Russell v. County of Nassau

696 F. Supp.2d 213

Daniel RUSSELL, Plaintiff, v. COUNTY OF NASSAU, Nassau County Commission of Human Rights, Todd Goldfarb, in his individual and official capacity, Director of Personnel of Nassau County Commission on Human Rights, Nassau County Civil Service Commission, Karle Kampe, in his individual and official capacity, Commissioner of Nassau County Civil Service Commission, Defendants.

Civil Action No. 07-1686 (DRH)(AKT).

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

February 18, 2010.

Law Offices of Frederick K. Brewington, by Frederick K. Brewington, Esq., Hempstead, NY, for Plaintiff.

John Ciampoli, Nassau County Attorney, by Peter J. Famighetti, Esq., Mineola, NY, for Defendants.

MEMORANDUM & ORDER

HURLEY, Senior District Judge.

Plaintiff Daniel Russell ("Plaintiff" or "Russell") commenced this action against defendants County of Nassau (the "County"), Nassau County Commission of Human Rights (the "HR Commission"), Todd Goldfarb ("Goldfarb"), in his individual and official capacity, Director of Personnel of Nassau County Commission on Human Rights¹, Nassau County Civil Service Commission ("Civil Service Commission"), Karle Kampe ("Kampe"), in his individual and official capacity, Commissioner of Nassau County Civil Service Commission (collectively "Defendants") alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), Title VI, 42 U.S.C. § 2000d, the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (the "FLSA"), New York State Human Rights Law, N.Y. Exec. Law § 296, et seq. ("NYSHRL"), 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985, Equal Pay Act of 1963, as amended and for various state causes of action. Presently before the Court is Defendants' motion for summary judgment. For the reasons set forth below, the motion is granted in part and denied in part.

Factual Background

The following facts are taken from the parties' 56.1 statements, to the extent properly supported by admissible evidence, and are undisputed unless otherwise noted.

The Civil Service Commission

The Nassau County Civil Service Commission is an agency, created pursuant to the County's Administrative Code, responsible for overseeing that the municipal agencies in Nassau County comply with and abide by the New York State Civil Service Law. It administers the provisions of the New York Civil Service Law with respect to the offices and employments in the classified service. See N.Y. Civil Serv. Law § 17.² Under New York law, public employment is either classified or unclassified. Id. § 35. Classified employees are further divided into four categories: exempt, non-competitive, labor and competitive. Id. § 40. Positions which are classified as competitive require the administration of an examination. Pursuant to the grades received and certain other criteria met by the individuals taking the examination, the Commission creates and certifies a list of eligible candidates for a particular competitive job title.

Kampe is, and at all relevant times was, the Executive Director of the Civil Service Commission. Nassau's Civil Service Commission has seven division: recruitment, classification, qualification, examination, placement, county transactions, and municipal transactions. The recruitment division administers all civil service examinations and is responsible for preparing examination announcements and reconciles examination results from the State Civil Service Commission prior to the establishment of eligible lists. The classification division defines all positions according to the duties to be performed by incumbents of those positions and establishes training and experience requirements for these positions. The qualification division reviews all applications for both examination and employment. The examination division plans, organizes, and supervises special and standard testing programs, determines areas appropriate for written tests, and reviews test items for subject matter based on standards and appropriateness of content. The placement division establishes, maintains and certifies eligible lists and is also charged with verifying that competitive class appointments are made in accordance with Civil Service law.

Under New York law, "before any new position in the service of a civil division shall be created or any existing position in such service shall be reclassified the proposal therefor, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such commission shall furnish a certificate stating the appropriate civil service title for the proposed position or the position to be classified. Any such new position shall be created or any such existing position reclassified only with the title approved and certified by the commission." N.Y. Civ. Serv. Law § 22.

Plaintiff's Employment with the County

Plaintiff is an African-American male who began his employment with the County in November 1994 as a "Human Relations Representative I" with the County's HR Commission. Human Relations Representative I is within the "graded" salary plan and Plaintiff was placed at Grade 11 Step I with a starting salary of $32,375.00. Positions within the graded salary plans receive step increases each year. For positions represented by the Civil Service Employees Union, the collective bargaining agreement between the County and that union determines whether a position is within the graded salary plan. Salary increases for ungraded positions are not automatic. They must be recommended by the Department head and approved by the County Executive; salary requests for ungraded positions are "political" matters.

In January of 1996 Plaintiff was promoted to the position of Director of Job Development.³ Plaintiff remained in that position until May 27, 2008 when he was appointed Acting Executive Director of the HR Commission. Director of Job Development is an exempt, ungraded position that under the terms of the relevant collective bargaining agreement is not entitled to step increases.⁴ The relevant bargaining agreements⁵ do provide, however, for certain yearly percentage increases for, inter alia, "the salary of ungraded employees in the negotiating unit."⁶ (Ex. H to Famighetti Decl. at ¶ 25.1; Ex. I to Famighetti Decl. at ¶ 25-1.1.) Upon appointment to the Director position, Plaintiff's salary was significantly higher than the salary he received as a Human Relations Representative I. Plaintiff maintains that at the time of his appointment to the director position he was unaware that the position was ungraded and not within the step plan and that he would not receive automatic contractual yearly increases.⁷ According to Plaintiff, it was not until January 1997, when he did not receive a step increase, that he became aware that the position was ungraded. After complaining to his then supervisor ("Rice"), Plaintiff received a seven thousand ($7,000) dollar raise in February 1997.

Sometime between January and May 1998, when he again did not receive a yearly step increase, Plaintiff discussed with his supervisor the possibility of being returned to his Human Relations Representative I position. Because he had not taken a leave of absence from the position, Plaintiff could not automatically be placed back into that position but had to be appointed from a competitive list for the title. In or about February 1999, Plaintiff submitted a request to take the promotional test for Human Relations Representative II but was told by a civil service representative that he could not be considered for promotion because he did not hold the position of Human Relations Representative I. Plaintiff was, however, permitted to sit for the open competitive examination for Human Relations Representative II position. Plaintiff did very well on the examination and was placed on the list for open competitive positions for Human Relations Representative II. (Russell Dep. at 154-166.)

In January 2000, Plaintiff submitted an application to take the open competitive examination for the position of Cultural Affairs Specialist. The application was rejected by Civil Service Commission on the grounds that he failed to provide information showing he had the required one year experience and the experience plaintiff claimed was gained "out of title." Plaintiff appealed the determination by letter dated March 1, 2000, but the appeal was denied. The letter rejecting the appeal stated:

Your application was rejected because you did not show that you had the required one-year experience conducting cultural or recreational services, events or programs. In order to qualify, you would have to have experience for example, in an area where you planned or conducted programs such as concerts, dramatic presentations, lectures or similar activities, As Director, Job Development Center, your duties do not include responsibility for such work. Your duties, as listed in the class specification for your title, include supervising, planning, and directing the operation of the Job Development Center. In addition, you may perform duties related to those listed in the specification. New York Civil Service Law prohibits the acceptance of such out-of title experience.

(Ex. AA to Famighetti Decl.)

Plaintiff contends that his experience was not gained out of title and that in any event Kampe and the Civil Service Commission had discretion to approve his appeal but did not, and Kampe's reasons for rejecting the application were a pretext for race discrimination.

In 2000, Plaintiff also filed an application with the Civil Service Commission to take the examination for Assistant Housing Project Manager, a position with the Hempstead Housing Authority. The application was approved in or about February 2000.

As early as 1999, Plaintiff believed he was not getting raises because he was being discriminated against, not by his supervisor, Mr. Rice, but by Mr. Rice's "superiors."...