Grant v. N.Y. State Office for People with Developmental Disabilities, 2:12-cv-04729-SJF-WDW
| Decision Date | 30 July 2013 |
| Docket Number | 2:12-cv-04729-SJF-WDW |
| Parties | DONTE C. GRANT, Plaintiff, v. NEW YORK STATE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES and DIANNA THEREZO, in her personal capacity, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On September 21, 2012, plaintiff Donte C. Grant ("plaintiff") commenced this employment discrimination action against defendants New York State Office for People with Developmental Disabilities ("OPWDD") and Dianna Therezo ("Therezo") (collectively, "defendants") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1983 ("Section 1983"), asserting claims based upon gender discrimination, retaliation and violations of his equal protection rights. Pending before the Court is defendants' motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for relief. For the reasons set forth below, the motion is granted.
On February 10, 2011, plaintiff began working for OPWDD as a direct support assistant trainee working at the Intermediate Care Facility, Centereach Unit. (Compl., ¶¶ 8, 11). Plaintiff "primarily worked at the Centereach A residence, but occasionally worked at Centereach B and the Holbrook IRA." (Compl., ¶ 11). His duties "consisted of interacting with the residents, providing medications, taking residents to and from medical appointments, assisting them with their activities of daily living such as toileting, showering, and other matters of personal hygiene, and maintaining the residence." (Compl., ¶ 10) (emphasis added). Following a one (1)-year probationary period, plaintiff would either be hired as a full-time employee or his employment with OPWDD would be terminated. (Compl., ¶ 9).
Performance evaluations completed for the period from February 10, 2011 through May 10, 2011 ("the first evaluation") and May 11, 2011 through August 11, 2011 ("the second evaluation") rated the quality and quantity of plaintiff's work, his work habits and interest and his understanding of OPWDD's policies and procedures as "average." (Compl., Ex. B). The first evaluation indicates that plaintiff "works well with the consumers," "completes his work," "follows directions," "can work independently," "understands the routine," "gets his work done," and "is very helpful," but that he "needs to think things through in order to better organize andplan tasks" and "is still learning policies and procedures."2 (Id.) The second evaluation indicates that plaintiff "always completed [his work] in a timely manner," "maintains the environment in a clean and orderly manner," "works independently[,] is always helpful and understands what needs to be done," and "continues to learn policies and procedures," but that he "needs to work closer with the consumers to learn there [sic] specific needs." (Id.) On the second evaluation, Therezo also: (1) commented that plaintiff's and (2) recommended that plaintiff continue as a probationary employee. (Id.)
Plaintiff alleges that on October 30, 2011, he volunteered to work an overnight shift at the Holbrook IRA because "the regularly scheduled employees [had been] unable to come in that night" and "every other potential employee option [had been] exhausted." (Compl., ¶¶ 23-24). According to plaintiff, he "was aware that if he worked this overnight shift, as well as his other regularly scheduled shifts, he would be over 40 hours for that week, and therefore entitled to overtime pay," so he "repeatedly" asked Brenda Dawson ("Dawson"), another supervisor for Centereach A, if management would approve him to work that shift. (Compl., ¶ 24). Dawson "reassured him that indeed management had approved him to work the overnight shift." (Id.) Another employee, Kimberly Sermon, also told him that she had personally spoken with Mildred Zawistowski ("Zawistowski"), Therezo's supervisor, who told her that she had approved plaintiff to work the overnight shift, (Id.)
On November 2, 2011, Therezo "issued a write-up to [plaintiff] for accepting theovernight shift * * *." . Specifically, Therezo charged plaintiff with disregarding a directive, i.e., that plaintiff had been told "that [he] [was] not to accept any voluntary hours because this would put [him] into overtime and [he] [was] not to work overtime unless it was mandated or approved by [herself; Kathryn Maurice ("Maurice"), the Residential Unit Supervisor; or Zawistowski]," yet he accepted the overnight shift without "getting direct authorization from either [Zawistowski] or [Therezo]." (Compl., Ex. A). Plaintiff "formally disagreed with the write-up," (Compl., ¶ 25), indicating, inter alia, that he "was told that management knew that [he] was working the overnight * * * and that management was aware [he] would be in overtime." (Compl., Ex. A).
On November 4, 2011, plaintiff "complained to his union representative, Rutha Bush ["Bush"]." (Compl., ¶ 27). According to plaintiff, Bush told him "that he should not complain because he was a probationary employee and there was not much she could do until he became a full time employee," but that "she would contact Yolanda Sahagun, [OPWDD's] Director of Human Resources." (Id.)
Plaintiff alleges that "[s]oon after [he] made complaints regarding his employment conditions he began to receive verbal counseling from Ms. Therezo on a nearly daily basis regarding his work performance, which he had not received before to that extent." (Compl., ¶ 28). Specifically, plaintiff alleges that "[w]ithin the span of three days Ms. Therezo made four complaints to [him] regarding his work performance," some of which pertained to "potentially serious violations of medication distribution to patients," (Compl., ¶ 30), yet she "never saw fit to provide [him] with a formal write-up" and she did not inform the nurse on duty at the residence of his "alleged medication infractions," in violation of OPWDD policy. (Compl., ¶ 31).
On November 16, 2011, plaintiff received his third and final evaluation, which indicated "that his work performance had deteriorated and that [his employment] should be terminated." (Compl., ¶ 32; Ex. C). This third evaluation covers the period from August 10, 2011 through November 10, 2011 and rated the quality and quantity of plaintiff's work as "average," but his work habits and interest and understanding of OPWDD's policies and procedures as "unacceptable." (Compl., Ex. C). The third evaluation indicates that plaintiff's "paperwork is done neatly and timely," but that his "performance has deteriorated," his "work habits have been declining," "consumers [sic] needs are not being met," and he "must follow procedures for medication administration and other policies." (Id.) In addition, the third evaluation indicates that plaintiff had received one (1) verbal counseling because "while driving the state van [he] ran a redlight [sic] and received a ticket" and had received one (1) written counseling for failing to "follow a directive." (Id.) The third evaluation recommended that plaintiff's probationary employment be terminated. (Id.)
According to plaintiff, soon after he received the third evaluation, Maurice submitted a letter on his behalf indicating "what a valuable employee he had been" and that he "went above and beyond his required duties." (Compl., ¶ 33; Ex. D). Specifically, Maurice indicated, inter alia, that she worked with plaintiff from August 2011 until her reassignment on October 31, 2011; that during the time she supervised plaintiff, "he completed all of his assignments and ensured the consumers in the Centereach Unit were given the best of care, always insuring they attended their clinics, and that their personal plans were followed;" that it was her opinion that plaintiff "went above and beyond what was asked of him;" that plaintiff was "always willing to learn and follow policy and procedure, according to the training he received * * *;" and thatplaintiff "would be an asset to any unit * * *, and it would be a great loss to this facility should [he] not be allowed to continue to work for OPWDD * * *." (Compl., Ex. D). In addition, Maurice wrote: "All though [sic] we don't discriminate I must admit [plaintiff] received extra assignments because of his strength and he always completed them without any complaints." (Id.)
Plaintiff alleges that on November 22, 2011, he and Bush attended "what was supposed to be an appeal hearing regarding his termination" conducted by Sahagun, but Sahagun "simply stated that [his] termination was settled and would not change." (Compl., ¶ 35). According to plaintiff, Sahagun asked him to resign, but he refused. (Id.)
Plaintiff alleges that during the entire period of his employment, he was "the only regularly scheduled male employee at the Centereach A location" and that the same was not true for the other locations at which he occasionally worked. (Compl., ¶ 12). Plaintiff also alleges that he was often asked to perform work above and beyond his assigned duties," particularly "any work in the house that required physical strength," such as removing the garbage, restocking supplies and putting away groceries every Wednesday. (Compl., ¶¶ 13-14). According to plaintiff, "[f]emale staff members would laugh and snicker as [he] undertook this physical labor;" would refer to him as "the 'dog' of the unit;" and would "refuse to perform physical aspects of the job knowing that if they left this work undone, [his] supervisor, Dianna Therezo, would require him to do it when he returned to work." (Compl., ¶ 15). Plaintiff alleges that when he asked Therezo "why he was the only employee responsible for physical labor she would tell him 'because you're a man, you're stronger.'" (Compl., ¶ 16).
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