Steele v. New York
| Decision Date | 23 March 2021 |
| Docket Number | 5:20-CV-00220 |
| Parties | RICHARD S. STEELE, Plaintiff, v. STATE OF NEW YORK, VALERIE COX, individually and as a representative of the New York State Department of Transportation, NEW YORK STATE DEPARTMENT OF TRANSPORTATION, ELATISHA KIRNON, individually and as a representative of the New York State Governor's Office of Employee Relations, and NEW YORK STATE GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Plaintiff Richard Steele, an employee of the New York State Department of Transportation ("DOT"), brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1983 ("Section 1983") alleging that the defendants subjected him to unlawful retaliation and violated his constitutional rights in relation to his December 2017, February 2018, and December 2019 disciplinary proceedings. Defendants the State of New York, DOT, the Governor's Office of Employee Relations ("GOER"), Elatisha Kirnon, and Valerie Cox move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. No. 11. Plaintiff opposes the motion, Dkt. No. 14, and defendants reply. Dkt. No. 15.
Plaintiff is an Environmental Specialist employed by DOT. Dkt. No. 1 at ¶ 1. He has been employed by DOT since September 1989. Id.
Between December 2017 and December 2019, DOT issued three Notices of Discipline to plaintiff relating to various acts of misconduct. The first two of these Notices of Discipline were issued by Defendant Valerie Cox, DOT Administrative Services Director. See Dkt. Nos. 1-3; 1-7. On December 22, 2017, DOT issued a Notice of Discipline to plaintiff charging him with harassment of Ezmaralda Abboud, a female security guard in his office building. Dkt. No. 1-3 (December 22, 2017 Notice of Discipline). Plaintiff was placed on paid administrative leave. Dkt. No. 1 at ¶ 15. The December 22, 2017 Notice of Discipline charged plaintiff with repeatedly asking Ms. Abboud to accompany him to dinner or on his boat and touching the back of her hand while walking by her workstation, causing Ms. Abboud to feel nervous and uncomfortable. Id.; see Dkt. No. 1-3. The December 22, 2017 Notice of Discipline was initiated by the complaint of Kristine Olson (formerly Kristine Crimi), Ms. Abboud's supervisor. See Dkt. No. 1 at ¶ 23. On December 26, 2017, in response to the Notice of Discipline, plaintiff filed a grievance through his union representative and sought arbitration under Article 33 of the PEF Collective Bargaining Agreement. Dkt. No. 1-4. However, the matter was resolved by agreement, under which plaintiff was issued a "non-disciplinary counseling memo" and permitted to return to workon January 18, 2018. Dkt. No. 1 at ¶ 17. Plaintiff alleges that the Id. Plaintiff alleges that "within weeks of the discontinuance of the disciplinary proceeding, the DOT reassigned [him] to a new work station thus altering the terms of his employment without good cause." Id. at ¶ 20.
On February 15, 2018, DOT issued a second Notice of Discipline to plaintiff, charging him with misconduct arising out of a January 22, 2018 incident at MJ's Music Bar in Fulton, New York. Dkt. No. 1-7. As stated in the Notice of Discipline, while present in MJ's Music Bar, plaintiff allegedly made several disparaging comments related to the circumstances surrounding the December 22, 2017 Notice of Discipline. Id. Plaintiff alleges that, while at the bar, he encountered Grace Crimi, the daughter of Kristine Olson (formerly Kristine Crimi), who was "the woman who previously accused [plaintiff] of wrongfully touching Ms. Abboud." Dkt. No. 1 at ¶ 23. Plaintiff alleges that he "refused to discuss the matter with Grace Crimi" and that Crimi told him, unsolicited, that he "had nothing to worry about" and "did nothing wrong." Id. On or about January 23, 2018, Kristine Olson submitted an Incident Investigation Report in which she relayed Grace Crimi's account of plaintiff's statements at MJ's Music Bar on January 22, 2018. Dkt. No. 1-6. Plaintiff alleges that this incident report provided "manufactured details as to what Grace Crimi had allegedly told [Kristine Olson] about plaintiff's statements at the bar." Dkt. No. 1 at ¶ 24. Plaintiff alleges that, on January 24, 2018, Grace Crimi provided a written statement in support of Kristine Olson's complaint in which the "statements attributed to [plaintiff] were entirely false." Id. at ¶ 25.
Plaintiff alleges that on January 25, 2018, DOT "imposed hardships" on him by directing his immediate supervisor, Sidney Kaine, to reassign plaintiff to a work location that would require a longer commute. Id. at ¶ 26. Plaintiff alleges that, on February 9, 2018, he was subject to a disciplinary interrogation regarding the events and conversations at the bar. Id. at ¶ 27. Plaintiff alleges that DOT rejected his testimony "without due process" because it did not "investigate and interview disinterested witnesses." Id. Plaintiff further alleges that he was suspended without pay following the February 9 interview. Id. Plaintiff filed a grievance in response to the February 15, 2018 Notice of Discipline and demanded arbitration. Id. at ¶ 28. An arbitration was held on June 4, 2018. Id. at ¶ 29. Plaintiff alleges that the charges in the February 15, 2018 Notice of Discipline were false and that the disciplinary proceeding was retaliation against him "for having opposed them in the prior disciplinary proceeding." Id. at ¶ 31.
On July 31, 2018, plaintiff and DOT entered into an Arbitration Agreement to resolve the February 15, 2019 Notice of Discipline, under which plaintiff was issued a formal counseling memorandum and permitted to return to work. Dkt. No 1-9. The Agreement further provided for the removal of "any materials related to the alleged conduct of January 22, 2018 from plaintiff's personal history file." Id.
On December 27, 2018 plaintiff commenced a civil action against Grace Crimi in the Onondaga County Supreme Court. Dkt. No. 1-11. In this action, plaintiff alleges that Ms. Crimi maliciously reported false discriminatory statements to [plaintiff's] employer. He brings causes of action for tortious interference with an employment relationship, defamation, and intentional infliction of emotional harm. Id. As of the filing of the instantfederal action, Steele v. Crimi is still pending. Dkt. No. 1 at ¶ 39.
On November 18, 2019, plaintiff "was called into a disciplinary interrogation at which he was advised that he was being subjected to disciplinary proceedings as a result of his having filed a civil lawsuit against Grace Crimi." Id. ¶ 40. During the interrogation, Defendant Elatisha Kirnon, an employee relations officer of GOER, asked plaintiff why he filed the lawsuit against Ms. Crimi. Id. Plaintiff responded that he did so because Ms. Crimi lied about him. Id. "Ms. Kirnon then accused him of misconduct in having filed a lawsuit and claimed his lawsuit against Crimi constituted 'retaliation' for Crimi having reported him to his employer, the DOT." Id. "Ms. Cox, of the DOT, also advised [plaintiff] that he was not to share the details of the disciplinary interrogation with his lawyer and that his having discussed Crimi's allegations with his lawyer in the past violated DOT ' policy' by having failed to obtain the permission of the DOT before sharing the details of Crimi's allegations with his lawyer in the civil suit; additionally, Ms. Cox, directed him to withhold any information he obtained during the third disciplinary interrogation with his lawyer." Id.
On December 16, 2019, DOT issued a third Notice of Discipline to plaintiff, charging him with retaliating against Kristine Olson by filing a lawsuit against her daughter, Grace Crimi, which caused Ms. Olson to be afraid to participate as a witness "in an unrelated discrimination investigation." Dkt. No. 1-13. Plaintiff alleges that the December 16, 2019 Notice of Discipline is unlawful retaliation for "his constitutionally protected right to file a civil lawsuit," and "for having opposed [DOT's] prior efforts to discharge him from his employment." Dkt. No. 1 at ¶¶ 49-51.
On or about November 21, 2019, plaintiff filed a Charge of Discrimination with theEqual Employment Opportunity Commission ("EEOC"). Id. at ¶ 9; Dkt. No. 1-1. On December 2, 2019, the EEOC issued a "Dismissal and Notice of Rights" or "Right to Sue" letter. Dkt. No. 1-2.2
A motion brought pursuant to Fed. R. Civ. P. 12(b)(1) challenges the subject matter of the Court to address a case or certain claims in the case. A case or claim is to be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F. 3d 110, 113 (2d Cir. 2000).
On a Rule 12(b)(6) motion, the Court must accept "all factual allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiff's favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks omitted). This tenet does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Similarly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements ... are not entitled to the assumption of truth." Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)( that a court is "not bound to accept as true a legal conclusion couched as a factual allegation"). "'[I]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in...
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