Gemerek v. Sewer Authority, et al
DECISION AND ORDER GRANTING in part and DENYING in part Defendants' 119 Supplemental Motion for Summary Judgment. Signed by William M. Skretny, Chief Judge U.S.D.C. on 7/22/2011. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEVIN R. GEMEREK,
DECISION AND ORDER
BUFFALO SEWER AUTHORITY
Plaintiff Kevin R. Gemerek commenced this employment discrimination action by
filing a Complaint in the United States District Court for the Western District of New York.
(Docket No. 1.) He subsequently filed an Amended and Second Amended Complaint.
(Docket Nos. 19, 75.) The Second Amended Complaint alleges that Defendant Buffalo
Sewer Authority (“BSA”) violated Gemerek’s First Amendment rights, and that BSA and its
general manager, Anthony Hazzan, discriminated against him and subjected him to a
hostile work environment.
Gemerek brings this action pursuant to Section 1983 of the Civil Rights Act of 1964,
42 U.S.C. § 1983; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,
(hereinafter, “ADA”); the New York State Human Rights Law, N.Y. EXEC . L. §§ 296 et seq.
(hereinafter, “NYHRL”); and, New York Labor Law § 201-d.
Presently before this Court is Defendants’ Motion for Summary Judgment (Docket
No. 119), seeking dismissal of the Complaint in its entirety.1 Gemerek opposes the
motion.2 For the reasons stated below, Defendants’ motion is granted in part and denied
Plaintiff Kevin R. Gemerek commenced employment at BSA in February 1981 as
a Wastewater Operator I. (Docket No. 119, p. 50.) In June 1993, he was promoted to
Shift Superintendent. (Id.) After Gemerek’s Shift Superintendent position was eliminated
in a May 1996 workforce restructuring, he accepted a temporary Assistant Shift
Superintendent position where he remained until his termination on November 8, 1996.
(Defs.’ Stmt.3 ¶ 1; Docket No. 119-5, p. 50.) At all relevant times, Gemerek was a member
of the Civil Service Employees Association Inc., Local 1000, AFSCME, AFL-CIO (“CSEA”
or “union”). (Defs.’ Stmt. ¶ 2.) CSEA is recognized as the exclusive bargaining unit for
some of BSA’s employees, including Gemerek. (Id. ¶ 3.)
Defendant Anthony Hazzan commenced employment with BSA in March 1994 as
Secretary to the General Manager. (Docket No. 131-3, 11:20-25.) He became acting
General Manager in or around July 1995, and was appointed to General Manager in 1998.
(Id. 13:22-24, 14:2-4, 13-17.) As acting General Manager, Hazzan was responsible for
In support of their Motion for Sum m ary Judgm ent, Defendants filed a Declaration of Randolph C.
Oppenheim er, Esq.; Rule 56.1 Statem ent of Undisputed Material Facts, with Appendix; Mem orandum of
Law; Reply Mem orandum of Law; Supplem ental Declaration of Randolph C. Oppenheim er, Esq.;
Supplem ental Rule 56.1 Statem ent , with Appendix; and Supplem ental Mem orandum of Law.
In opposition to Defendants’ m otion, Gem erek filed a Mem orandum of Law; Rule 56.1 Statem ent
of Disputed Facts, with Appendix; and Declaration of Beverley S. Braun, Esq., with Appendix and Exhibits.
Referring to “Defendants’ Rule 56.1 Statem ent of Undisputed Material Facts.”
making decisions about restructuring. (Id. at 13:7-9.)
In 1994, BSA began planning to restructure its personnel in order to run more
efficiently. (Id. at 19:15-19. ) As part of the restructuring plan, in or about July 1995, BSA
eliminated overtime that Shift Superintendents traditionally had been allowed to work.
(Docket No. 84-5, pp. 5-6.) On August 11, 1995, CSEA filed a grievance alleging that BSA
violated the Collective Bargaining Agreement (hereinafter, “CBA”) by having Assistant Shift
Superintendents do the work of Shift Superintendents. (Docket No. 85-5, p. 59.) On
August 14, 1995, CSEA filed an improper practice charge with the New York State Public
Employment Relations Board (“PERB”), alleging BSA violated the Public Employees’ Fair
Employment Act when it shifted overtime work from Shift Superintendents to Assistant Shift
Superintendents. (Docket No. 85-5, p. 57.)
In May 1996, BSA determined that it could operate with five Shift Superintendents
rather than eight. (Docket No. 84-5, pp. 2-3.) The three least senior Shift Superintendents,
including Gemerek, were impacted. (Id. at p. 3.) Two of the affected employees were
“bumped” to vacant assistant positions. (Id.) Gemerek, having the least seniority, was laid
off. (Id. at p. 10.) However, a temporary Assistant Shift Superintendent position became
available later that same month, and Gemerek was offered and accepted the position. (Id.)
On August 28, 1996, CSEA filed an improper practice charge relative to the elimination of
positions, which charge was later amended to include Gemerek’s termination. (Id. at 6166.) Some of the facts set forth herein are drawn from the testimony at the PERB hearing
and findings of the PERB Administrative Law Judge (“ALJ”). (Id. at 32-52.)
Plaintiff’s Absence from Work and Failure to Provide Doctor’s Note
Throughout the time period at issue here, Gemerek was treated for depression. In
1995, Gemerek was off work due to a back injury. (Docket No. 119-5, p. 51.) On or about
November 6, 1995, BSA received a letter from Dr. Ring, the orthopedic surgeon who
examined Gemerek for his injury, noting that Plaintiff was “very depressed,” was on antidepressants, and had been on Prozac for 1-1/2 years. (Docket No. 131-11 at 2.) Dr. Ring
felt Gemerek’s “psychiatric problems [were] a definite factor in his recovery” from the injury.
After recovering from his back injury, Gemerek returned to work for a short period
of time. (Docket No. 119-5 at 52.) BSA did not take any action to determine Gemerek’s
psychological condition prior to his return to work. (Id. at 51.) Gemerek failed to report to
work as scheduled on June 21, 1996. (Id. at 52.) From June 26, 1996 to July 1, 1996, he
was confined at Bry-Lin Psychiatric Hospital for “Acute crisis stabilization” after he
presented as overtly depressed. (Id. at p. 60-61.) Gemerek also was treated for addiction
to codeine, which he had begun taking because of his back problems. (Id. at 60.) He
stabilized without difficulty, was discharged with a diagnosis of Major Depression,
Recurrent Without Psychotic Features, and was prescribed Xanax and Prozac, along with
Darvocet-N for pain. (Id. at 61.) He followed up with Dr. Kang, who had treated him during
his hospitalization. (Id. at 60-61.) Gemerek testified before the PERB ALJ that he called
in to work sick on a daily basis, but did not tell anyone why he was absent or the nature of
his illness. (Docket No. 85-4 at 42.)
When Sal LoTempio, assistant treatment plant superintendent, advised Director of
Employee Relations, Pamela DiPalma, that Gemerek was off work, she wrote a letter,
dated July 1, 1996, advising Gemerek of the need to report to her and present a doctor’s
note. (Docket Nos. 85-4 at 36, 42; 119-5 at 2.) DiPalma had BSA employee Angelo
Provenzano hand-deliver the letter to Gemerek’s residence. (Docket No. 85-4 at 42.)
Gemerek testified that Provenzano made a scene when he dropped off the letter,
screaming “does Kevin Gemerek live here.” (Pl. Dep. 213:3-7.) This incident was so
upsetting to Gemerek that he consulted his therapist, Dr. Kang. (Id. 163:19.)
Sometime thereafter, LoTempio informed DiPalma that he had been in contact with
Gemerek, and that Gemerek would be returning to work on July 21, 2006. DiPalma again
wrote to Gemerek, on July 16, 1996, directing that he appear at her office on July 18, 1996
at 2:00 p.m., with a note from his doctor “stating that [Gemerek] may return to work with
no restrictions or limitations.” (Docket No. 119-5 at 6.) Since at least January 1996, BSA
has required that an employee returning to work from an extended illness meet with
DiPalma in advance, and provide written authorization to return to work from his or her
physician. (Id. at 30.) BSA employee Dennis Faye hand-delivered DiPalma’s second letter
to Gemerek’s house, dropping it in his mailbox. (Docket No. 85-4 at 42.)
Gemerek arrived for the scheduled meeting with a note from Dr. Kang, dated July
9, 1996, certifying he was able to “return to work on 07-14-96, with no restrictions.” (Id. at
43; Docket No. 119-5 at 43.) However, DiPalma was unable to meet with Gemerek due
to a family emergency. (Docket No. 85-4 at 43.) Gemerek testified that he became loud
and angry when he discovered DiPalma was not there to meet with him, and concedes he
told Faye he had reported Faye to the Postmaster General for placing the July 16 letter in
his mailbox. (Id.)
DiPalma thereafter called Gemerek to ask him who Dr. Kang was and what he was
being treated for, but Gemerek declined to provide that information. (Id. at 43-44.)
DiPalma testified at the PERB hearing that she believed she had a right under the contract
to inquire about the nature of Gemerek’s illness, citing Article IX, Section 1(h) of the
collective bargaining agreement between BSA and CSEA for the period July 1, 1995 - June
30, 1998. (Id. at 44.) That provision states, in pertinent part, that:
“Prior to receiving sick pay under this provision, an employee
must execute and file... written proof of his illness or disability
during the period of his absence. Said proof... shall include a
physician’s certificate specifically setting forth the exact nature
of the employee’s illness or disability...”
(Docket No. 119-5 at 24). This provision does not relate to an employee’s return to work.
Rather, it sets forth the requirements an employee must meet to have his or her absence
charged against accumulated sick leave credits. (Id.)
One day after Gemerek had been scheduled to meet with DiPalma, on July 19,
1996, he attended a union demonstration in front of Buffalo City Hall. (Docket No. 85-4 at
44-45.) Gemerek’s union, CSEA, was not involved in the picketing. (Docket No. 119-5 at
53.) Gemerek spotted Hazzan and DiPalma leaving City Hall, grabbed a bull horn, and
started yelling at them. (Docket No. 85-4 at 44-45.) Accounts differ as to what Gemerek
said. Hazzan testified before the ALJ that Gemerek stated:
“I’m going to get you, f- - - head. Here I am, come and get
me.” (Id. at 45.)
DiPalma testified Gemerek shouted:
“Hazzan and DiPalma, you mother f- - - ers want me, come
and get me. I’m out here. You send political cronies to my
house. You f- - -ing people, if you want me, come and get me.
You harass my family.” (Id.)
Gemerek testified that he yelled:
“Hi Pam. Hi Tony. I’m over here. You want to threaten my
family, come over here and do it on camera.” (Id.)
Patricia DeBenedetti, an employee in DiPalma’s office, heard Gemerek’s remarks
and wrote them down. (Id.) Her account was substantially similar to what DiPalma recalled
Gemerek saying. (Id.)
Psychiatric Evaluation and Termination
After Gemerek declined to discuss the nature of his illness with DiPalma, she looked
in a phone directory and discovered that Dr. Kang was a psychiatrist. (Id. at 44.) On July
22, 1996, Hazzan advised Gemerek, by hand-delivered letter, that BSA was in the process
of scheduling a psychiatric evaluation for him, that he was not to return to work, and that
he would continue to use his personal sick leave time. (Docket No. 119-5 at 45.) In a
further letter, dated July 29, 1996, Hazzan notified Gemerek that he was placed “on leave
for ordinary disability as of July 14, 1996" due to concerns regarding Gemerek’s “present
ability to return to [his] regular duties,” and noting that in accordance with Civil Service Law,
he was permitted to draw on all accumulated leave allowances standing to his credit. (Id.
Brian S. Joseph, M.D., F.A.P.A., was selected to serve as the examining medical
officer. In a letter to Dr. Joseph dated September 19, 1996, Hazzan pointed to Gemerek’s
past treatment for a psychological condition, his anger at finding he could not meet with
DiPalma on July 18, his actions at the union demonstration on July 19, his refusal to accept
a letter hand-delivered by Faye during that same time period, and his allegedly disruptive
behavior at a training in the winter of 1996 (a time period after the date of Hazzan’s letter).
Hazzan also recounted a conversation between Gemerek and DiPalma a year earlier, in
the fall of 1995, where Gemerek commented that he was going to his ex-wife’s house to
shoot her boyfriend. He went on to express concern that Gemerek could become violent
in the workplace. (Id. at 50-53.) Hazzan requested that Dr. Joseph address, inter alia,
whether Gemerek then had a psychological condition and, if so, explain its symptoms, and
consider whether Gemerek was capable of safely performing his job. (Id. at 54.)
In a letter dated October 24, 1996, Dr. Joseph stated that during Gemerek’s mental
status exam, he was “calm, appropriate and in good contact. He was lucid and emotionally
reactive, with no evidence of psychosis or impaired cognition. He was [sic] no suicidal
ideation, and his insight and judgment seemed intact.” (Id. at 59.) After noting BSA’s
concern about possible workplace violence, Dr. Joseph opined that while Gemerek did
have very significant, serious stressors in the past involving work, family, and financial
matters, his hospitalization appeared to have stabilized the situation and “he does not have
evidence of a major mental illness, as such.” (Id. at 61-62.) Dr. Joseph found no indication
that Gemerek had been overtly violent over the years, or any indication of current
substance abuse or violent fantasies, and concluded that Gemerek could return to work.
(Id. at 62.) He went on to note that Gemerek could be “difficult,” but that only a return to
work would reveal if Gemerek can act appropriately, and that a failure to do so might call
for administrative discipline. (Id. at 62.) Thus, Gemerek was cleared to return to work the
week of October 27, 1996.
BSA placed Gemerek on a paid leave of absence as of October 28, 1996, and
terminated him on November 8, 1996. (Docket Nos. 85-4 at 46; 119-5 at 64.) Hazzan
testified before the ALJ that he had made the decision to terminate Gemerek and that:
Basically it was a series of incidents which we construed as inappropriate
behaviour. And I didn’t feel that this individual — after looking at incident
after incident, that this individual had the responsibility to run our waste water
(Docket No. 85-4 at 46.)
On August 28, 1996, CSEA filed an improper practice charge, later amended,
alleging that the BSA violated §§ 209-a.1(a) and (c) of the Public Employees’ Fair
Employment Act4 when it eliminated positions within the BSA, demoted Gemerek and two
other employees, and terminated Gemerek in retaliation for filing an improper practice
charge on August 11, 1995 and a grievance on August 14, 1995. (Defs.’ Ex. B, D, E.)
On July 15, 1998, after conducting a hearing over several days, the ALJ dismissed
the charge in its entirety, finding that BSA did not eliminate positions or terminate Gemerek
based on protected union activity. (Docket No. 85-4, p. 48.) The ALJ determined that
BSA’s decision to eliminate Shift Superintendent positions was discussed as early as 1992,
and Hazzan had begun the process of eliminating the positions five months before CSEA
filed the grievance and improper practice charge. (Id. p. 19.) Further, that BSA’s rationale
for terminating Gemerek, as testified to by DiPalma and Hazzan, provided sufficient basis
to conclude his termination was for cause. (Id. at p. 51.)
CSEA filed exceptions to the
ALJ’s decision. (Docket No. 85-4, pp. 54-59.) On December 10, 1998, PERB denied
CSEA’s exceptions and affirmed the ALJ’s decision. (Id.)
§§ 209.a-1 (a) and (c) state that it is im proper practice for a public em ployer to deliberately
interfere with, restrain or coerce public em ployees in the exercise of their right of organization, and to
discrim inate against any em ployee for the purpose of encouraging or discouraging m em bership in, or
participation in the activities of, any em ployee organization. N.Y. Civ. Serv. § 209-a.1 (a), (c).
Gemerek, pro se, filed his Complaint with the Clerk of the Court on November 4,
1999. (Docket No. 1.) He filed a Motion for Appointment of Counsel on that same date.
(Docket No. 3.) After being represented by a number of consecutive attorneys, Attorney
Beverley Suzanne Braun submitted a notice of appearance on March 31, 2009 and has
remained as counsel.
(Docket No. 107.) The case was originally assigned to Senior
Judge John T. Elfvin, and was reassigned to Chief Judge William M. Skretny following
Judge Elfvin’s retirement. (Docket No. 69.)
Defendants filed a Motion to Dismiss on March 3, 2000. (Docket No. 8.) On May
23, 2001, Defendants’ motion to dismiss was denied as to Gemerek’s NYHRL claim
against Hazzan, but granted as to Gemerek’s claim for punitive damages. (Docket No. 20.)
Gemerek filed an Amended Complaint on December 20, 2000 and a Second
Amended Complaint on April 17, 2008. (Docket Nos. 19, 75.) Defendants filed an Answer
thereto on May 16, 2008. (Docket No. 78.) Defendants filed a Motion for Summary
Judgment on November 10, 2008 (Docket No. 85) and Supplemental Motion for Summary
Judgment on July 15, 2009 (Docket No. 119).
III. DISCUSSION AND ANALYSIS
Preclusive Effect of Administrative Determination
Defendants argue that PERB’s findings and determination preclude litigation of
Gemerek’s current claims. (Defs.’ Memo., p. 21.) Gemerek contends his claims are not
precluded because they involve issues not necessarily decided by PERB. (Pl.’s Memo, p.
“When a state agency ‘acting in a judicial capacity. . . resolves disputed issues of
fact properly before it which the parties have had an adequate opportunity to litigate,’
federal courts must give the agency’s factfinding the same preclusive effect to which it
would be entitled in the State’s courts.” Univ. of Tennessee v. Elliott, 478 U.S. 788, 799,
106 S.Ct. 3220, 3226 (1986) (quoting Utah Constr. & Mining Co., 384 U.S. 294, 422, 86
S.Ct. 1545, 1560 (1966)). It is well established that “PERB acts in a quasi-judicial
capacity,” given it’s power to conduct hearings in which it administers oaths, examines
witnesses and documents, takes testimony, receives evidence, and issues subpoenas.
Scott v. Goodman, 961 F.Supp. 424, 432 (E.D.N.Y. 1997); N.Y. Civ. Serv. § 205(5)(k);
O’Connor v. Mazzulo, 536 F.Supp. 641, 643 (S.D.N.Y. 1982); Perry v. Metro. Suburban
Bus Auth., 390 F.Supp.2d 251, 265 (E.D.N.Y. 2005.)
“Under New York law, a state agency determination is given preclusive effect in a
subsequent state court proceeding only when, inter alia, the identical issue has been
decided in the prior action.” Leventhal v. Knapek, 266 F.3d 64, 72 (2nd Cir. 2001) (internal
quotation marks and citations omitted). An issue is decided when it was “actually decided”
by the administrative agency and “necessary to support a valid and final judgment on the
merits.” Beechwood v. Leeds, 436 F.3d 147, 153 (2nd Cir. 2006). As the party asserting
issue preclusion, Defendants have the burden of showing the identical issue was
necessarily decided in a previous case. Kaufman, 65 N.Y.2d at 456.
Furthermore, the New York Court of Appeals has set out factors to guide the court
in determining whether the first action or proceeding genuinely provided a full and fair
opportunity to contest the decision. Ryan, 62 N.Y.2d at 501. They include:
the nature of the forum and the importance of the claim in the
prior litigation, the incentive and initiative to litigate and the
actual extent of litigation, the competence and expertise of
counsel, the availability of new evidence, the differences in the
applicable law and foreseeability of future litigation.
Id. (citations omitted).
“[T]he fundamental inquiry is whether relitigation should be
permitted in a particular case in light of what are often competing policy considerations,
including fairness to the parties, conservation of the resources of the court and the litigants,
and the societal interests in consistent and accurate results.” Straatsburg Water Co. v.
Straatsburg Fire Dist., 72 N.Y.2d 147, 153, 531 N.Y.S.2d 876, 527 N.E.2d 754 (1988).
Section 1983 Claim
In Elliott, the Supreme Court specifically held that agency determinations with regard
to § 1983 claims may be given preclusive effect in federal court where they would be
entitled to the same in the State’s courts. 478 U.S. at 799, 106 S.Ct. 3220.
Thus, Gemerek’s § 1983 claim will be subject to preclusion if all factors considered
by the courts of New York State are met.
Gemerek asserts that Defendants demoted him in 1995 and terminated him in 1996
because he engaged in activities protected by the First Amendment. Specifically, Gemerek
alleges that Defendants retaliated against him for: (1) protesting at a rally, (2) writing a
letter to the Buffalo Common Council, and (3) writing a letter to Congressman Jack Quinn.
(Pl.’s Memo. pp. 6-7.)
Defendants contend that the common issue in both the PERB proceeding and the
instant case is the motivation behind BSA’s actions against Gemerek. (Defs.’ Reply, p. 1.)5
They argue that because the ALJ found Gemerek was terminated for a legitimate business
reason—i.e., for cause—the issue of BSA’s motive has been decided and should not be
Referring to “Defendants’ Reply Mem orandum of Law.”
relitigated. (Defs.’ Memo., p. 22.)
Defendants cite two cases in support of their argument. In Perry v. Metropolitan
Suburban Bus Auth., the plaintiff filed an improper practice charge against the union,
alleging it breached its duty of fair representation in violation of the Public Employees’ Fair
Employment Act § 209-a.2(c). 390 F.Supp.2d 251, 265 (E.D.N.Y. 2005). A hearing was
held before an ALJ, after which the ALJ found that the plaintiff introduced no evidence of
discrimination or improper motivation toward her on the part of the union, and that the
union was not arbitrary in the handling of its grievance. Id. at 256-57. The plaintiff then
filed in federal district court alleging, among other things, that the union violated her due
process and equal protection rights on the basis of race. Id. at 251. The Court reviewed
the relevant facts from the PERB hearing and held that even though the constitutionality
of the Union’s conduct was not before the PERB, “a determination of [the union’s]
motivation and intent were necessary and crucial to PERB’s conclusion that the Act was
not violated, and the same factual findings [were] central to the plaintiff’s due process and
equal protection claims.” Id. at 266. Thus, the Court applied the principle of collateral
estoppel to bar relitigation. Id.
In O’Connor v. Mazzullo, the plaintiff brought an improper practice charge before
PERB on the basis of anti-union bias. 536 F.Supp.641, 643 (D.C.N.Y. 1982). After a fiveday hearing, the ALJ found the defendants were not motivated by anti-union bias. Id. The
plaintiff then brought a claim of first amendment violation based on anti-union motivation
before the federal district court. Id. The Court found that all facts relevant to the
defendant’s motivation were necessary to the PERB determination because the “issue was
whether defendants had acted in order to interfere with or penalize the exercise of the right
to support union activity.” Id.
The cases Defendants rely on are distinguishable from the case at hand. In this
case, although the ALJ found BSA’s actions to be supported by legitimate business
concerns, the ALJ was not asked to consider whether Gemerek’s termination was
motivated, in whole or in part, by his public statements or his letters to public officials.
In order for an issue to be precluded, it must have been necessary to the PERB
proceeding. Shelter Inc. Realty v. City of New York, 2007 WL 29380 at * 7 (E.D.N.Y. 2007)
(collecting cases). The question before the ALJ was whether the BSA violated § 209a.1(a) of the Public Employees’ Fair Employment Act by terminating Gemerek in retaliation
for the CSEA’s having filed an improper practice charge and a contract grievance relative
to the elimination of positions.
As Gemerek points out, the ALJ’s determination still stands even if the discussion
of legitimate business reason is removed from the decision. In finding BSA did not violate
the Act, the ALJ pointed to Gemerek’s admission that he had nothing to do with the
improper practice charge and the absence of any evidence linking him to the grievance.
Once the ALJ concluded there was no evidence to support the alleged violations, further
discussion of motivation was superfluous. See Beechwood v. Leeds, 436 F.3d 147, 15152 (2nd Cir. 2006) (the ALJ’s discussion of improper motive was not “necessary” because
although it may have influenced the ALJ’s findings, it was not decisive of the ultimate
question concerning plaintiff’s quality of resident care).
Moreover,“a plaintiff can prove First Amendment retaliation even if the measures
taken by the state were otherwise justified.” Beechwood, 436 F.3d at 152; see Morey v.
Somers Cent. School Dist., 2007 WL 867203 at *6 (S.D.N.Y. 2007) (“Contrary to
defendants’ arguments, plaintiff’s claim for First Amendment retaliation is not precluded
merely because the hearing officer decided that the School District had sufficient cause to
terminate plaintiff.”); see also, Latino Officers Ass’n. v. City of New York, 253 F.Supp.2d
771, 785-86 (S.D.N.Y. 2003) (“A necessary element of this claim is that the ‘defendants’
conduct was motivated by or substantially caused by [plaintiff’s] exercise of free speech.’”).
The ALJ’s conclusion that Hazzan’s stated rationale was sufficient to infer Gemerek was
terminated for cause, does not warrant a finding that the ALJ “‘actually and necessarily’
decided an issue that was never presented to [her], even if that issue touched, in a general
sense, on the propriety of the termination.” Vargas v. City of New York, 337 F.2d 200, 206
(2nd Cir. 2004).
The issue of whether Gemerek was demoted and terminated in retaliation for
exercising his First Amendment rights was not actually litigated and necessarily decided
in the PERB proceeding. Thus, there is no identity of issues and Gemerek is not precluded
from bringing his § 1983 claim in this forum.
The Supreme Court has specifically held that state administrative proceedings do
not have preclusive effect with regard to Title VII claims, Elliott, 478 U.S. at 795-6, and
ADEA claims, Astoria Fed. Sav. & Loan Ass’n v Solomino, 501 U.S. 104, 110-112, 111
S.Ct. 2166, 115 L.Ed. 96 (1991). Although the Supreme Court has not had an opportunity
to address this issue with regard to the ADA, I note that the ADA incorporates the very
same Title VII deferral procedures on which the Supreme Court relied in reaching its
holding in Elliot. See 42 U.S.C. § 12117 (incorporating 42 U.S.C. § 2000-e). Circuit Courts
considering this issue have concluded that the Elliot holding applies with equal force in the
ADA context, and unreviewed state administrative determinations do not preclude
subsequent federal court litigation of ADA claims. Thomas v. Contoocook Valley Sch.
Dist., 150 F.3d 31, 40 n.5 (1st Cir. 1998); Medeiros v. City of San Jose, No. 98-16530,
1999 WL 613405, at * 1 (9th Cir. Aug. 12, 1999); see also, Kosakow v. New Rochelle
Radiology, 274 F.3d 706, 735 (2nd Cir. 2001) (noting, in dicta, that to the extent plaintiff’s
discrimination claims were based on the ADA, the state administrative determination would
have no effect on subsequent federal litigation). Other district courts in the Circuit have
held likewise, and this Court agrees. See, e.g., Lomako v. New York Inst. of Tech., 09 Civ.
6066, 2010 U.S. Dist. LEXIS 46549, at *20-21 (S.D.N.Y. May 12, 2010); Greenberg v.
New York City Transit Auth., 336 F.Supp.2d 225, 242 (E.D.N.Y. 2004).
Thus, Gemerek is not precluded from bringing his ADA claim in federal court.
Gemerek contends that he was discriminated against based on his actual or
perceived mental disability and was subject to a hostile work environment, both in violation
of the NYHRL. (Pl.’s Memo., pp. 12, 20.)
As discussed above, Defendants argue that the common issue in both cases is the
motivation behind BSA’s actions against Gemerek. (Defs.’ Reply, p. 1.) They cite the
same cases, Perry and O’Connor, to support their assertion that it does not matter that
Gemerek did not characterize his improper practice charge as a discrimination claim since
collateral estoppel bars the relitigation of facts properly determined by the ALJ. (Defs.’
Memo, p. 23.)
As already noted, the ALJ’s discussion was limited to whether Gemerek was
terminated in retaliation for his participation in the filing of a charge and grievance. Neither
disability discrimination, nor a hostile work environment, were at issue in the PERB
hearing. For instance, the only mention of Gemerek’s mental condition in the ALJ’s
decision was that Dr. Joseph found no major mental illness and cleared him to return to
Thus, there is no identity of issue as to Gemerek’s disability claim or hostile work
environment claim under the NYHRL.
Labor Law Claims
Defendants argue that the issue of whether BSA retaliated against Gemerek for his
involvement in union activity was directly before PERB and, so, his Labor Law claims are
precluded. (Defs.’ Memo., p. 21.) Gemerek contends that not all elements of his Labor
Law claims were before the PERB ALJ and that “a finding that Mr. Gemerek’s termination
was ‘for cause’ was not necessary to determine whether the demotion and termination are
based on the filing of an improper practice charge and grievance.” (Pl.’s Memo. at 22.)
The Court confesses it is flummoxed by Gemerek’s argument. Gemereks’ Labor
Law claims allege that Defendants discriminated and retaliated against him for exercising
his union rights as a member of the CSEA. The ALJ concluded that Gemerek had no
involvement in the filing of the improper practice charge, and found no evidence of his
involvement of the grievance. Accordingly, the question of whether these particular
activities were the cause of his termination was necessarily answered. There is identity of
Gemerek does not claim he was denied his procedural rights during the hearing or
PERB review. The hearing was held over a period of six days. (Defs.’ Ex. B, p.1.) Both
parties, BSA and CSEA, were present and represented. (Id.) CSEA’s counsel was
competent, presenting and cross-examining witnesses, introducing evidence, submitting
papers, and making oral argument. And CSEA had the opportunity to, and did, submit
exceptions to the ALJ’s determination. (Defs.’ Ex. B.) Finally, PERB reviewed the
determination and affirmed the ALJ’s findings. (Defs.’ Ex. C.)
Multiple witnesses were called at the PERB hearings. Pertinent to this claim,
Hazzan, DiPalma, and other BSA employees testified regarding the filing of the improper
practice charge in 1995. (Defs.’ Reply. Ex. C.)6 Gemerek testified and was crossexamined on his lack of participation in that filing. (Defs.’ Reply, Ex. C.) For instance,
when asked if he appeared at PERB in connection with the improper practice charge,
Gemerek responded that he “wasn’t involved in any of that.” (Id. 200:18-23.)
The record shows Gemerek had a full and fair opportunity at the administrative
proceeding to litigate the question of his involvement in the union activities, and he has
failed to demonstrate otherwise. Thus, Gemerek is collaterally estopped from bringing a
labor law claim regarding his alleged involvement in the improper practice charge.
Federal Rule of Civil Procedure 56 provides that summary judgment is warranted
where “the pleadings, the discovery and disclosure material on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled to
Referring to exhibits to Defendants’ “Reply Declaration of Randolph C. Oppenheim er in Further
Support of Defendants’ Motion for Sum m ary Judgm ent.”
judgment as a matter of law." FED . R. CIV. P. 56(c)(2). A "genuine issue" exists "if the
evidence is such that a reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202
(1986). A fact is "material" if it "might affect the outcome of the suit under governing law."
In deciding a motion for summary judgment, the evidence and the inferences drawn
from the evidence must be "viewed in the light most favorable to the party opposing the
motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26
L.Ed.2d 142 (1970). Summary judgment is proper "only when reasonable minds could not
differ as to the import of evidence." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
The function of the court is not “to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
In the context of employment discrimination cases, the United States Court of
Appeals for the Second Circuit has explicitly cautioned district courts to use extra care
when deciding whether to grant summary judgment because “the ultimate issue to be
resolved in such cases is the employer’s intent, an issue not particularly suited to summary
adjudication.” Eastmer v. Williamsville Cent. Sch. Dist., 977 F. Supp. 207, 212 (W.D.N.Y.
1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)).
Nonetheless, “[t]he summary judgment rule would be rendered sterile . . . if the mere
incantation of intent or state of mind would operate as a talisman to defeat an otherwise
valid motion.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Indeed, the Second
Circuit has noted that “the salutary purposes of summary judgment – avoiding protracted,
expensive and harassing trials – apply no less to discrimination cases than to commercial
or other areas of litigation.” Id.
The Court must now examine the merits of the claims not precluded, in the context
of the summary judgment motion.
§ 1983 Claim
Gemerek argues that Defendants violated his § 1983 rights when they demoted and
terminated him in retaliation for engaging in protected speech.
“A section 1983 claim lies where the government takes negative action against an
individual because of his exercise of rights guaranteed by the Constitution or federal laws.”
Friedl v. City of New York, 210 F.3d 79, 86-87 (2nd Cir. 2000). It is well established that
the First Amendment prohibits government entities from punishing its employees in
retaliation for the content of their public speech. See, e.g., Waters v. Churchill, 511 U.S.
661, 668, 671-75, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994); Rankin v. McPherson, 483
U.S. 378, 383-84, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1986); Pickering v. Board of Educ.,
391, U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
“A government employee’s right to free speech is violated if ‘(1) his speech
addressed a matter of public concern, (2) he suffered an adverse employment action, and
(3) a causal connection existed between the speech and the adverse employment action,
so that it can be said his speech was a motivating factor in the determination.’” Velez v.
Levy, 401 F.3d 75, 95 (2nd Cir. 2005) (quoting Feingold v. N.Y., 366 F.3d 138, 160 (2nd
Cir. 2004) (internal quotation marks omitted)). Once the plaintiff has demonstrated the
existence of these factors, the employer may still avoid liability if it shows it would have
taken the same adverse action even without the protected speech. Mandell v. Cnty of
Suffolk, 316 F.3d 368, 382-83 (2nd Cir. 2003.)
Gemerek contends he engaged in protected speech when he participated in a union
demonstration, wrote a letter to the Buffalo Common Council, and wrote a letter to
Congressman Jack Quinn. Defendants argue that because Gemerek’s remarks in each
instance were personal to him and advanced no public interest, they are not constitutionally
protected statements. (Defs.’ Supp. Memo., p. 3.)
As a general rule, speech on “any matter of political, social, or other concerns to the
community” is protected by the First Amendment. Connick v. Myers, 461 U.S. 138, 140,
103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). However, “when a public employee’s speech is
focused on personal matters, it is not considered to be a matter of public concern.” Isaac
v. City of New York, 701 F.Supp.2d 477, 495 (S.D.N.Y. 2010). In order to determine
whether the speech addresses a matter of public concern, the court must examine the
content, form, and context of the plaintiff’s statements. Pickering, 391 U.S. 563 at 571-72.
The parties offer differing accounts of what Gemerek said to Hazzan and DiPalma
during the union protest. Taking Gemerek’s account as true, he stated, ‘Hi Pam, Hi Tony.
I’m over here. You want to threaten my family, come on over and do it on camera.” (Pl.
Dep. 242:6, 243:4-6.) While Gemerek testified he remembered others chanting, “one term
Tony,” referring to then-Mayor Tony Masiello, (Id. 253:11-14), and union jingles, such as
“the sewer authority is unfair” (Id. 253:3-6), he did not recall participating in any of those
chants. (Id. 253:15.)
Gemerek’s letter to the Common Council, dated July 3, 1996, complained of
“ongoing threats, intimidation, harassment by phone, mail, and at [his] personal residence,
to [himself] personally and [his] family.” (Defs.’ Suppl. Ex. P.)7 He asked that for his sake
and others, the Common Council look into the “ongoing legal, labor and financial situations
. . . and all sexual, racial and political abuses” at the BSA, but did not elaborate on any of
these generalized allegations. (Id.)
Gemerek’s comments, when stretched, may touch on matters of public concern, but
vague references to other city employees does not turn what are essentially his personal
gripes into protected statements. By Gemerek’s own testimony, his statements at the
demonstration concerned only himself and his family, and were driven by his own personal
grievances. His letter to the Common Council, written shortly after his full-time position
was eliminated on May 27, 1996 and he was banned from BSA’s premises on July 21,
1996, again referred to conduct directed to him and his family.
His off-hand and
nonspecific reference to helping “others” simply suggests Gemerek wanted to lend weight
to his personal grievances; such generalized references are not sufficient to support a
finding that he sought to address a matter of public concern. Given the content, form, and
context of Gemerek’s speech, his statements at the union rally and in the Common Council
letter cannot be considered protected speech under the First Amendment. “[T]he mere fact
that one or two comments could be construed broadly to implicate matters of public
concern does not alter the general nature of [the] statements.” Ezekwo v. New York City
Health & Hosp. Corp., 940 F.2d 775, 781 (2nd Cir. 1991).
As for Gemerek’s letter to Congressman Quinn, dated January 27, 1996,
Referring to “Defendants’ Supplem ental Appendix to Local Rule 56.1.”
Defendants argue the letter is misdated and was actually written after his November 8,
1996 termination. (Defs.’ Reply, p.10.)
The substance of the letter indicates that it was written after Gemerek’s termination,
most likely in January 1997.8 Thus, the letter cannot have been the basis of the alleged
First Amendment retaliation in November 1996.
Because Gemerek’s evidence cannot support a finding that he engaged in
constitutionally protected speech and/or that such speech occurred prior to his termination,
Defendants’ motion for summary judgment is granted as to his § 1983 claim.
ADA and NYHRL Discrimination Claims on Basis of Disability
Gemerek alleges he was discriminated against in violation of the ADA and NYHRL
on the basis of mental disability or perceived disability when Defendants “threatened,
harassed and intimidated him, locked him out of work, required him to undergo a
psychiatric examination that was not required of other employees or warranted by business
necessity, suspended and ultimately discharged him.” (Second Amend. Compl. ¶¶ 56, 62,
ADA and NYHRL claims are analyzed under the McDonnell Douglas burden-shifting
analysis. Regional Econ. Cmty. Action Program, Inc. v. City of Middletown, 294, F.3d 35,
49 (2nd Cir. 2002); see Arena v. Agip USA Inc., 2000 WL 264312 at * 7 (S.D.N.Y. March
8, 2000). To succeed on his cause of action alleging disability discrimination, Gemerek
must first demonstrate that “(1) his employer is subject to the ADA [or NYHRL]; (2) he was
Most notably, the letter states, “I have been locked-out for 7 m onths, forced to file for
unem ploym ent.” (Defs.’ Reply, Ex. B.)
disabled within the meaning of the ADA [or NYHRL]; (3) he was otherwise qualified to
perform the essential functions of the job, with or without reasonable accommodations; and
(4) he suffered adverse employment action because of his disability.” Sista v. CDC IXIS
North America, Inc., 2005 WL 356973 at *5 (S.D.N.Y. Feb. 15, 2005) (quoting Giordano
v. City of New York, 274 F.3d 740, 747 (2nd Cir. 2000)). Once a plaintiff has established
his prima facie case of discrimination, the burden shifts to the defendant to provide a
legitimate, non-discriminatory reason for the adverse employment action. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Assuming
that the defendant meets its burden at the second stage, the burden returns to the plaintiff
to prove that the defendant’s discrimination was intentional. In this regard, the plaintiff
must produce “evidence that the defendant’s proffered, non-discriminatory reason is a
mere pretext for actual discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d
Defendants apparently concede that Gemerek has offered sufficient evidence to
establish a prima facie case. However, they urge that summary judgment is warranted
because they had legitimate, non-discriminatory reasons for their actions– first, Gemerek’s
failure to provide a physician’s note specifying the nature of his illness was a legitimate
reason to place him on disability leave, and second, his threatening behavior toward other
employees was a sufficient reason to terminate him.
Placement on Disability Leave
Defendants, relying on Article IX, Section 1(h) of the collective bargaining agreement
for the period July 1, 1995 - June 30, 1998, urge that Gemerek’s noncompliant doctor’s
note justified his placement on disability leave. Nothing in the record supports the
conclusion that Defendants’ action was consistent with the CBA or BSA policy. As noted
above, the plain language of this CBA provision requires that the nature of an absentee’s
illness be provided for the purpose of receiving payment for sick time. The limited purpose
of this provision is noted in Defendants’ own letters to Gemerek, one of which states that
a failure to provide a note in compliance with the CBA “disqualified [him] from having this
absence charged against [his] accumulated sick leave credits” and he would not be paid
for the absence. (Docket No. 119-5 at 14.) There is no indication such a failure can result
in placement on disability leave.
Defendants’ policy then in effect for a return to work from an extended illness
required only that the returning employee first schedule an appointment with DiPalma and
produce written authorization from his or her physician to return to work. (Id. at 30.) There
is no dispute that Gemerek did appear at the scheduled time with a written authorization
from a treating physician to return to work on July 14, 1996 with no restrictions. Thus,
Defendants’ argument that Dr. Kang’s return to work note was “noncompliant” in this regard
(Docket No. 120 at 7), is without support in the record.
Defendants have not met their burden of showing that Gemerek’s failure to identify
the nature of his illness was a legitimate, nondiscriminatory reason for declining to return
him to work and, instead, placing him on disability leave. The fact that DiPalma looked Dr.
Kang up in the phone book and found he was a psychiatrist does not alter this result.
According to Defendants, their decision to terminate Gemerek’s employment was
based on his confrontational and threatening behavior toward other employees, along with
Dr. Joseph’s opinion that Gemerek did “not have a major mental illness, as such.”9 (Id. at
10.) Defendants specifically point to the following: Gemerek’s admission that he became
loud and angry when he learned DiPalma was not available for the pre-return-to-work
meeting she had scheduled with him; and his statements at the labor demonstration, which
all BSA employees testified included profanity. (Id. at 8, 11.) In addition, Defendants point
to DiPalma’s generalized testimony at the PERB hearing that “employees at the plant . .
. were afraid to work with [Gemerek].” (Id. at 12.) Relying on Sista v. CDA Ixis North
America, Defendants urge that they had a legitimate nondiscriminatory basis for
terminating Gemerek because he was confrontational and presented a threat to other
employees. 02 Civ. 3470, 2005 U.S. Dist. LEXIS 2163 (S.D.N.Y. Feb. 15, 2005), aff’d, 445
F.3d 161 (2d Cir. 2006).
In Sista, the employer had policies against employee misconduct and threats in the
workplace. 445 F.3d at 171. Following a demotion, the plaintiff “blew up” and “yelled”
during a meeting with the company’s human resources director, shouted and cursed in a
subsequent meeting with management in which he admittedly “could not control his
mounting agitation,” and told his direct supervisor that if he had “pulled” more than one of
the plaintiff’s taped telephone calls “I swear to Christ I’m comin’ for you.” Id. at 166. The
supervisor immediately exclaimed that the comment was a personal threat and the plaintiff
From this statem ent, Defendants appear to suggest that Gem erek is or was not an individual
with a disability. However, they have not directly challenged his prima facie case in this regard, and it also
bears noting that Dr. Joseph was not asked to opine on whether Gem erek is an individual with a disability
under the ADA or HRL. Rather, he was asked consider whether Gem erek was then capable of returning
to work and safely perform ing his job. (Docket No. 119-5, Ex. L.) Dr. Joseph answered this question in
the affirm ative, despite Gem erek’s docum ented, long-standing treatm ent for depression. (Id. Ex. M.)
was placed on a leave of absence. In a meeting two months later, the supervisor informed
management that he felt he was in physical danger because of the plaintiff’s threat and,
after further consideration, the company terminated the plaintiff’s employment. Id. at 16667. On these undisputed facts, the Second Circuit affirmed the district court’s conclusion
that the employee’s behavior was conduct an employer could legitimately determine was
inappropriate and unacceptable in the workplace. Id. at 172.
Defendants contend that, like Sista, Gemerek was placed on a leave of absence
after his behavior to other employees grew confrontational and, like Sista, he presented
a threat to other employees.
First, Defendants have failed to show that Gemerek’s allegedly confrontational
conduct was the reason he was placed on a leave of absence. This statement is contrary
to their position in the PERB proceeding and also on this motion. In both venues,
Defendants state it was Gemerek’s refusal to comply with the CBA’s requirements relative
to a physician’s note, prior to the alleged confrontations, which resulted in his being placed
on leave. (Docket Nos. 85-4 at 44; 120 at 6-10; 136 at 8 (“Gemerek incorrectly suggests
that the failure to provide a physician’s note was the reason for his termination. . . . [That
failure was instead] the legitimate non-discriminatory reason for the Authority’s decision to
place him on disability leave.”)).
Second, Defendants’ conclusory statement that Gemerek presented a threat to
other employees is not supported on this record. Defendants point to the rationale for
termination Hazzan and DiPalma gave at the PERB hearing as the basis for Gemerek’s
termination. (Docket No. 136 at 8-9.) But as Gemerek notes, this testimony is conclusory,
Hazzan testified that there “was a series of incidents which we construed as
inappropriate and improper.” He did not refer to any confrontations or threats. (Docket No.
85-4 at 46.) Similarly, DiPalma’s vague testimony regarding unnamed employees being
afraid to work with Gemerek was not based on any articulated threatening behavior.
Rather, DiPalma stated Gemerek had behaved toward supervisors in some unspecified,
“uncooperative” manner that was inconsistent with unspecified rules and regulations, and
the unnamed employees felt he was “totally against management.” (Id. at 47.)
Indeed, when Hazzan wrote to Dr. Joseph that he feared Gemerek “may attempt to
resolve his differences with the BSA through physical violence,” he identified only one
alleged comment by Gemerek, made in the fall of 1995, that involved his personal life only.
Gemerek allegedly stated, in DiPalma’s presence, that he was going to shoot his ex-wife’s
boyfriend. DiPalma testified that she did not take this threat seriously and viewed it as just
“venting.” (DiPalma Dep. 168:18.) After this alleged violent behavior, Gemerek appears
to have continued in his position without incident and no concerns were raised or
precautions taken in the workplace. Following a very brief layoff due to the restructuring,
Gemerek was offered a temporary assistant shift superintendent position in May 1995,
despite his allegedly violent tendencies.
Defendants also point to the fact that, in ruling on exceptions to the ALJ’s findings,
the PERB Board stated that “Gemerek, by his conduct during these allegedly protected
activities [i.e., at the labor rally], revealed that he did not have the traits necessary to
continue in employment.” The Board expressly noted that Gemerek directed vulgarities
to Hazzan and DiPalma and Defendants urge this is sufficient to establish their legitimate
reason. (Id. at 56-57.)
Unlike Sista, however, these obscenities occurred off the clock
and outside the workplace. Defendants have not identified any BSA rule or policy
governing conduct outside of work.
Indeed, the only reference in the record that can be construed as a threat toward
a BSA employee is Hazzan’s testimony that when Gemerek was at the labor rally, he
shouted at Hazzan and DiPalma: “I’m going to get you f—heads.” (Id. at 45.) However,
his testimony is contradicted by that of DiPalma and DiBenedetti, and also is inconsistent
with his earlier description to Dr. Joseph of Gemerek’s statements on that day. (Id.; Docket
No. 119-5 at 53.)
In sum, Defendants’ reliance of Sista is unpersuasive, and on this vague and
contradictory record, they have not shown that Gemerek engaged in “confrontational and
threatening behavior toward other employees [that] gave the Authority a legitimate, nondiscriminatory reason to terminate him.” (Docket No. 120 at 10.)
Even were this Court to have found otherwise, the foregoing, along with other
evidence in the record, is sufficient for Gemerek to avoid summary judgment on a showing
that his perceived or actual disability discrimination was “at least one of the motivating
factors” in Defendants’ decision. Holcomb v. Iona Coll., 521 F.2d 130, 138 (2nd Cir. 2008).
Dr. Kang cleared Gemerek to return to work without restriction. Yet, shortly after DiPalma
ascertained that Dr. Kang was a psychiatrist, Hazzan notified Gemerek that he was placed
“on leave for ordinary disability as of July 14, 1996" due to concerns regarding Gemerek’s
“present ability to return to [his] regular duties.” Thereafter, Dr. Joseph considered whether
Gemerek posed a danger to others, advised Defendants that he found no indication
Gemerek had been overtly violent over the years, nor any indication of current violent
fantasies, and concluded that Gemerek could return to work. Upon receiving Dr. Joseph’s
report, BSA immediately placed Gemerek on a paid leave of absence, and terminated him
Because Defendants have not come forward with undisputed evidence of a
legitimate, nondiscriminatory reason for termination and because those same questions
of fact are sufficient for a showing of pretext, Defendants’ motion for summary judgment
is denied as to Gemerek’s claims of disability discrimination under the ADA and NYHRL.
ADA and NYHRL Hostile Work Environment Claims on Basis of
Gemerek alleges he was subjected to a hostile work environment after Defendants
were put on notice that he was disabled on November 8, 1995. (Pl.’s Memo, p. 22.)
Hostile work environment claims under the ADA are evaluated under the same
standards as Title VII claims.10 Monterroso v. Sullival & Cromwell, LLP, 591 F.Supp.2d
567, 584 (S.D.N.Y. 2008). To survive a motion for summary judgment, a plaintiff claiming
that he was the victim of a hostile work environment must produce evidence from which
a reasonable trier of fact could conclude “(1) that the workplace was permeated with
discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions
of [his] work environment, and (2) that a specific basis exists for imputing the conduct that
NYHRL claim s are analyzed under the sam e standards as ADA claim s. Arena v. Agip USA Inc.,
2000 W L 264312 at * 7 (2000).
created the hostile environment to the employer.” Mack v. Otis Elevator Co., 326 F.3d 116,
122 (2d Cir. 2003) (quoting Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d
426, 436 (2d Cir. 1999). “The sufficiency of a hostile work environment claim is subject to
both subjective and objective measurement: the plaintiff must demonstrate that [he]
personally considered the environment hostile, and that the environment rose to some
objective level of hostility.” Leibovitz v. New York City Transit Auth., 252 F.3d 179, 188 (2d
It is well settled that “Title VII does not establish a ‘general civility code’ for the
American workplace. Simple teasing, offhand comments, or isolated incidents of offensive
conduct (unless extremely serious) will not support a claim of discriminatory harassment.”
Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2nd Cir. 2004).
“Absent extraordinary severity, a plaintiff must show that a ‘series of incidents were
sufficiently continuous and concerted to have altered the conditions of her working
environment.” George v. Liverpool, 2000 WL 1499342 at *6 (N.D.N.Y. Sept. 29, 2000)
(citing Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2nd Cir. 2000). Courts examine
various factors to ascertain whether a work environment is sufficiently hostile or abusive
to support an ADA claim. These factors include “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s performance.”
Leibovitz, 252 F.3d at 188 (citing Harris, 510 U.S. at 23); Terry v. Ashcroft, 336 F.3d 128,
147-48 (2d Cir. 2003). Isolated and occasional instances of harassment do not ordinarily
rise to this level. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-271, 121 S.
Ct. 1508, 149 L. Ed. 2d 509 (2001) (per curiam). The appropriate test is whether the
“harassment is of such quality or quantity that a reasonable employee would find the
conditions of her employment altered for the worse. . .” Torres v. Pisano, 116 F.3d 625,
632 (2d Cir. 1997).
Defendants argue that the incidents Gemerek alleges make up his hostile work
environment claim are not enough to establish severe conduct such that a hostile work
environment was created. (Defs.’ Supp. Memo., p. 15.)
The discriminatory intimidation Gemerek points to consists of events that allegedly
occurred in the workplace from 1995 to 1996. (Pl.’s Memo., p.22.) For instance, BSA
employees purportedly spread rumors that Gemerek was mentally unstable, spread a
rumor that Gemerek had a gun in his locker when he did not even have a locker at work,
and broke into his desk and took his personal belongings. (Id. at 22-23.)
The Court finds that these instances are not severe or pervasive enough such to
establish the existence of a hostile work environment. First, none of Gemerek’s alleged
incidents, taken alone, were so “extraordinarily severe” as to have altered the conditions
of Gemerek’s working environment. Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.
2000). Conduct must be so severe as to “create an objectively hostile or abusive work
environment— an environment that a reasonable person would find hostile or abusive.”
Harris, 510 U.S. at 21. Gemerek makes it clear that these incidents negatively affected
him, but fails to give evidence to conclude that a reasonable person would find such
conduct to be hostile.
Second, Gemerek has not shown that these series of incidents were “sufficiently
continuous and concerted” to have altered the conditions of his working environment.
Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2nd Cir. 1997) (quoting (Carrero v. N.Y.C.
Housing Auth., 890 F.2d 569, 577 (2nd Cir. 1989)) (internal quotation marks omitted.)
Looking at the few instances as a whole, they are “too few, too separate in time, and too
mild... to create an abusive working environment.” Alfano v. Costello, 294 F.3d 365, 380
(2nd Cir. 2002).
Therefore Defendants are entitled to summary judgment on Gemerek’s hostile work
environment claims under the ADA and NYHRL. Because Gemerek has not established
the first element of a prima facie case of hostile work environment, this Court need not
address the second element. Defendants’ motion for summary judgment on Gemerek’s
hostile work environment claims will be granted.
For the foregoing reasons, Gemerek is collaterally estopped from asserting his labor
law claims with regard to his membership in CSEA and exercise of his union rights, and
summary judgment is granted as to his Sixth and Seventh Causes of Action. Likewise,
summary judgment is granted as to Gemerek’s First (Section 1983/First Amendment)
Cause of Action and his Fifth, Eighth, and Ninth Causes of Action (hostile work environent
by the BSA in violation of the ADA and NYHRL, and by Hazzan in violation of the NYHRL).
Summary judgment is denied as to Gemerek’s Second, Third, and Fourth Causes of
Action, alleging disability discrimination by the BSA in violation of the ADA and NYHRL,
and by Hazzan in violation of the NYHRL.
IT HEREBY IS ORDERED, that Defendants’ Supplemental Motion for Summary
Judgment (Docket No. 119) is GRANTED in part, and DENIED in part.
Dated: July 22, 2011
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Court
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