Richardson v. New York State Office of Mental Health, Central New York Psychiatric Center et al

Filing 81

MEMORANDUM-DECISION and ORDER - That defendants' 65 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART as follows: GRANTED with respect to Richardson' claim of prima facie tort, which is DISMISSED; and DENIED in all other respects. That Richardson's request that the court strike from the record, pursuant to 42 U.S.C. § 290dd-2, the portions of defendants' motion referencing Richardson's history with drug abuse, (Dkt. No. 79 at 17-18) is DENIED. That this case is deemed trial ready and the court, in due course, shall issue a trial scheduling order. Signed by Chief Judge Gary L. Sharpe on 8/4/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
KEITH RICHARDSON,
Plaintiff,

6:11-cv-1007
(GLS/ATB)

v.
NEW YORK STATE OFFICE OF
MENTAL HEALTH, CENTRAL
NEW YORK PSYCHIATRIC
CENTER et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Bosman Law Office
6599 Martin Street
Rome, NY 13440

AJ BOSMAN, ESQ.

FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

CHRISTOPHER W. HALL
Assistant Attorney General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction

Plaintiff Keith Richardson commenced this action against defendants 1
New York State Office of Mental Health, Central New York Psychiatric
Center (“the Center”), Donald Sawyer, Maureen Bosco, Patricia Bardo,
Mary Carli, William Moorehead, Corey Conley, and Christine Mandigo,
alleging violations of Title VII, 2 42 U.S.C. §§ 1981 and 1983, the New York
State Human Rights Law (NYSHRL),3 and state tort law. (Am. Compl., Dkt.
No. 12.) Pending is defendants’ motion for summary judgment. (Dkt. No.
65.) For the reasons that follow, the motion is granted in part and denied in
part.
II. Background4
A.

Facts
Now retired, Richardson, an African-American male, began his

employment with the Center in January 1982 as a Security Hospital
Treatment Assistant (SHTA). (Defs.’ Statement of Material Facts (SMF)
¶¶ 2-3, Dkt. No. 65, Attach. 1.) Throughout his tenure at the Center,

1

Richardson also names yet to be discovered J[ohn] and Jane Does in his amended
complaint. (Am. Compl. at 1, Dkt. No. 12.)
2

See 42 U.S.C. §§ 2000e-2000e-17.

3

See N.Y. Exec. Law §§ 290-301.

4

Unless otherwise noted, the facts are not in dispute.

2

Richardson’s performance evaluations rated his work between average
and excellent. (See generally Dkt. No. 76, Attach. 1 at 1-76.) Additionally,
Richardson received at least two promotions: first, in 1999, to Senior
SHTA, and second, in February 2006, to Provisional Supervising SHTA.
(Defs.’ SMF ¶¶ 4, 181-82.)
1.

Richardson’s Demotion and the Center’s Failure to Promote

Richardson remained in his position as a Provisional Supervising
SHTA until his position was revoked in 2009. (Id. ¶ 5.) Although
Richardson was informed of his demotion in August 2009, it did not take
effect until September 2009, approximately one month before his
significant other, Christine Bergerson, 5 was successful in her lawsuit
against the Center. (Id. ¶¶ 5, 7; Dkt. No. 65, Attach. 3 at 167-68; Dkt. No.
76, Attach. 3 at 2-9.) That lawsuit, which resulted in a damages award of
$580,000, was premised on, among other things, the Center’s unlawful
termination of Bergerson, who is Caucasian, because of her gender and
affiliation with “an African-American male”—Richardson. (Am. Compl. ¶ 11;
Defs.’ SMF ¶ 90; Dkt. No. 76, Attach. 3 at 2-9.)
Richardson was informed that his position was revoked because Civil

5

Bergerson is also referred to as Christine Fuller. (See, e.g., Am. Compl. ¶ 7.)

3

Service announced an exam for the position, and that, to be considered for
the new, permanent position, he needed to take the Civil Service exam,
and be “reachable” 6 when Civil Service establishes a canvas. (Defs.’ SMF
¶ 9.) At the same time that Richardson’s position was revoked, a
Caucasian employee, Nicholas Guglielmo, also had his Provisional
Supervising SHTA position revoked. (Id. ¶ 11; Dkt. No. 76, Attach. 2 at 3.)
Richardson took the Civil Service exam, and earned a score of ninety.
(Defs.’ SMF ¶¶ 17, 20.) Five other candidates, including Guglielmo, scored
ninety-five on the exam. (Id. ¶¶ 19, 21.)
Guglielmo was automatically promoted to the permanent position on
August 27, 2009, without being required to interview. (Id. ¶¶ 11, 21-22.)
On September 24, 2009—one day after Richardson’s position was officially
revoked—interviews were scheduled for the permanent Supervising SHTA
position, but Richardson was not scheduled for an interview. (Dkt. No. 76,
Attach. 2 at 2.) In October 2009, another Caucasian employee, John
6

The parties dispute how an individual becomes reachable: defendants maintain that a
candidate must be among the top three scoring candidates on the exam, while Richardson
contends that a candidate need only have placed in the top three scores, even if there are
several top scoring candidates. (Defs.’ SMF ¶ 10; Dkt. No. 78 ¶ 10.) The parties also dispute
when Richardson became reachable: defendants claim that Richardson’s position was officially
revoked in September 2009 because he was not yet reachable, but Richardson maintains that
he was reachable on the eligibility list before the effective date of the revocation of his
provisional position, and should have been eligible for an automatic appointment. (Defs.’ SMF
¶¶ 8, 23; Dkt. No. 78 ¶¶ 8, 23.)

4

(Jamie) Temple, who also scored a ninety-five on the exam, was
interviewed for the Supervising SHTA position, along with Glenn Block, an
employee who, on October 2, 2009, was subpoenaed as a witness for
Bergersen in her lawsuit against the Center. (Id. at 16-19; Am. Compl.
¶ 10; Defs.’ SMF ¶¶ 24, 25.) Temple was offered the permanent
Supervising SHTA position on October 8, 2009. (Defs.’ SMF ¶ 27.)
Interview notes, however, indicate that Temple, who never before served in
the position, interviewed poorly. (Dkt. No. 65, Attach. 5 at 35; Dkt. No. 76,
Attach. 2 at 5-6.) Althouh disputed, Richardson was not interviewed for the
position because he was not yet reachable. (Defs.’ SMF ¶ 26; Dkt. No. 78
¶ 26.)
Finally, in February or March 2010, Richardson received a canvas
letter for another permanent supervising position, for which he interviewed
in March. (Defs.’ SMF ¶¶ 28, 29.) Nine other candidates interviewed for
this position, all of whom were interviewed by the same panel: Bosco,
Director of Inpatient Operations, Conley, Chief of Security, and Moorehead,
one of Richardson’s direct supervisors. 7 (Id. ¶¶ 30-31, 35, 37, 41.) In

7

Richardson disputes that Bosco participated in the interview of candidate Robert
Beck. (Dkt. No. 78 ¶ 31; Dkt. No. 76, Attach. 4 at 77.)

5

addition to Richardson, Kenneth Paparella and Robert Beck were among
the nine candidates interviewed. (Id. ¶¶ 72, 76.) Paparella was another
employee who, on October 2, 2009, was subpoenaed as a witness for
Bergersen in her lawsuit against the Center, (Dkt. No. 76, Attach. 2 at 1619), while Beck testified on behalf of the Center, (Dkt. No. 76, Attach. 2 at
36-58). Although each of the candidates had some prior supervisory
experience, Richardson was the only candidate who previously held the
position. (Defs.’ SMF ¶ 32; Dkt. No. 69 at 38, 73-74.)
Richardson interviewed for the position in March 2010, but the parties
dispute the quality of his interview. (Defs.’ SMF ¶ 42.) According to
defendants, Richardson dressed too casually, did not thoroughly answer all
of the questions, indicated that he was unsure if he wanted the position,
and was the only candidate not to submit a resume. (Id. ¶¶ 42-46, 49, 50,
52-58, 62, 64, 67-68.) Richardson, on the other hand, explained that he
dressed appropriately, answered all of the questions that were asked to
him, never suggested that he did not want the position, and did not submit
a resume because he was out sick prior to the interview and did not know
that others were doing so. (Dkt. No. 72 at 19-20; Dkt. No. 73 at 40-42; Dkt.
No. 77 ¶ 8; Dkt. No. 78 ¶ 53.) Moorehead’s notes from the interview
6

indicate that Richardson had “a good interview.” (Dkt. No. 72 at 19; Dkt.
No. 76, Attach. 3 at 16.)
Ultimately, however, three Caucasian employees, Robert Beck, 8
Darryl Barr, and Bill Dehimer, were recommended to Donald Sawyer, the
Executive Director, for promotion. (Am. Compl. ¶¶ 12, 14, 16; Defs.’ SMF
¶ 76; Dkt. No. 75 at 1, 6.) Richardson, however, was not promoted. (Defs.’
SMF ¶ 76.) Beck, Barr, Dehimer, and Richardson each earned the same
score on the Civil Service exam. (Id. ¶¶ 20, 77.)
2.

Drug Investigation

On August 2, 2010, certain staff members reported suspicions about
drug use at the Center. (Id. ¶ 130; Dkt. No. 69 at 97-100.) Richardson was
implicated after a staff member expressed concerns about a conversation
she witnessed between Richardson and a patient. (Defs.’ SMF ¶ 131; Dkt.
No. 69 at 97-100.) An investigation commenced, and the New York State
Police were called in to investigate with the canine unit. (Defs.’ SMF ¶¶
133, 135; Dkt. No. 76, Attach. 3 at 32-39.) Ultimately, the investigation
culminated with the discovery that another employee was responsible for
8

Notably, while most of the candidates were interviewed in March 2010, (Dkt. No. 76,
Attach. 4 at 75), Beck initially cancelled his interview and declined the position, (Am. Compl.
¶ 14; Dkt. No. 76, Attach. 3 at 14). Nevertheless, Beck ultimately interviewed in May 2010, and
was appointed to the position. (Dkt. No. 76, Attach. 3 at 20; Dkt. No. 76, Attach. 4 at 77.)

7

bringing in contraband, and that employee had falsely implicated
Richardson. (Defs.’ SMF ¶ 149.)
3.

EEOC Complaint and Richardson’s Interrogation

On August 19, 2010, Richardson went to the Affirmative Action Office
to provide information regarding the Center’s failure to promote him, and to
explain that he believed the Center’s failure to promote him was due to
racial discrimination. (Dkt. No. 76, Attach. 3 at 28-29.) Richardson claims
that, at that meeting, he stated that he did not want to file a complaint
because he “already went to the [Equal Employment Opportunity
Commission (EEOC)].” (Dkt. No. 73 at 129.) On September 13, 2010,
Richardson filed a complaint with the EEOC. (Defs.’ SMF ¶ 110; Dkt. No.
76, Attach. 3 at 63.)
On September 19, 2010, Richardson was interrogated by Bosco,
Bardo, Associate Personnel Administrator, and Carli, Director of Human
Resources. (Defs.’ SMF ¶¶ 123-26; Dkt. No. 76, Attach. 3 at 53; Dkt. No.
76, Attach. 4 at 5.) Defendants claim that the interrogation related to an
August 12, 2010 fight that broke out among patients in the yard, and
subsequent complaints from staff claiming that Richardson failed to
intervene, thus jeopardizing the safety of patients and staff. (Defs.’ SMF ¶¶
8

116-20.) At the interrogation, Richardson was questioned about the fight
and why he did not intervene, but also about various other topics, including
whether he informs patients that they are being discharged, whether he
ever provided a patient with a knife, and his relationships with certain
patients. (Dkt. No. 76, Attach. 4 at 8-23, 30, 32-33, 41, 43-44, 51-52.)
Notably, Richardson was questioned about staff members bringing in
contraband to the facility, (Dkt. No. 76, Attach. 4 at 32-33), even though
Bosco later stated that “[b]y the time that [she] was part of the panel to
interrogate [Richardson], [she] knew that [he] was not involved with that,”
(Dkt. No. 69 at 133-34), and he was also questioned about whether a
patient ever gave him a back rub, even though Bosco stated that she
“thought the back rub occurred at another time,” “was a whole different
instance,” and was “not clear why that[ question was] included” in the
interrogation, (id. at 138-39; Dkt. No. 76, Attach. 4 at 51-52). After the
interrogation, Bosco recommended that Richardson receive a formal
written counseling for his failure to respond to the patient fight, and that he
“should also be counseled for his apparent inappropriate boundary issues
with patients.” (Defs.’ SMF ¶ 128; Dkt. No. 76, Attach. 3 at 58.)

9

B.

Procedural History
Richardson commenced this action on August 23, 2011. (See

generally Compl., Dkt. No. 1.) Defendants filed a pre-answer motion to
dismiss, (Dkt. No. 20), which was denied, (Dkt. No. 27). Following joinder
of issue, (Dkt. No. 28), defendants moved for summary judgment, (Dkt. No.
65). That motion is currently pending before the court.
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion9
Richardson asserts nine causes of action in his amended complaint.
First, in counts one, two, three, and four, Richardson claims that
defendants discriminated against him on the basis of his race and on the
basis of his association with a person of another race—Bergerson—when
they failed to promote him after he became eligible for the permanent
9

The court has limited its discussion to the arguments presented in the parties’ briefs.

10

Supervising SHTA position, in violation of Title VII, NYSHRL, § 1981, and
the First and Fourteenth Amendments, pursuant to § 1983. (Am. Compl.
¶¶ 30-32, 33-35, 36-38, 39-41.) Second, in counts six, seven, eight, and
nine, Richardson claims that defendants retaliated against him by
interrogating him after they learned that he filed a complaint with the
EEOC, in violation of Title VII, NYSHRL, § 1981, and the First Amendment,
pursuant to § 1983. (Id. ¶¶ 46-48, 49-51, 52-54, 55-57.) Third, in count
five, Richardson brings a claim of prima facie tort against Bosco,
Moorehead, Conley, and the Doe defendants. (Id. ¶¶ 42-45.) As
discussed more thoroughly below, defendants seek summary judgment as
to each claim.
A.

Title VII, NYSHRL, and § 1981 Discrimination Claims
Defendants argue that Richardson’s race discrimination claims

pursuant to Title VII, NYSHRL, and § 1981 10 must be dismissed. (Dkt. No.
65, Attach. 9 at 1-8, 16.) Specifically, defendants contend that they had
legitimate, nondiscriminatory reasons for not promoting Richardson to a
permanent Supervising SHTA position: in 2009, he was not reachable, and
10

The analysis for these claims is the same; accordingly, they are considered together.
See Bowen-Hooks v. City of N.Y., No. 10-CV-5947, 2014 WL 1330941, at *16 n.19 (E.D.N.Y.
Mar. 31, 2014) (collecting cases).

11

in 2010, his interview was not as strong as those candidates who were
promoted. (Id.) Richardson contends that he has set forth a prima facie
case of discrimination, and defendants’ legitimate, non-discriminatory
reasons for failing to promote him are pretextual. (Dkt. No. 79 at 5-10, 14.)
The court concludes that questions of fact preclude summary judgment.
Under Title VII, it is “an unlawful employment practice for an
employer . . . to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Discrimination
claims under Title VII, the NYSHRL, and § 1981 are assessed using the
McDonnell Douglas burden-shifting framework, which places upon the
plaintiff the initial burden of making out a prima facie case of discrimination.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Schiano v.
Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006); Bowen-Hooks
v. City of N.Y., No. 10-CV-5947, 2014 WL 1330941, at *16 n.19 (E.D.N.Y.
Mar. 31, 2014) (collecting cases). To satisfy his initial burden, the plaintiff
“‘must show: (1) he belonged to a protected class; (2) he was qualified for
the position he held; (3) he suffered an adverse employment action; and (4)
12

that the adverse employment action occurred under circumstances giving
rise to an inference of discriminatory intent.’” Brown v. City of Syracuse,
673 F.3d 141, 150 (2d Cir. 2012) (quoting Holcomb v. Iona Coll., 521 F.3d
130, 138 (2d Cir. 2008)).
“A plaintiff’s establishment of a prima facie case gives rise to a
presumption of unlawful discrimination that shifts the burden of production
to the defendant, who must proffer a legitimate, nondiscriminatory reason
for the challenged employment action.” Woodman v. WWOR-TV, Inc., 411
F.3d 69, 76 (2d Cir. 2005) (internal quotation marks and citations omitted).
If the defendant proffers a legitimate, nondiscriminatory reason for the
challenged employment action, the presumption of discrimination drops out
of the analysis, and the defendant “will be entitled to summary judgment . .
. unless the plaintiff can point to evidence that reasonably supports a
finding of prohibited discrimination.” James v. N.Y. Racing Ass’n, 233 F.3d
149, 154 (2d Cir. 2000).
Ultimately, once the burden shifts back to the plaintiff, he must show,
“without the benefit of the presumption, that the employer’s determination
was in fact the result of racial discrimination.” Holcomb, 521 F.3d at 138.
The plaintiff must demonstrate “by a preponderance of the evidence that
13

the legitimate reasons offered by the defendant were not its true reasons,
but were a pretext for discrimination.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). This showing may be made “either
directly by persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.” Id. at 256; see Tyler v.
Bethlehem Steel Corp., 958 F.2d 1176, 1180-81 (2d Cir. 1992). However,
conclusory allegations of discrimination are insufficient to defeat a motion
for summary judgment. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d
Cir. 1997).
Here, Richardson has made out a prima facie case of discrimination.
First, he is African American, (Defs.’ SMF ¶ 2), and was in a relationship
with a Caucasian woman, Bergersen, (id. ¶ 90), and therefore belongs to a
protected class. See Holcomb, 521 F.3d at 138 (holding that “an employer
may violate Title VII if it takes action against an employee because of the
employee’s association with a person of another race”). Second, he was
qualified for the position, as demonstrated by his excellent performance
evaluations when he provisionally held the position. (See generally Dkt.
No. 76, Attach. 1 at 1-77.) Third, he suffered an adverse employment
14

action after the Center failed to promote him to the Supervising SHTA
position once he was again eligible for the position. (Defs.’ SMF ¶¶ 5, 7,
21, 27, 76, 84, 85, 87); see Levitant v. City of N.Y. Human Res. Admin.,
558 F. App’x 26, 29 (2d Cir. 2014) (“It is well-established that a failure to
promote is an adverse employment action.” (citation omitted)). Finally, the
adverse employment action occurred under circumstances giving rise to an
inference of discriminatory intent, as other Caucasian employees, almost
all of whom, unlike Richardson, never before held the position, were
promoted; further, three of these Caucasian employees earned the same
score as Richardson on the Civil Service exam. 11 (Defs.’ SMF ¶¶ 20, 21,

11

The court notes that defendants rely on the “same actor defense,” and argue that the
court cannot impute invidious motivation on the part of defendants because they continued to
employ Richardson, despite his history with drug abuse and his sporadic time and attendance
problems, and in fact, twice promoted him throughout his tenure at the Center. (Dkt. No. 65,
Attach. 9 at 17-20.) This argument, however, is unpersuasive. The same actor defense
suggests that “where the person who made the decision to fire was the same person who
made the decision to hire, it is difficult to impute to her an invidious motivation that would be
inconsistent with the decision to hire.” Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000).
Here, defendants have not identified the “same actor” responsible for both Richardson’s
positive and negative employment experiences at the Center; instead, they refer to the Center
generally as his employer, and note that Conley and Sawyer were responsible for one of
Richardson’s promotions, despite the fact that they previously stated that Sawyer delegated
hiring decisions to others. (Dkt. No. 65, Attach. 9 at 7, 17-20.) This is not sufficient to
establish a same actor defense. The court further notes that Richardson takes issue with
defendants’ detailed discussion of his history with drug abuse, and requests that the court
strike from the record, pursuant to 42 U.S.C. § 290dd-2, the portions of defendants’ motion
referencing Richardson’s history with drug abuse. (Dkt. No. 79 at 17-18.) While the court is
sympathetic to Richardson, § 290dd-2, which generally requires that records containing
information regarding a patient in a substance abuse program be kept confidential, does not,
standing alone, provide authority for the court to strike portions of defendants’ motion from the
record. Thus, Richardson’s request is denied.

15

27, 76, 77, 84, 85, 87).
In response, defendants have come forth with legitimate, nondiscriminatory reasons for their failure to promote Richardson. In 2009,
defendants claim that they did not promote him because he was not eligible
for the position, or “reachable.” (Dkt. No. 65, Attach. 3 at 1-8, 16.) In 2010,
defendants contend, Richardson’s interview was not as strong as the
interviews of the candidates who were promoted. (Id.)
Richardson, however, has demonstrated that there are questions of
fact as to whether defendants’ proffered reasons are merely pretextual. 12
As an initial matter, Richardson disputes that he was not reachable in
2009. (Dkt. No. 78 ¶¶ 8, 26.) Further, the employee who was promoted in
2009, Guglielmo, like Richardson, previously held the Supervising SHTA
position provisionally, but unlike Richardson, was Caucasian, and was
automatically promoted without first being required to interview. (Defs.’
SMF ¶¶ 11, 21, 22.) Even putting aside the dispute over whether and
when Richardson was reachable, it is not clear from the record why,
between the two individuals who previously held the position
provisionally—Richardson and Guglielmo—Guglielmo was not required to

12

The court notes that defendants did not file a reply to Richardson’s opposition.

16

interview, but Richardson later was.
Moreover, in 2010, the parties dispute the quality of Richardson’s
interview. Although Moorehead’s notes from the interview indicate that
Richardson had “a good interview,” (Dkt. No. 72 at 19; Dkt. No. 76, Attach.
3 at 16), defendants now claim that Richardson dressed too casually, did
not thoroughly answer all of the questions, indicated that he was unsure if
he wanted the position, and was the only candidate not to submit a resume,
(Defs.’ SMF ¶¶ 42-46, 49, 50, 52-58, 62, 64, 67-68). Richardson, however,
disputes each of these critiques. (Dkt. No. 72 at 19-20; Dkt. No. 73 at
40-42; Dkt. No. 77 ¶ 8; Dkt. No. 78 ¶ 53.) Further, other evidence in the
record calls defendants’ credibility into question. For example, one of the
Center’s criticisms of Richardson’s interview was that he seemed as though
he did not even want the position, and even, at points, verbally indicated as
such. (Defs.’ SMF ¶¶ 49, 50.) Nevertheless, one of the three individuals
hired for the Supervising SHTA positions in 2010 was Beck, 13 who, in
March, initially canceled his interview and declined the position. (Dkt. No.
76, Attach. 3 at 14, 20; Dkt. No. 76, Attach. 4 at 77.) Finally, casting even
13

Further muddying the waters, the court notes that Beck, who testified on behalf of the
Center in Bergerson’s trial, was promoted over Paparella, who was subpoenaed to testify
against the Center in Bergerson’s trial, but who nevertheless gave an “excellent” interview.
(Defs.’ SMF ¶¶ 72, 76; Dkt. No. 76, Attach. 2 at 16-19, 36-57.)

17

more doubt on whether Richardson was not promoted because of the
quality of his interview, Temple, another Caucasian employee who never
before held the Supervising SHTA position, was hired in October 2009,
despite interview notes indicating that he interviewed poorly. (Defs.’ SMF ¶
27; Dkt. No. 65, Attach. 5 at 35; Dkt. No. 76, Attach. 2 at 5-6.)
Accordingly, Richardson has demonstrated that there are questions
of fact as to whether defendants’ legitimate, non-discriminatory reasons for
failing to promote him are merely pretextual, and defendants’ motion for
summary judgment is denied on this ground.
B.

Title VII, NYSHRL, and § 1981 Retaliation Claims14
Richardson claims that the Center retaliated against him for filing his

EEOC complaint when he was interrogated on September 20, 2010. (Am.
Compl. ¶¶ 46-48, 49-51, 52-54, 55-57.) Defendants seek summary
judgment on Richardson’s retaliation claims because, they argue, he has
failed to establish a prima facie case of retaliation. (Dkt. No. 65, Attach. 9
at 9-13.) Specifically, defendants argue that Richardson has not suffered
an adverse employment action, and, even if he did, there was no causal

14

“Claims of retaliation under th[e]se statutes are generally analyzed in the same way,
with the same standards of liability.” Acosta v. City of N.Y., No. 11 Civ. 856, 2012 WL
1506954, at *8 (S.D.N.Y. Apr. 26, 2012) (internal quotation marks omitted).

18

connection between the adverse employment action and his protected
activity. (Id.) Richardson responds that he has carried his burden. (Dkt.
No. 79 at 10-13.) The court agrees with Richardson.
Title VII provides that “[i]t shall be an unlawful employment practice
for an employer to discriminate against any of his employees . . . because
[that employee] has opposed any practice made an unlawful employment
practice . . . or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing.” 42
U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a
plaintiff must show: “(1) participation in a protected activity; (2) that the
defendant knew of the protected activity; (3) an adverse employment
action; and (4) a causal connection between the protected activity and the
adverse employment action.” McMenemy v. City of Rochester, 241 F.3d
279, 282-83 (2d Cir. 2001). If the plaintiff sets out a prima facie case, then
the burden of production shifts to the defendant to articulate a legitimate,
non-retaliatory rationale for its actions. See McDonnell Douglas, 411 U.S.
at 802; Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991). If the
defendant proffers a legitimate, non-retaliatory reason, the burden of
production then shifts back to the plaintiff to introduce evidence that the
19

defendant’s reason was a pretext for retaliation. See McDonnell Douglas,
411 U.S. at 804; Johnson, 931 F.2d at 207. Here, it is undisputed that
Richardson engaged in protected activity of which defendants were aware,
but they do dispute whether Richardson suffered an adverse employment
action and whether there was a causal connection between the protected
activity and the adverse employment action.
First, to establish an “adverse employment action,” Richardson must
show “that a reasonable employee would have found the challenged action
materially adverse,” meaning “it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation
marks and citation omitted); see Kessler v. Westchester Cnty. Dep’t of Soc.
Servs., 461 F.3d 199, 207 (2d Cir. 2006). Here, Richardson argues that
the adverse employment action was his September 20, 2010 interrogation
and investigation. (Dkt. No. 79 at 10-13.) Citing no authority, defendants
contend that Richardson’s interrogation was not an adverse employment
action because he “was never disciplined following the interrogation.” (Dkt.
No. 65, Attach. 9 at 12-13.) Richardson, however, cites Lee v. City of
Syracuse, 603 F. Supp. 2d 417, 436 (N.D.N.Y. 2009), abrogated on other
20

grounds by Widomski v. State Univ. of N.Y. at Orange, 748 F.3d 471 (2d
Cir. 2014), for the proposition that being investigated may constitute an
adverse employment action. (Dkt. No. 79 at 12-13.) Indeed, in Lee, the
court held, and this court agrees, that an investigation of an employee
could constitute an adverse employment action because “[b]eing
investigated by one’s employer could deter a reasonable person from
complaining about discrimination because investigations can be intrusive
and intimidating.” Lee, 603 F. Supp. 2d at 436; see also Morales v. N.Y.S.
Dep’t of Labor, 865 F. Supp. 2d 220, 250-51 (N.D.N.Y. 2012) (noting that
the plaintiff’s email constituting “an informal complaint about employment
actions taken against her” followed closely in time by a “lengthy
interrogation” raised questions of fact regarding whether the defendant’s
actions were retaliatory), aff’d 530 F. App’x 13 (2d Cir. 2013). Thus, for the
purposes of establishing his prima facie case, Richardson has
demonstrated that he suffered an adverse employment action.
Next, “[a] plaintiff can indirectly establish a causal connection to
support a . . . retaliation claim by showing that the protected activity was
closely followed in time by the adverse employment action.” Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (internal quotation
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marks and citation omitted). Nevertheless, “where ‘timing is the only basis
for a claim of retaliation, and gradual adverse job actions began well before
the plaintiff had ever engaged in any protected activity, an inference of
retaliation does not arise.’” Hartley v. Rubio, 785 F. Supp. 2d 165, 182
(S.D.N.Y. 2011) (quoting Slattery v. Swiss Reinsurance Am. Corp., 248
F.3d 87, 95 (2d Cir. 2001)).
Here, defendants claim that the interrogation lacks a causal
connection to Richardson’s protected activity—meeting with the Affirmative
Action Officer and filing his EEOC complaint—because the interrogation
“arose from the [fight in the recreation yard] that occurred three weeks
before the filing of the complaint.” (Dkt. No. 65, Attach. 9 at 13.) As
Richardson points out, however, the fight in the recreation yard occurred on
August 12, 2010, (Dkt. No. 76, Attach. 3 at 42), but the first interview as
part of the investigation into Richardson’s conduct during the fight did not
occur until August 23, 2010, (id. at 44), which was eleven days after the
fight in the recreation yard, but only four days after Richardson met with the
Affirmative Action Officer and informed her that he “went” to the EEOC,
(Dkt. No. 73 at 129). Further, Richardson was ordered to appear for the
interrogation on September 16, 2010, (Dkt. No. 76, Attach. 4 at 2), which
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was only one day after defendants learned that he had filed a complaint
with the EEOC, (Dkt. No. 76, Attach. 3 at 61-63). Accordingly, there are
questions of fact as to whether defendants’ interrogation of Richardson was
retaliatory, and therefore, defendants are not entitled to summary
judgment. See Morales, 865 F. Supp. 2d at 250-51.
Finally, the court notes that, to the extent that defendants argue that
they had a legitimate, non-retaliatory reason for interrogating
Richardson—their interest in investigating the August 12, 2010 fight in the
recreation yard—Richardson has, at least at this stage, established that
there are questions of fact as to whether that reason is pretextual. For
instance, in his interrogation, defendants did not limit their line of
questioning to the circumstances surrounding the fight. Instead, they also
questioned him about a range of other topics, including drug use in the
facility and accusations that Richardson received a back rub from a patient.
(Dkt. No. 76, Attach. 4 at 32-33, 51-52.) The Center, however, had
previously investigated Richardson’s alleged involvement with drugs
entering the facility, and, by the time of his interrogation, it had already
been determined that he had no involvement. (Dkt. No. 69 at 133-34; Dkt.
No. 76, Attach. 3 at 32-39.) Further, the back rub incident both occurred at
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another time from, and was wholly unrelated to, the fight in the recreation
yard. (Dkt. No. 69 at 138-39.) Thus, these inconsistencies cast doubt as to
whether the interrogation was part of a targeted investigation into reported
wrongdoing, or whether it was merely a fishing expedition.
Accordingly, there are questions of fact with respect to Richardson’s
retaliation claims, and defendants’ motion for summary judgment is denied.
C.

Section 1983 Claims
Defendants contend that Richardson’s § 1983 claims should be

dismissed because they are based on Title VII law and Richardson “does
not allege [that] defendants violated any other law to support these claims.”
(Dkt. No. 65, Attach. 9 at 13.) Richardson responds that his § 1983 claims
must survive because they are based on violations of the United States
Constitution. (Dkt. No. 79 at 13-14.) The court agrees with Richardson.
“A Title VII plaintiff is not precluded from bringing a concurrent § 1983
cause of action, such as a claim for denial of equal protection, so long as
the § 1983 claim is based on a distinct violation of a constitutional right.”
Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004)
(internal quotation marks and citations omitted). Here, Richardson’s third
cause of action is brought pursuant to § 1983 and alleges violations of his
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First and Fourteenth Amendment rights, and his eighth cause of action is
brought pursuant to § 1983 and alleges violations of his First Amendment
rights. (Am. Compl. ¶¶ 36-38, 52-54.) Because Richardson’s amended
complaint clearly bases his § 1983 claims on violations of constitutional
rights, defendants’ argument is unavailing. Further, because “[t]he burden
of proof and production for employment discrimination claims under Title
VII, § 1981, § 1983, and the NYSHRL are identical,” Bowen-Hooks, 2014
WL 1330941, at *16 n.19, and defendants offer no new reasons for why
Richardson’s § 1983 claims must be dismissed, Richardson’s § 1983
claims survive for substantially the same reasons as discussed above. See
Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (noting that
“[plaintiff]’s equal protection claim parallels his Title VII claim. The
elements of one are generally the same as the elements of the other and
the two must stand or fall together.”); see also Acosta v. City of N.Y., No.
11 Civ. 856, 2012 WL 1506954, at *8 (S.D.N.Y. Apr. 26, 2012).

D.

Prima Facie Tort

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Defendants also argue that Richardson’s prima facie tort claim must
be dismissed because Richardson has not demonstrated that their actions
were intended solely to harm him. (Dkt. No. 65, Attach. 9 at 20-21.) The
court agrees.
“Under New York law, there are four elements to a claim of prima
facie tort: (1) an intentional infliction of harm; (2) without excuse or
justification and motivated solely by malice; (3) resulting in special
damages; (4) by an act that would otherwise be lawful.” Rausa v. Bd. of
Educ. of the N. Syracuse Cent. Sch. Dist., No. 5:11-cv-1152, 2012 WL
967052, at *11 (N.D.N.Y. Mar. 21, 2012) (citing Evergreen Pipeline Constr.
Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 161 (2d Cir. 1996)).
The Second Circuit has held that the “touchstone” of a prima facie tort
claim is “disinterested malevolence,” meaning that “the defendant’s conduct
was not only harmful, but done with the sole intent to harm.” Twin Labs.,
Inc. v. Weider Health & Fitness, 900 F.2d 566, 571 (2d Cir. 1990). Indeed,
“where the plaintiff merely pleads intentional and malicious action, but not
that the defendant’s sole motivation was disinterested malevolence, the
[claim] will be dismissed.” T.S. Haulers, Inc. v. Town of Riverhead, 190 F.
Supp. 2d 455, 465-66 (E.D.N.Y. 2002) (internal quotation marks and
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citations omitted); see Fordham v. Islip Union Free Sch. Dist., 662 F. Supp.
2d 261, 277 (E.D.N.Y. 2009).
Here, Richardson’s complaint only alleges that Bosco, Moorehead,
Conley, and the Doe defendants “acted with ill will and malice towards”
Richardson, (Am. Compl. ¶¶ 42-45), and he has not otherwise offered
evidence demonstrating that defendants’ sole intent was to harm him.
Accordingly, Richardson’s prima facie tort claim must be dismissed.
E.

Qualified Immunity
Finally, defendants contend that they are entitled to qualified

immunity for Richardson’s §§ 1981 and 1983 claims. (Dkt. No. 65, Attach.
9 at 21.) Richardson argues that the outstanding questions of fact render
qualified immunity inappropriate in this case. (Dkt. No. 79 at 17.) The
court agrees with Richardson.
“A government official is entitled to qualified immunity for his actions
unless his conduct violates a clearly established constitutional or statutory
right of which a reasonable person would have known.” Rivers v. Fischer,
390 F. App’x 22, 23 (2d Cir. 2010). “A right is clearly established if (1) the
law is defined with reasonable clarity, (2) the Supreme Court or the Second
Circuit has recognized the right, and (3) ‘a reasonable defendant [would]
27

have understood from the existing law that [his] conduct was unlawful.’”
Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quoting Young v.
Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)).
Here, the legal principles governing defendants’ conduct, discussed
above, were well established. However, the matter of whether it was
reasonable for defendants to believe their actions met the standards set by
those principles depends on whether one believes their version of the facts.
That version is sharply disputed, and the matter of defendants’ qualified
immunity therefore cannot be resolved as a matter of law.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
65) is GRANTED IN PART and DENIED IN PART as follows:
GRANTED with respect to Richardson’s claim of prima facie
tort, which is DISMISSED; and
DENIED in all other respects; and it is further
ORDERED that Richardson’s request that the court strike from the
record, pursuant to 42 U.S.C. § 290dd-2, the portions of defendants’ motion

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referencing Richardson’s history with drug abuse, (Dkt. No. 79 at 17-18), is
DENIED; and it is further
ORDERED that this case is deemed trial ready and the court, in due
course, shall issue a trial scheduling order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
August 4, 2014
Albany, New York

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