Cusher v. Mallick
| Decision Date | 09 January 2020 |
| Docket Number | 1:16-cv-01273 (BKS/DJS) |
| Parties | DEVIN CUSHER, Plaintiff, v. ASGHAR FAROOQ MALLICK, MIKKI JUDGE, MELISSA MORENO, ANTHONY LUCKY, and THE NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Appearances:
For Plaintiff:
Drita Nicaj
Law Offices of Drita Nicaj
272 Mill Street
Poughkeepsie, NY 12601
For Defendants:
Letitia James
Attorney General of the State of New York
Lynn Knapp Blake
Assistant Attorney General
The Capitol
Albany, NY 12224
MEMORANDUM-DECISION AND ORDER
Plaintiff Devin Cusher brings this action against Defendants Asghar Farooq Mallick, Mikki Judge, Melissa Moreno, Anthony Lucky, and the New York State Office of Children and Family Services ("OCFS") ("Defendants"), alleging claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1983; New York State Executive Law § 296, et seq. ("NYSHRL"); and state "whistleblower statutes." (Dkt. No. 1). Specifically, Plaintiff alleges: (1) Title VII claims against OCFS for gender discrimination and retaliation (First and Second Claims), (2) § 1983 claims against Mallick, Judge, Moreno, and Lucky ("Individual Defendants") for gender discrimination and retaliation, in violation of the Fourteenth Amendment (Third Claim),1 (3) NYSHRL claims against all Defendants for gender discrimination and retaliation (Fifth and Six Claims), and (4) state "whistleblower" claims against all Defendants (Seventh Claim). (Id.). Defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, (Dkt. No. 62), which Plaintiff opposes. (Dkt. No. 72). For the reasons below, the motion is granted in part and denied in part.
Plaintiff was hired by OCFS in February 1994 and has worked at the Highland Residential Center ("Highland") as a Youth Counselor 2 ("YC2") since 2007. (Dkt. No. 71-2, ¶ 3; Dkt. No 62-3, at 24). Highland is a "limited secure residential center for post-adjudicated youth placed with OCFS by family courts." (Dkt. No. 62-6, ¶ 9). The highest-level supervisor on site at Highland is the Facility Director. (Id. ¶ 46). There are four Assistant Directors, who report directly to the Facility Director. (Id. ¶ 49). Among other things, Assistant Directors supervise YC2s and complete their "performance evaluations, six month certifications, and Corrective Action Plans" and "monitor the time and attendance of said YC2's, as well as their use of sick, personal, and annual leave." (Id. ¶ 50). YC2s supervise Youth Counselor 1s ("YC1"). (Id. ¶ 56).If a YC1 needs "time off or a work schedule adjustment," this request is either approved by their supervising YC2 (if present) or the Assistant Director in their chain of command. (Id.).
Mallick was the Facility Director from May 2002 until July 2015 and supervised Plaintiff from May 2010 until October 2010. (Id. ¶¶ 5, 29). Plaintiff was then supervised by Assistant Director Judge from September 2011 until June 2012, Assistant Director Moreno from July 2013 until December 2015, and Assistant Director Lucky from January 2016 until May 2016. (Dkt. No. 62-8, ¶ 7; Dkt. No. 62-10, ¶¶ 12, 127; Dkt. No. 62-12, ¶ 9). After Mallick was promoted in 2015, Judge took over as Facility Director. (Dkt. No. 62-8, ¶ 4).
In addition to overseeing YC1s, Plaintiff's role as a YC2 includes "supervising either a unit or multiple units . . . overseeing the program, and . . . overall daily functioning of the unit." (Dkt. No. 62-3, at 25-26). Additionally, YC2s work shifts as the Administrator on Duty ("AOD"), who is in charge of the "daily operation of the facility." (Dkt. No. 62-6, ¶ 24). There is only one AOD per shift. (Id.). Previously, both YC1s and YC2s served as AODs. (Id. ¶ 19). In 2014, the administrative team at Highland implemented a new policy allowing only YC2s to be scheduled as AODs. (Id. ¶ 44). A "new AOD schedule [was] established, and in January 2014, all YC2's on the AOD rotation bid for his3 schedule based on seniority." (Id. ¶ 14). At the time of the shift bid, Plaintiff had the least seniority of the relevant YC2s. (Id. ¶ 16). YC1s still served as AODs "in the event there [was] an unscheduled absence." (Dkt. No. 71-2, ¶ 140). At some point after June 2014, YC1s were allowed to serve as AODs again.4
Employees at Highland can be "granted temporary adjustments to their assigned work schedules" for "a variety of reasons including the need to attend to personal and/or family matters, including by not limited to childcare" at their supervisor's discretion. (Dkt. No. 62-6, ¶ 27). Supervisors consider several factors, including "the needs of the facility and the employee's time and attendance." (Id.)
Supervisors at Highland are expected to "hold their staff members accountable under the governing policies and rules and to take appropriate action when said policies and/or rules are not followed." (Dkt. No. 62-6, ¶ 61). When an issue arises, supervisors have the discretion to issue counseling memos. (Id.). Additionally, supervisors may implement a Corrective Action Plan ("CAP") and conduct "follow-up meetings . . . to monitor the employee's progress and to see if there is improvement." (Id.).
When an employee has "time and attendance problems," OCFS "has a three step progressive process," (Id. ¶ 62), including "informal counseling," "formal counseling," "requiring the employee to provide documentation for any further unscheduled absence," and "disciplinary action." (Id.). When there is employee misconduct, the Facility Director or a supervisor "initiates an inquiry and assigns a staff member to conduct an investigation into the occurrence." (Id. ¶ 63). The Facility Director then reviews the investigation and recommends discipline (where appropriate), which can include a specific recommended penalty. (Id. ¶ 64; Dkt. No. 71-1, at 617-18). OCFS Labor Relations then decides what disciplinary action is appropriate, and the Facility Director signs and serves a Notice of Discipline ("NOD") on the employee. (Dkt. No. 62-6, ¶ 66).
Plaintiff alleges that "Highland's female employees, who are mothers, are routinely accommodated in connection with the hours worked in order to care for their children." (Dkt. No. 71-2, ¶ 12). Specifically, Plaintiff alleges that Defendants Judge and Moreno were given accommodations. (Dkt. No. 62-3, at 75). He also alleges that other co-workers, including Gail Babcock, Kelly Hicks, Mary Pazienza,5 Nicole Romano,6 and Katy Carson were also given accommodations. (Id. at 205, 283-84). During the time period in question, Gail Babcock was a Youth Division Aide ("YDA"),7 Kelly Hicks was a YC1 and then a Youth Recreation Specialist 3,8 Mary Pazienza was a unit clinician,9 Nicole Romano was a unit clinician,10 and while the record is somewhat unclear, Katy Carson appears to have been an Assistant Director.11 Gail Babcock does not have children, (Dkt. No. 62-21, ¶ 4), and Mary Pazienza did not have childcare needs when she worked at Highland because her children were adults. (Dkt. No. 62-22, ¶ 4).
Plaintiff recalled an incident in 2014 when there was a snowstorm and he arrived late to work because his son's daycare was closed. (Dkt. No. 62-3, at 285). When he arrived, Mallick told him that he needed to get there earlier "when it snows." (Id.). Plaintiff testified he "noticed over time, that during snowstorms . . . they did not make an issue with female staff who called out when their kids' school and/or day care was canceled." (Id. at 285-86).
a. Plaintiff's Paternity Leave
In 2010, Plaintiff's spouse was pregnant. (Dkt. No. 62-3, at 47-48). Plaintiff requested six weeks of paternity leave from Mallick. (Id. at 48). Mallick expressed "his displeasure that [Plaintiff] was taking paternity leave" and "told [Plaintiff] women - not men should be taking" parental leave. (Dkt. No. 71-2, ¶ 7). Mallick granted Plaintiff's request, and Plaintiff was on leave from August 23, 2010 until October 4, 2010. (Dkt. No. 62-6, ¶ 30). Mallick "repeatedly pressured [Plaintiff] to end [the paternity leave] early." (Dkt. No. 1, ¶ 11). Prior to taking the leave, Mallick "said he needed [Plaintiff] back before the six weeks" and twice called Plaintiff and "told [him] he needed [him back]." (Dkt. No. 62-3, at 48-49). Plaintiff came into work on one occasion during his leave. (Dkt. No. 62-7, at 4-5).
While Plaintiff was on leave, Mallick "supervised the time and attendance of the staff that [Plaintiff] supervised and discovered several problems." (Dkt. No. 62-6, ¶ 32). He issued three counseling memos to Plaintiff during his leave about (1) "staff under his supervision not properly documenting their time worked," (id. ¶ 35; Dkt. No. 62-7, at 13), (2) "his failure to timely complete performance evaluations and six month re-certifications for employees under his supervision," (Dkt. No. 62-6, ¶ 36; Dkt. No. 62-7, at 15), and (3) "his failure to counsel or discipline staff for time and attendance issues." (Dkt No. 62-6, ¶ 37; Dkt. No. 62-7, at 17).
b. Plaintiff's Schedule and Work Performance
Once Plaintiff returned from paternity leave, he worked two late night and three day shifts, which was the "practice for YC2s" at Highland during that time. (Dkt. No. 62-3, at 70). As his supervisor, Judge approved several schedule adjustments for Plaintiff between October 2011 and February 2012. (Dkt. No. 62-8, ¶¶ 16-23). When Moreno became his supervisor, sheapproved Plaintiff's request to leave the facility for an hour each day to walk his dog. (Dkt. No. 62-10, ¶ 20; Dkt. No. 62-3, at 160-61).
In 2012, Mallick received an email from a YC2, who "expressed his feeling that Plaintiff should be removed from the schedule because the AOD's could not depend upon him to be at work." (Dkt. No. 62-6, ¶ 25; Dkt. No. 62-7, at 2)
In Plaintiff's 2011-2012 evaluation, Judge wrote that Plaintiff "adjus...
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