
137). Defendant Turck wrote that “[k]nowing that she continues to follow a pattern of making
false allegations against co-workers, I would think that we open ourselves up to liability if we
do not take disciplinary action against her and she continues with this pattern.” (Id.).
Defendant LaBarge forwarded the email to another OPWDD official, writing that “I wish she
(Turck) would just let it go.” (Id.).
On or around November 6, 2012, Plaintiff reported that a co-worker, Angela Ertelt, had
inappropriate contact with an OPWDD client. (Dkt. No. 79-3, p. 85). Referring to this
allegation, Defendant LaBarge wrote in an email dated November 23, 2012 that: “This is Ms.
Taylor’s usual ‘MO’ . . . when she gets angry she files false allegations, which is actually what
two prior NOD’s referenced. (the second one was, unfortunately, removed from her PH file
after a certain period of time. Whomever settled that NOD, I’d like to smack them.).” (Dkt. No.
88-6, p. 143). In the email thread, Defendant LaBarge referred to Plaintiff as an “obnoxious
bitch.” (Id., p. 142). Defendant LaBarge also wrote that “Unfortunately, Central Office does
not see this as a termination or demotion case.” (Id., p. 154). Defendant LaBarge testified that
she wanted to “smack” the person who settled Plaintiff’s prior NOD because “I seriously do not
agree with removing NODs from personal history files.” (Dkt. No. 88-6, p. 82). Further, she
testified that some OPWDD officials “were looking to either demote or terminate Jane Taylor
because she had been experiencing so many issues in our agency.” (Id., p. 93).
I. 2013 Events
On April 29, 2013, Plaintiff received another formal counseling memo, from Treatment
Team Leader Jerome Brennan. (Dkt. No. 79-3, pp. 81–82). The memo alleged that Plaintiff
yelled at and argued with a co-worker, Ms. Ertelt. (Id.). On May 9, 2013, she received another
NOD, from Heidi-Lynn Wagner, the Acting Director of Employee Relations. (Id., pp. 83–85).
The NOD charged that Plaintiff made false allegations on November 6, 2012 regarding
inappropriate contact between Ms. Ertelt and an OPWDD client. (Id.). Defendant LaBarge
received an email about the NOD and responded: “Come here and let me kiss you!! I didn’t
send you her priors . . . do you have that information, or do you need it at this point?? I know
that you are aware of her NOD that is pending resolution. Not sure what she has for formal
counselings.” (Dkt. No. 88-6, p. 165). Plaintiff testified that she went out on administrative
leave from work as a result of the May 9, 2013 NOD. (Dkt. No. 79-2, p. 140). On June 24,
2013, Plaintiff commenced the present action. (Dkt. No. 1).
On July 25, 2013, a “Workplace Violence Prevention Episode Report” was initiated by
James Fisher, the Program Director at Fort Edwards Day Habilitation Center. (Dkt. No. 79-3,
pp. 86–89). The report stated that Plaintiff allegedly made a threatening comment to a coworker, Lea Crosse, and followed her to another classroom. (Id., p. 87). An investigation by
OPWDD found that “there is sufficient evidence and corroboration of testimony to find that
Jane Taylor made the threatening statement about Ms. Crosse on 7/24/13 and then engaged in
threatening or stalking behavior toward her on 7/25/13 at Fort Edwards Day Habilitation
Center.” (Id., p. 99).
On July 26, 2013, Plaintiff received another formal counseling memo, authored by Mr.
Fisher. (Dkt. No. 79-3, pp. 107–08). According to the memo, Plaintiff came to work on July
19, 2013 wearing a short dress, after receiving training the day before regarding appropriate
attire for the workplace. (Id., p. 107). Mr. Fisher instructed Plaintiff to go home and change
clothes, but Plaintiff refused and called the police instead to report him for harassment. (Id.).
Plaintiff was counseled for insubordination, among other things. (Id.).
On November 12, 2013, OPWDD official Cris Christodulu sent an email about starting a
“HIPAA administrative Investigation” as to an allegation that Plaintiff “used [a] fax Machine to
fax [an] individual’s information to her lawyer based on paperwork found behind [in the] fax
machine.” (Dkt. No. 88-6, p. 170). Defendants Turck and LaBarge were not on the receiving
end of the email thread; an official was asked to contact LaBarge regarding “information from
ISS on 3 faxes that went to her lawyer’s number.” (Id.).
J. 2014 Events
On February 10, 2014, Treatment Team Liam Stander asked Plaintiff to attend a
meeting. (Dkt. No. 79-28, ¶ 5; Dkt. No. 79-35, ¶ 91). But Plaintiff refused to meet with Mr.
Stander. (Dkt. No. 79-2, pp. 211–12). On February 11, 2014, Plaintiff received another formal
counseling memo, from Mr. Stander. (Dkt. No. 79-3, pp. 105–06). This one stated that on
October 8, 2013, Plaintiff improperly used an OPWDD fax machine to send confidential clinical
records to her attorney. (Id.). According to the memo, Plaintiff’s “attempt to disclose such
records to a third party was in violation of the Mental Hygiene Law and HIPAA.” (Id.). The
memo also stated that Plaintiff refused to attend a meeting about the counseling, which was
On or about February 12, 2014, Treatment Team Leaders Liam Stander and Kristi
Beitter attempted to meet with Plaintiff. (Dkt. No. 79-3, p. 115; Dkt. No. 87, ¶ 60). According
to Ms. Beitter, they intended to “formally counsel Plaintiff and to notify her that she was being
placed on administrative leave pending investigation into an allegation that she failed to report
an abuse incident.” (Dkt. No. 79-18, ¶ 4). Mr. Stander testified that the decision to place
Plaintiff on administrative leave was made by his supervisor, Margaret O’Brien. (Dkt. No. 8811, p. 35). Defendant LaBarge testified that she did not have any responsibility in determining
whether an employee should be placed on administrative leave. (Dkt. No. 88-6, p. 27).
According to Ms. Beitter and Mr. Stander, Plaintiff was insubordinate and refused to
cooperate at the meeting. (See Dkt. No. 79-3, pp. 115–16). Plaintiff admits that she walked out
of the meeting and called the police and her lawyer, allegedly because she felt threatened. (Dkt.
No. 79-2, pp. 164–71; Dkt. No. 79-5, pp. 8–9). Plaintiff was put on administrative leave and
told to leave the premises, which she ultimately did after police arrived. (Dkt. No. 79-3, pp.
115–16). A report of the incident, authored by an OPWDD Investigator, came to the following
1. Treatment Team Leaders Kristi Beitter and Liam Stander were acting
within their areas of administrative responsibility in attempting to counsel
Jane Taylor on 2/12/14 with respect to agency standards and her
performance of duties. This investigation finds that Jane Taylor was
insubordinate to Team Leaders Beitter and Stander in her refusal to allow
them to get through the counseling memorandum, stating, “No, I won’t
get through it,” or words to that effect and leaving the office.
2. This investigation finds that Jane Taylor was insubordinate to Team
Leader Liam Stander by her statement, “I’m going to keep making phone
calls while you read,” or words to that effect, as he continued to read the
3. This investigation finds that Jane Taylor was insubordinate to Team
Leader Kristi Beitter as she read the letter placing her on Administrative
Leave, with her statement, “I’m not signing it” or words to that effect.
4. This investigation finds that Ms. Taylor knowingly made several false
statements to her attorney by telephone while these events were
occurring, including that she was being retaliated against for turning
someone in, and that Team Leaders Beitter and Stander were “…putting
me out…” because she refused to sign the memos. No documentation on
record supports these statements in any way.
5. This investigation finds that Jane Taylor was insubordinate to Team
Leaders Kristi Beitter and Liam Stander in her attempt to utilize an
agency computer after being advised that she was on Administrative
Leave and that she must leave the premises.
6. Refusal to participate as directed in the scheduled interrogation on
3/12/14 constitutes a further act of insubordination. Capital District
DDSO provided reasonable notification to Ms. Taylor of the interrogation
for the purpose of providing her opportunity to answer questions related
to her conduct and to represent her position in this matter. In declining
participation, Ms. Taylor forfeited her opportunity to respond to the
issues addressed herein.
(Dkt. No. 79-3, pp. 117–18). Plaintiff admitted that she did not attend the interrogation on
March 12, 2014. (Dkt. No. 79-2, p. 214; Dkt. No. 79-5, pp. 13–14). While Plaintiff was out on
administrative leave, she posted on Facebook about her “paid vacation” and a trip to Florida.
(Dkt. No. 88-6, pp. 173–74). Defendant LaBarge testified that her husband informed her about
the postings. (Id., pp. 114–16).
On November 6, 2014, the New York State Justice Center For the Protection of People
with Special Needs issued a report finding it substantiated that Plaintiff had failed to report
allegations of a reportable incident of abuse or neglect, which constituted “Category 3 abuse
(obstruction of reports of reportable incidents) pursuant to Social Services Law § 493(4)(c).”
(Dkt. No. 79-3, pp. 132–33). According to Plaintiff, the Justice Center was also involved in the
OPWDD’s retaliation against her. (Dkt. No. 79-2, p. 202).
On December 2, 2014, Plaintiff was suspended without pay, and the notice stated that
“[t]his action is being taken against you because your continued presence on the job has been
deemed to represent a potential danger to persons or property and/or severely interferes with the
operations of the Office for People with Developmental Disabilities.” (Dkt. No. 79-3, pp. 134–
35). The suspension notice charged Plaintiff with the following “misconduct/incompetence”:
1. On February 4, 2014 at approximately 10:15am, while working at the Fort
Edward Day Hab, you were insubordinate. Specifically, when Treatment Team
Leader Liam Stander directed you not to call the police, dial 911, and/or CN’s
probation officer, you stated “I don’t care and I am going to call anyway” or
words to that effect and hung up the phone.
2. On February 4, 2014, at approximately 2:00pm, while working at the Fort
Edward Hab, you made an inappropriate comment to a co-worker. Specifically,
when you called Treatment Team Leader Alex Barlow, Chad Dominie answered
the phone and you responded, “Oh, it’s wimpy Chad” or words to that effect.
3. On February 4, 2014 at approximately 10:45am, while working at the Fort
Edward Day Hab, you were insubordinate. Specifically, when Treatment Team
Leader Alex Barlow called you to give you directives, you told her that “I will
not listen to what you have to say” or words to that effect.
4. On February 4, 2014 at approximately 12:15pm, while working at the Fort
Edward Day Hab, you were insubordinate. Specifically, when Treatment Team
Leader Alex Barlow called you again to give you directives and told you that
your failure to listen to her directives would be insubordination and could lead to
disciplinary action, you stated, “Get me for insubordination. I don’t care, I’m not
listening” or words to that effect.
5. On February 10, 2014 at approximately 2:28pm, while working at the Fort
Edward Day Hab, you were insubordinate. Specifically, when Treatment Team
Leader Liam Stander called you and directed you to come to his office to meet
with him by 3:15, you responded, “I don’t think so. I’m not going anywhere
without my lawyer present.” Mr. Stander advised you that failure to come would
be considered insubordination, that you did not have the right to counsel to speak
with your supervisor, and asked if he could expect you by 3:15. You again
responded, “I don’t think so.”
6. On February 12, 2014 at approximately 12:30pm, while working at the Fort
Edward Day Hab, you were insubordinate. Specifically, while in the office at the
Fort Edward Day Hab with Treatment Team Leaders Liam Stander and Kristi
Beitter for a counseling session, you stated “No, I won’t get through it” or words
to that effect and walked out the door.
7. On February 12, 2014 at approximately 12:30pm, while at the Fort Edward Day
Hab, you were insubordinate. Specifically, when Treatment Team Leader Liam
Stander continued with the counseling session, you stated “I’m going to keep
making phone calls while you read” or words to that effect.
8. On February 12, 2014 at approximately 12:30pm, while at the Fort Edward Day
Hab, you were insubordinate. Specifically, when Treatment Team Leader Beitter
placed you on Administrative Leave and directed you to leave State property,
you stated “I’m getting on the computer” or words to that effect and refused to
leave the Day Hab until the police arrived and escorted you out.
9. On March 12, 2014 at approximately 1:00pm, you were insubordinate.
Specifically, you were directed to report to Capital District DDSO OD Heck
Campus at 1:00pm for an interrogation and you did not report.
(Id., pp. 136–37). The second charge, relating to an alleged comment about Chad Dominie, was
later withdrawn. (Dkt. No. 88-10, pp. 17–18). Heidi-Lynn Wagner testified that Plaintiff was
“[S]he showed a pattern of behavior where she was not going to listen to her
managers, and it was clear that she was going to do whatever it was that she
wanted. So, in our opinion – in my opinion, it was that she showed that she was
not going to be able to participate in her regular work habits – or her regular
work procedures if she wasn’t going to follow directions and be a severe
interruption to the operation.”
(Dkt. No. 88-10, p. 58).
K. Arbitration and Termination
Plaintiff appealed her suspension and an arbitration was held over several days in March
2015. (Dkt. Nos. 88-10 through 88-14). On March 11, 2015, the arbitration was settled, such
that Plaintiff received 10 weeks of back-pay, that she would be on administrative leave until
April 1, 2015, and that on or before April 1, 2015, Plaintiff would retire, submit her resignation
or be terminated from employment. (Dkt. No. 79-3, p. 141). OPWDD also agreed to restore
Plaintiff’s accrued leave during that time period, and Plaintiff released OPWDD from all claims
with respect to the settlement, with the exception of those asserted in this action. (Id.).
Plaintiff’s employment was terminated on April 1, 2015. (Id., p. 143).
L. Plaintiff’s Deposition Testimony
On September 11, 2015, Plaintiff was deposed in this action. (Dkt. No. 79-2). Plaintiff
was questioned about a Facebook posting that she made on March 1, 2015, which depicted a
cartoon image of a person, meant to represent Plaintiff, surfing on a wave of money, with a
caption that stated, “Payday! Wish me luck this week . . . ” (Id., pp. 220–27; Dkt. No. 79-8).
Plaintiff denied that the Facebook posting about a “Payday” related to her arbitration hearing
(which began on March 3, 2015), and she claimed instead that it was motivated by her receiving
an annuity payment. (Dkt. No. 79-2, pp. 220–24). Moments later, however, Plaintiff admitted
upon further questioning that the Facebook posting did relate to the arbitration hearing and that
she had no annuities. (Id., pp. 225–27). Plaintiff admitted that she initially lied to “cover up”
the true nature of the Facebook posting. (Id., pp. 226–27).
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all the submissions taken together “show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). The moving party bears the initial burden of demonstrating “the absence of a genuine
issue of material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the
outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing
Anderson). The movant may meet this burden by showing that the nonmoving party has
“fail[ed] to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at
322; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (summary
judgment appropriate where the non-moving party fails to “come forth with evidence sufficient
to permit a reasonable juror to return a verdict in his or her favor on an essential element of a
claim”) (internal quotation marks omitted).
If the moving party meets this burden, the nonmoving party must “set out specific facts
showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S.
at 323–24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary
judgment motion, the district court must construe the facts in the light most favorable to the
non-moving party and must resolve all ambiguities and draw all reasonable inferences against
the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still,
the nonmoving party “must do more than simply show that there is some metaphysical doubt as
to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), and cannot rely on “mere speculation or conjecture as to the true nature of the facts to
overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d
Cir. 1986) (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)).
Furthermore, “[m]ere conclusory allegations or denials cannot by themselves create a genuine
issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166
(2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (internal
quotation marks and citations omitted)).
A. Motion for Sanctions
To begin, Defendants argue that Plaintiff’s case should be dismissed as a sanction for
lying under oath at her deposition. (Dkt. No. 79-36, p. 7). Although Defendants invoke Rule 37
of the Federal Rules of Civil Procedure, that rule does not specifically address the instant
situation. But it is well-established that courts have the inherent power to sanction litigants for
conduct which abuses the judicial process. See Hazel–Atlas Glass Co. v. Hartford–Empire Co.,
322 U.S. 238, 246 (1944) (“we find it surpassingly difficult to conceive of a more appropriate
use of a court’s inherent power than to protect the sanctity of the judicial process”). That
includes perjured deposition testimony. See Rybner v. Cannon Design, Inc., No. 95 Civ. 0279,
1996 WL 470668, at *3, 1996 U.S. Dist. LEXIS 12068, at *7-8 (S.D.N.Y. Aug. 20, 1996)
(Sotomayor, J.). The sanction of dismissal, however, is only appropriate in rare, extreme cases.
Id. (citing inter alia Dodson v. Runyon, 86 F.3d 37, 39 (2d Cir. 1996); Simmons v. Abruzzo, 49
F.3d 83, 88 (2d Cir. 1995)). Before applying this harsh remedy, the Court must consider the
severity of the litigant’s conduct, its effect on the case, and the suitability of lesser sanctions,
among other factors. Id.
First, it is clear that Plaintiff committed perjury by lying under oath at her deposition
about the nature of the “Payday” Facebook posting. See United States v. Dunnigan, 507 U.S.
87, 94 (1993) (“A witness testifying under oath or affirmation” commits perjury if she “gives
false testimony concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.”). Plaintiff’s conduct is
disturbing and deserving of sanction, but importantly, it does not amount to a fraud upon the
court. See Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988) (“neither perjury nor
nondisclosure, by itself, amounts to anything more than fraud involving injury to a single
litigant”); In re Grievance Comm. of U.S. Dist. Ct., Dist. of Connecticut, 847 F.2d 57, 64 (2d
Cir. 1988) (“Untruthful testimony by a witness, which has not been suborned by his lawyer,
does not, standing alone, constitute fraud upon the court. This is particularly true where, as
here, the testimony is given during a pretrial deposition.”) (Van Graafeiland, concurring)
Moreover, Plaintiff’s false deposition testimony does not fundamentally undercut her
retaliation claims. In other words, while Plaintiff’s deception about the “Payday” Facebook
posting casts some doubt on her credibility and motivation, it does not necessarily suggest that
her claims lack merit. And given Plaintiff’s hasty admission of the truth, it cannot be said that
the initial falsehood corrupted the fact-finding process or caused any prejudice to Defendants.
All of these facts distinguish the instant matter from the more extreme cases cited by
Defendants. See also Rybner, 1996 WL 470668, at *6, 1996 U.S. Dist. LEXIS 12068, at *15-16
(“Because the truthfulness of Rybner’s resume is not central to the claim against Cannon and
because Rybner did not engage in prolonged or repeated obstructionist conduct in perpetuating
his lie, Rybner’s conduct is not sufficiently egregious to warrant the extraordinary sanction of
dismissal of his complaint, especially because other lesser sanctions are adequate to protect the
integrity of the judicial system.”).
Finally, dismissal is not appropriate in this case because there is a less drastic sanction
available. Should Plaintiff’s case survive summary judgment, Defendants will be permitted to
inform the jury of Plaintiff’s dishonesty and a jury instruction will be given that any falsehood
should be considered seriously by jurors in assessing her credibility.2 “Given the importance of
See, e.g., Modern Federal Jury Instruction 76-8 regarding Prior Perjury.
credibility of witnesses in this case and the fact that plaintiff bears the burden of proof in the
action, this is a potent sanction.” Rybner, 1996 WL 470668, at *6, 1996 U.S. Dist. LEXIS
12068, at *16. See also Gleason, 860 F.2d at 560 (“[p]erjury and fabricated evidence . . . can
and should be exposed at trial”) (quoting Great Coastal Express, Inc. v. Int’l Brotherhood of
Teamsters, 675 F.2d 1349, 1357 (4th Cir. 1982), cert. denied, 459 U.S. 1128 (1983)).
Accordingly, Defendants’ motion for the sanction of dismissal is denied.
B. Motion for Summary Judgment
1) First Amendment Retaliation Claim
Plaintiff’s first claim, brought under 42 U.S.C. § 1983, alleges that Defendants Turck
and LaBarge retaliated against her in violation of the First Amendment to the United States
Constitution. Specifically, Plaintiff asserts that after the New York Times article quoting her
was published in November 2011, “defendants subjected plaintiff to a series of adverse actions,
including the NOD in May 2013, the HIPAA investigation in November 2013, the
administrative leave that extended from February through December 2014, and the nine
disciplinary charges served on plaintiff in December 2014.” (Dkt. No. 86, p. 23). Defendants
argue that Plaintiff’s claim “fails to make out a prima facie case because she was not subject to
legally sufficient adverse action until over a year after publication of the New York Times news
article at issue.” (Dkt. No. 79-36, p. 13; see also Dkt. No. 89, p. 6).
To survive summary judgment on a First Amendment retaliation claim, “a public
employee must establish a prima facie case by bringing forth evidence showing that (1) [s]he
has engaged in protected First Amendment activity, (2) [s]he suffered an adverse employment
action, and (3) there was a causal connection between the protected activity and the adverse
employment action.” Smith v. County of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) (quoting
Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007) (internal quotation and alterations
First, there is no dispute that Plaintiff engaged in protected speech by communicating
with The New York Times in November 2011. See also Dkt. No. 26, p. 14 (“To the extent that
plaintiff’s First Amendment retaliation claims are based on statements she made to reporters at
the New York Times, the Court finds that they are potentially protected speech claims under the
First Amendment.”). However, Defendants argue that Plaintiff has failed to show evidence of a
causal connection between this protected speech and any of the alleged adverse employment
actions she later suffered. (Dkt. No. 79-36, pp. 16–19; Dkt. No. 89, pp. 6–11).
a. Personal Involvement
As a threshold matter, personal involvement of an individual defendant “in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.” Provost v.
City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001) (quoting Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994)). “Because vicarious liability is inapplicable to . . . § 1983 suits,” Plaintiff must
raise a genuine dispute as to whether “each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Victory v. Pataki, 814 F.3d 47,
67 (2d Cir. 2016), as amended (Feb. 24, 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009)) (emphasis added). “Personal involvement may be shown by ‘direct participation,’
which requires in this context ‘intentional participation in the conduct constituting a violation of
the victim’s rights by one who knew of the facts rendering it illegal.’” Id. at 67 (quoting
Provost, 262 F.3d at 155); see also Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (“a
defendant in a § 1983 action may not be held liable for damages for constitutional violations
merely because he held a high position of authority”).
Thus, in order to succeed on her First Amendment retaliation claim against Defendants
Turck and LaBarge, Plaintiff must show that they were personally involved in the underlying
adverse employment actions. And yet Plaintiff points to no such evidence. Rather, the record
shows the following: 1) the May 9, 2013 NOD was issued by Heidi-Lynn Wagner; 2) the
HIPAA investigation in November 2013 was initiated by Cris Christodulu and led to a
counseling memo from Liam Stander; 3) the decision to place Plaintiff on administrative leave
involved Margaret O’Brien and Cheryl Greiner; and 4) the decision to suspend Plaintiff
involved Ms. Wagner. (See Dkt. No. 79-3, pp. 83–85, 105–06; Dkt. No. 88-6, p. 170; Dkt. No.
88-4, p. 126; Dkt. No. 88-11, p. 35; Dkt. No. 88-10, p. 58). As of January 2012, Defendant
Turck was no longer Plaintiff’s supervisor. (Dkt. No. 79-35, ¶ 4). Defendants LaBarge and
Turck state that they had no involvement in any of the above events. (Dkt. Nos. 79-10, 79-12).
Against this evidence, Plaintiff offers only pure speculation. For example, when asked about
the May 9, 2013 NOD, Plaintiff testified that “Cathy LaBarge could’ve had something to do
with it too since she’s got my personnel file,” and as to Defendant Turck, “she could’ve [been
involved]. There’s always a possibility.” (Dkt. No. 79-2, pp. 139–40). However, Plaintiff
cannot raise an issue of fact on the basis of these unsupported assertions.
Accordingly, Plaintiff has failed to adduce evidence that Defendants Turck and LaBarge
participated in First Amendment retaliation against her, which is grounds for summary
judgment on her claim.3 See Canner v. City of Long Beach, No. 12 Civ. 2611, 2015 WL
Plaintiff has also failed to adduce evidence showing the personal involvement of these Defendants
under any of the other methods recognized by the Second Circuit. See Warren v. Pataki, 823 F.3d 125,
136 (2d Cir. 2016) (explaining that a plaintiff may establish personal involvement by making any one of
five showings, citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)), cert. denied sub nom. Brooks
v. Pataki, 137 S. Ct. 380 (2016). The Second Circuit has not expressly addressed how the Supreme
Court’s decision in Iqbal affected the standards in Colon for establishing personal involvement, see
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013), but nevertheless, in this case, Plaintiff
4926014, at *4, 2015 U.S. Dist. LEXIS 108980, at *9 (E.D.N.Y. Aug. 18, 2015) (“While the
emails demonstrate negative feelings towards Radin and McCormack, plaintiffs still fail to
allege that the City Council defendants and Schnirman were at all involved in the actual adverse
actions about which plaintiffs complain.”); Stancuna v. Town of Wallingford, 487 F. Supp. 2d
15, 22 (D. Conn. 2007) (“Here, there is simply no evidence in the record that Dickinson
initiated, made, or otherwise caused the Planning and Zoning Department to engage in zoning
enforcement activity against plaintiff in February 2005 as plaintiff claims. . . . Plaintiff’s
speculation that the Mayor somehow had a hand in the enforcement actions taken does not
demonstrate a triable claim and does not suffice to defeat summary judgment in favor of
b. Causal Connection
Moreover, even assuming there was evidence of Defendants’ personal involvement in
the alleged adverse employment actions against Plaintiff, she has failed to show a causal
connection linking them to her protected speech. “To demonstrate a causal connection ‘a
plaintiff must show that the protected speech was a substantial motivating factor in the adverse
employment action.’” Smith, 776 F.3d at 118 (quoting Cioffi v. Averill Park Cent. Sch. Dist.
Bd. of Educ., 444 F.3d 158, 167 (2d Cir. 2006)). “A plaintiff may establish causation either
directly through a showing of retaliatory animus, or indirectly through a showing that the
protected activity was followed closely by the adverse action.” Id. (citing Cobb v. Pozzi, 363
F.3d 89, 108 (2d Cir. 2004)). “Since a direct showing requires plaintiff to provide ‘tangible
proof’ of retaliatory animus, ‘conclusory assertions of retaliatory motive’ are insufficient.” Id.
(quoting Cobb, 363 F. 3d at 108).
has failed to show the personal involvement of Defendants Turck and LaBarge even under the Colon
i. Temporal Proximity
Defendants argue that the adverse employment actions alleged by Plaintiff all “occurred
either before the November 11, 2011 publication date of The New York Times article, or so long
after it that it cannot be considered causally connected.” (Dkt. No. 79-36, p. 17). In response,
Plaintiff has identified several events post-dating the article, specifically the May 9, 2013 NOD,
the “HIPAA investigation” in November 2013, her placement on administrative leave from
February 12, 2014 to December 2, 2014, and her suspension on December 2, 2014 due to
various disciplinary charges. (Dkt. No. 86, p. 23).
The Second Circuit “has not drawn a bright line to define the outer limits beyond which
a temporal relationship is too attenuated to establish a causal relationship between the exercise
of a federal constitutional right and an allegedly retaliatory action.” Gorman-Bakos v. Cornell
Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001). But “courts in this
circuit have typically measured that gap as a matter of months, not years.” Bucalo v. Shelter
Island Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir. 2012).
Here, assuming each event identified by Plaintiff constitutes an adverse employment
action, they are too far removed from the publication of The New York Times article to infer a
causal connection.4 Almost a year and a half passed between Plaintiff’s protected speech and
the earliest adverse employment action, the May 9, 2013 NOD. (Dkt. No. 79-3, pp. 83–85).
Approximately two years passed before the HIPAA investigation, and administrative leave and
suspension came even later. (Id., pp. 115–16, 136–37). Therefore, Plaintiff cannot rely on
evidence of temporal proximity to establish causation. See also Clark County Sch. Dist. v.
To the extent Plaintiff alleges that she was excessively scrutinized at work by Defendant Turck in
retaliation for her protected speech (see Dkt. No. 79-2, pp. 46–48), such conduct does not amount to an
adverse employment action. See Ortiz v. Metro. Transp. Auth., 615 F. App’x 702, 702–04 (2d Cir. 2015)
(finding that “excessive scrutiny” and “micromanagement” of the plaintiff by her supervisors did not
qualify as adverse employment actions).
Breeden, 532 U.S. 268, 274 (2001) (“Action taken (as here) 20 months later suggests, by itself,
no causality at all.”); Riddle v. Citigroup, 640 F. App’x 77, 79 (2d Cir. 2016), cert. denied, 137
S. Ct. 1820 (2017) (“This gap of some sixteen months is too long to support a retaliation claim
based solely on temporal connection.”); Frisenda v. Inc. Village of Malverne, 775 F. Supp. 2d
486, 512 (E.D.N.Y. 2011) (“courts in this Circuit have consistently held that a passage of more
than two months between the protected activity and the adverse employment action does not
allow for an inference of causation”) (collecting cases).
ii. Evidence of Retaliatory Animus
Plaintiff attempts to show evidence of retaliatory animus by pointing to several
comments Defendant LaBarge made about her. (Dkt. No. 86, p. 24). In an email thread relating
to Plaintiff’s allegation that a co-worker had inappropriate contact with an OPWDD client on
November 6, 2012, Defendant LaBarge wrote: “This is Ms. Taylor’s usual ‘MO’ . . . when she
gets angry she files false allegations, which is actually what two prior NOD’s referenced. (the
second one was, unfortunately, removed from her PH file after a certain period of time.
Whomever settled that NOD, I’d like to smack them.).” (Dkt. No. 88-6, p. 143). She also
referred to Plaintiff as an “obnoxious bitch” and wrote that “Unfortunately, Central Office does
not see this as a termination or demotion case.” (Id., pp. 142, 154). When Defendant LaBarge
received an email about the subsequent May 9, 2013 NOD, she responded “Come here and let
me kiss you!!” and offered to provide Plaintiff’s disciplinary history. (Id., p. 165). However,
none of these comments have any discernable relation to The New York Times article. At most,
they show that Defendant LaBarge had a personal animus toward Plaintiff, not a retaliatory one.
As to Defendant Turck, Plaintiff has not identified any direct evidence of retaliatory animus
Plaintiff also suggests that causation can be inferred based on evidence “that defendants
had a longstanding practice of retaliation against plaintiff, predating the New York Times
article.” (Dkt. No. 86, p. 25). Presumably, Plaintiff is referring to her allegation that
Defendants previously retaliated against her for raising concerns with the OPWDD
Ombudsperson in July of 2010. (See Dkt. No. 79-2, p. 62). The record shows that Plaintiff
received several counseling memos and NODs thereafter in 2010 and 2011. (Dkt. No. 79-3, pp.
8, 32, 34). However, Plaintiff had also received a counseling memo in 2004, and she was
counseled in June of 2010. (Dkt. No. 79-3, pp. 5–6; Dkt. No. 79-35, ¶ 35). The recurring theme
in these episodes, before and after Plaintiff voiced complaints, was the charge that Plaintiff
made false allegations against co-workers and was insubordinate to supervisors. (See, e.g., Dkt.
No. 79-3, pp. 8, 32, 83–85, 107–08). Thus, the record evidence does not support an inference
that Defendants “held a longstanding grudge against plaintiff because of her outspoken
objections to abuses in the workplace.” (Dkt. No. 86, p. 25). It is also worth noting that
Plaintiff’s theory is entirely absent from her complaint to the New York State Division of
Human Rights on September 6, 2011, which alleged that Defendant Turck harassed her because
of Plaintiff’s disability, that Defendant Turck issued Plaintiff counseling memos and a NOD
“because I am a heterosexual and my other coworkers, who have engaged in improper conduct,
are homosexual,” and that Defendant Turck was “romantically” interested in Plaintiff and
retaliated against her “due to sexual orientation.” (Dkt. No. 79-3, pp. 35–39) (emphasis added).
At most, the record shows that Defendant Turck disliked Plaintiff for filing an unsubstantiated sexual
harassment complaint against her with the State Division of Human Rights, (Dkt. No. 88-6, p. 137), not
because Plaintiff later spoke to The New York Times.
In sum, Plaintiff has failed to adduce any evidence that her protected speech to The New
York Times in 2011 was a substantial motivating factor in the adverse employment actions she
suffered in 2013 and 2014. Simply put, viewing all of the facts in the light most favorable to
Plaintiff, no reasonable jury could find a causal connection. Plaintiff’s “conclusory assertions
of retaliatory motive” are insufficient to survive judgment. See Smith, 776 F.3d at 118; see also
Young v. Westchester Cty. Dep’t of Soc. Servs., 57 F. App’x 492, 495 (2d Cir. 2003) (“[W]here
the adverse action was already ongoing at the time of the protected activity, or is very similar to
another adverse action that was taken before the protected activity, with no other change in
relevant circumstances, logic precludes any inference of causation.”). Accordingly, Plaintiff’s
First Amendment retaliation claim must be dismissed.
2) Rehabilitation Act Claim
Plaintiff’s second claim alleges that Defendant OPWDD retaliated against her in
violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq. Section 504 of the Act states that
“[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by
reason of her or his disability, be excluded from the participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any Executive agency . . . .” 29
U.S.C. § 794(a). The Rehabilitation Act also “protects individuals who oppose any practice that
the Rehabilitation Act makes illegal.” Collins v. City of New York, 156 F. Supp. 3d 448, 458
(S.D.N.Y. Jan. 11, 2016) (citing 29 C.F.R. § 1614.101(b)).
Claims for retaliation under the Rehabilitation Act are analyzed under the same burdenshifting framework established for Title VII cases. Treglia v. Town of Manlius, 313 F.3d 713,
719 (2d Cir. 2002). To establish a prima facie case of retaliation, Plaintiff must show that: 1)
she engaged in protected activity; 2) the Defendant was aware of this activity; 3) the Defendant
took adverse action against her; and 4) a causal connection exists between the protected activity
and the adverse action. Id. at 720.6 “Once a plaintiff establishes a prima facie case of
retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for
the challenged employment decision. If a defendant meets this burden ‘the plaintiff must point
to evidence that would be sufficient to permit a rational factfinder to conclude that the
employer’s explanation is merely a pretext for impermissible retaliation.’” Id. at 721 (quoting
Cifra v. GE, 252 F.3d 205, 216 (2d Cir. 2001)).
Defendants argue Plaintiff has failed to show that she engaged in activity protected by
the Rehabilitation Act, or that a causal connection exists between any protected activity and an
adverse action. (Dkt. No. 79-36, pp. 19–25).
a. Protected Activity
Protected activity “refers to action taken to protest or oppose statutorily prohibited
discrimination.” Wright v. Monroe Cmty. Hosp., 493 F. App’x 233, 236 (2d Cir. 2012) (quoting
Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)). The Rehabilitation Act
specifically prohibits exclusion, denial of benefits, and discrimination against a disabled person
with respect to a public entity’s services or programs, “solely by reason of her or his disability.”
29 U.S.C. § 794(a). “Exclusion or discrimination may take the form of disparate treatment,
disparate impact, or failure to make a reasonable accommodation.” B.C. v. Mount Vernon
School District, 837 F.3d 152, 158 (2d Cir. 2016).
It is unsettled in this Circuit whether a plaintiff must show that the retaliation was a “but for” cause or
merely a motivating factor. See Eisner v. Cardozo, 684 F. App’x 29, 30 (2d Cir. 2017); Kelly v. New
York State Office of Mental Health, 200 F. Supp. 3d 378, 403 n.12 (E.D.N.Y. 2016). As set forth below,
the Court does not need to decide the standard in this case.
As evidence of protected activity, Plaintiff asserts that she “regularly advocated on
behalf of AB,” an OPWDD client, pointing to the reports she made to the Ombudsperson in July
2010. (Dkt. No. 86, p. 26). The record shows that Plaintiff raised concerns that a co-worker
yelled at A.B. for having ice cream in front of other OPWDD clients, that another co-worker
joked that A.B. was joining the circus in an internal OPWDD email, and that A.B. was not
allowed to go the movies on one occasion. (Dkt. No. 79-35, ¶¶ 56, 60, 63; Dkt. No. 79-2, pp.
103–06; Dkt. No. 88-9, pp. 77–80). However, Plaintiff does not explain how her complaints
pertained to discrimination against A.B. “solely by reason of” her disability. There is no
evidence that A.B. was yelled at or denied an outing to the movies because of her disability, or
that she received the objectionable email. In other words, Plaintiff has not shown that her
complaints to the Ombudsperson related to A.B. being treated differently than a non-disabled
person. Therefore, Plaintiff has failed to show that she engaged in protected activity under the
Rehabilitation Act.7 See Maioriello v. New York State Office for Developmental Disabilities,
No. 14 Civ. 214, 2015 WL 5749879, at *14–15, 2015 U.S. Dist. LEXIS 131967, at *37–38
(N.D.N.Y. Sept. 30, 2015) (noting that the mistreatment of persons with disabilities, while
unfortunate, does not necessarily reflect discrimination by reason of their disability) (citing
Beaver v. Melotte, No. 08 Civ. 187, 2008 WL 4610317, at *1, 2008 U.S. Dist. LEXIS 110966,
at *3–4 (E.D. Wis. Oct. 15, 2008)).
b. Adverse Action and Causal Connection
Further, even if Plaintiff did engage in protected activity by raising concerns with the
Ombudsperson in July 2010, she has failed to show a causal connection to an adverse action.
To the extent that Plaintiff alleges that she also reported an incident where a co-worker “ripped the
headphones” off A.B., (Dkt. No. 79-2, p. 233), Plaintiff has failed to adduce any evidence to infer that
her report amounted to a protest against disability discrimination. The same is true for Plaintiff’s report
that three OPWDD clients were left in a van for too long on a hot day. (Dkt. No. 79-35, ¶ 58).
Plaintiff argues that “[t]he jury may find that defendants issued the formal counseling memo to
Taylor in May 2011 solely to intimidate, discredit and silence AB’s sole disability advocate.”
(Dkt. No. 86, p. 27). Defendants contend that the receipt of a counseling memo or NOD does
not constitute an adverse action, unless it also impacts wages. (Dkt. No. 79-36, pp. 20–21). But
in retaliation cases, the standard for an adverse employment action is “not as demanding as it is
in a discrimination claim.” Quadir v. N.Y. State D.O.L., 39 F. Supp. 3d 528, 542 (S.D.N.Y.
2014). Plaintiff “must show 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.” Id. at 542–43 (citing Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Notably, the May 24, 2011 formal counseling memo did not come with any associated
disciplinary sanction, and the purpose of the counseling was to review reporting procedures.
(Dkt. No. 79-3, p. 34). Therefore, based on the evidence in this case, the counseling memo falls
short of an adverse action because it would not have deterred a reasonable employee from
engaging in protected activity.8 See Quadir v. N. Y. State D.O.L., No. 13 Civ. 3327, 2016 WL
3633406, at *7, 2016 U.S. Dist. LEXIS 84632, at *20 (S.D.N.Y. June 29, 2016) (“The
complained-of counseling memos . . . are concededly not disciplinary in nature and would not
have deterred a reasonable employee from engaging in protected activity.”), aff’d, 691 F. App’x
674 (2d Cir. 2017); see also Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570
(2d Cir. 2011) (“[W]e have held, in the context of the issuance of a ‘counseling memo,’ that
‘criticism of an employee (which is part of training and necessary to allow employees to
It is also worth noting that Plaintiff was not deterred from raising the same concerns six months later
with The New York Times. See Tepperwien, 663 F.3d at 572.
develop, improve and avoid discipline) is not an adverse employment action.’”) (citation
Plaintiff also suggests that her advocacy on behalf of A.B. resulted in her suspension
without pay in December 2014. (Dkt. No. 86, p. 26). But this adverse action came more than
four years after Plaintiff raised concerns with the Ombudsperson in July 2010. (Dkt. No. 79-3,
pp. 134–35). As discussed above, this sort of gap in time does not permit an inference of
causation, and Plaintiff has not pointed to any other evidence to establish a link. In sum,
viewing all of the facts in the light most favorable to Plaintiff, no reasonable jury could find a
causal connection between Plaintiff’s protected activity, if any, and an adverse action.
Accordingly, Plaintiff’s Rehabilitation Act claim must be dismissed.9
3) New York State Law Claim
Finally, since none of Plaintiff’s federal claims survive summary judgment, the Court
declines to exercise supplemental jurisdiction over Plaintiff’s state law claim for violation of
New York State Human Rights Law.10 See 28 U.S.C. § 1367(c)(3); Snow v. Village of
Chatham, 84 F. Supp. 2d 322, 329 (N.D.N.Y. 2000).
For these reasons, it is
Furthermore, Defendants have articulated a legitimate, non-retaliatory reason for Plaintiff’s December
2014 suspension, namely Plaintiff’s insubordination. (Dkt. No. 79-36, pp. 24-25). Plaintiff has admitted
to some of the underlying conduct, (Dkt. No. 79-2, pp. 164–71, 211–14; Dkt. No. 79-5, pp. 8–9, 13–14),
which is similar to past allegations of insubordination. (See Dkt. No. 79-3, pp. 8, 107–08). Although
Plaintiff disagrees with Defendants’ characterization of certain events and offers explanations for her
actions, (Dkt. No. 86, pp. 16–20), she has not pointed to any evidence that Defendants’ cited reason for
suspending her was a pretext for impermissible retaliation.
Plaintiff’s NYSHRL claim may also be deemed abandoned since Plaintiff has failed to respond to
Defendants’ substantive arguments in favor of summary judgment. See Haining Zhang v. Schlatter, 557
F. App’x 9, 13 (2d Cir. 2014) (deeming claims abandoned where the “plaintiffs have failed meaningfully
to challenge the dismissal of their claims”); Brandon v. City of New York, 705 F. Supp. 2d 261, 268
(S.D.N.Y. 2010) (dismissing claims as abandoned where the plaintiff “did not raise any arguments
opposing Defendants’ motion regarding these . . . claims”) (citing cases).
ORDERED that Defendants’ motion for sanctions or alternatively summary judgment
(Dkt. No. 79) is GRANTED in part and DENIED in part; and it is further
ORDERED that Defendants’ request for sanctions is DENIED; and it is further
ORDERED that summary judgment is GRANTED; and it is further
ORDERED that The Third Amended Complaint (Dkt. No. 58) is DISMISSED with
IT IS SO ORDERED.
Date: November 9, 2017
Syracuse, New York
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