Mazur v. N.Y. State Dep't of Corr.
| Decision Date | 20 January 2023 |
| Docket Number | 1:20-cv-624-JLS-JJM |
| Parties | DANIEL MAZUR, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS, SANDRA DURFEE, and THOMAS STICHT, Defendants. |
| Court | U.S. District Court — Western District of New York |
REPORT AND RECOMMENDATION
Before the court is defendants' motion for summary judgment [41][1] seeking dismissal of plaintiff Mazur's remaining claims of retaliation under Title VII of the Civil Rights Law of 1994 (“Title VII”), as amended, 42 U.S.C §§2000e et seq., and deprivation of due process under 42 U.S.C. §1983. This motion has been referred to me by District Judge John L. Sinatra, Jr. for initial consideration. [9]. Having reviewed the parties' submissions [41, 48, 49], I recommend that the motion be granted.
Mazur commenced this action on May 26, 2022, asserting claims arising from two suspensions he received while he was employed as a dentist at Wyoming Correctional Facility by defendant New York State Department of Corrections and Community Supervision (“DOCCS”). Complaint [1]. Defendants thereafter filed a motion to dismiss, and in a January 20, 2021 Report and Recommendation [13], I recommended that the motion be granted in part and denied in part.
In adopting that Report and Recommendation, Judge Sinatra ruled that “[i]n the event Mazur does not file an amended complaint, the only remaining claims are his Title VII retaliation claim against DOCCS and his Section 1983 claims against the individual Defendants in their personal capacities”. March 23, 2021 Decision and Order [20] at 4. Because Mazur did not file an Amended Complaint, only those two claims remain.
The relevant facts are largely undisputed. In opposing defendants' motion, Mazur has failed to submit an opposing statement of facts. [48]. Therefore, the statements in defendants' Statement of Undisputed Fact (“SOUF”) [42-2] are “deemed admitted for purposes of the motion”. Local Rule of Civil Procedure 56(a)(2); see Allah v. Latona, 2021 WL 1969977, *1 (W.D.N.Y. 2021). However, I remain mindful that “[r]eliance on a party's statement of undisputed facts may not be warranted where those facts are unsupported by the record”. New York State Teamsters Conference Pension and Retirement Fund v. Express Services, Inc., 426 F.3d 640, 648 (2d Cir. 2005).
Mazur has worked as a dentist at Wyoming Correctional Facility from 1991 through the present. SOUF [42-2] ¶¶7-8, 10. His duties include managing the dental clinic and supervising the dental staff. Id., ¶9. At all relevant times, the dental staff included Beth Skalski, a dental hygienist, and Dr. Hanna Dryjski, a part-time dentist. Id., ¶¶11-12. Defendant Thomas Sticht is and was employed as the Superintendent of Wyoming Correctional Facility. Id., ¶13.
Defendant Sandre Durfee was, until July 18, 2018, employed as the Deputy Superintendent of Administration at Wyoming. Id., ¶14.
As a dentist employed by DOCCS, Mazur is a member of the Public Employees Federation (“PEF”) union. Id., ¶65. The terms of Mazur's employment were, at the relevant times, dictated by the 2016-2019 Professional, Scientific, and Technical Services Unit Agreement (“CBA”) between PEF and the State of New York. Id., ¶66; Exhibit F [41-6] at 472. Article 33.4(a) of the CBA, regarding “Suspension or Temporary Reassignment Before Notice of Discipline”, provides that:
On May 10, 2018, Skalski and Dryjski were in the dental clinic preparing to work on a patient when Mazur allegedly entered and began yelling at Dryjski for failing to restock needles. Id., ¶24. On May 11, 2018, Skalski entered Mazur's office, where he allegedly yelled and cursed at her. Id., ¶26. The following day, Mazur asked Skalski to meet at a park to discuss the incident, where they engaged in brief argument before agreeing to “start fresh” the next day. Id., ¶28. Skalski and Dryjski informed Durfee of these issues, who in turn notified Sticht. Id., ¶¶25, 30, 31. Sticht notified the Office of Special Investigation (OSI), which initiated an investigation regarding the incidents. Id., ¶31. On June 3, 2018, Mazur used expired dental cement to treat a patient and instructed Dryski to use expired dental cement as well. Id., ¶¶32-33. Other incidents involving Mazur yelling at Skalski and Dryjski occurred on June 6 and 7, 2018. Id., ¶¶33-35. Skalski and Dryjski reported these incidents as well, with Skalski reporting that she was “in fear of her safety”. Id., ¶¶36-37. On June 7, 2018, the dental clinic was closed and Mazur was placed on administrative leave with pay. Id., ¶¶38-39.
On June 12, 2018, while Mazur was on administrative leave, a “routine” workstation “frisk” of the dental clinic was conducted. Id., ¶41. This was carried out pursuant to a November 2014 memo from the DOCCS Deputy Commissioner requiring quarterly workstation “frisks”. Id., ¶17. In a January 2018 memo, the DOCCS Deputy Superintendent of Security designated the areas of the facility that would be subject to such a search in the following quarter. Id., ¶18. The dental clinic was included on this list. Id. The June 12 frisk revealed materials in Mazur's desk that were alleged to be contraband, including various unsecured dental tools and expired antibiotics. Id., ¶43; Exhibit A [41-6] at 215.
On July 6, 2018, Mazur was served with a Notice of Suspension and was suspended without pay, citing possession of contraband. SOUF [41-2], ¶45; [41-6] at 212-13. Mazur was permitted to use his accrued leave and opted to do so. SOUF [41-2], ¶45. On July 9, 2018, Mazur was served with a Notice of Discipline (“NOD”), which itemized the contraband items, and indicated that DOCCS was seeking his dismissal from service. Id., ¶48; [41-6] at 21516.
Mazur filed a grievance and arbitration ensued. SOUF [41-2], ¶¶70-71. The arbitrator found that “none of the items listed in the NOD were contraband under either DOCCS policy or the tool control curriculum guide”. [41-6] at 210. The arbitrator accordingly found that the proposed penalty of dismissal was inappropriate, and that Mazur's July 6 suspension was inconsistent with the article 33 of the CBA. Id. at 210-11. The arbitrator found Mazur not guilty of the charges in the NOD, and ordered that he be immediately returned to his position with back pay. [41-6] at 162, 210-211.
During this time, an OSI investigation was underway regarding the May and June 2018 incidents among Mazur, Ms. Skalski and Dr. Dryjski. SOUF [41-2], ¶50. On August 7, 2018, OSI concluded its investigation and found the allegations of harassment against Mazur to be substantiated. Id., ¶51. The matter was referred to Labor Relations. Id. On November 19, 2018, Mazur was served with Notice of Suspension, informing him that due to that conduct, he was suspended without pay. Id., ¶52; Exhibit C [41-6] at 240. Mazur declined to use his accruals. Id. Shortly thereafter, Mazur was served with a NOD regarding these incidents and informed that DOCCS was again seeking his dismissal. Id., ¶53; Exhibit C [41-6] at 237-39.
Mazur again filed a grievance, and a second arbitration was conducted. Id., ¶¶77-78. This time, the arbitrator found that just cause existed to support two of the seven charges against Mazur, specifically, for unprofessional conduct/communications. [41-6] at 231-32.
However, he found that the appropriate penalty for this conduct was not dismissal but a letter of reprimand. Id. at 232. He further found that Mazur's suspension was not effected in accordance with CBA, as the suspension notice failed to allege that Mazur's “continued presence . . . on the job would severely interfere with (rather than merely interrupt) operations”. Id. at 233. The arbitrator ordered that Mazur be reinstated with back pay. Id. at 234-35. A letter of reprimand was issued to Mazur on January 22, 2020. Id. at 218.
At all relevant times, Mazur was a plaintiff in another federal action, Mazur v. New York State Department of Corrections and Community Supervision, et. al, 1:14-CV-1051A-RJA-HKS (“Mazur I”). Mazur filed that action in 2014, raising claims of gender discrimination under Title VII and deprivation of his rights to equal protection and due process in violation of 42 U.S.C. §1983. See Mazur I, [49]. The parties agree that fact discovery in that case concluded on March 15, 2018. See Defendants' Memorandum of Law (“MOL”) [41-1] at 8. In October of 2018, defendants moved for summary judgment (Mazur I, [43]), which was later granted and the case dismissed. Mazur I, 2021 WL 5166210, *1 (W.D.N.Y. 2021)...
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