Brooking v. New York State Department of Taxation and Finance et al

Filing 59

DECISION AND ORDER granting # 45 Defendants' Motion for Summary Judgment in its entirety. Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 3/21/18. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
JOSEPH BROOKING,
Plaintiff,
v.

1:15-CV-0510
(GTS/CFH)

THOMAS MATTOX, in his Individual
Capacity; and JAMIE WOODWARD,
in her Individual Capacity,
Defendants.
___________________________________________
APPEARANCES:

OF COUNSEL:

SUSSMAN & WATKINS LAW FIRM
Counsel for Plaintiff
331 East 70th Street
New York, New York 10021

CHRISTOPHER D. WATKINS, ESQ.

HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224

ADRIENNE J. KERWIN, ESQ.
Assistant Attorney General
DENISE P. BUCKLEY, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this employment civil rights action pursuant to 42 U.S.C.
§§ 1981 and 1983 and N.Y. Exec. L. § 296(6) (“NYHRL § 296(6)”) filed by Joseph Brooking,
("Plaintiff") against Thomas Mattox and Jamie Woodward (“Defendants”), is Defendants’
motion for summary judgment. (Dkt. No. 45.) For the reasons set forth below, Defendants’
motion for summary judgment is granted.

I.

RELEVANT BACKGROUND
A.

Plaintiff's Complaint

On July 5, 2015, multiple claims in Plaintiff’s Complaint were dismissed in response to
Defendants’ motion to dismiss Plaintiff’s Complaint for failure to state a claim. (Dkt. No. 27
[Decision & Order, 7/5/2016].) Of the claims alleged in the Complaint, the only surviving
claims allege that Defendants retaliated against Plaintiff for complaining of discrimination in
violation of 42 U.S.C. §§ 1981 and 1983, and that they aided and abetted retaliatory conduct in
violation of NYHRL § 296(6). (Dkt. No. 1, at ¶ 69 [Compl.].) Plaintiff’s requested relief
includes compensatory damages, punitive damages, reinstatement or award of front pay, and the
award of reasonable attorneys’ fees. (Id. at ¶ 70.)
B.

Undisputed Material Facts on Defendants’ Motion for Summary Judgment

Before reciting the undisputed material facts in this case, the Court notes that Plaintiff
has made a significant number of denials of Defendants’ asserted facts, stating specifically that
the evidence cited by Defendants did not support the asserted facts. (Dkt. No. 52, Attach.1, at ¶¶
67-72, 84-85, 113-71, 175, 180, 188-90, 196, 199 [Pl.’s Rule 7.1 Resp.].) However, not only
does the evidence cited by Defendants support their asserted facts, but Plaintiff’s denials either
(a) do not include any citations whatever, or (b) include citations that do not actually support his
denials. (Id.) Similarly, Plaintiff has made a number of denials based on the existence of
evidence not cited by Defendants; however, the evidence Plaintiff cited does not support those
denials. (Id. at ¶¶ 54, 57-59, 73, 80, 82, 87-89, 101-02, 107-08, 197.) As a result, all of these
facts are deemed admitted based on Plaintiff’s failure to properly deny them in accordance with

2

N.D.N.Y. L.R. 7.1(3).1
Unless otherwise noted, the following facts were asserted and supported with accurate
record citations by Defendants in their Statement of Material Facts and expressly admitted by
Plaintiff in his response thereto or denied without appropriate record citations.2 (Compare Dkt.
No. 45, Attach. 51 [Defs.’ Rule 7.1 Statement] with Dkt. No. 52, Attach. 1 [Pl.’s Rule 7.1
Resp.].)
1.

Defendant Jamie Woodward was employed by the Department of Taxation and
Finance (“DTF”) from 1980 until she retired in July 2013.

2.

Woodward was employed by the DTF as a Deputy Commissioner of the Office of
Tax Processing from June 2007 until April 2008, when she was promoted to
Executive Deputy Commissioner, a position she held until she retired.

3.

In 2009, in addition to holding the position of Executive Deputy Commissioner,
Woodward took the position of Acting Commissioner of the DTF.

1

See N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005)
(upholding grant of summary judgment where “[t]he district court, applying Rule 7.1[a][3]
strictly, reasonably deemed [movant’s] statement of facts to be admitted” because the
non-movant submitted a responsive Rule 7.1[a][3] statement that “offered mostly conclusory
denials of [movant’s] factual assertions and failed to include any record citations”); Aktas v.
JMC Dev. Co., Inc., 877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012) (D’Agostino, J.) (accepting the
third-party defendants’ statement of material facts as true because the defendant/third-party
plaintiff failed to respond to it in accordance with N.D.N.Y. Local Rule 7.1[a][3]); Archie Comic
Publ’ns, Inc. v. DeCarlo, 258 F. Supp. 2d 315, 319 (S.D.N.Y. 2003) (holding that “the facts set
forth in [plaintiff’s] statement are deemed established” where defendant denied assertions in
plaintiff’s S.D.N.Y. Local Rule 56.1 statement but declined to provide record citations in
support).
2

The Court notes that many of the paragraph numbers Defendants provided with
regard to Woodward’s declaration were often not correct; however, because the Court was easily
able to find the cited statements within the declaration, it has considered these statements to be
cited with sufficient specificity for the purpose of this Statement of Undisputed Material Facts.
3

4.

Woodward was Acting Commissioner of the DTF until 2011 when Defendant
Thomas Mattox was appointed as Commissioner.

5.

When Woodward retired from the DTF, she did not retain any documentation,
including e-mails, that she created during the course of her employment there.

6.

As Executive Deputy Commissioner, Woodward’s duties included the following:
(a) providing strategic and operational leadership for the agency; (b) providing
oversight of the day-to-day operations of the DTF in accordance with the policy
set by the Commissioner; (c) effectuating the Department’s vision, mission, and
goals through management of the agency; (d) working closely with program
managers and senior staff to ensure that the DTF operations were consistent with
the Commissioner’s and the Governor’s policy direction; (e) managing and
allocating scarce resources across competing program areas; and (f) representing
the Commissioner in official capacities.

7.

Mattox was employed as Commissioner of the DTF from January 2011 through
January 2015.

8.

As Commissioner, Mattox’s duties included the following: (a) oversight of all
administrative functions and activities pertaining the establishment and support of
New York State tax policies; (b) compliance with and enforcement of state laws
and regulations associated with more than 40 individual and commercial tax
programs; and (c) provision of taxpayer services.

9.

Mattox is a member of the same race-based protected class as Plaintiff and is
approximately the same age as Plaintiff.

4

10.

During Mattox’s term as Commissioner, all senior members of the DTF,
including Plaintiff, had an obligation to recognize the Albany, New York, office
located at the W.H. Harriman Campus as the DTF’s headquarters given the fact
that nearly 50 percent of the DTF’s 5,000 employees were based in Albany.3

11.

Albany serves as the capital of New York State; therefore, access to the
Governor’s staff, the Legislature and its staff, and senior members of other state
agencies was facilitated by the DTF’s headquarters location.

12.

Plaintiff was appointed as Director of the Office of Affirmative Action (“OAA”)
in 2008.4

3

Plaintiff denies this fact, asserting that evidence shows that his “official work
station” was designated first in Manhattan and then in Brooklyn; however, Defendants’
statement does not discuss where Plaintiff’s official work station or main office was located, but
rather where the DTF’s headquarters was located. (Compare Dkt. No, 45, Attach. 51, at ¶ 11
[Defs.’ Rule 7.1 Statement] with Dkt. No. 52, Attach. 1, at ¶ 11 [Pl.’s Rule 7.1 Resp.].) Because
Plaintiff’s denial does not respond to the asserted fact, this fact is deemed admitted. See
N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant’s responses shall . . . admit[] and/or deny[] each of
the movant’s assertions in matching numbered paragraphs.”) (emphasis added); Yetman v.
Capital Dis. Trans. Auth., 12-CV-1670, 2015 WL 4508362, at *10 (N.D.N.Y. July 23, 2015)
(citing authority for the point of law that the summary judgment procedure involves the
disputation of asserted facts, not the disputation of implied facts); cf Baity v. Kralik, 51 F. Supp.
3d 414, 418 (S.D.N.Y. 2014) (noting that plaintiff’s responses failed to comply with the court’s
local rules where “Plaintiff’s purported denials . . . improperly interject arguments and/or
material facts in response to facts asserted by Defendants, often speaking past Defendants’
asserted facts without specifically controverting those same facts”); Goldstick v. The Hartford,
Inc., 00-CV-8577, 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) (striking plaintiff’s Rule
56.1 Statement, in part, because plaintiff added “argumentative and often lengthy narrative in
almost every case the object of which is to ‘spin’ the impact of the admissions plaintiff has been
compelled to make”).
4

Plaintiff denies this fact “as characterized,” noting that he did not actually assume
the role of Director until spring of 2009. (Dkt. No. 52, Attach. 1, at ¶ 16 [Pl.’s Rule 7.1 Resp.].)
However, in the deposition testimony that Plaintiff cites, he admits that he was in fact appointed
(and saw an increase in his paycheck) sometime in 2008, although he was not announced as
Director until spring of 2009. (Dkt. No. 45, Attach. 3, at 11:2-6 [Pl.’s Dep.].) Plaintiff therefore
has not cited evidence contradicting Defendants’ factual assertion. Archie Comic Publ’ns, Inc.,
258 F. Supp. 2d at 319; N.Y. Teamsters, 426 F.3d at 648-49.
5

13.

Woodward held the position of Executive Deputy Commissioner when Plaintiff
was appointed to lead the DTF’s diversity and affirmative action program in
2008.

14.

In 2009, the OAA became the Office of Diversity and Affirmative Action
(“ODAA”).

15.

As Director of the ODAA, Plaintiff reported to Woodward as his direct supervisor
and to Mattox as his second level supervisor.

16.

Plaintiff’s position was classified as “exempt” and “management/confidential,”
which is a non-statutory position that is exempt from the competitive examination
and interview process required for other New York State agency positions.

17.

As such, Plaintiff was politically appointed to an executive level position at the
direction of then-Governor Patterson’s office, and he served at the pleasure of
both the Commissioner of the DTF and the Governor.

18.

Upon Plaintiff’s appointment as Director, he became a member of the DTF’s
Senior Staff and Executive Leadership Group (“ELG”).

19.

The Senior Staff included Woodward’s “key direct reports” (including all those
on Executive Row), while the ELG was a broader group of leaders within the
DTF that included the Deputy Commissioners, division managers, and bureau
directors for the various units within the division.

20.

After the OAA became the ODAA, the DTF provided Plaintiff and the ODAA
with a substantially increased staff, intending and expecting to raise the profile of
the office; the DTF and Woodward were committed to the goals and objectives of
affirmative action and diversity in the workplace.
6

21.

From the time Plaintiff became Director until the time he retired in June 2013, he
had a long history of not only failing to properly perform the requirements of the
position of Director, but also of failing to follow the directions and orders of his
superiors, including the following: (a) failing to attend mandated meetings; (b)
ignoring repeated directives to work at the DTF’s headquarters in Albany, New
York; (c) continuously failing to advise his supervisors of his whereabouts to the
point where he could often not be located; (d) failing to perform duties and
assignments himself and instead repeatedly delegating his responsibilities to
subordinates; (e) failing to appropriately supervise subordinates; (f) allowing DTF
assignments to be continuously late, not completed, or not prepared well; (g)
allowing investigations of discrimination complaints to be delayed for extended
periods of time;and (h) and allowing responses to both the EEOC and the New
York State Department of Human Rights (“DHR”) to be inexcusably late on
numerous occasions.5

5

Plaintiff denies this “broad negative characterization,” arguing that it is not
reflected by the actual facts; however, Plaintiff does not cite to specific facts that contradict this
characterization. (Dkt. No. 52, Attach. 1, at ¶ 27 [Pl.’s Rule 7.1 Resp.].) Plaintiff notes only that
he has made positive impacts as ODAA Director and that he never received any performance
evaluations or written counseling before the date he was terminated. (Id.) However, the fact that
Plaintiff had some successes during his tenure as Director and that he never received formal
evaluations or discipline does not contradict the asserted fact involving deficiencies in aspects of
Plaintiff’s performance as Director. Notably, Plaintiff failed to cite any evidence showing that
did not engage in the activities described by Defendants to some extent. Archie Comic Publ’ns,
Inc., 258 F. Supp. 2d at 319; N.Y. Teamsters, 426 F.3d at 648-49; see also Baity, 51 F. Supp. 3d
at 418. These facts are therefore deemed admitted.
7

22.

At all times relevant to this litigation, the DTF’s principal offices were located in
Albany, including the principal ODAA office.6

23.

Ellen Mindel was based in the Albany office when she served as manager of the
OAA.

24.

Throughout Woodward’s employment as Acting Commissioner and as Executive
Deputy Commissioner, Woodward maintained her office in Albany, New York.

25.

Indicating the level of executive support of the ODAA and to promote personal
interactions between Plaintiff and the other executives, the DTF provided Plaintiff
with an office on the executive floor of the DTF’s offices (known as Executive
Row) and paid all his travel expenses to and from Albany.

26.

When Plaintiff was first appointed as Director of the ODAA, Woodward ordered
Plaintiff to attend all ELG and Senior Staff meetings, all of which took place in
Albany, New York.

27.

Woodward eventually started to memorialize directives about being in the Albany
office as often as required and attending ELG and Senior Staff meetings in e-mail
correspondence to Plaintiff because of Plaintiff’s non-compliance.7

6

Plaintiff denies that portion of Defendants’ asserted fact which states that “Senior
Staff were based in the Albany office.” (Compare Dkt. No. 45, Attach. 51, at ¶ 29 [Defs.’ Rule
7.1 Statement] with Dkt. No. 52, Attach. 1, at ¶ 29 [Pl.’s Rule 7.1 Resp.].) Based on the
evidence Plaintiff cited and the lack of clarity as to whether Defendants intended phrases like
“based” and “principal office” to mean “headquarters” rather than “official workstation,” the
Court finds that Plaintiff has made a valid denial of the remainder of this asserted fact. See,
supra, note 3 of this Decision and Order (discussing the difference between “headquarters” and
“official workstation”).
7

Plaintiff denies this factual assertion, stating only “[s]ee the referenced emails for
the best evidence of their contents.” (Dkt. No. 52, Attach. 1, at ¶ 40 [Pl.’s Rule 7.1 Resp.].)
However, Plaintiff does not cite where in the copious record evidence those specific emails can
be found. Because Plaintiff’s denial does not comply with L.R. 7.1 and the Court has no duty to
8

28.

Woodward explained to Plaintiff that the DTF’s principal offices were located in
Albany, that the Agency’s Senior Staff were based in the Albany Office, that
much of his staff were in Albany, and that his failure to be present at the Albany
office as often as required caused him to fail to build professional relationships
with other executives as repeatedly directed by Woodward.8

29.

At all times relevant to this litigation, the DTF maintained District Offices
throughout the state from which more than 25-percent of DTF employees
performed audits, collections, and other operations.

30.

During his four years as Director, Plaintiff never visited the District Offices in
Syracuse, Rochester, Utica, and Binghamton, and went to the Queens, Buffalo,
Suffolk, and Nassau District Offices only one time each.

31.

When all members of the Executive staff were asked in 2012 to speak at an
opening event for the new Metrotech office, Plaintiff declined to represent the
ODAA himself and instead asked for volunteers; ultimately, another staff member
represented the ODAA.9

sua sponte scour the record for the non-specific emails Plaintiff intends to reference, this fact is
deemed admitted. See N.D.N.Y. L.R. 7.1(3) (“Each denial shall set forth a specific citation to
the record where the factual issues arise.”).
8

Plaintiff denies this asserted fact “as characterized”; however, his citation to
portions of his declaration does not contradict Defendants’ assertion that Woodward made such
explanations to Plaintiff. (Compare Dkt. No. 45, Attach. 51, at ¶ 44 [Defs.’ Rule 7.1 Statement]
with Dkt. No. 52, Attach. 1, at ¶ 44 [Pl.’s Rule 7.1 Resp.].) This fact is therefore deemed
admitted. Archie Comic Publ’ns, Inc., 258 F. Supp. 2d at 319; N.Y. Teamsters, 426 F.3d at
648-49.
9

Plaintiff denies this asserted fact “as characterized”; however, the cited evidence
does not contradict the fact that Plaintiff allowed another member of his staff to speak in his
place. (Dkt. No. 52, Attach. 1, at ¶ 51 [Pl.’s Rule 7.1 Resp.].) This fact is therefore deemed
9

32.

When Plaintiff began his role as an executive, Woodward explained to him that,
rather than being required to obtain specific pre-approval for time off, Woodward
expected that a person at the executive level would weigh the responsibilities of
his or her position with the desire for time off and would take time off when it did
not conflict with responsibilities; Woodward’s direct reports needed only to notify
her what time they needed off and approval was presumed unless specifically
advised otherwise.10

33.

There were numerous occasions when Woodward and other members of
Woodward’s staff were looking for Plaintiff and did not know where he was.

34.

Woodward eventually directed Plaintiff to report his time to Woodward’s
assistant, so that her assistant could track Plaintiff’s use of time without
Woodward needing to do so personally.

35.

Despite numerous directives on this issue, Plaintiff refused to report his time off
on any regular basis.

36.

Initially, Woodward communicated her directives on this issue to Plaintiff
verbally; but, eventually, Woodward felt it was necessary to memorialize these
directives in writing.

admitted. Archie Comic Publ’ns, Inc., 258 F. Supp. 2d at 319; N.Y. Teamsters, 426 F.3d at
648-49;.Baity, 51 F. Supp. 3d at 418.
10

Plaintiff admits that “Woodward did not need to pre-approve plaintiff’s time off,”
but does not explicitly deny the rest of the asserted fact or provide evidence to support any such
partial denial. (Dkt. No. 52, Attach. 1, at ¶ 52 [Pl.’s Rule 7.1 Resp.].) The entire asserted fact is
therefore deemed admitted.
10

37.

Woodward also learned that Plaintiff failed to comply with the DTF’s
requirement that he conduct prompt, thorough, and impartial investigations.

38.

Plaintiff and his staff failed to comply with the DHR order setting the deadlines
for the DTF’s responses on at least six complaints.11

39.

Plaintiff and his staff also failed to comply with the deadlines mandated by the
EEOC for the DTF to respond to at least five charges.12

40.

The written policy for investigating internal complaints was changed to extend
the time from 60 days to 120 days.

41.

Woodward became aware that ODAA staff members, including Steven
McGough, went out to dinner with people who had initiated complaints through
ODAA, investigated complaints involving complainants they knew personally,
and exchanged e-mails with complainants that were more friendly in nature than
an impartial investigation required.

42.

Woodward became aware that, on one occasion, Plaintiff knowingly permitted
another staff member, Cheryl Mitchell, to investigate a complaint of
discrimination against an accused with whom she had a personal conflict.

11

Plaintiff denies this fact, asserting that the cited evidence does not support
Defendants’ proposition. (Dkt. No. 52, Attach. 1, at ¶ 60 [Pl.’s Rule 7.1 Resp.].) However, the
cited exhibit shows that, for numerous complaints in 2011 and 2012, ODAA either (a) did not
respond, resulting in a letter from DHR questioning the non-responsiveness, or (b) responded
past the 15-day period set for response. (Dkt. No. 45, Attach. 24.) This fact is therefore deemed
admitted.
12

As was the case in footnote 11 of this Decision and Order, Plaintiff’s denial based
on his assertion that the cited evidence does not support Defendants’ asserted fact is contrary to a
review of that evidence. (Dkt. No. 52, Attach. 1, at ¶ 61 [Pl.’s Rule 7.1 Resp.].) This fact is
therefore deemed admitted.
11

43.

Woodward also became aware that, before this investigation, Ms. Mitchell had
had numerous arguments with the accused when they worked together and some
of those arguments involved the complainant.

44.

During the investigation, the accused complained to Woodward that the ODAA
staff member was treating him inappropriately.

45.

In 2012, Mattox and Woodward were briefed by Argi O’Leary, Assistant Deputy
Commissioner of Litigation Strategy, that the ODAA was missing legal deadlines
on many responses to the DHR and EEOC, and that their investigations were
inadequate and lacked impartiality.

46.

At that point, Woodward had had numerous conversations with Plaintiff directing
him to promptly investigate the complaints, timely serve responses to both
entities, and address issues regarding the improper investigations.

47.

Woodward previously had advised Plaintiff on numerous occasions that he and
his staff had to conduct the investigations of internal complaints in a much more
timely fashion because it was not fair to the complainant, the accused, or the
managers involved to have complaints languish.

48.

Woodward was made aware that Plaintiff’s staff was conducting investigations of
individuals who were already close to them and were appearing to make friends
with individuals they first met through investigations.13

13

Plaintiff denies this asserted fact; however, the only portion of his denial that is
supported by the cited evidence relates to whether Woodward spoke to Plaintiff about whether
the investigations were impartial. (Dkt. No. 52, Attach. 1, at ¶ 74 [Pl.’s Rule 7.1 Resp.].) The
remainder of Defendants’ asserted fact is therefore deemed admitted.
12

49.

As Director of the ODAA, Plaintiff was required to maintain a working
knowledge of equal employment opportunity (“EEO”) initiatives and all
applicable laws.

50.

Due to Plaintiff’s failure to take certification courses, Plaintiff was unable to
conduct many of the training courses offered by the ODAA.

51.

As a result, Plaintiff was unable to assist his certified staff as they conducted
hundreds of training classes for the DTF.14

52.

Plaintiff also refused to attend in-house training specifically for the ODAA.

53.

The DTF conducted a three-day investigative training course in Albany from July
10th to July 12th, 2012, which was required for all ODAA, Labor Relations, and
Office of Internal Affairs (“OIA”) employees.

54.

This training was organized to address concerns regarding the inadequacy of
ODAA investigations and was intended to ensure that the staff of all three
investigative units were using consistent procedures to conduct proper, effective
investigations.

55.

Although Plaintiff attended the first day of training, he left without notice,
without explanation, and without Woodward’s permission, and did not attend the
final two days.

14

Plaintiff denies this asserted fact; however, his citation, while providing evidence
of trainings conducted by ODAA staff during his tenure as Director, does not contradict
Defendants’ assertion that Plaintiff himself was unable to or did not personally conduct these
training classes. (Compare Dkt. No. 45, Attach. 51, at ¶ 81 [Defs.’ Rule 7.1 Statement] with
Dkt. No. 52, Attach. 1, at ¶ 81 [Pl.’s Rule 7.1 Resp.].) Archie Comic Publ’ns, Inc., 258 F. Supp.
2d at 319; N.Y. Teamsters, 426 F.3d at 648-49.
13

56.

With respect to the DTF’s hiring and promotional activities, the DTF’s policy
required the ODAA to participate in new-hire and promotional interviews in order
to promote (and monitor) the DTF’s compliance with its affirmative action goals.

57.

While Plaintiff was not expected to participate in all interviews or job fairs on a
regular and consistent basis, he was expected that he participate in some higherlevel interviews and higher-profile job fairs.

58.

Woodward learned that Plaintiff, however, did not participate in these interviews.

59.

Moreover, Plaintiff rarely participated in the many job fairs in which the ODAA
participated to attract protected class members to the DTF.

60.

On November 15, 2009, Woodward sent an e-mail to Plaintiff in which she stated
that, “as far as I know, I am STILL waiting for your more sketched-out workplan
with dates per our e-mails in October. When will you have it for me????”

61.

Plaintiff did not respond to Woodward’s request until two weeks later (on
December 1, 2009), and stated that “it is my intention to present the ODAA
operational/work plan by the time of our meeting next week.”15

62.

On July 27, 2010, Woodward asked Plaintiff why he was not responding to the email request for comments on proposed legislation.16

15

Plaintiff “objects” to this asserted fact as “argumentative” and requests that the
Court refer to the e-mails themselves; however, Plaintiff does not deny this (non-argumentative)
factual assertion, which is supported by the record evidence cited. (Dkt. No. 52, Attach. 1, at ¶
95 [Pl.’s Rule 7.1 Resp.].)
16

Plaintiff “objects” to this asserted fact and requests that the Court refer to the emails themselves; however, Plaintiff does not deny this factual assertion, which is supported by
the record evidence cited. (Dkt. No. 52, Attach. 1, at ¶ 97 [Pl.’s Rule 7.1 Resp.].)
14

63.

Woodward reminded Plaintiff that she needed products ahead of time for review;
he was not to give her items requiring her internal review on or after their external
due dates.

64.

Woodward worked on subsequent reports with ODAA staff member Ms. Mindel
because Plaintiff did not involve himself in the reports at all.

65.

In May 2011, the ODAA, in conjunction with the Management Analysis and
Project Services (“MAPS”) Bureau, developed and conducted a department-wide
survey questioning employees on issues related to diversity and affirmative
action.

66.

Although MAPS provided the survey results to the ODAA within a couple of
months, Plaintiff indicated he was unsatisfied with the results and wanted to look
into it further.17

67.

Although Woodward requested the ODAA’s analysis of the results of the survey
on numerous occasions, Plaintiff and his staff did not provide the report until
November 2012, more than a year-and-a-half after the survey was conducted.18

68.

Due to the considerable amount of time that passed between publication of the
survey results and the ODAA’s analysis, Mattox refused to publish the report

17

Plaintiff denies this asserted fact as characterized, noting that MAPS provided the
preliminary findings in September 2011; however, Plaintiff does not deny this fact other that to
object to Defendants’ characterization of “a couple of months.” (Dkt. No. 52, Attach. 1, at ¶ 104
[Pl.’s Rule 7.1 Resp.].) This fact is deemed admitted.
18

Plaintiff denies this asserted fact, but his denial consists of adding facts in an
attempt to explain why it took so long to render the report; however, these explanations do not
contradict Defendants’ asserted fact. (Dkt. No. 52, Attach. 1, at ¶ 105 [Pl.’s Rule 7.1 Resp.].)
This fact is deemed admitted. Baity, 51 F. Supp. 3d at 418.
15

because it was stale.19
69.

In addition, the report was poorly executed and not a factual representation of the
survey results.

70.

Because of ODAA’s failure, under Plaintiff’s directorship, to publish the report
analyzing the MAPS survey results in a timely manner, the DTF incurred a
significant expense in producing a report without receiving a return on costs.

71.

According to the DTF’s Office of Budget and Management Analysis, the
approximate personnel costs for the MAPS bureau alone to prepare this survey
were in the amount of $16,000.00.

72.

On July 5, 2011, Woodward e-mailed Plaintiff asking him for a strategic plan as
had been requested by Mattox.20

73.

In a later e-mail, Woodward advised Plaintiff that “since [Mattox] was the one
who asked for it I would have thought you would have been more responsive.”21

74.

On February 22, 2012, Woodward had a meeting with Plaintiff and the DTF’s
Director of Human Resources (“HR”) regarding action steps for handling
complaints of employees who had been terminated on probation.

19

Plaintiff denies this asserted fact, citing to his declaration, in which he admits that
Mattox “told [him] that he would not release the survey report because he claimed it was
‘stale.’” (Dkt. No. 52, Attach. 1, at ¶ 106 [Pl.’s Rule 7.1 Resp.].) The fact that Plaintiff does not
believe that the report was stale does not contradict Defendants’ stated fact that Mattox believed
the report was stale. This fact is therefore deemed admitted. Archie Comic Publ’ns, Inc., 258 F.
Supp. 2d at 319; N.Y. Teamsters, 426 F.3d at 648-49.
20

Plaintiff denies this asserted fact, arguing that the cited exhibit does not contain
the relevant e-mail relied on by Defendants. (Dkt. No. 52, Attach. 1, at ¶ 111 [Pl.’s Rule 7.1
Resp.].) However, emails from July 5, 2011, referencing a “plan” Plaintiff was to work on are in
the cited exhibit. (Dkt. No. 45, Attach. 30, at 6.) This fact is therefore deemed admitted.
21

See, supra, note 20 of this Decision and Order.
16

75.

On February 23, 2012, Woodward sent an e-mail instructing both Directors to
write the action steps of ODAA and HR.

76.

Although the Director of HR responded the same day, Woodward had to send
Plaintiff another email six days later (on February 29, 2012) asking him to
provide her with the information.

77.

Plaintiff provided Woodward with the requested information on March 2, 2012.

78.

In a June 8, 2012, e-mail, Woodward directed all of her subordinates, including
Plaintiff, to provide a report by June 15, 2012, regarding how they each
celebrated public service recognition.

79.

On June 14, 2012, a reminder email was sent.

80.

On June 15, 2012, a third e-mail was sent to Plaintiff asking for his report.

81.

On July 30, 2012, Woodward forwarded to Plaintiff an e-mail that she had
previously sent to him on February 1, 2012, seeking a report, and asked whether
he had ever provided it.

82.

Plaintiff confirmed that he had not sent the report and indicated that they were
still working on the report of the survey from Spring 2011, which would give the
answers Woodward was seeking.

83.

Woodward also asked Plaintiff whether he had made a misconduct referral related
to a different matter as discussed in a previous meeting.

84.

Only at that point did Plaintiff make the referral, prompting Woodward to ask
why it took a week to do so.

85.

Plaintiff advised Woodward that, although it was difficult for him to make the
referral for personal reasons, he did as she directed.

17

85.

On August 8, 2012, Woodward reminded Plaintiff that he had not provided her
with his weekly summary of activities for three separate weeks.

86.

In addition to Plaintiff’s failure to provide timely reports, Plaintiff made and
implemented policies and procedures for the ODAA before obtaining
Woodward’s authorization, which he was not permitted to do because all policies
and procedure changes in the ODAA had to be approved by Woodward.

87.

For example, Woodward learned that Plaintiff was tape-recording witnesses and
administering oaths during investigations without receiving authority from
Woodward to do so.

88.

Woodward was forced to direct Plaintiff to end these practices because they upset
the unions and prompted concerns that complainants and witnesses would not
come forward if they knew they would be tape-recorded.

89.

In July 2011, Plaintiff sent a department-wide e-mail regarding changes related to
requests for reasonable accommodation without first discussing it with Woodward
or bringing it to the attention of Senior Staff.

90.

In 2012, Mattox directed Ms. O’Leary, the newly hired Assistant Deputy
Commissioner of Litigation Strategy, to review ODAA operations, particularly its
investigations.

91.

Ms. O’Leary informed Mattox and Woodward that, through her investigation, she
learned that the ODAA was consistently late in responding to external claims
from the EEOC and DHR and consistently took a long time investigating the
internal complaints, sometimes taking more than a year.

18

92.

Ms. O’Leary also informed Mattox and Woodward that ODAA’s investigations
were inadequate and lacked impartiality.

93.

After Ms. O’Leary briefed the Commissioner and Woodward on these issues,
Woodward again had numerous conversations with Plaintiff directing him to
promptly investigate the complaints and timely serve response to both entities.

94.

In an attempt to remediate a significant portion of the ODAA’s issues, Ms.
O’Leary, under the direction of Mattox, planned a three-day investigative training
course in Albany that was mandatory for all members of the ODAA, Labor
Relations, and OIA to ensure that the members of all three units were properly
trained in investigations and that the investigations were conducted consistently
and properly throughout the DTF.

95.

The training course was scheduled to take place in Albany because the majority
of attendees were based there.

96.

To prepare for the training course, each of the Directors was asked to meet with
the trainer on a date before the training.

97.

Plaintiff, instead of attending the preparation meeting personally, once again sent
his employee, Ms. Mindel, in his place.

98.

When Plaintiff informed Ms. Mindel about the upcoming training course, Plaintiff
specifically advised her that it was a three-day course and said, “[A]ll ODAA
staff should be present;” yet, again, Plaintiff himself did not personally attend it.

99.

Pursuant to Mattox’s directive Ms. O’Leary also organized a meeting on June 14,
2012, of the DTF’s Director of Labor Relations, Director of Internal Affairs,

19

Plaintiff as Director of the ODAA, and Chief Risk Officer to create a departmentwide investigations policy so that all entities conducting investigations would do
so under the same rules.
100.

Ms. O’Leary advised Woodward that Plaintiff failed to attend this meeting,
sending Ms. Mendel in his place.

101.

Ms. O’Leary further advised Woodward that, while the other Directors came to an
agreement on a department-wide investigation policy during that meeting, Ms.
Mindel asked for time for Plaintiff to review it.

102.

While Ms. O’Leary granted Ms. Mindel’s request for additional time, Ms.
O’Leary advised Ms. Mindel that she wanted their response by Monday to send to
Mattox and Woodward.

103.

Ms. Mindel forwarded the e-mail to Plaintiff on June 15, 2012.

104.

As a result, Woodward again spoke to Plaintiff about his failure to work in
Albany, appear for meetings, respond to requests for information or reports, and
obtain preapproval for leave.

105.

In addition, Woodward told Plaintiff that, because Department personnel had
difficulty locating him on many occasions due his violations of policy and
Woodward’s directives, he needed to advise Woodward’s secretary, Ms. Hoerz,
of his location daily and inform her ahead of time when he was going to travel.

106.

Woodward apprised Mattox of her meeting with Plaintiff and Woodward’s
continued mandates.

20

107.

Plaintiff failed to attend the second and third day of the three-day investigation
training that took place from July 10 through July 12, 2012, violating
Woodward’s direction for him to be present for all three days of training.

108.

Woodward later learned that, after attending the first day of training on July 10th,
Plaintiff left Albany on the morning of July 11th and returned to his home in New
Rochelle, New York, without advising anyone of that fact or obtaining
Woodward’s permission to do so.

109.

Woodward was advised that Plaintiff’s secretary contacted Ms. Hoerz and told
her that Plaintiff was going to New York City and would not be back to work
until the next day, July 12th.

110.

Plaintiff did not appear back in his office at Metrotech in Brooklyn until
Thursday, July 12th, even though the investigation training course was still taking
place in Albany and the rest of his staff and the Labor Relations and OIA were
there.

111.

On July 16, 2012, Woodward met with Plaintiff, at which time she addressed his
failure to comply with her orders to (a) attend the training, (b) advise her that he
intended to be away before going, and (c) not take time off from work without
preapproval.

112.

Plaintiff cited a July 12th continuing legal education (“CLE”) course at his
Metrotech office as an excuse for his failure to stay for the entire investigative
training.

21

113.

However, Woodward learned through a review of DTF records that (a) Plaintiff
was notified of the availability of this CLE for the first time on June 13, 2012, the
day after Ms. Mindel advised him by e-mail that the mandated investigation
training course was taking place from July 10th through July 12th, (b) the CLE
did not start until 1 pm on July 12th, such that Plaintiff could have stayed for the
training course on July 11th, and (c) Plaintiff was merely watching a webcast of
the CLE at the Metrotech office when the live class was actually taking place at
the DTF’s Albany office.

114.

Therefore, had Plaintiff requested and received permission from Woodward, as
per proper protocol, to attend the CLE in lieu of the last half-day of the training
course, he could have attended two-and-a-half days of the training course before
attending the three-hour CLE, which started at 1 pm in the Albany offices where
the investigation training was also taking place.

115.

More importantly, Plaintiff skipped an important training course in order to
address his personal need for CLE credits.

116.

Plaintiff’s status as an attorney was not a requirement of his position; however,
the investigation training was directly job-related.

117.

During Woodward’s meeting with Plaintiff on July 16, 2012, she once again
ordered Plaintiff to advise Ms. Hoerz of his location daily and to provide her with
a weekly summary of his activities.

118.

Woodward also addressed other ODAA issues with Plaintiff during that meeting,
including Mattox’s desire for a Buffalo Plan of Action, i.e., a plan to address
complaints of discrimination and related issues in the Buffalo district office.

22

119.

Plaintiff advised Woodward that he was concerned and one of the complaints he
was addressing made him uncomfortable because he liked the accused and he was
uncomfortable reporting information suggesting that this person might be working
out of a different office than where he was assigned.

120.

Woodward advised Plaintiff that a failure to report possible misconduct was
unacceptable and the matter needed to be referred for investigation.

121.

Woodward also told Plaintiff that he needed to inform her immediately whenever
there was a possibility of a conflict of interest so they could decide if he needed to
recuse himself.

122.

Woodward apprised Mattox about her June 16, 2012, meeting with Plaintiff.

123.

Ms. Hoerz was required to certify Plaintiff’s time report as correct, but she
advised Woodward that she was unable to do so because Plaintiff failed to follow
the order to advise Ms. Hoerz of his location daily.

124.

Under Woodward’s direction, Ms. Hoerz e-mailed Plaintiff on August 2, 2012,
advising him that there were many days on his previous time report that she could
not approve because she did not hear from him and did not know where he was
during business hours.

125.

Plaintiff replied that is was not his understanding that he had to advise Ms. Hoerz
on a daily basis of his location.

126.

Ms. Hoerz responded that she told him to provide an e-mail at the beginning and
at the end of the day to let her know where he was.

23

127.

On August 8, 2012, Ms. Hoerz re-sent to Plaintiff an April 5, 2012, e-mail that
was originally sent to all ELG members requiring that they report all outside
meetings because Plaintiff was continuing to refuse to comply with that directive.

128.

On August 2, 2012, Plaintiff sent an e-mail to Mattox and Woodward
complaining that he was being “scrutinized to this degree” regarding his time
during 2012; he listed the July 12, 2012, CLE as an excuse for any discrepancies
in his time report and stated that he had never abused time before.

129.

In response, Woodward scheduled a meeting with Plaintiff for August 9, 2012, to
reinforce Woodward’s directive that Plaintiff had to provide his time to Ms.
Hoerz because she was responsible for attesting to the accuracy of his time
reports and could not do so when he was rarely in Albany, never requested
preapproval for use of leave, and decided on his own when to come and go and
when to travel.

130.

Because the DTF had received reports of discrimination complaints from its
Buffalo district office, Mattox and Woodward determined in 2012 that an action
plan was needed to address the issues there.22

131.

To facilitate faster movement on the plan, Mattox scheduled a meeting for
October 9, 2012, to discuss the next steps with respect to creating a better work
environment in the Buffalo district office.

22

Plaintiff denies that Mattox was directly involved in this decision; however, the
portions of his declaration that Plaintiff cites do not support this denial. (Dkt. No. 52, Attach. 1,
at ¶ 173 [Pl.’s Rule 7.1 Resp.].) This fact is therefore deemed admitted. Archie Comic Publ’ns,
Inc., 258 F. Supp. 2d at 319; N.Y. Teamsters, 426 F.3d at 648-49.
24

132.

Plaintiff asked Woodward if he could invite individuals from Buffalo to the
October 9, 2012, meeting with Mattox, to which Woodward replied that Plaintiff
must make sure that he was “prepared to carry the ball in the meeting.”23

133.

As a result of that meeting, Mattox determined that the ODAA would go to
Buffalo in November to effectuate the plan.

134.

Woodward directed Plaintiff to create a timeline for the action plan, three separate
department-wide “hot news” e-mails, and a message specifically for the Buffalo
district office.

135.

Plaintiff worked to obtain permission to rent a minivan for his travel to Buffalo,
stating that he would “be there for [two to three] days, then back to Albany,” and
that he intended to bring the minivan back on Thursday, November 29, 2012.

136.

Although Woodward directed Plaintiff to provide his script for his remarks for the
Buffalo presentation, he never did.

137.

Plaintiff asked to have Ms. Mindel give the speech at the event in his place.24

138.

Mattox directed Plaintiff to speak because it was part of his job duties and the
event fell directly within the scope of Plaintiff’s duties as Director of the ODAA.

23

Plaintiff denies this asserted fact “as characterized,” urging the Court to read the
cited e-mail for its “true content.” (Dkt. No. 52, Attach. 1, at ¶
177 [Pl.’s Rule 7.1 Resp.].)
However, the cited e-mail does not contradict Defendants’ fact, which is therefore admitted.
24

Plaintiff denies the remainder of this asserted fact as being argumentative rather
than factual. (Compare Dkt. No. 45, Attach. 51, at ¶ 189 [Defs.’ Rule 7.1 Statement] with Dkt.
No. 52, Attach. 1, at ¶ 189 [Pl.’s Rule 7.1 Resp.].) The Court agrees, and therefore has omitted
that portion from this statement of material facts.
25

139.

The week-long Buffalo event had a kick-off in the form of a town hall meeting
with the entire office on the first day, with focus group sessions scheduled for the
rest of the week.

140.

The ODAA staff, including Plaintiff, was required to stay in Buffalo for the entire
week of the event because this work fell directly within ODAA’s job duties.25

141.

The only ODAA staff not present in Buffalo was the individual who conducted all
of the investigations in Buffalo, one member who was brand new, and one
member whose primary job was to answer the phones.

142.

Plaintiff spoke during the town hall meeting on the first day of the event.

143.

Plaintiff did not have anything else scheduled on his calendar that needed to be
done that week in place of the Buffalo project.

144.

Plaintiff was not present for the majority of the most significant ODAA initiative
during his time as Director.

145.

All of the executive-level employees who went to Buffalo expected Plaintiff to
stay in Buffalo for the entire event; to Woodward’s knowledge, Plaintiff never
told the ODAA staff that he was not going to be present for the entire week.

25

Plaintiff denies this asserted fact, arguing that it is “directly belied by the e-mails
contained in Ex. A-3”; however, Plaintiff does not cite a specific e-mail or e-mails that support
his assertion, and the Court has not, during its ordinary review of the record, come across e-mails
stating Plaintiff was not required to be in Buffalo for the week of the conference. (Dkt. No. 52,
Attach. 1, at ¶ 192 [Pl.’s Rule 7.1 Resp.].) This fact is therefore deemed admitted. See, e.g.,
Rizzo v. Health Research, Inc., 12-CV-1397, 2016 WL 632546, at *2 (N.D.N.Y. Feb. 16, 2016)
(“Of these 136 denials, 117 denials do not contain a specific citation to the record. Therefore, the
facts ‘denied’ by these paragraphs will be deemed admitted.”); Benson v. Otis Elevator Co., 10CV-3246, 2012 WL 4044619, at *1, n.1 (S.D.N.Y. Sept. 13, 2012) (deeming fact asserted by
movant to be admitted by non-movant where non-movant supported denial “only with
non-specific citations to the entire testimony of several witnesses”).
26

146.

Woodward expected Plaintiff to stay the entire week and received no prior request
or notification from him that he was not staying for the full event.

147.

Woodward learned that Plaintiff had gone only when his secretary e-mailed her
secretary that he intended to return to the Metrotech office on Wednesday
afternoon.

148.

Plaintiff is believed to have left Buffalo on Tuesday morning, and he returned to
Metrotech at 11:30 am on Wednesday.26

149.

At all times relevant to this litigation, there was a formal process in existence for
DTF staff who believed they were victims of discrimination.

150.

Mr. McGough, who knew the process as an employee of the ODAA, never filed a
formal complaint alleging that the complaints against him were the product of
discrimination or based in discrimination.

151.

Plaintiff never filed a formal complaint alleging that the complaints against Mr.
McGough were the product of discrimination or based on discrimination.

152.

The ODAA had a policy to have the complainant file a formal and confidential
complaint providing details upon which to investigate a claim.

153.

The Director of the ODAA (and the ODAA itself) were encouraged to identify
and root out discrimination and discriminatory practices within the Department.

26

Plaintiff denies this asserted fact; however, he acknowledges that Plaintiff
returned the minivan in Albany on Wednesday and then went to the Metrotech office in
Brooklyn, and that he left Buffalo “the next day” after his presentation. (Dkt. No. 52, Attach. 1,
at ¶ 200 [Pl.’s Rule 7.1 Resp.].) This fact is therefore deemed admitted.
27

154.

In November 2012, following the Buffalo town hall event, Mattox made the
decision to remove the investigatory function from the ODAA and transfer it to
the DTF’s OIA.

155.

Woodward did not participate in the decision to transfer the investigatory function
from the ODAA to the OIA.

156.

Mattox’s decision to remove the investigatory function from the ODAA was
based on a number of factors, including the following: (a) ODAA’s consistent
practice of missing legal deadlines on investigations; (b) the complaints received
about the ODAA’s conduct and timeliness of internal investigations; (c)
Plaintiff’s failure to attend training courses intended to address defects in the
ODAA’s investigation process; (d) and Plaintiff’s failure to coordinate and fully
attend the Buffalo town hall and subsequent events in November 2012 that was a
key DTF initiative attempting to eradicate discrimination in the workplace.27

157.

Woodward advised Plaintiff of the transfer of discrimination investigations from
the ODAA to the OIA, and directed him to assist the OIA in that transition.

27

Plaintiff denies this asserted fact, arguing that Mattox’s decision was purportedly
based on “a comprehensive review that does not exist.” (Dkt. No. 52, Attach. 1, at ¶ 209 [Pl.’s
Rule 7.1 Resp.].) Although it appears that no report related to an investigation has been
submitted into the record, the lack of this report does not constitute evidence contradicting
Defendants’ asserted fact. Not only does paragraph 171 of Mattox’s declaration sufficiently
establish the asserted fact, but other evidence supports a finding that issues existed with regard to
Plaintiff’s timeliness in ODAA investigations and his involvement and/or attendance at noted
events. This fact is therefore deemed admitted. However, the Court notes that acceptance of this
fact does not constitute a legal conclusion that these reasons were the only reasons for this
decision.
28

158.

The OIA investigated allegations of discrimination made by Jalisa Williams and
Robert Smith, staff of the ODAA.

159.

The OIA found merit to the complaints brought on behalf of Ms. Williams and
Mr. Smith, and the persons guilty of discrimination were disciplined.

160.

On January 16, 2013, Plaintiff advised Woodward that he was going to be in
Albany only one day that week, to which Woodward replied that Plaintiff must be
in Albany two-to-three days per week.

161.

Because Plaintiff continued to fail to comply with the directive about attendance
in Albany, on February 1, 2013, Woodward sent Plaintiff another e-mail stating
that the previous directive in the January 16, 2013, e-mail regarding being in
Albany three days per week was not optional and that “any future deviation
without prior written approval . . . will be dealt with through formal counseling.”

162.

Although Woodward was involved in discussions regarding Plaintiff’s poor
performance and vulnerabilities for the Department, the decision to terminate
Plaintiff’s employment was Mattox’s decision alone.28

163.

Mattox decided to terminate Plaintiff’s employment because of Plaintiff’s
violation of numerous policies and his concerns about the ODAA’s performance

28

Plaintiff denies this asserted fact, but fails to cite any evidence to support his
denial. (Dkt. No. 52, Attach. 1, at ¶ 222 [Pl.’s Rule 7.1 Resp.].) Additionally, the deposition
testimony of both Mattox and Woodward supports Defendants’ asserted fact. (Dkt. No. 45,
Attach. 4, at 84 [Woodward Dep.]; Dkt. No. 45, Attach. 5, at 74-76 [Mattox Dep.].) This
statement is therefore deemed admitted.
29

under Plaintiff’s leadership.29
164.

On May 7, 2013, Woodward provided Plaintiff with a performance evaluation
that documented his deficiencies as Director of the ODAA.

165.

Woodward did not share the performance evaluation with anyone outside the
DTF, nor did she share it with anyone in connection with a job application by
Plaintiff.

166.

At no point did anyone ask Woodward or Mattox about Plaintiff’s performance as
Director of the ODAA in connection with a job application by Plaintiff after his
departure from the DTF.

167.

Plaintiff admitted that Woodward told him more than once that he needed to be in
Albany more often because it would be helpful for him to be there.

168.

Plaintiff admitted that what he thought was sufficient in terms of how often he
needed to be in Albany may have differed from what his supervisor, Woodward,
thought was sufficient.

169.

Plaintiff was given an office in Albany on Executive Row.

170.

Plaintiff testified that, throughout the time he served as Director for the ODAA,
he lived in New Rochelle, New York, in Westchester County, an approximately
two-and-a-half hour car journey from his office in Albany.

29

Plaintiff denies this asserted fact, citing to his own Rule 7.1 Response and his
“Counter-Statement of Facts.” (Dkt. No. 52, Attach. 1, at ¶ 223 [Pl.’s Rule 7.1 Resp.].)
However, such a general citation does not comply with L.R. 7.1, which requires a non-movant to
provide specific citations. Rule 7.1(3). Additionally, Plaintiff’s counter-statement does not
appear to contain any citation to admissible record evidence directly contradicting Defendants’
assertion regarding Mattox’s expressed reasons for terminating Plaintiff. This fact is therefore
deemed admitted.
30

171.

Plaintiff testified that, for the first year or two years of his time as Director, he
worked in the Albany office approximately two-to-three days per week.

172.

By Plaintiff’s own admission, there came a time when he stopped traveling to
Albany as frequently as he did in the beginning, and he was present in the Albany
office only once every two weeks (with visits lasting two-to-three days) because
he did not think that there was as much of a need for him to be there on a regular
basis as there had been in the beginning.

173.

Woodward was Plaintiff’s direct supervisor throughout Plaintiff’s time as
Director of the ODAA.

174.

Plaintiff confirmed that he met regularly with Woodward and that, while
Woodward did not initially memorialize their discussions at meetings in writing,
at some point, Woodward began to do so because there had been times when
Plaintiff misunderstood what was said and what was expected of him.

175.

Plaintiff testified that, within his first year as Director, he received an anonymous
letter from someone complaining that the ODAA was helping only one group of
people.

176.

Plaintiff received two or three complaints about the ODAA not conducting fair
investigations, but, after inquiring with his staff, he was satisfied that there was no
merit to any of the complaints.

177.

Plaintiff testified that he was aware of two or three complaints about Mr.
McGough, and that one of the complaints was that Mr. McGough had an
improper meeting with a female witness at a restaurant after work hours.

31

178.

Plaintiff spoke with Mr. McGough about the complaints and was satisfied that
they had no merit.

179.

Woodward advised Plaintiff in November 2012 that the decision had been made
to remove the ODAA’s investigation function.

180.

By Plaintiff’s own admission, he does not know who made the decision to stop
allowing the ODAA to investigate complaints.

181.

Plaintiff recalled that the two main reasons given to him for removal of the
investigatory functions were that (a) the ODAA was tardy in conducting
investigations and other paperwork, and (b) there were allegations against Mr.
McGough.

182.

Plaintiff testified that it was possible that Woodward had spoken to him before
November 2012 about the ODAA’s tardiness in conducting investigations, but he
could not recall.

183.

Plaintiff also testified that it was possible that Woodward had spoke to him before
November 2012 about the allegations against Mr. McGough, but he could not
recall.

184.

Plaintiff recalled speaking with the ODAA staff a number of times about trying to
improve the ODAA’s performance in terms of timeliness, but he was not sure
whether his staff’s performance had improved after he spoke with them.

185.

Plaintiff admits that he tried to persuade Woodward and Mattox to allow the
ODAA to continue to investigate complaints after he was told that the decision
had been taken to remove that function from the ODAA.

32

186.

After Mattox informed Plaintiff that his services as Director of the ODAA were
no longer needed, Mattox offered to reach out to the Governor’s appointments
office for him.

187.

By Plaintiff’s own admission, after Mattox informed him of the decision to
terminate him, they discussed the fact that Plaintiff was just a few months away
from his 30-year service benchmark (which had significant financial implications
for Plaintiff’s State pension) and Mattox told Plaintiff that he would be allowed to
remain in his position until he reached his 30 years of service.

188.

By Plaintiff’s own admission, he provided Mattox with a list of two or three State
employment positions in which he was interested, but he could not recall whether
those positions were actually available at the time.

189.

By Plaintiff’s own admission, before taking the position of Director of the
ODAA, he had no background or training in affirmative action.

C.

Parties’ Briefing on the Pending Motion
1.

Defendants’ Motion for Summary Judgment
a.

Defendants’ Memorandum of Law

In their motion for summary judgment, Defendants assert six arguments. (Dkt. No. 45,
Attach. 1, at 10-24 [Defs.’ Mem. of Law].) First, Defendants argue that the retaliation claim
against Woodward should be dismissed for lack of personal involvement. (Id. at 10-11.)
Specifically, Defendants argue that Woodwood was not personally involved in the decision to
transfer investigative functions from ODAA to the OIA, or in the investigation into complaints
brought by ODAA staff members that they were being subjected to discrimination. (Id.)

33

Second, Defendants argue that, in the context of Plaintiff’s retaliation claims against both
Woodward and Mattox, there is insufficient evidence to show that Plaintiff engaged in protected
activity. (Id. at 12-15.) Specifically, Defendants argue that Plaintiff has not provided evidence
to support a finding that his actions constituted support for other employees asserting Title VII
rights that would be outside the scope of his job role. (Id. at 12.) Defendants argue that Plaintiff
merely reported complaints he received from staff members (an action that he performed within
the ordinary course of his job) and that Defendants “understood Plaintiff to be acting within the
scope of his duties as Director of the ODAA when he communicated his opinions about the
complaints.” (Id. at 12, 15.)
Third, Defendants argue that there is insufficient evidence to show that Defendants were
aware of any protected activity on Plaintiff’s part. (Id. at 15-16.)
Fourth, Defendants argue that there is insufficient evidence to show that Plaintiff suffered
a materially adverse action. (Id. at 17-18.) Specifically, Defendants argue that the evidence is
insufficient (a) as to Woodward because there is no evidence that she made the decisions to
transfer investigatory functions from ODAA or to terminate Plaintiff, and (b) as to Mattox
because Mattox had “little choice but to take the decision to terminate Plaintiff” based on
“growing concerns about Plaintiff’s insubordination and failure to improve ODAA’s
performance issues.” (Id.) Defendants also argue that any statements by Mattox that he would
reach out to the Governor’s appointments office do not give rise to an adverse action because
there were no openings consistent with the list of positions Plaintiff provided. (Id.)
Fifth, Defendants argue that there is insufficient evidence to show a causal connection
between any protected activity and a materially adverse action. (Id. at 18-19.) Specifically,

34

Defendants argue that Plaintiff’s termination was due to poor performance and the need to
protect the ODAA’s affirmative action programs. (Id.) Defendants also argue that there is no
evidence to connect protected activity with any failure on Mattox’s part to reach out to the
Governor’s appointments office. (Id.)
Sixth, and last, Defendants argue that, even if Plaintiff could establish a prima facie case
of retaliation, there were legitimate, non-discriminatory reasons for Plaintiff’s termination,
including poor performance and Plaintiff’s violations of policies and directives. (Id. at 19-24.)
Defendants also argue that the lack of open jobs meeting Plaintiff’s expressed preferences is a
legitimate, non-discriminatory reason for Mattox’s failure to take any further action related to
finding Plaintiff another job with the New York State government. (Id.)
b.

Plaintiff’s Opposition Memorandum of Law

Generally, in opposition to Defendants’ motion, Plaintiff makes four arguments. (Dkt.
No. 52, at 12-25 [Pl.’s Opp’n Mem. of Law].) First, in opposition to Defendants’ second and
third arguments, Plaintiff argues that the evidence shows he was engaged in protected activity of
which Defendants were aware. (Id. at 12-16.) Specifically, Plaintiff argues that this Court is
bound to adopt the findings previously made in relation to Defendants’ motion to dismiss, in
which the Court determined that Plaintiff was engaged in protected activity that went beyond
merely conveying others’ complaints. (Id. at 13-14.) Plaintiff also argues that the deposition
testimony establishes that at least Woodward was aware that Plaintiff was reporting unlawful
discrimination; he argues that it is not relevant whether Defendants would have subjectively
believed that his actions were protected. (Id. at 14-16.)

35

Second, in opposition to Defendants’ fourth argument, Plaintiff argues that his
termination was an adverse action. (Id. at 16.)
Third, in opposition to Defendants’ fifth argument, Plaintiff argues that a reasonable jury
could find that there was a causal connection between Plaintiff’s reporting of discrimination and
his termination. (Id. at 17-24.) Specifically, Plaintiff argues that Plaintiff’s reports occurred in
late 2012 and January 2013, and he was informed of the termination on February 7, 2013, a
temporal proximity that suggests a causal connection. (Id. at 18.) Plaintiff argues that, under the
applicable law, the Court need find only that retaliation was a motivating factor rather than the
main reason for his termination to survive a motion for summary judgment. (Id. at 18-20.)
Plaintiff relatedly argues that Defendants’ proffered reasons for his termination were pretextual
because (a) Defendants ignore Plaintiff’s many accomplishments as ODAA Director, (b) the
evidence shows that he was not required to work in Albany and that Defendants were holding
him to different standards than the standard to which they held other Senior Staff, and (c) the
only performance evaluation he received in his time as ODAA Director was after he had already
been terminated. (Id. at 21-23.) Plaintiff also argues that the sequence of events and evidence
related to Mattox’s withdrawal of his offer to assist Plaintiff in finding a new job with New York
State creates a triable issue of fact as to whether that act was taken in retaliation. (Id. at 23-24.)
Fourth, in opposition to Defendants’ first argument, Plaintiff argues that a reasonable jury
could find that Woodward was personally involved, particularly because Woodward was
Plaintiff’s direct supervisor and he had little contact with Mattox. (Id. at 25.)

36

c.

Defendants’ Reply Memorandum of Law

Generally, in reply to Plaintiff’s opposition memorandum of law, Defendants make six
arguments. (Dkt. No. 55, at 4-13 [Defs.’ Reply Mem. of Law].) First, Defendants argue that
Woodward was not personally involved in the alleged retaliation because there is no evidence
that Woodward had the power to fire Plaintiff, and that Plaintiff’s arguments regarding personal
involvement are merely speculative. (Id. at 4-6.)
Second, Defendants argue that there is insufficient evidence to show that Plaintiff was
engaged in protected activity, asserting that Plaintiff has not shown that he had a good-faith
reasonable belief that he was engaged in protected activity, and that the first alleged time when
Plaintiff reported discriminatory actions to his supervisors did not occur until after Mattox had
decided to take investigatory powers away from ODAA. (Id. at 7-9.)
Third, Defendants argue that Plaintiff does not adduce evidence controverting the fact, or
even dispute the fact, that they believed that Plaintiff was acting within the scope of his duties
when he engaged in protected activity. (Id. at 9.)
Fourth, Defendants argue that Plaintiff’s termination was not a materially adverse action
because Plaintiff had been permitted to remain in his job as Director until he attained his 30
years of service with the State, which allowed him to qualify for increased pension benefits.
(Id.)
Fifth, Defendants argue that Plaintiff has not shown that retaliation was a motivating
factor in his termination because his arguments are based entirely on unsubstantiated suspicions
about Defendants’ motives. (Id. at 10.) Defendants also argue that there is no evidence that
Plaintiff suffered any adverse effects from the negative performance evaluation he received after
his termination. (Id.)
37

Sixth, and last, Defendants argue that there are legitimate, non-discriminatory reasons for
Plaintiff’s termination, in particular, the shortcomings in his performance. (Id. at 11-13.)
II.

GOVERNING LEGAL STANDARDS
A.

Legal Standard Governing a Motion for Summary Judgement

Under Fed. R. Civ. P. 56, summary judgment is warranted if "the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record]
evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).30 As for the materiality requirement, a dispute of
fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, "[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.

30

As a result, "[c]onclusory allegations, conjecture and speculation . . . are
insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
1998) [citation omitted]. As the Supreme Court has explained, "[The non-movant] must do more
than simply show that there is some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
38

P. 56(a), (c), (e).31
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute.32 Of course,
when a non-movant willfully fails to respond to a motion for summary judgment, "[t]he fact that
there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be
granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as
indicated above, the Court must assure itself that, based on the undisputed material facts, the law
indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive
Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R.
7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten the movant's
burden.
For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set
forth in a movant's statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement.33

31

Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a
response to the movant's Statement of Material Facts, which admits or denies each of the
movant's factual assertions in matching number paragraphs, and supports any denials with a
specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
32

Cusamano v. Sobek, 604 F. Supp.2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.)

(citing cases).
33

Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a
response to the movant's Statement of Material Facts, which admits or denies each of the
movant's factual assertions in matching numbered paragraphs, and supports any denials with a
specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
39

Similarly, in this District, where a non-movant has willfully failed to respond to a
movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that memorandum of law under Local
Rule 7.1(b)(3).34 Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument
possess facial merit, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL
2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
B.

Legal Standards Governing Retaliation Claims Under 42 U.S.C. §§ 1981 and
1983 and NYHRL § 296(6)

Retaliation claims brought together under 42 U.S.C. § 1981 and N.Y. Exec. L. § 296(6)
are analyzed pursuant to Title VII principles. Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)
(citing Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 [2d Cir. 2004]; Reed v. A.W.
Lawrence & Co., Inc., 95 F.3d 1170, 1177 [2d Cir. 1996]). Retaliation claims are analyzed using
a three-step burden-shifting analysis. First, the plaintiff must establish a prima facie case of

34

See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
40

retaliation by showing the following four elements are met: (a) the plaintiff participated in a
protected activity; (b) the defendant knew of the protected activity; (c) the plaintiff suffered an
adverse employment action; and (d) there is a causal connection between the protected activity
and the adverse employment action. Hicks, 593 F.3d at 164. “The plaintiff’s burden in this
regard is ‘de minimis,’ and ‘court’s role in evaluating a summary judgment request is to
determine only whether proffered admissible evidence would be sufficient to permit a rational
finder of fact to infer a retaliatory motive.” Id.
Second, if the plaintiff presents a prima facie case of retaliation, the defendant must
“‘articulate a legitimate, non-retaliatory reason for the adverse employment action.’” Id.
Third, the plaintiff must then show that the defendant’s proffered reasons were a mere
pretext for retaliation. Pompey-Howard v. New York State Edu. Dept., 275 F. Supp. 3d 356, 36738 (N.D.N.Y. 2017) (Kahn, J.).
III.

ANALYSIS
A.

Whether Woodward Was Personally Involved in the Violations Alleged

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendants’ memorandum of law. (Dkt. No. 45, Attach. 1, at 10-11 [Defs.’
Mem. of Law].) To those reasons, the Court adds the following analysis.
An individual’s personal liability under 42 U.S.C. §§ 1981 and 1983 “must be predicated
on the actor’s personal involvement.” Patterson, 375 F.3d at 229; see also Back v. Hastings on
Hudson Union Free Sch. Dist. 365 F.3d 107, 122 (2d Cir. 2004) (“[P]ersonal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under
§ 1983.”). Section 296(6) of the NYHRL similarly requires that the defendant “actually
participated” in the discriminatory/retaliatory action. Beattie v. Guilderlan Cent. Sch. Dist., 124
41

F. Supp. 2d 802, 805 (N.D.N.Y. 2000) (Hurd, J.). “Individuals may be personally liable under
the NYHRL and § 1981 where the individual possessed power to do more than carry out
personnel decisions made by others, or is shown to have actually participate[d] in the conduct
giving rise to a discrimination claim.” Karam v. Cty. of Rensselaer, New York, 13-CV-1018,
2016 WL 51252, at *18 (N.D.N.Y. Jan. 4, 2016) (D'Agostino, J.) (citations and internal
quotation marks omitted); accord Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir.
2015) (“An individual may be held liable under §§ 1981 and 1983 only if that individual is
personally involved in the alleged deprivation.”) (citations and internal quotation marks
omitted); Vosburgh v. Amer. Nat. Red Cross, 08-CV-0653, 2014 WL 4826688, at *13 (N.D.N.Y.
Sept. 29, 2014) (Kahn, J.) (“To be found liable under [New York Executive Law § 296(6)], an
individual need not have supervisory or hiring and firing power but still must have actually
participated in the conduct giving rise to the claim of discrimination and engaged in direct,
purposeful, participation.”); Frank v. Lawrence Union Free Sch. Dist., 688 F. Supp. 2d 160, 174
(E.D.N.Y. 2010) (noting that "the NYSHRL's aiding and abetting section imposes individual
liability on a person who ‘actually participates’ in the improper conduct [and t]he New York
Court of Appeals has never held otherwise”). Personal involvement for purposes of a NYSHRL
claim will suffice to establish personal involvement in behavior unlawful under 42 U.S.C. §
1983. See Feingold v. New York, 366 F.3d 138, 160 (2d Cir. 2004) (“Feingold has presented
sufficient evidence to permit the conclusion that all of the named individual defendants were
personally involved in behavior unlawful under the NYSHRL. . . . He has also, therefore,
presented sufficient evidence to permit the conclusion that they were personally involved in
behavior that violates Section 1983.”) (citations and internal quotation marks omitted). Personal
involvement may be established by evidence showing the following:
42

(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the
defendant exhibited deliberate indifference . . . by failing to act on
information indicating that unconstitutional acts were occurring.
Littlejohn, 795 F.3d at 314 (quoting Back, 365 F.3d at 127).
Courts in this Circuit have found personal involvement to exist where, for example, the
individual defendant (1) signed a written notice that the plaintiff would not be reinstated, or (2)
was involved in the decision to terminate the plaintiff. See, e.g., Pinero v. Long Island State
Veterans Home, 375 F. Supp. 2d 162, 169 (E.D.N.Y. 2005) (finding defendant was personally
involved where the complaint alleged that defendant “was the individual that signed the letter
that informed [plaintiff] that she would not be reinstated” and “was personally involved in the
decision to terminate the Plaintiff”); Duse v. IBM Corp., 748 F. Supp. 956, 968 (D.Conn. 1990)
(finding a genuine issue of fact where a dispute existed regarding whether a supervisor did more
than just sign a termination letter). On the other hand, courts have also held that “[i]nvolvement
in discussions that lead to a decision is not personal involvement under § 1983.” Conklin v. Cty.
of Suffolk, 859 F. Supp. 2d 415, 441 (E.D.N.Y.2012) (quoting Zdziebloski v. Town of E.
Greenbush, N.Y., 336 F. Supp. 2d 194, 202 [N.D.N.Y. 2004] [Kahn, J.]).
Defendants focus on two actions when arguing that Woodward was not personally
involved in the violation in question: (1) the decision to transfer the ODAA’s investigatory
function, and (2) the processing of claims of discrimination and/or retaliation alleged by
Plaintiff’s staff. (Dkt. No. 45, Attach. 1, at 10-11 [Defs.’s Mem. of Law].) Plaintiff, however,
argues that the most relevant action related to Woodward was the decision to terminate Plaintiff,
43

and argues that there is a genuine dispute of material fact as to whether Woodward was
personally involved in the decision to terminate him. (Dkt. No. 52, at 25 [Pl.’s Opp’n Mem. of
Law].) Defendants reply that, because Mattox was the person who ultimately decided to
terminate Plaintiff, Woodward was not personally involved. (Dkt. No. 55, at 4-6 [Defs.’ Reply
Mem. of Law].)
As to the decision to transfer the ODAA’s investigatory functions, the Court agrees with
Defendants that the evidence does not establish that Woodward was personally involved in this
decision. Notably, Woodward testified at her deposition that Mattox made the decision to
remove the investigatory function from the ODAA, and that she did not give any input with
respect to that decision, although she did speak to Plaintiff about that decision after it had been
made and communicated to her by Mattox. (Dkt. No. 45, Attach. 4, at 47:8-16, 49:10-50:16
[Woodward Dep.].) In her declaration, Woodward reiterated that she did not participate in the
decision to transfer the investigatory function from the ODAA to the OIA. (Dkt. No. 45, Attach.
7, at ¶ 222 [Woodward Decl.].) In his declaration, Mattox stated that “[t]he decision to remove
the investigative function from ODAA was part of a broader change with respect to
investigations within the DTF” and that “Woodward did not participate in” that decision. (Dkt.
No. 45, Attach. 6, at ¶¶ 169-70 [Mattox Decl.].) Mattox also stated that he “asked Ms.
Woodward to advise [Plaintiff] of the move of discrimination investigations from ODAA to OIA
and direct him to assist OIA in this transition.” (Id. at ¶ 173.) Because Plaintiff has failed to
produce any evidence contradicting the statements by Mattox and Woodward, he has not shown
that there is a genuine dispute of material fact as to whether Woodward was personally involved
in the decision to transfer the investigatory function to the OIA.

44

As to the processing of claims by ODAA staff, the Court agrees with Defendants that
Woodward was not personally involved in the processing of these claims for the reasons stated
in Defendants’ memorandum of law. (Dkt. No. 45, Attach. 1, at 10 [Defs.’ Mem. of Law].)
Plaintiff has offered no evidence to contradict these reasons or to create a genuine dispute of
material fact as to whether Woodward was personally involved in the investigation or handling
of the relevant complaints of discrimination made by ODAA staff members.
As to Plaintiff’s termination, Defendants are correct that Mattox and Woodward both
testified that Mattox was the person who made the ultimate decision to terminate Plaintiff. (Dkt.
No. 45, Attach. 4, at 84:2-13 [Woodward Dep.]; Dkt. No. 45, Attach. 5, at 74:14-16 [Mattox
Dep.].) Consequently, the only way in which Woodward could be personally involved in
Plaintiff’s termination would be if she recommended or otherwise influenced Mattox’s decision.
During his deposition, Mattox was unable to provide a clear answer as to whether Woodward
had provided an informal recommendation that Plaintiff be terminated; he stated that there had
been no formal recommendation, but that “informally, Ms. Woodward, as [Plaintiff’s]
supervisor, had shared with [him] concerns about his competence.” (Dkt. No. 45, Attach. 5, at
75:15-25 [Mattox Dep.].) However, as already stated, mere involvement in discussions leading
to a decision does not constitute personal involvement. Conklin, 859 F. Supp. 2d at 441. In
addition, Mattox stated in his declaration that “Woodward did not participate in my decision to
terminate [Plaintiff’s] employment.” (Dkt. No. 45, Attach. 6, at ¶ 202 [Mattox Decl.].) In her
deposition, Woodward testified that she did not recall or did not believe that Mattox asked her
whether Plaintiff should be terminated or for a recommendation about Plaintiff’s termination.
(Dkt. No. 45, Attach. 4, at 84:2-13 [Woodward Dep.].) In her declaration, Woodward clarified
that “[a]lthough I was involved in discussions regarding [Plaintiff’s] poor performance and
45

vulnerabilities . . . the decision to terminate [Plaintiff] was [Mattox’s] decision alone.” (Dkt. No.
45, Attach. 7, at ¶ 237 [Woodward Decl.].)
The evidence from Mattox and Woodward’s depositions and declarations fatally
undermine Plaintiff’s argument that Woodward was personally involved in the decision to
terminate him. The mere fact that Woodward was Plaintiff’s supervisor and that he had little
direct contact with Mattox are not sufficient, on their own, to create a genuine dispute of material
fact sufficient to overcome a motion for summary judgment.35 Of note, Plaintiff does not cite
any evidence that contradicts the accounts provided by Woodward and Mattox with anything
more than speculation. (Dkt. No. 52, at 25 [Pl.’s Opp’n Mem. of Law].)
As a final matter, the Court notes that it specifically found, as part of the Decision and
Order of July 5, 2016, on Defendants’ motion to dismiss, that “Plaintiff [did] not allege facts
plausibly suggesting that Woodward was personally involved in the decision to terminate
Plaintiff’s employment.” (Dkt. No. 27, at 30 n.12 [Decision & Order, 7/5/2016].) Rather, the
only actions about which this Court found plausible allegations of personal involvement were
related to Woodward’s action of telling Plaintiff that the investigatory function was being

35

The Court notes that, even though Defendants relied heavily on Woodward’s
declaration in their Rule 7.1 Statement, such reliance does not create a credibility issue
necessitating trial on this issue. (Dkt. No. 52, at 25 [Pl.’s Opp’n Mem. of Law].) A non-movant
cannot create a genuine dispute of material fact by simply challenging the credibility of a
declarant. See, e.g., McCollough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 280 (2d
Cir. 1999) (explaining that a plaintiff does not create a genuine issue of fact merely by
“impugning [a witness’] honesty”); Zito v. Fried, Frank, Harris, Shriver & Jacobson, LLP, 869
F. Supp. 2d 378, 391 (S.D.N.Y. 2012) (“Neither conclusory assertions, nor contentions that the
affidavits supporting the motion are not credible, create a genuine issue of material fact.”);
Chem. Bank v. Hartford Acc. & Indem. Co., 82 F.R.D. 376, 378 (S.D.N.Y. 1979) (“[A] naked
attack upon the affidavits of a moving party is, without more, insufficient to place the credibility
of the affiant in issue.”). In any event, as can be seen from the Court’s summary of the
deposition testimony from both Woodward and Mattox, as well as Mattox’s declaration, there is
more evidence supporting Defendants’ arguments than just Woodward’s declaration.
46

transferred from the ODAA to the OIA and her disregard of Plaintiff’s concerns about
complaints of racial discrimination made by ODAA staff. (Id. at 30-31.) Plaintiff’s reliance on
his termination as the basis for asserting personal involvement by Woodward is therefore
improper as well as unsupported by the admissible evidence of record.
For the above reasons, the Court grants Defendants’ motion for summary judgment as to
Woodward based on a lack of personal involvement such that all of Plaintiff’s claims against her
are dismissed.
B.

Whether Defendant Mattox Has Established Entitlement to Summary
Judgment on Plaintiff’s Retaliation and Aider/Abettor Claims

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Plaintiff’s opposition memorandum of law as to Plaintiff’s Section 1981 and
1983 claims. (Dkt. No. 52, at 12-24 [Pl.’s Opp’n Mem. of Law].) To these reasons, the Court
adds the following analysis. However, the Court answers this question in the affirmative as to
Plaintiff’s Section 296(6) claims for the reasons stated in this Decision and Order.
1.

42 U.S.C. §§ 1981 and 1983 Retaliation Claim
a.

Protected Activity

“Protected activities typically refer to ‘actions taken to protest or oppose statutorily
prohibited discrimination,’ such as ‘the filing of a formal complaint with the Equal Employment
Opportunity Commission or making complaints to management about an activity that the
employee reasonably believes violates the law.’” Venezia v. Luxoticca Retail N. Am. Inc., 13CV-4467, 2015 WL 5692146, at *11 (S.D.N.Y. Sept. 28, 2015) (quoting Gioia v. Forbes Media
LLC, 09-CV-6114, 2011 WL 4549607, at *10 [S.D.N.Y. Sept. 30, 2011], aff'd, 501 F. App'x 52
[2d Cir. 2012]). Courts within the Second Circuit have analyzed whether a plaintiff engages in a

47

protected activity for purposes of a retaliation clam pursuant to § 1981, § 1983, and the NYHRL
under the same standard as whether a plaintiff engages in a protected activity for purposes of a
retaliation claim pursuant to Title VII. See, e.g., Littlejohn, 795 F.3d at 316, 320 (concluding
that plaintiff's complaint alleged facts plausibly suggesting that she engaged in a protected
activity under Title VII's anti-retaliation provisions, 42 U.S.C. § 2000e-3[a], and that her Title
VII and § 1981 retaliation claims therefore should not have been dismissed as to certain
defendants); Nieblas-Love v. New York City Housing Auth., 14-CV-5444, 2016 WL 796845, at
*6-7 (S.D.N.Y. Feb. 26, 2016) (explaining that, “[f]or each of Plaintiff's [retaliation] claims
[pursuant to, inter alia, Title VII, § 1981, and the NYSHRL], ‘protected activity’ means action
taken to protest or oppose statutorily prohibited discrimination”) (citing, inter alia, Forrest v.
Jewish Guild for the Blind, 3 N.Y.3d 295, 313 n.11 [2004]); Cooper v. New York Dep't of Labor,
14-CV-0717, 2015 WL 5918263, at *6-7 (N.D.N.Y. Oct. 9, 2015) (Suddaby, J.) (concluding that
plaintiff did not allege facts plausibly suggesting that she engaged in a protected activity under
Title VII and Littlejohn, and dismissing plaintiff's Title VII and NYHRL retaliation claims).
The Second Circuit has explained that, although reporting or investigating other
employee’s complaints of discrimination is not itself a protected activity where the employee is
required as part of his job duties to make such reports or investigation, an employee in a job with
such duties can still be engaged in protected activity where his actions “support other employees
in asserting their Title VII rights or personally complains or is critical about the discriminatory
employment practices of [his] employer.” Littlejohn, 795 F.3d at 318 (internal quotation marks
omitted). The relevant analysis is therefore whether Plaintiff’s actions go beyond merely
reporting claims of discrimination such that they constitute advocacy for other employees or
Plaintiff’s own concerns or criticisms of the DTF’s attitude or response to discrimination.
48

Whether or not the law of the case doctrine would require the Court to adhere it its
previous findings regarding the question of whether Plaintiff engaged in protected activity (given
any similarity between the factual allegations of Plaintiff’s Complaint and the record evidence
before the Court), the Court finds that it would nonetheless adopt a similar finding here based on
the record evidence. See Johnson v. Holder 564 F.3d 95, 99 (2d Cir. 2009) (“The law of the case
doctrine commands that ‘when a court has ruled on an issue, that decision should generally be
adhered to by that court in subsequent stages in the same case’ unless ‘cogent and compelling
reasons militate otherwise.’”). In the Decision and Order of July 5, 2016, on Defendants’ motion
to dismiss, this Court found that the following activities by Plaintiff constituted “more than
merely conveying others’ complaints concerning discrimination pursuant to the responsibilities
attendant to his role with ODAA”: (a) reporting concerns of prevalent discrimination to Mattox
and Woodward,36 citing specific examples; (b) stressing his opinion that the DTF had to be
“willing to take action” to address these issues; (c) conveying good-faith concerns that
complaints towards ODAA staff might be being made by individuals being investigated by those
staff members; and (d) advocating for the reinstatement of the investigatory function in the
ODAA. (Dkt. No. 27, at 26-27 [Decision & Order, 7/5/2016].)
Plaintiff alleges that he made the following statements to Woodward and Mattox before
his termination on February 7, 2013: (1) in November 2012, he “voiced his view” to Mattox
about the results of the MAPS study that Mattox refused to release, arguing that “the concerns it
raised about sexual harassment, racism, and bullying in the workplace remained topical and

36

Even though the Court has found that Woodward was not personally involved in
the alleged retaliatory actions, the evidence establishes that Woodward and Mattox spoke with
each other about ODAA and Plaintiff; and so conversations between Plaintiff and Woodward
may still be relevant to determining the elements of Plaintiff’s retaliation claims as to Mattox.
49

should be addressed”; (2) on November 30, 2012, Plaintiff expressed objections to Woodward
about complaints made against ODAA investigator Mr. McGough, stating that he believed those
accusations might reflect bias by the accusers; (3) also on November 30, 2012, Plaintiff told
Woodward that “it appeared to [him] to be discriminatory to transfer EEO investigations from an
office that was mainly comprised of employees of color to one that was made up entirely of
white employees”; (4) in January 2013, Plaintiff told Mattox that he believed that discrimination
was widespread in the DTF and needed to be better addressed, as well as that he thought that
transferring EEO investigations from the ODAA to the OIA would weaken the DTF’s ability to
address and prevent discrimination and that the reasons for the decision to transfer investigations
“seemed to stem from the very same discriminatory attitudes that the ODAA was tasked with
addressing”; (5) at the January 2013 meeting with Mattox, Plaintiff also provided two examples
of specific discriminatory conduct that he believed demonstrated the prevalent discriminatory
attitude in the DTF; (6) on January 11, 2013, Plaintiff again expressed to Woodward his view
that removing investigations from ODAA was likely the result of discriminatory bias; and (7)
also on January 11, 2013, Plaintiff expressed his view that promoting a white union worker
without posting the position in accord with agency procedures would be counter to the goals of
non-discrimination and equal employment opportunity. (Dkt. No. 52, Attach. 12, at ¶¶ 37, 51,
55-60 [Pl.’s Decl.]; Dkt. No. 45, Attach. 4, at 58:3-30 [Woodward Dep.]; Dkt. No. 45, Attach. 5,
at 67:22-68:13, 68:24-69:9-71:5 [Mattox Dep.].) In addition to the statements and concerns
Plaintiff made directly to Mattox, record evidence establishes that Mattox and Woodward
communicated with each other on a regular basis (including about Plaintiff); this evidence
suggests that Mattox might have been aware of the statements and concerns Plaintiff expressed

50

to Woodward.37 However, even considering only the statements that Plaintiff made to Mattox, a
reasonable fact-finder could find that Plaintiff’s acts of expressing his complaints and concerns
to Mattox was more than merely conveying others’ complaints, particularly based on Plaintiff’s
concern of far-reaching discrimination in DTF that was being exacerbated by DTF’s alleged
failure to adequately address or remedy the problem (such as suppressing the MAPS survey
results) and his concern that transfer of investigatory functions from a department comprised of
primarily protected-class individuals to a department comprised of primarily white individuals
would further exacerbate the existing problem. There is therefore a genuine dispute of material
fact about whether these complaints constituted protected activity.
Whether Defendant Mattox believed these complaints and concerns to be within the
scope of Plaintiff’s role as Director of the ODAA is of little, if any, materiality given the
substance of the communications. Rather, what is material is whether there is admissible record
evidence establishing that Plaintiff lacked a “good-faith, reasonable belief that [he] was opposing
an employment practice made unlawful by Title VII.” Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng’rs, P.C., 716 F.3d 10, 15 (2d Cir. 2013); see also Summa v. Hofstra Univ., 708
F.3d 115, 126 (2d Cir. 2013) (finding that the belief of the defendant about the nature of the
complaints was “of no moment, as the first element of the prima facie case explicitly
contemplates the belief of the plaintiff, not the employer”). There is not. Additionally, Plaintiff

37

Mattox testified at his deposition that he had formally scheduled meetings with
Woodward and other deputy commissioners and selected senior managers on a weekly basis, but,
because his office was next to Woodward’s, it was easy for them to meet on an informal basis;
they also corresponded by e-mail. (Dkt. No. 45, Attach. 5, at 29:8-30:17 [Mattox Dep.].)
Mattox also testified that he had discussed accusations of improper behavior raised at the Buffalo
town hall training course with Woodward and “other senior personnel” after the town hall
occurred; the town hall predated Plaintiff’s termination and was the basis of some of the
complaints he expressed to Woodward and Mattox. (Id. at 47:6-23.)
51

notes instances when he expressed concern over the DTF’s practices that suggest he had a goodfaith belief that he was opposing unlawful practices, including his opposition to Woodward’s
desire to promote a white union employee without posting the job opening, a decision that
Plaintiff stated would “be counter to the goals of non-discrimination and equal employment
opportunity.” (Dkt. No. 52, Attach. 12, at ¶ 60 [Pl.’s Decl.].) Summary judgment on this issue is
therefore not appropriate.
b.

Defendant Mattox’s Knowledge of Protected Activity

“[I]mplicit in the requirement that the employer [has] been aware of the protected activity
is the requirement that it is understood, or could reasonably have been understood, that the
plaintiff’s opposition was directed at conduct prohibited by Title VII.” Kelly, 716 F.3d at 15.
Defendants argue that there is insufficient evidence to show that Defendant Mattox knew
that Plaintiff was engaging in protected activity. (Dkt. No. 45, Attach. 1, at 15-16 [Defs.’ Mem.
of Law].) The Court does not agree. Rather than addressing why Plaintiff’s conversations and
e-mails (in which he expressed concerns or opposition to various incidents and decisions that he
perceived to be either discriminatory or detrimental to equal opportunity or affirmative action
goals) do not constitute notice to Defendants that Plaintiff was engaged in protected activity,
Defendants engage in an unrelated discussion about Plaintiff’s alleged shortcomings as Director.
(Id.) As Plaintiff notes in his opposition memorandum of law (and as supported by his
declaration, his deposition testimony, and other evidence), he expressly communicated his
concerns to Mattox. (Dkt. No. 45, Attach. 3, at 92-100, 178-81 [Pl.’s Dep.], Dkt. No. 45, Attach.
4, at 58-59 [Woodward Dep.]; Dkt. No. 45, Attach. 5, at 68-69 [Mattox Dep.]; Dkt. No. 52, at 16
[Pl.’s Opp’n Mem. of Law]); see also Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007) (finding
that the plaintiff had pled sufficient facts to show awareness of protected activity where she had
52

complained directly to a university employee); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d
1170, 1178 (2d Cir. 1996) (finding knowledge of protected activity established where the
plaintiff had complained to an officer of the company and maintained her complaint during a
subsequent internal investigation).
To the extent that Defendants’ argue in their reply brief that the relevant issue is whether
they believed Plaintiff was acting within the scope of his duties, the Court has already
determined that there is at least a genuine issue of material fact as to whether Plaintiff had a
good-faith, reasonable belief that he was engaging in protected activity, and it is Plaintiff’s belief
(rather than Mattox’s) that is relevant to the analysis. Summa, 708 F.3d at 126.38 Summary
judgment on this issue is therefore not appropriate.
c.

Adverse Action

Actions taken by employers are materially adverse actions if they are “‘harmful to the
point that they could dissuade a reasonable worker from making or supporting a charge of
discrimination.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (internal quotation marks
omitted). “To be materially adverse, a change in working conditions must be more disruptive
than a mere inconvenience or an alteration of job responsibilities.” DiBrino v. Dept. of Veteran’s
Affairs, 118 F. App’x 533, 534 (2d Cir. 2004) (internal quotations marks omitted).
Plaintiff alleges that his termination from his position as Director of the ODAA is a
materially adverse action. (Dkt. No. 52, at 16 [Pl.’s Opp’n Mem. of Law].) Courts in this circuit
have found that termination is an adverse employment action sufficient to support a retaliation

38

To the extent that Mattox argues that his belief that Plaintiff was acting within the
scope of his employment is sufficient to overcome Plaintiff’s allegations that he believed he was
engaged in more than simply conveying the complaints of others, this argument is unpersuasive.
Notably, Mattox failed to cite any legal authority to support this argument.
53

claim. See Costa v. Sears Home Imp. Products, Inc., 65 F. Supp. 3d 333, 349 (W.D.N.Y. 2014)
(“Plaintiff’s termination alone is an adverse employment action sufficient to support her
retaliation claim.”); Reynoso v. All Foods, Inc., 908 F. Supp. 2d 330, 342 (E.D.N.Y. 2012)
(“[T]ermination clearly constitutes an adverse employment action.”); Risco v. McHugh, 868 F.
Supp. 2d 75, 113 (S.D.N.Y. 2012) (“[T]he only materially adverse action that [plaintiff]
conceivably suffered subsequent to engaging in protected activity was her termination.”); Roman
v. Cornell University, 53 F. Supp. 2d 223, 245 (N.D.N.Y. 1999) (McAvoy, C.J.) (“Plaintiff’s
termination unquestionably constitutes an adverse action.”); see also Ejiogu v. Grand Manor
Nursing & Rehab. Ctr., 15-CV-0505, 2017 WL 1322174, at *4 (S.D.N.Y. Apr. 5, 2017) (“The
termination of employment is an adverse employment action under any standard.”).
However, despite the fact that Plaintiff was terminated, Defendants argue that there is
insufficient evidence that Plaintiff suffered a materially adverse action, focusing particularly on
(a) Mattox’s stated reasons for terminating Plaintiff’s employment, (b) the fact that Mattox
allowed Plaintiff to remain employed until he reached his 30-year employment milestone, which
entitled him to greater pension benefits, and (c) the fact that Mattox did contact the Governor’s
appointments office on Plaintiff’s behalf, but there were no openings in any of Plaintiff’s
preferred positions. (Dkt. No. 45, Attach. 1, at 17-18 [Defs.’ Mem. of Law].) The Court finds
all three of these reasons unpersuasive.
First, whether or not Mattox had legitimate reasons to terminate Plaintiff has little
bearing on the question of whether Plaintiff suffered an adverse action. Rather, those reasons are
relevant only after Plaintiff has established a prima facie case of retaliation.
Second, the fact that Mattox allowed Plaintiff to remain employed for a few months after
being notified of the determination to terminate him (and the fact that Plaintiff reaped a benefit
54

from that allowance) does not negate the adverse impact of Plaintiff’s termination. In particular,
the Court is not convinced that Mattox’s concession in allowing Plaintiff to reach his 30-year
milestone is sufficient to mitigate the adverse effect of permanent termination of his
employment. Notably, Defendants cite no case law supporting their argument that a reasonable
person would not be dissuaded from engaging in protected activity if they knew their pension
benefits would be preserved, even though their employment would be terminated.
Third, whether or not Mattox complied with his offer to attempt to assist Plaintiff in
finding another position with the New York State government is irrelevant to the issue of
whether his termination constituted a materially adverse employment action, particularly because
Plaintiff remained unemployed despite the offer. Again, Defendants cite no authority to support
their argument that such an offer mitigates the adverse effect of Plaintiff’s termination.
Based on the above, the Court finds that Plaintiff’s termination constituted a materially
adverse action. Summary judgment is therefore not appropriate on this issue.
d.

Causal Connection Between the Protected Activity and
Adverse Action

“[A] plaintiff can indirectly establish a causal connection to support a discrimination or
retaliation claim by ‘showing that the protected activity was closely followed in time by the
adverse [employment] action.’” Gorman-Bakos v. Cornell Co-op Extension of Schenectady
Cnty., 252 F.3d 545, 554 (2d Cir. 2001) (quoting Reed, 95 F.3d at 1178).
Defendants argue that there is no evidence to support a causal connection between any
protected activity and adverse actions; in particular, Defendants argue that there is no evidence
to support a causal connection between Plaintiff’s activity and Mattox’s decision to terminate his
employment because that decision was taken “in recognition of Plaintiff’s poor performance and

55

the need to protect ODA[A]’s affirmative action programs.” (Dkt. No. 45, Attach. 1, at 18-19
[Defs.’ Mem. of Law].) However, Defendants argument again misses the relevant point, which
is not whether Mattox had a legitimate, non-retaliatory reason for terminating Plaintiff’s
employment, but rather whether the circumstances and temporal proximity between the protected
activity and Plaintiff’s termination could give rise to an inference of a causal connection. El
Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (finding that the plaintiff
arguably established a prima facie case of retaliation “[b]y demonstrating proximity between his
complaint and his discharge,” even though temporal proximity alone was not sufficient to
establish that the defendant’s reasons were pretextual).
The Court finds that the temporal proximity between Plaintiff’s reports and complaints
and his termination are sufficient to establish at least a genuine dispute of material fact as to
whether there is an inference of a causal connection between those reports and complaints and
his termination. As detailed above in Part III.B.1.a of this Decision and Order, Plaintiff has set
forth multiple statements he made in the months leading up to his termination. (Dkt. No. 52,
Attach. 12, at ¶¶ 37, 51, 55-60 [Pl.’s Decl.].) All of those complaints or expressions of concern
over the DTF’s handling of discrimination and equal opportunity issues occurred approximately
three months or less before Plaintiff’s termination (with some occurring only one month or less
before his termination). Although the Second Circuit has not made a clear finding as to what the
outer limits of temporal proximity are for analyzing whether a causal connection might exist, the
close temporal proximity in this case at the very least raises a genuine dispute of material fact as
to whether a reasonable fact-finder could conclude that a causal connection exists between
Plaintiff’s actions and his termination. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (citing cases finding a temporal proximity of three months and more to be insufficient);
56

Gorman-Bakos, 252 F.3d at 554-55 (finding that four months between protected activity and
adverse action “is sufficient to support an allegation of a causal connection strong enough to
survive a summary judgment motion”); Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 845
(2d Cir. 2013) (“The three-week period from Kwan’s complaint to her termination is sufficiently
short to make a prima facie showing of causation indirectly through temporal proximity.”); cf.
Chamberlin v. Principi, 247 F. App’x 251, 254 (2d Cir. 2007) (finding five months between the
protected activity and adverse action was not close enough to create in inference of a causal
connection). Summary judgment on this issue is therefore not appropriate.
e.

Legitimate, Non-Retaliatory Reasons

Because a reasonable fact-finder could find that Plaintiff could establish a prima facie
case of retaliation, the burden shifts to Defendant to show that there were legitimate, nonretaliatory reasons for terminating Plaintiff’s employment. Hicks, 593 F.3d at 164. Defendants
have provided more than sufficient evidence to meet this burden (in relation to their argument
that Plaintiff’s employment was terminated due to his poor job performance and failure to follow
directions from his supervisor), and Plaintiff does not appear to contest that Defendants have
sufficiently met their burden on this issue. (Dkt. No. 45, Attach. 1, at 19-24 [Defs.’ Mem. of
Law]; Dkt. No. 52, at 18 [Pl.’s Opp’n Mem. of Law].) The Court therefore finds that Defendants
have proffered legitimate, non-retaliatory reasons for Plaintiff’s termination.
f.

Pretext for Retaliation

To defeat summary judgment at this stage in the analysis, the plaintiff must show more
than just mere temporal proximity. El Sayed, 627 F.3d 933-34. Rather, the plaintiff must “come
forth with some evidence of pretext in order to raise a triable issue of fact.” Mavrommatis v.
Carey Limousine Westchester, Inc., 476 F. App’x 462, 466 (2d Cir. 2011).
57

The parties disagree as to whether the correct standard applicable to Plaintiff’s Section
1981 claim when determining this issue is the traditional “but-for” standard applied in Title VII
cases, or a less-demanding “motivating-factor” standard. (Dkt. No. 45, Attach. 1, at 22 [Defs.’
Mem. of Law]; Dkt. No. 52, at 18-19 [Pl.’s Opp’n Mem. of Law]; Dkt. No. 55, at 10 [Defs.’
Reply Mem. of Law].) The Second Circuit case cited by Plaintiff, Garcia v. Hartford Police
Dept., 706 F.3d 120 (2d Cir. 2013), states that, “to defeat summary judgment,” in a Section
1981/1983 retaliation case, the plaintiff need not “show that the employer’s proffered reasons
were false or played no role in the employment decision, but only that they were not the only
reasons and that the prohibited factor was at least one of the motivating factors.” Garcia, 706
F.3d at 127. However, the Second Circuit in Garcia relied on precedent that pre-dated the
Supreme Court’s decision in Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013).39 In
Nassar, the Supreme Court held that, for Title VII claims where the plaintiff alleges retaliation
based on activities such as opposition to unlawful workplace discrimination, the applicable
causation standard is not the motivating factor standard, but rather the but-for standard (i.e., that
the harm alleged would not have occurred but for the defendant’s conduct). Nassar, 570 U.S. at
342-43, 360. Judges of this District have noted that the Supreme Court has not clarified whether
the holding in Nassar related to the standard for Title VII claims also applies to Section 1981
claims. Wenchun Zheng v. Gen. Elec. Co., 15-CV-1232, 2016 WL 10859373, at *14 n.19
(N.D.N.Y. Jan. 12, 2016) (Hummel, M.J.) Report-Recommendation adopted by 2016 WL
447496 (N.D.N.Y. Feb. 4, 2016) (McAvoy, J.); Hexemer v. Gen. Elec. Co., 12-CV-1808, 2015

39

Plaintiff also relied heavily on the rationale in St. Ange v. ASML, Inc., 10-CV0079, 2015 WL 7069649 (D. Conn Nov. 13, 2015), when arguing that Nassar does not apply to
Section 1981 retaliation claims. (Dkt. No. 52, at 18-20 [Pl.’s Opp’n Mem. of Law].)
58

WL 3948418, at *6 n.1 (N.D.N.Y. June 29, 2015) (Kahn, J.). However, more-recent Second
Circuit decisions than Garcia have applied the but-for standard to Section 1981 and NYHRL
claims. See Alvarado v. Norstrom, Inc., 685 F. App’x 4, 7-8 (2d Cir. 2017) (noting that Section
1981 and NYHRL claims are analyzed according to same principles as Title VII claims and
affirming the dismissal of the Section 1981 and NYHRL claims because the record lacked
sufficient evidence to support plaintiff’s argument under the but-for standard); Varno v.
Canfield, 664 F. App’x 63, 66 (2d Cir. 2016) (applying the but-for standard, citing Nassar); see
also Pompey-Howard, 275 F. Supp. 3d at 367-68 (N.D.N.Y. 2017) (Kahn, J.) (“In order to
succeed on a retaliation claim after a defendant has established a legitimate, non-discriminatory
reason for the adverse action, the plaintiff must present evidence that retaliation was the but-for
cause of the action.”) (quoting Varno). Defendants acknowledge that, even pursuant to the butfor causation standard, a plaintiff does not need to show that retaliation was the only cause of the
adverse action, but rather that the adverse action would not have occurred unless there was a
retaliatory motive. (Dkt. No. 45, Attach. 1, at 21 [Defs.’ Mem. of Law].) See Zann Kwan, 737
F.3d at 846 (“[B]ut-for causation does not require proof that retaliation was the only cause of the
employer’s action, but only that the adverse action would not have occurred in the absence of the
retaliatory motive.”).
Plaintiff has not adduced admissible record evidence from which a rational factfinder
could conclude that he has satisfied the but-for standard. Notably, the undisputed material facts
regarding the ODAA’s untimely submissions and Plaintiff’s failure to follow directions given by
Mattox and Woodward (set forth above in Part I.B of this Decision and Order) are more than
sufficient to overcome Plaintiff’s argument that the adverse actions would not have occurred in
the absence of a retaliatory motive.
59

Alternatively, even if applying the less-demanding motivating factor standard, the Court
would find that Plaintiff has not raised a genuine dispute of material fact as to whether his
reporting of complaints and concerns was a motivating factor in Defendant Mattox’s decisions to
remove the investigatory function from the ODAA or to terminate his employment. To be sure,
Plaintiff attempts to dispute factual issues related to his job performance such as what
Woodward instructed Plaintiff to do and when, whether various reports were late or not
submitted, whether Plaintiff complied with rules for attending meetings, and the amount of time
Plaintiff was expected to work from Albany throughout his tenure as Director of the ODAA.
However, as detailed extensively in Part I.B of this Decision and Order, Plaintiff failed to
adequately establish a factual dispute as to the vast majority of the legitimate, non-retaliatory
reasons proffered by Defendants. Nor has Plaintiff adduced any record evidence establishing a
genuine dispute of material fact as to whether retaliation was a factor (let alone a motivating
factor) in Mattox’s decisions other than the temporal proximity between his complaints and the
adverse actions. As already noted, temporal proximity is not enough to sustain Plaintiff’s burden
at this stage. See El Sayed. 627 F.3d at 933 (finding that temporal proximity alone was not
sufficient to establish that the defendant’s reasons were pretextual). Granted, Plaintiff cites the
fact that Woodward had never issued a negative performance evaluation (or any formal
performance evaluation) regarding his job performance until after he had been terminated.
However, this fact does not establish that Mattox acted in part based on a retaliatory motive
because the reasons given in the performance evaluation as to Plaintiff’s deficient performance
and insubordination are consistent with the other record evidence from the relevant time period
and the undisputed facts discussed in Part I.B of this Decision and Order; this suggests that such

60

reasons were not simply fabricated after the fact to hide a retaliatory motive. (Dkt. No. 45,
Attach. 47, at 6.) Additionally, Plaintiff’s citation to certain accomplishments or achievements
during his tenure as Director of the ODAA do not in any way establish that Defendants’
proffered reasons were pretextual because it is undisputed that Defendants had significant
specific concerns about Plaintiff’s performance and ability to follow directions based on
Plaintiff’s own actions, despite any positive things Plaintiff might have achieved. Plaintiff
simply has not adduced evidence from which a rational fact-finder could conclude that
retaliation was a motivating factor in Mattox’s decisions.
Because Plaintiff has not met his burden to show that there is at least a genuine dispute of
material fact as to whether the reasons proffered by Defendants were pretext for retaliation under
either the but-for or the motivating factor standard, the motion for summary judgment on
Plaintiff’s retaliation claim pursuant to 42 U.S.C. §§ 1981 and 1983 is granted and those claims
are dismissed.
2.

NYHRL § 296(6) Aider and Abettor Claim

Section 296(6) of the NYHRL provides that “it shall be unlawful discriminatory practice
for any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under
this article, or to attempt to do so.” N.Y. Exec. L. § 296(6). To recover damages under this
section, the plaintiff must show that (a) he was engaged in conduct protected by the NYHRL, (b)
there is a causal connection between the protected conduct and the alleged retaliation in violation
of § 296, and (c) the defendant “actually participated” in the discrimination. Beattie v.
Guilderlan Cent. Sch. Dist., 124 F. Supp. 2d 802, 805 (N.D.N.Y. 2000) (Hurd, J.).

61

However, there are two important questions of law that must be resolved: (1) whether
Mattox can be held liable as an aider/abettor despite the fact that the DTF has been dismissed in
this action and therefore cannot be found liable, and (2) whether Mattox, as the sole remaining
Defendant in this case, can be held liable as an aider/abettor despite the fact that he is also the
alleged principal actor in the retaliatory conduct.
As to the first question, multiple courts (including this court) have held that an individual
cannot be held liable as an aider/abettor under Section 296(6) unless liability is first established
as to the employer. See Wenchun Zheng v. Gen. Elec. Co., 15-CV-1232, 2016 WL 10859373, at
*5 (N.D.N.Y. Jan. 12, 2016) (Hummel, M.J.) report and recommendation adopted by 2016 WL
447496 (N.D.N.Y. Feb. 4, 2016) (McAvoy, J.) (“[I]f the employer is found not liable for
violating the NYHRL, the individual employee cannot be held liable either.”); M.O.C.H.A. Soc.,
Inc. v. City of Buffalo, 872 F. Supp. 2d 264, 297 (W.D.N.Y. 2012) (collecting cases); Curcio v.
Roosevelt Union Free Sch. Dist., 10-CV-5612, 2012 WL 3646935, at *20 (E.D.N.Y. Aug. 22,
2012) (relying on M.O.C.H.A. Soc. when granting summary judgment on the plaintiff’s Section
296[6] claim); Pellegrini v. Sovereign Hotels, Inc., 740 F. Supp. 2d 344, 356 (N.D.N.Y. 2010)
(Sharpe, J.) (“[S]ince it is the employer’s participation in the discriminatory practice which
serves as the predicate for the imposition of liability on others for aiding and abetting, . . . a
plaintiff cannot prevail against [an individual] on her state . . . claims unless she can first
establish the liability of [her employer.]”) (internal quotation marks omitted).40 However, the

40

It is worth noting, however, that some courts have also found the opposite: that an
employee can still be liable under Section 296(6) even if the employer has been dismissed or
found not liable for discrimination. See Wenchun Zheng, 2016 WL 10859373, at *5 (collecting
cases). However, because the Second Circuit’s findings on the definition of “employer” in the
NYRHL appears to include supervisors who were personally involved in the alleged acts (as will
be discussed), whether or not the dismissal of the DTF as a defendant in this case is fatal to
Plaintiff’s Section 296(6) claim need not be decided.
62

NYHRL does not specifically define “employer.” See NYHRL § 292(5) (noting only that an
“employer” does not include any employer with fewer than four persons except in specifically
excepted situations not applicable here). Courts have acknowledged and applied the Second
Circuit’s finding in Feingold v. New York, 366 F.3d 138 (2d Cir. 2004), that a supervisor is an
“employer” within the meaning of the NYHRL (and therefore subject to personal liability) if the
supervisor “actually participates in the conduct giving rise to [the] discrimination.” Feingold,
366 F.3d at 157; Wenchun Zheng, 2016 WL 10859373, at *4; Lamere v. New York State Office
for the Aging, 03-CV-0356, 2005 WL 1174068, at *15 (N.D.N.Y. Apr. 27, 2005) (McAvoy. J.).
Because Mattox held a supervisory position over Plaintiff, with the power to terminate Plaintiff’s
employment in particular, and because he actually participated in the actions that Plaintiff alleges
to be retaliatory, the applicable law suggests that Mattox might qualify as an employer, a finding
which indicates that he could be held liable under Section 296(6) despite the fact that the DTF
(Plaintiff’s more obvious employer) cannot be held liable based on their dismissal.
However, this finding does not resolve the issue, but instead leads to the second question:
whether Mattox can be held liable as an aider/abettor for conduct in which he was the principal
(and, in this case, sole) actor. The law regarding this issue (and regarding the interpretation of
Section 296(6)) is unsettled, with differing opinions between the courts in this circuit and in New
York State courts. See Wenchun Zheng, 2016 WL 10859373, at *2-5 (providing a discussion of
the conflicting law on this issue and citing cases). This Court has previously recognized that “an
individual cannot be held liable for aiding and abetting their own violations of the NYHRL.”
Seale v. Madison Cnty., 929 F. Supp. 2d 51, 69 (N.D.N.Y. 2013) (Suddaby, J.). Recently, in the
context of affirming dismissal of a Section 296(6) claim, the Second Circuit found that, although

63

the plaintiff alleged that the defendant “alone aided and abetted,” “an individual cannot aid and
abet their own discriminatory conduct.” Boonmalert v. City of New York, 17-1465, 2018 WL
496846, at *4, – F. App’x – (2d Cir. Jan. 22, 2018) (citing Strauss v. New York State Dept. of
Educ., 805 N.Y.S.2d 704, 709 [N.Y. App. Div. 3rd Dept. 2005]).
The Court therefore finds that Mattox cannot be found to have aided and abetted conduct
in which he was the principal and sole participant. Consequently, Defendants’ motion for
summary judgment on this issue is granted and Plaintiff’s claim pursuant to NYHRL § 296(6) is
dismissed.41
ACCORDINGLY, it is
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 45) is
GRANTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: March 21, 2018
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

41

Although Defendants did not raise any specific arguments regarding Plaintiff’s
Section 296(6) claims, they acknowledged in their memorandum of law that those claims
survived the previous motion to dismiss, and they requested, as relief on their motion for
summary judgment, that “summary judgment be granted and the Complaint be dismissed in its
entirety.” (Dkt. No. 45, Attach. 1, at 24 [Defs.’ Mem. of Law].) Because Plaintiff’s Complaint
includes the Section 296(6) claims, the Court construes Defendants’ motion for summary
judgment as applying to all the remaining claims in the Complaint.
64