Tardd v. Brookhaven Nat. Laboratory

• Decision Date: 07 January 2006
• Docket Number: No. 04 CV 3262(ADS)(ARL).,04 CV 3262(ADS)(ARL).
• Citation: 407 F.Supp.2d 404
• Parties: Malry TARDD and Otto White, Plaintiffs, v. BROOKHAVEN NATIONAL LABORATORY, a.k.a. and/or d/b/a Brookhaven Science Associates, Conrad Forster, in his individual and official capacity; Michael Goldman, in his individual and official capacity; William Hempfling, in his official and individual capacity; Sue Foster, in her official and individual capacity; Walter Deboer, in his official and individual capacity; Steve Dierker, in his official and individual capacity; Ed Haas, in his official and individual capacity; Michael Caruso, in his official and individual capacity; Michael Bebon, in his official and individual capacity; Derek Lowenstein, in his official and individual capacity; William Gunter, in his official and individual capacity; Thomas Sheridan, in his official and individual capacity; Peter Paul, in his official and individual capacity; Kenneth Brog, in his official and individual capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

407 F.Supp.2d 404

Malry TARDD and Otto White, Plaintiffs, v. BROOKHAVEN NATIONAL LABORATORY, a.k.a. and/or d/b/a Brookhaven Science Associates, Conrad Forster, in his individual and official capacity; Michael Goldman, in his individual and official capacity; William Hempfling, in his official and individual capacity; Sue Foster, in her official and individual capacity; Walter Deboer, in his official and individual capacity; Steve Dierker, in his official and individual capacity; Ed Haas, in his official and individual capacity; Michael Caruso, in his official and individual capacity; Michael Bebon, in his official and individual capacity; Derek Lowenstein, in his official and individual capacity; William Gunter, in his official and individual capacity; Thomas Sheridan, in his official and individual capacity; Peter Paul, in his official and individual capacity; Kenneth Brog, in his official and individual capacity, Defendants.

No. 04 CV 3262(ADS)(ARL).

United States District Court, E.D. New York.

January 7, 2006.

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Law Offices of Frederick K. Brewington by Frederick K. Brewington, Gregory Calliste, Jr., of Counsel, Hempstead, NY, for Plaintiffs.

Morgan, Lewis & Bockius, LLP by Christopher A. Parlo, of Counsel, New York, NY, for Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

Malry Tarrd and Otto White (collectively, the "plaintiffs") commenced this action against the Brookhaven National Laboratory ("BNL"), a.k.a and/or d/b/a Brookhaven Science Associates ("BSA"), Conrad Foester s/h/a Conrad Forster, Michael Goldman, William Hempfling, Sue Foster, Walter Deboer, Steve Dierker, Ed Haas, Michael Caruso, Michael Bebon, Derek Lowenstein, William Gunther s/h/a William Gunter, Thomas Sheridan, Peter Paul, and Kenneth Brog, (collectively, the "defendants") pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. ("Title VII"); 42 U.S.C. § 2000d et seq. ("Title VI"); 42 U.S.C. §§ 1981, 1985(3), and 1986; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law. § 296; and for alleged breach of contract. All of the individual defendants are sued in their official and individual capacities.

Presently before the Court is a motion by the defendants pursuant to (1) Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed. R. Civ.P.") to dismiss the amended complaint for failure to state a claim upon which relief can be granted; and (2) Fed.R.Civ.P. 12(c) for judgment on the pleadings.

I. BACKGROUND

The following facts are derived from the complaint and are taken as true for the purposes of this motion.

A. The Defendants

BSA is a nonprofit, limited-liability company, founded in 1997, and located in Upton, New York. BSA is responsible for managing and operating BNL under contract with the United States Department of Energy. BNL employs scientists, engineers, technicians and support staff, for the purpose of conducting research in physical, biomedical, and environmental sciences, and energy technologies.

The individual defendants are current or former employees of BNL who held various positions during the relevant time period: Foerster was the "Manager of Mechanical Section"; Goldman was the "General Counsel of [BNL]"; Hempfling was the "Manager of Personnel (Human Resources)"; Foster was "working in Employee Relations"; Deboer was a "Supervisor"; Dierker was the "Chairman of Lightsource"; Haas was the "Mechanical Department Head"; Bebon was the "Assistant Laboratory Director for Facilities and Operations"; Lowenstein was the "Chair of the Collider-Accelerator Department"; Gunther was the "Special Assistant for Associate Director of the Life Sciences Directorate"; Sheridan was the "Deputy Director of Operations"; Paul was the "Deputy Director for Science and Technology and was, at times, also the Interim Laboratory Director"; and Brog was the "Assistant Laboratory Director for Environment, Safety, Health and Quality, the Interim Assistant Laboratory Director for Environment, Safety, Health and Quality". Although named as a defendant in the caption and mentioned in the amended complaint, the defendant Caruso's position at BNL is not specifically identified.

B. Malry Tardd

The plaintiff Tardd is a forty-eight year old African-American man. Tardd began working for BNL in 1975 as a "Mechanical Technician" and has since held various positions. Currently, Tardd is employed at BNL as a "Vacuum Technical Specialist (Technical Associate II)." On one prior occasion Tardd alleged that BNL and its employees discriminated against him on the basis of his race. Tardd withdrew these claims after reaching an agreement with BNL. Tardd now alleges that, notwithstanding the terms of the agreement intended to settle his earlier claims with BNL, he was continually discriminated against. Tardd also alleges that he was retaliated against as a result of having brought that prior complaint.

In 1996, Tardd filed a complaint with the New York State Division of Human Rights ("NYSDHR") alleging that BNL employs racially discriminatory policies with respect to hiring and promotions. The NYSDHR found that there was probable cause to believe that BNL was guilty of discrimination and scheduled the matter for a hearing. However, the hearing was never held because the parties were able to reach an agreement. As evidence of their agreement. Tardd and BNL entered into a stipulation of settlement (the "Settlement Agreement"). Under the terms of the Settlement Agreement, Tardd was promoted, received back pay, and was appointed as BNL's "Equal Opportunity Representative." The Settlement Agreement was finalized and signed in August, 2001.

Tardd alleges that shortly after the terms of the Settlement Agreement were agreed upon, but prior to its execution, he began to "face[] an increasingly hostile work environment from his supervisors and co-workers at BNL." The specific allegations of misconduct in the 36 page, 199 paragraph amended complaint are too numerous to all be recounted here. The most serious instances of alleged conduct include witnessing Caruso in the work area of the laboratory wearing "a white Ku Klux Klan hood with the letters `KKK' clearly written on the side of the hood in black magic marker"; "discover[ing] a rope, tied into the form of a `hangman's noose,' draped and hung over the door of his office"; finding "a doll that was hanging on a string by its neck" hung outside his office door; and co-workers' use of racial slurs.

In addition to this conduct the plaintiff alleges that he was subjected to less overt forms of racial discrimination and retaliation. For example, Tardds' supervisor, Deboer, stopped communicating with him. Deboer allegedly also began overburdening Tardd with assignments that demanded much of his time, but would preclude him from being able to position himself to become eligible for a promotion. Tardd also claims that he was excluded from gatherings and meetings.

Tardd also alleges that the was subjected to adverse employment actions. In this regard, Tardd received weak job-performance evaluations; the "lowest pay raises in his group"; he was assigned a "mentor"; supervisors began maintaining logs of Tardd's breaks and time away from the office; and, in March 2002, Tardd claims the defendants attempted to remove him from his position as EEO Representative. Tardd believes these actions were part of a pattern of racially motivated discrimination and, in part, retaliation for his earlier NYSDHR complaint.

According to the amended complaint, no Caucasian co-workers received comparable treatment. Tardd alleges that he voiced his complaints to his supervisors but that no action was taken. Despite Tardd's complaints, BNL refused to investigate the matter.

In April 2002, Tardd filed a charge of retaliation with the United States Equal Opportunity Commission ("EEOC"). This charge was amended on two occasions, first in May 2002, and later in April 2004. On April 30, 2004, the EEOC issued a Notice of Right to Sue to Tardd. On July 29, 2004, the plaintiffs commenced this action within ninety days of receipt of the Notice. In addition, Tardd currently has a complaint under investigation with the NYSDHR.

C. Otto White

Otto White is a sixty-one year old African-American man. White began working for BNL in 1974 as an "industrial hygienist." White held various positions during his twenty-nine year employment with BNL, but is no longer employed there. White was employed as a "Division Manager within the Safety and Health Services Division" of BNL immediately prior to his resignation in 2003. White alleges that he was subjected to racial discrimination and retaliation by BNL employees. In addition to witnessing and being made aware of the alleged conduct directed at Tardd, White alleges he too was discriminated against. Again, it is unnecessary to recount in detail each specific allegation in the 36 page, 199 paragraph complaint. The gravamen of White's allegations can be summarized as follows.

1. The "Path Forward Plan"

White alleges that, about the time when Tardd attempted to have his complaints of discrimination investigated and remedied, management at BNL asked White to serve as Tardd's "mentor." White believes that BNL requested that he serve in this role with the hope that he prevent Tardd from continuing to complain about his treatment at BNL. White assumed the role as Tardd's mentor, and immediately began to witness "the arbitrary, non-quantitative performance evaluations" given to Tardd and "how BNL and its employees/agents mistreated Tardd on account of his race."

White alleges that as Tardd's mentor he utilized his management skills in an effort to develop plans to eliminate discrimination at BNL. One of White's initiatives is referred to as the "path forward plan." The path forward plan was intended to improve communication among BNL employees; to diffuse racial hostility at BNL; and to...