Abboud v. Cnty. of Onondaga

• Decision Date: 27 September 2018
• Docket Number: 5:14-cv-193 (GLS/ATB)
• Citation: 341 F.Supp.3d 164
• Parties: Noel ABBOUD, Plaintiff, v. COUNTY OF ONONDAGA, NEW YORK et al., Defendants.
• Court: U.S. District Court — Northern District of New York

341 F.Supp.3d 164

Noel ABBOUD, Plaintiff,

v.COUNTY OF ONONDAGA, NEW YORK et al., Defendants.

5:14-cv-193 (GLS/ATB)

United States District Court, N.D. New York.

Signed September 27, 2018

FOR THE PLAINTIFF: Bosman Law Firm, LLC, 201 West Court Street, Rome, NY 13440, OF COUNSEL: AJ BOSMAN, ESQ.

FOR THE DEFENDANTS: Onondaga County Attorney's Office, John H. Mulroy Civic Center, 421 Montgomery Street, 10th Floor, Syracuse, NY 13202, OF COUNSEL: KAREN ANN BLESKOSKI, ESQ.

Onondaga County Department of Law, John H. Mulroy Civic Center, 421 Montgomery Street, 10th Floor, Syracuse, NY 13202, OF COUNSEL: RONNIE WHITE, JR., ESQ.

MEMORANDUM-DECISION AND ORDER

Gary L. Sharpe, Senior District Judge

I. Introduction

Plaintiff Noel Abboud brings this action under Title VII of the Civil Rights Act of 1964,¹ 42 U.S.C. §§ 1981, 1983, 1985, and 1986 based on violations of the First and Fourteenth Amendments, New York State law, and the state constitution against the County of Onondaga (hereinafter "the County") and various employees² within the Onondaga County Department of Correction (hereinafter "the Department"). (Am. Compl., Dkt. No. 25.) Pending is defendants' motion for summary judgment. (Dkt. No. 68.) For the following reasons, the motion is granted in part and denied in part.

II. Background

A. Facts ³

1. The Parties

Abboud was born in Syracuse, New York. (Dkt. No. 68, Attach. 19 at 18-19.) His parents are from Lebanon, and he has dual-citizenship. (Id. at 19.) In 2002, he was hired by the County as a corrections officer and, on September 24, 2011, he became a senior corrections officer at the Jamesville Correctional facility. (Id. at 22; Defs.' Statement of Material Facts (SMF) ¶ 114, Dkt. No. 68, Attach. 95; Dkt. No. 75, Attach. 12 ¶ 5.) He claims that "[t]he majority of employees working at the Jamesville Correctional facility are [w]hite" and he is "the only employee of Arab ancestry." (Dkt. No. 75, Attach. 12 ¶ 6.)

The County maintains policies and procedures addressing harassment, discrimination, and retaliation, which are outlined in the employee handbook that is provided to every County employee. (Defs.' SMF ¶ 39.) Additionally, Department employees are issued an employee manual containing directives regarding harassment, discrimination, and retaliation. (Id. ¶¶ 44-45.) County employees also receive diversity training, (id. ¶ 50), and Department employees attend additional annual training, which covers harassment and discrimination, (id. ¶ 51).

The remaining defendants (hereinafter "Jamesville defendants") consist of one or more John and Jane Doe(s) and eleven Department employees who, at all relevant times, held the following positions at the Jamesville Correctional Facility: defendant Timothy Cowin was the Commissioner, (id. ¶ 3), defendants Daniel Boyle and Randy Blume were Assistant Commissioners, (id. ¶¶ 6-7), defendants William Brush and Thomas Tripoli were Captains, (id. ¶¶ 19, 23), defendants Nathan Hawker and Robert Burnett were Lieutenants, (id. ¶¶ 8, 28), defendant Kathleen Zabinski was a Sergeant, (id. ¶ 15), and defendants Troy Pritchard, Gerald Riposa, and Adam Brockway were Corrections Officers (CO), (id. ¶¶ 25, 27, 30).⁴

The Personnel Advisory Committee (PAC), which is comprised of the Assistant Commissioners, the Captains, and a Personnel Administrator, reviews reports of incidents involving employees and makes disciplinary recommendations to the Commissioner. (Id. ¶ 54.) Based on these recommendations, the Commissioner ultimately determines the appropriate discipline to be issued, if any. (Id. ¶¶ 56, 59.)

2. Abboud's Claims

Abboud claims that he has faced unfair treatment based on his Arab ethnicity⁵ since 2007. (Dkt. No. 68, Attach. 19 at 56.) In support of his claims, he describes defendants' alleged harassment, discrimination, and retaliation in his deposition testimony, (Dkt. No. 68, Attach. 19), and an affidavit attached to his response to defendants' motion for summary judgment, (Dkt. No. 75, Attach. 12).⁶

a. Incidents Lacking Specificity

First, many of Abboud's allegations fail to state when they occurred or who was responsible for them. For instance, he alleges that an unidentified employee called him "ISIS" about a year and a half before his deposition, and that individual was subsequently disciplined after an investigation. (Dkt. No. 68, Attach. 19 at 107.) In or around 2007, he claims that a group of unidentified officers called him a "camel jockey." (Id. at 46.) Abboud also claims that on unidentified dates, "many officers" stated "go back home ... [t]owel head," made disparaging comments regarding him and "a barrel of oil," and directed other officers not to talk to him. (Id. at 56-57.) Abboud further alleges that he was subjected to the following comments from unidentified individuals on unidentified dates: "get back on your [c]amel and go back to your country" and "don't you own a 7-Eleven store[?]" (Dkt. No. 75, Attach. 12 ¶ 7.) Other conduct that Abboud did not attribute to any particular individual occurred in "2010 or 2011," when a drawing was "posted in the facility's cafeteria depicting [another CO] wearing a turban in a background filled with sand ... teaching a crowd how to make bombs." (Dkt. No. 75, Attach. 12 ¶ 8.) On another unidentified date, Abboud alleges that CO Riposa told him that he supported Hitler's ideas and referred to Abboud as "Saddam Hussein's son." (Id. ¶ 42.) He alleges that "on a daily or near daily basis, co-workers and officers of rank have made demeaning comments to [him] about the style of [his] civilian clothing, the rap music [he] listen[s] to, and the customizations to the vehicle [he] own[s]." (Id. ¶ 9.) And he further alleges that unidentified co-workers and supervisors have commented that he "look[s] like an inmate." (Id. ) He also alleges that, on an unknown date and time, Captain Brush called him "a fucking Arab," "terrorist," and blamed him for 9/11. (Dkt. No. 68, Attach. 19 at 45.) Sometime prior to August 2011, Abboud claims to have witnessed Captain Brush, Sergeant Zabinski, and other officers either make ethnically disparaging comments to another officer of Arab ancestry or fail to admonish individuals making such statements. (Dkt. No. 75, Attach. 12 ¶ 10.) Additionally, he claims he was not selected for various interviews for positions that have all gone to white people. (Dkt. No. 68, Attach. 19 at 100-02.)

On an unidentified date, Abboud alleges that Lieutenant Hawker took him off "[S]upport [C]lub" and he was denied positions on the Response Team.⁷ (Id. at 63, 73, 127.) Specifically, Abboud claims that Lieutenant Hawker consistently assigned CO Riposa, who was neither a Senior CO nor a Response Team member, to Security Support and Unit Support Officer positions, while he assigned Abboud to the Housing Units, despite the fact that "[h]istorically, the Security Support and Unit Support Officer positions are given to Senior [COs] and Response Team members." (Dkt. No. 75, Attach. 12 ¶ 43.)

Other of Abboud's sworn statements are more specific, but difficult to reconcile. For instance, at one point in his deposition, he testified that CO Riposa, Lieutenant Hawker, and Captain Brush were the only people who made disparaging remarks in his presence. (Dkt. No. 68, Attach. 19 at 144.) But he also testified that, on an unspecified date and time, CO Brockway made a comment about the rims on his car, which he took as an implication that he sold drugs, (id. at 151), and, in his affirmation, he alleged that CO Brockway stated that "[f]oreigners don't belong in this country," (Dkt. No. 75, Attach. 12 ¶ 36). Strangely, Abboud also testified during his deposition, "I get along with everyone [at the facility] and everyone pretty much gets along with me." (Dkt. No. 68, Attach. 19 at 59.) When asked about what evidence he had that the Jamesville defendants conspired with each other, he merely speculated that all of the Jamesville defendants are friends. (Id. at 157-59.)

b. 2010-2011

The first instances of conduct attributable to any of the Jamesville defendants on a specific date begin in 2010. On April 19, 2010, Abboud alleges that COs, including Riposa, called him a "[s]tone thrower," and said "I d[id]n't think ... you people wore shorts." (Dkt. No. 75, Attach. 12 ¶ 14.) Although, in his original deposition, he did not specify CO Riposa as one of the officers making such statements and could not recall when these comments were made, (Dkt. No. 68, Attach. 19 at 46-47), his testimony was consistent that, after hearing these comments, he complained to Lieutenant Burnett and Captain Tripoli but would not provide the names of the COs involved. (Dkt. No. 68, Attach. 19 at 46-47; Attach. 40; Dkt. No. 75, Attach. 12 ¶¶ 14, 16.) The next day during roll call, Lieutenant Burnett directed officers not to make these types of remarks.⁸ (Dkt. No. 75, Attach. 12 ¶ 14; Def.'s SMF ¶¶ 87-88.) Abboud admits that the discriminatory comments stopped after this or "if there was a reoccurrence[,] he would indicate that he did not like it, and it would stop." (Def.'s SMF ¶ 90.)

The same day that Abboud complained about these alleged comments, he was issued a written reprimand, per PAC's recommendation, based on a March 8, 2010 violation of visitation room policy. (Id. ¶¶ 81-84; Dkt. No. 75, Attach. 12 ¶ 15.)

On September 23, 2010, while being interviewed by a member of Internal Affairs regarding complaints about his interactions with inmates during visitation, Abboud "became visibly upset and began crying." (Defs.' SMF ¶ 91.) On September 29, 2010, Abboud alleges that he was "criticized by Lieutenant Burnett for allegedly ‘pacing’ in the visitation room" and told that his job performance was "not good." (Dkt. No. 75, Attach. 12 ¶ 20.) He told Lieutenant Burnett that he felt like he was being discriminated against, and Lieutenant Burnett responded by telling him to fill out a harassment form if he felt that way. (Id. )

On October 1, 2010, Abboud alleges that he notified a County Personnel...