Baum v. County of Rockland, 03 CIV.5987 CM.
| Decision Date | 22 September 2004 |
| Docket Number | No. 03 CIV.5987 CM.,03 CIV.5987 CM. |
| Citation | 337 F.Supp.2d 454 |
| Parties | Beatrice BAUM Plaintiff, v. COUNTY OF ROCKLAND, Rockland Community College, and Dr. Thomas Voss, individually and as College President Defendants. |
| Court | U.S. District Court — Southern District of New York |
Scott A. Korenbaum, Esq., New York City, for Plaintiff.
Charlotte G. Swift, Jason & Nesson, LLP, Chestnut Ridge, NY, for Defendants.
DECISION ON OUTSTANDING MOTIONS FOR SUMMARY JUDGMENT
Plaintiff, Beatrice Baum, filed an age and disability discrimination charge with the Equal Employment Opportunity Commission ("EEOC") against her employer Rockland Community College ("RCC") in May 2001. The parties agreed to settle that claim in September 2003, but the settlement unraveled. Plaintiff thereafter filed this action against RCC and Dr. Thomas Voss in his individual and official capacity as President of the College.
Plaintiff's First and Second Claims for Relief sound in breach of contract, for violation of the settlement agreement. Her Third Claim for Relief alleges that defendants retaliated against her in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 623, et. seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. In her Fifth and Sixth Claims for Relief, plaintiff alleges that defendants violated 42 U.S.C. § 1983 in that they denied her equal protection and retaliated against her in violation of the First Amendment.1
Plaintiff has moved for partial summary judgment on her contract claims, and seeks to amend her complaint to join Rockland County as a party defendant and to add a claim for violation of Due Process against all defendants. Defendants have cross-moved for summary judgment on all claims.
For the following reasons, plaintiff's motion for summary judgment on the contract claims is granted, but defendants' motion for summary judgment dismissing the rest of plaintiff's claims is also granted. Plaintiff's motion to amend her complaint to add a new claim is denied. When judgment is entered it will be entered against Rockland County, which is the proper party defendant in this case.
Except where noted, the following facts are undisputed.
Plaintiff was hired by the College in 1986 to work as a Clerk-Typist, the position she held until her retirement in December 2002. According to the job description, a clerk-typist is required to do general clerical work, which involves ordering, recording, tabulating or otherwise processing materials, in addition to maintaining and distributing office supplies and answering phone calls. (Def.Ex. 22.) In order to perform these duties, the employee must exhibit the ability to understand and carry out simple oral and written directions, maintain records and file both alphabetically and numerically. (Id.) Between 1999 and 2000 plaintiff's supervisors became concerned that plaintiff was unable to perform these functions because she tended to get confused and needed lots of assistance. Certain individuals began pressuring her to retire.
On or about May 30, 2001, plaintiff filed a claim against the College with the EEOC alleging that she had been discriminated against on the basis of her age and her "perceived" disability (dementia). Up until then, plaintiff had been working at the Haverstraw Extension Center. Haverstraw was closed shortly after she filed the complaint, and plaintiff was transferred to the Graphics Department of the College where she worked until her retirement.
After the County received notice of the complaint, Margot Vazquez, the Director of the Rockland County Office of Employee Rights and Equity Compliance, opened an investigation that lasted through May 2002. Vazquez interviewed plaintiff and her supervisors, who indicated that they were concerned with plaintiff's work performance and her ability to understand directions. (Def. Ex. L, Vazquez Tr. 64:14-65:9.) After months of investigation and meetings, Vazquez concluded that the College and its employees had discriminated against plaintiff in violation of state and federal law, by not appropriately handling Mrs. Baum's situation and her supervisor's complaints. (Def.Ex. 3.) She was especially concerned that the College had not followed the procedures set forth in § 72 of the New York Civil Service Law, which permits a government employer to send a civil service employee for a medical evaluation (a " § 72 Exam") if the appointing authority believes the employee cannot perform the duties of her position, before pressuring her to retire. (Vazquez Tr.: 161:3-162:11.)
In the overview of her final report, dated May 14, 2002, Vazquez wrote, "Having perceived Ms. Baum to have a disability from 1999 to the present, which substantially effected her ability to perform her essential job functions, rather than assessing or evaluating her condition for possible accommodation under ADA or remedial action pursuant to Civil Service Law, Section 72, the supervisors with the knowledge of President and Vice President, chose to harass and punish [plaintiff] in an attempt to force her to retire." (Def.Ex. 3, p. 1.) She detailed her specific findings in the report and made several recommendations, including a recommendation that Dean Kodgis be disciplined. Sometime in June or July she met with the Board, including Voss, to present her findings. (Def. Ex. L, Vazquez Tr.: 38:2-22.)
The College was aware of Vazquez's findings well before May 2002. As early as October 2001, Vazquez met several times with Donald Generals, the College Administrator, and others (including Voss, once he became President) to discuss her findings. In these meetings, she expressed concern that the College did not have appropriate procedures in place for handling situations like plaintiff's. (Def. Ex. L, Vazquez Tr. 130:2-131:19, 161:3-162:11.) According to defendants, it was in response to Vazquez's recommendation that the college refer Baum for a § 72 Exam. (Def. Rule 56.1 ¶ 28.) To that end, Generals sent a letter dated February 6, 2002 to the Commissioner of Personnel, asking that the office direct a § 72 Exam for Baum to determine whether the "stated deficiencies in Mrs. Baum's work may be related to a physical or mental disability within the meaning of § 72 of the Civil Service Law." (Def.Ex. 27.)
Mrs. Baum and the College agreed to mediate their dispute under the auspices of the EEOC. Deborah Reik, EEOC Mediator, conducted the first mediation on May 1, 2002. Plaintiff attended the session with her husband, Gerhard Baum, and her son Marvin Baum. Jeffrey Fortunato, the Deputy County Attorney, Vazquez, and E. Lewis Jeffries, the Insurance Coordinator for Rockland County, attended the mediation session on behalf of the College and Rockland County.
At the meeting, the College acknowledged that Mrs. Baum's rights had been violated. (Def. Ex. L, Vazquez Tr. 201:6-205:19; B. Baum Opp. Decl. ¶ 35.) The parties discussed the need to send Mrs. Baum for a § 72 exam, and a date when she might retire. Defendants state that they wanted plaintiff to retire soon because there was concern that if she stayed, the County would have to go forward with the § 72. According to the defendants, Baum agreed to retire in July, and it was based on this that they decided to postpone the § 72 Exam.2 (Def. 56.1 ¶ 52-53.) Plaintiff denies this. She states that she understood that Fortunato wanted her to retire as quickly as possible, but that she did not agree to retire in July. (Baum Opp. Decl. ¶ 26.) Plaintiff also testified that she and her family were extremely upset about the possibility of her having to undergo a medical exam. (Baum Tr. 54-55.) During the meeting, plaintiff also stated that she would want an opportunity to speak with members of the College administration and board to inform them about what had happened to her.
The May 1 session did not result in a settlement, but the parties continued to conduct settlement discussions, indirectly, with the assistance of Deborah Reik and Michael Bertty from the EEOC. Plaintiff's son acted as her representative in discussions with the EEOC. Plaintiff herself was not a party to these later discussions. The parties eventually agreed that plaintiff would meet with the President of the College, Dr. Thomas Voss, and the Chairman of the Board, Charles Wasserman, to discuss her concerns, but she would not be able to meet with the entire board. The Baums met with Voss, Wasserman and Fortunato on July 22, 2002. Mrs. Baum raised several concerns at the July 22 meeting. She spent a great deal of time discussing her concerns about the health and safety conditions at the Haverstraw facility where she had worked, and showed everyone pictures of toxic mold at the site.3 She also told them that she had been the victim of discrimination and had been badly harassed by Dean Kodgis. She expressed her "shock" that the College had promoted him when they knew how he had treated her.4
Shortly after this meeting, plaintiff was invited to apply for the Retirement Incentive Program (RIP), for which she was eligible between October 2, 2002 and December 29, 2002. In light of this, Mrs. Baum decided that she would not retire before her eligibility period, but agreed to retire on October 4, 2002. On August 2, 2002 a series of letters were exchanged between the Baums, the College and the EEOC regarding the possibility of Mrs. Baum's retiring on October 4. The College rejected the offer. In an August 9 voicemail for Marvin Baum, Reik explained the College's position, and its desire to have Baum retire as soon as possible because "she's litigious."
After the October 4th offer was rejected, Mrs. Baum decided she would retire at the end of the RIP eligibility period on December 29, 2002, and "keep her dignity." The Baums notified the college on August 12,...
To continue reading
Request your trial
-
Kirkland-Hudson v. Mount Vernon City Sch. Dist.
... ... claims. See, e.g., Panchishak v. Cnty. of Rockland , ... No. 20-CV-10095, 2021 WL 4429840, at *4 ... an adverse action); Baum v. Rockland Cnty. , 337 ... F.Supp.2d 454, 474 ... Low Surgical & Med. Supply, ... Inc. , No. 03-CV-3655, 2004 WL 5544995, at *8 (E.D.N.Y ... May 11, ... ...
-
Larsen v. Berlin Bd. of Educ., 3:21-cv-427 (JAM)
...employment action for the purposes of federal employment discrimination and retaliation claims. See, e.g. , Baum v. Cnty. of Rockland , 337 F. Supp. 2d 454, 473 (S.D.N.Y. 2004), aff'd , 161 F. App'x 62 (2d Cir. 2005) ; Figueroa v. City of New York , 198 F. Supp. 2d 555, 568–69 (S.D.N.Y. 200......
-
Larsen v. Berlin Bd. of Educ.
... ... See, e.g. , Baum v. Cnty. of Rockland , 337 F. Supp. 2d 454, 473 (S.D.N.Y ... ...
-
Perry v. Arc
...occurred, and 4) there existed a causal connection between the protected activity and the adverse action." Baum v. Rockland County, 337 F.Supp.2d 454, 472 (S.D.N.Y. 2004), aff'd, 161 Fed. Appx. 62, 2005 U.S. App. LEXIS 29244 (2d Cir. Dec. 23, 2005) (citation omitted). In Potenza v. City of ......