# Impellizzeri v. State of New York

> District Court, N.D. New York · October 18, 2021

URL: https://www.frixlaw.com/law-library/cases/10314206

## Case

- **Court:** District Court, N.D. New York
- **Decided:** October 18, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10314206

## How later opinions describe it (automated extraction)

- stating that "[t]he threat that Plaintiff would receive disciplinary charges . . . , which discipline never materialized, cannot be considered to be a materially adverse employment action" (citations omitted)

## Opinion text

UNITED STATES DISTRICT COURT FILED
NORTHERN DISTRICT OF NEW YORK

Oct 18 - 2021
DAVID IMPELLIZZERI,

Plaintiff, John M. Domurad, Clerk

v. 5:17-CV-230
(FJS/ATB)
STATE OF NEW YORK, d/b/a
State University of New York; UPSTATE
MEDICAL UNIVERSITY HOSPITAL,
a/k/a Upstate University Hospital at Community
General Hospital; CINDY CAMPAGNI;
DENISE BARBER; LORI FEENEY; SHARON
KLAIBER; MAXINE THOMPSON; and LISA
BRACKETT,

Defendants.

APPEARANCES OF COUNSEL

COTE & VAN DYKE, LLP JOSEPH S. COTE, III, ESQ.
214 North State Street
Syracuse, New York 13203
Attorneys for Plaintiff

KUPFERSTEIN MANUEL, LLP ROXANNA A. MANUEL, ESQ.
865 South Figueroa Street
Suite 3338
Los Angeles, California 90017
Attorneys for Plaintiff

OFFICE OF THE NEW YORK AIMEE COWAN, AAG
STATE ATTORNEY GENERAL
300 South State Street
Suite 300
Syracuse, New York 13202
Attorneys for State Defendants

GALE GALE & HUNT, LLC MINLA KIM, ESQ.
7136 East Genesee Street KEVIN T. HUNT, ESQ.
Fayetteville, New York 13066
Attorneys for Defendant Campagni
SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff commenced this action alleging the following five causes of action: (1) gender
discrimination in violation of Title VII of the Civil Rights Act of 1964; (2) retaliation for
exercising rights under a union contract; (3) a violation of his due process rights pursuant to 42
U.S.C. § 1983; (4) defamation; and (5) intentional infliction of emotional distress ("IIED"). See
Dkt. No. 1, Compl., at ¶¶ 122-160. He brings all of these causes of action against his former
employer, Defendant Upstate Medical University Hospital ("Defendant Upstate"), as well as
various supervisors and employees, namely, Defendants Denise Barber, Lori Feeney, Sharon
Klaiber, Maxine Thompson, and Lisa Brackett (hereinafter collectively referred to as "the
individual Defendants"), and Defendant State of New York (hereinafter collectively referred to
with Defendant Upstate and the individual Defendants as the "State Defendants"). See id. at
¶¶ 1-9. Plaintiff also named Cindy Campagni as a defendant and included her in his causes of
action for defamation and IIED. See id. at ¶¶ 152-160. Pending before the Court are
Defendants' motions for summary judgment brought pursuant to Rule 56 of the Federal Rules of
Civil Procedure. See Dkt. Nos. 152, 155.

II. BACKGROUND
Plaintiff's claims arise from a situation that occurred in the summer of 2015 when he, a
male registered nurse, was assigned to train Defendant Campagni at Defendant Upstate. See
Dkt. No. 1 at ¶¶ 17-19. After approximately seven weeks of training with him, on June 29,
2015, Defendant Campagni complained in an email to the individual Defendants that Plaintiff
had sexually harassed her by talking to her about his sexual activity, questioning her sexual
orientation, and miming certain sexual acts around her. See id., Campagni Email Ex., at 31.
Defendant Campagni also alleged that Plaintiff had told her he was "fired from Crucible [Steel],
kicked out of Crouse Hospital School of Nursing and fired from a second job due to a sexual

harassment charge." See id. In addition, Defendant Campagni claimed that Plaintiff made
inappropriate comments about certain colleagues' emotional states and abilities to perform their
work. See id. Defendant Campagni also complained to the individual Defendants about
Plaintiff's treatment of patients, noting that he was loud and abrupt with an 81-year-old patient,
and he twice commented on post-operative bariatric patients' appearances, including looking up
one of the patient's weight and diagnosis in the computer system, even though he was not
assigned to that patient. See id.
After receiving the complaint, Defendant Barber placed Plaintiff on paid administrative
leave, but both she and Defendant Feeney informed Plaintiff that they could not tell him the
nature of the complaints that had been made against him. See Dkt. No. 1 at ¶¶ 43-45. The next

day, Defendant Feeney called Plaintiff and advised him that he was banned from entering the
hospital during the course of their investigation. See id. at ¶ 47. Later, on July 20, 2015,
Defendant Barber informed Plaintiff that he was demoted from his grade 18 position, wherein
he worked on probationary status as a float nurse, to a grade 16 position. See id. at ¶ 57.
Plaintiff contends that Defendant Campagni complained about several female coworkers as
well, but none of those coworkers were punished or even investigated. See id. at ¶¶ 29, 37-38,
130. Plaintiff alleges that, as early as August 2015, the individual Defendants knew or should
have known that there were reasons to doubt Defendant Campagni's credibility, and this was
particularly true after she resigned in September 2015 after three other training nurses reported
instances of her erratic and dangerous work behavior. See id. at ¶¶ 84, 88.
Nonetheless, on August 12, 2015, Plaintiff was "interrogated" at a police station at
Defendant Upstate's downtown campus; and he claims that State Defendants attempted to

intimidate and coerce him into resigning. See id. at ¶¶ 67-71. At the interrogation, Plaintiff
admitted that he might have accessed the post-operative bariatric patient's medical records and
that he falsified his employment application when he stated that he had never been fired from a
position and when he omitted Crouse School of Nursing from his education. See Dkt. No. 152-
14, Interrogation T., at 5-7. Plaintiff ultimately received a Notice of Discipline ("NOD"), dated
September 22, 2015, which contained twenty charges. See Dkt. No. 1, NOD Ex., at 28-30. At
that time, Plaintiff was suspended without pay because there was probable cause that his
presence at Defendant Upstate represented "a danger to persons or property" and because
Plaintiff was "charged with the commission of a crime." See id. at 30. Plaintiff asserts that he
was not charged with committing a crime and that each of the allegations in the NOD were

"false, libelous and malicious" and constituted "defamation per se." See Dkt. No. 1 at ¶¶ 42, 92.
Plaintiff argues that, on December 3, 2015, Defendant Klaiber sent the NOD report to the New
York State Office of Professional Discipline ("NYSOPD"), which he also claims was
defamatory and pretextual. See id. at ¶ 96.
Shortly thereafter, and pursuant to his union contract, Plaintiff demanded an arbitration
hearing, which occurred on December 21, 2015, and January 5, 2016. See id. at ¶¶ 93-94.
Plaintiff claims that Defendants Klaiber and Thompson falsely testified at the arbitration
hearing that an unnamed, unidentifiable female coworker had made a prior complaint of sexual
harassment against Plaintiff. See id. at ¶ 94. The arbitrator ultimately dismissed all but six of
the twenty charges, finding only that Plaintiff was guilty of making inappropriate comments to
the post-operative bariatric patients and improperly accessing their medical records. See Dkt.
No. 152-25, Arbitration Decision, at 23; Dkt. No. 1, NOD Ex., at 29. As a result of these
findings, the arbitrator fined Plaintiff one month's pay and ordered Defendant Upstate to restore

Plaintiff to the payroll and retroactively compensate Plaintiff with full pay and benefits from the
award date to September 22, 2015, when he was suspended without pay. See Dkt. No. 152-25
at 27.
Plaintiff further alleges that, on April 15, 2016, Defendant Brackett left him a voicemail
to discuss his return to work, and she ordered him to work night shifts. See Dkt. No. 1 at
¶¶ 139-140. According to Plaintiff, he received a letter from Defendant Brackett on April 20,
2016, advising him that he had failed to appear for scheduled work on April 18, 2016, and
indicating that he might be subject to disciplinary action, including termination of employment,
as a result. See id. at ¶¶ 110, 142. Plaintiff ultimately resigned on May 4, 2016, and he
commenced this action on February 28, 2017. See id. at ¶ 116.

III. DISCUSSION
A. Title VII discrimination claim
"A plaintiff who wishes to pursue a federal employment discrimination suit under Title VII
must file a charge with the EEOC within 300 days of the alleged unlawful employment practice
or challenged discriminatory act." Brooking v. New York State Dep't of Tax'n & Fin., No. 1:15-
CV-0510 (GTS/CFH), 2016 U.S. Dist. LEXIS 86457, *20 (N.D.N.Y. July 5, 2016) (citing 42
U.S.C. § 2000e-5(e)(1); Petrosino v. Bell Atl., 385 F.3d 210, 219 (2d Cir. 2004)). "When . . . a
plaintiff's allegations of discrimination extend beyond the 300-day limitations period, the nature
of the claim determines what consideration will be given to the earlier conduct." Petrosino v.
Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004). "For hostile work environment claims, only one
alleged act must fall within the statute of limitations, and so long as that act is part of the same
unlawful practice as the earlier acts, the entire period of hostile environment may be
considered." Yu v. City of New York, 792 F. App'x 117, 118 (2d Cir. 2020) (summary order)

(citation omitted). This is referred to as the "continuing violation doctrine." "With respect to
claims based on 'termination, failure to promote, denial of transfer, or refusal to hire,' . . .
section '2000e-5(e)(1) "precludes recovery for discrete acts of discrimination or retaliation that
occur outside the statutory time period," even if other acts of discrimination occurred within the
statutory time period . . . ."'" McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010)
(quoting Patterson v. County of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004) (quoting
Morgan, 536 U.S. at 105)).
In Plaintiff's Title VII cause of action, he alleges that State Defendants "treated [him]
disparately, differently, [and] discriminatorily in the terms and conditions of his employment
due to his gender[.]" See Dkt. No. 1 at ¶ 123. Plaintiff contends that, after Defendant

Campagni leveled false charges against him and other female coworkers, the individual
Defendants rejected the accusations against the coworkers on the ground that Defendant
Campagni was not credible but took the uncorroborated accusations against Plaintiff as true
without any meaningful investigation. See id. at ¶¶ 124-125. According to Plaintiff, this
resulted in State Defendants treating Plaintiff disparately from the other similarly-situated
employees, and the only "motivating reason" for that disparate treatment was Plaintiff's male
gender. See id. at ¶¶ 126-127. As further evidence of this, Plaintiff points to the fact that the
female nurses were not even investigated, whereas he was placed on administrative leave. See
id. at ¶ 130. Nowhere in his Title VII claim does Plaintiff explicitly allege that he suffered from
a hostile work environment. See id. at ¶¶ 122-132.
Furthermore, Plaintiff's general factual allegations in his complaint appear to claim that
he suffered from discrete acts of discrimination. As set forth above, Plaintiff asserts that, in

June and July 2015, Defendant Barber placed him on administrative leave without first making
a reasonable inquiry as to the legitimacy of Defendant Campagni's complaints; Defendants
Barber and Feeney refused to tell Plaintiff why he was being placed on leave; he was banned
from entering the hospital; and he was demoted from job class 18 to class 16, losing his position
as a float nurse and "reassigned to less rewarding tasks." See id. at ¶¶ 43-47, 57. Plaintiff
complains that, in August 2015, he was interrogated, intimidated, and coerced into resigning.
See id. at ¶¶ 67-70. He also alleges that he received the NOD in September 2015, which
contained "false, libelous and malicious statements" about him; and Defendant Klaiber
forwarded those statements to NYSOPD in December 2015. See id. at ¶¶ 40-42. Additionally,
Plaintiff claims that Defendant Klaiber and Defendant Thompson falsely testified about an

unnamed coworker who had made a prior complaint against Plaintiff at the arbitration hearing,
which occurred on December 21, 2015 and January 5, 2016. See id. at ¶ 94; Dkt. No. 152-3,
Tesorio Decl., at ¶ 55 (citing Dkt. No. 152-25, Arbitration Dec., at 1). Plaintiff also alleges that
he was discriminated against after the arbitrator ordered his reinstatement because Defendant
Brackett "wrote a knowingly false letter alleging [Plaintiff] had failed to appear for scheduled
work on [April 18, 2016,] without authorization and threatened him" that he might be subject to
disciplinary action, including termination of his employment. See id. at ¶¶ 108, 110. According
to Plaintiff, State Defendants "made it clear that they intended to create a hostile work
environment and discharge [him] at the earliest possible date[.]" See id. at ¶ 112.
Plaintiff filed his complaint with the EEOC on November 7, 2016. See Dkt. No. 154-21,
EEOC Compl., at 5. In that complaint, he alleged that State Defendants refused to pay the
arbitrator's award of back pay and that such discrimination was "ongoing." See id. at 3.
Plaintiff asserted that "[f]alse accusations were made against [him] and other female staff," he

was the only male, "and the only person charged by the all[-]female administration[,]" whereas
"[t]he female staff were not investigated or charged." See id. Plaintiff claimed that he was
"completely exonerated" after challenging the accusations, and "[t]he female administration
knew or should have known the allegations against [him] were false but pursued them anyway."
See id. Plaintiff also indicated that the arbitrator awarded him back pay but alleged that State
Defendants had "refused" to pay him "to date." See id. Plaintiff also attached a letter to his
EEOC complaint, in which he sought to "report an ongoing case of gender discrimination with
regard to [him] (a male) by the female administration at [Defendant Upstate]." See id. at 1. In
addition to the foregoing, Plaintiff asserted that, because he "prevail[ed]" at arbitration, he was
supposed to be reinstated; however, he was "tentatively 'reinstated' to a lower job class, at a

lower pay rate, to a shift [he] did not normally work, due to [his] gender." See id.
The parties do not dispute that the 300-day rule would ordinarily limit Plaintiff's claims to
any events that occurred after January 12, 2016. See Dkt. No. 152-2, State Defs' Memorandum
in Support, at 11; Dkt. No. 168-4, Pl's Memorandum in Opposition to State Defs' Mot., at 26.
The parties also agree that nearly every alleged discriminatory act listed in the complaint
occurred between June 29, 2015 – when he was placed on administrative leave – until the
second arbitration date on January 5, 2016, i.e., more than 300 days before he filed his EEOC
complaint on November 7, 2016. Thus, these claims are untimely, and the only way the Court
may consider them is if Plaintiff alleged in the complaint that conduct occurring after January
12, 2016, combined with prior conduct, created a hostile work environment. Notably, the only
alleged acts that occurred after that date were Defendant Brackett's interactions with Plaintiff, in
which she allegedly left a voicemail informing Plaintiff that he must return to work at
Defendant Upstate on April 18, 2016, on an unfamiliar floor on the night shift, and that she

wrote a letter to Plaintiff on April 20, 2016, warning him that his unexcused absence on April
18, 2016, might result in discipline or termination.
Although Plaintiff contends in his memorandum of law that each of these allegations shows
a pattern of discriminatory behavior against him, he does not allege such "pattern of behavior"
in his complaint. The only reference he makes to that effect is when he predicts that State
Defendants "made it clear that they intended to create a hostile work environment and discharge
[him] at the earliest possible date" following his return to employment at Defendant Upstate in
April 2016. See Dkt. No. 1 at ¶ 112. The Court finds that this allegation amounts to nothing
more than speculation. Furthermore, in his EEOC complaint, Plaintiff merely asserted that
State Defendants' refusal to provide him back pay, as the arbitrator ordered, was "ongoing." See

Dkt. No. 154-21 at 3. The Court further finds that Plaintiff's allegation that State Defendants
refused to pay the awarded back pay on an "ongoing" basis fails to assert that all of the
allegations were "ongoing" as to create a hostile work environment, and the remainder of his
claims concern discrete instances of discrimination. Accordingly, the Court concludes that
Plaintiff has not alleged a hostile work environment in his complaint; and, thus, the continuing
violation doctrine does not apply. As such, Plaintiff's claims of certain discrete instances of
discrimination, taking place entirely in 2015, are untimely.
Thus, the only remaining instances of discrimination about which Plaintiff complains that
occurred after January 12, 2016, and therefore would be timely under the 300-day rule, stem
from Defendant Brackett's communications with him regarding his return to work. For these
allegations, the Court must apply the McDonnell Douglas test to determine whether Plaintiff
has met his prima facie burden. "Under the [McDonnell Douglas] test, a plaintiff must first
establish a prima facie case of discrimination by showing that: '(1) [ ]he is a member of a

protected class; (2) [ ]he is qualified for h[is] position; (3) [ ]he suffered an adverse employment
action; and (4) the circumstances give rise to an inference of discrimination.'" Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (quoting Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802)).
After a plaintiff has established a prima facie case, "a presumption arises that more likely
than not the adverse conduct was based on the consideration of impermissible factors." Id.
(citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S. Ct. 1089, 67 L. Ed.
2d 207 (1981)). At that point, "[t]he burden . . . shifts to the employer to 'articulate some
legitimate, nondiscriminatory reason' for the disparate treatment." Id. (quoting McDonnell
Douglas, 411 U.S. at 802). "If the employer articulates such a reason for its actions, the burden

shifts back to the plaintiff to prove that the employer's reason 'was in fact pretext' for
discrimination." Id. (citing [McDonnell Douglas, 411 U.S.] at 804; Graham v. Long Island
R.R., 230 F.3d 34, 38 (2d Cir. 2000) ("If such a reason is proffered, the burden shifts back to the
plaintiff to prove that discrimination was the real reason for the employment action.")).
State Defendants do not dispute that Plaintiff is a male; and, thus, he is a member of a
protected class. See Dkt. No. 152-2 at 12. Similarly, they admit that he was qualified for his
position at Defendant Upstate as a registered nurse. See id. The next inquiry is whether
Plaintiff suffered an adverse employment action with respect to the remaining alleged
discriminatory acts. Courts have held that a plaintiff suffers an adverse employment action if he
endures a materially adverse change in the terms and conditions of his employment, such as
"termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material
responsibilities," "a disproportionally heavy workload," or "other indices unique to a particular

situation." Vega, 801 F.3d at 85 (quoting [Galabya v. New York City Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000)]; Feingold [v. New York], 366 F.3d [138,] 152-53 [(2d Cir. 2004)]).
Further, an adverse employment action must be "'more disruptive than a mere inconvenience or
an alteration of job responsibilities.'" Vega, 801 F.3d at 85 (quoting Terry v. Ashcroft, 336 F.3d
128, 138 (2d. Cir. 2003) (internal quotation marks omitted)).
The only adverse actions that Plaintiff alleges after January 12, 2016, were a change in
shift time and location. However, a change in shift times or locations to ones that are less
desirable, without affecting the terms and conditions of employment, is considered a mere
inconvenience; and, therefore, it does not rise to the level of an adverse employment action.
See, e.g., Fletcher v. ABM Bldg. Value, 775 F. App'x 8, 12 (2d Cir. 2019) (summary order);

Benedetto v. N.Y. State Office of Children & Family Servs., No. 6:19-CV-994 (LEK/ATB),
2020 U.S. Dist. LEXIS 127081, *7 (N.D.N.Y. July 20, 2020) (Kahn, J.); Smalls v. Allstate Ins.
Co., 396 F. Supp. 2d 364, 371 (S.D.N.Y. Oct. 10, 2005). Thus, the changes to Plaintiff's
schedule, alone, are "mere inconveniences" that do not rise to the level of an adverse
employment action.1

1 Even if the Court were to consider the actions prior to January 12, 2016, the only material
change appears to be Plaintiff's alleged "demotion" from grade 18 to grade 16. However,
Plaintiff and his expert both admit that, as a grade 18 employee on probationary status, he could
be "failed" for any reason and returned to grade 16. See Dkt. No. 154-24, Pl's Depo, at 138-
139, 186. Dkt. No. 154-46, Colucci Depo II, at 104. Accordingly, this would not be an adverse
employment action and would not cause the changes in Plaintiff's shift time or location to
become such an action either.
Although Plaintiff also generally alleges, as discussed above, that State Defendants
intended to discipline and terminate him if he returned to work at Defendant Upstate, such
claim is entirely speculative because Plaintiff resigned on May 4, 2016, without having returned
to work. Further, a threat of possible discipline for an unexcused absence at work does not

constitute a material change in the terms and conditions of employment to constitute an adverse
employment action. See Chang v. Horizons, 254 F. App'x 838, 839 (2d Cir. 2007) (summary
order) (noting that "oral and written warnings do not amount to materially adverse conduct");
Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 212 (E.D.N.Y. 2014) (stating that "[t]he
threat that Plaintiff would receive disciplinary charges . . . , which discipline never materialized,
cannot be considered to be a materially adverse employment action" (citations omitted)). As
such, the Court finds that neither of the alleged actions that occurred after January 12, 2016,
rose to such a level as to cause an adverse employment action. Accordingly, the Court grants
State Defendants' motion with respect to this claim and dismisses Plaintiff's first cause of action
for gender discrimination under Title VII.

B. Retaliation claim
Although it is unclear in Plaintiff's complaint whether he brought his retaliation claim
pursuant to Title VII or 42 U.S.C. § 1983, Plaintiff clarifies in his memorandum of law that his
claim falls under Title VII. See Dkt. No. 1 at ¶¶ 133-145; Dkt. No. 168-4 at 30. Thus, the 300-
day timeliness requirements and the McDonnell Douglas test apply, just as they did regarding
Plaintiff's Title VII gender discrimination claim. With respect to retaliation, the McDonald
Douglas test requires the plaintiff to establish "that '(1) []he engaged in a protected activity; (2)
h[is] employer was aware of this activity; (3) the employer took adverse employment action
against h[im]; and (4) a causal connection exists between the alleged adverse action and the
protected activity.'" Trostle v. New York, No. 1:13-CV-0709 (GTS/DJS), 2016 U.S. Dist.
LEXIS 38370, *26-*27 (N.D.N.Y. Mar. 24, 2016) (Suddaby, C.J.) (quoting Summa [v. Hofstra
Univ.], 708 F.3d [115,] 125 [(2d Cir. 2013)] (quoting Schiano v. Quality Payroll Sys., Inc., 445
F.3d 597, 608 [2d Cir. 2006])).

With regard to his retaliation claim, Plaintiff asserts that he engaged in "protected
activity" by appealing his suspension and NOD pursuant to his union contract. See Dkt. No. 1
at ¶ 134. Plaintiff further alleges that, when he "moved forward with a demand for arbitration
pursuant to the union contract[,] . . . [D]efendant Klaiber knowingly made false, libelous, and
malicious allegations against [him] to the [NYOPD] in retaliation for his having exercised his
rights under his contract." See id. at ¶ 137. Additionally, Plaintiff alleges that, when the
arbitrator ordered his return to work, he was "given a demotion from job class 18 to job class
16, with reduced income," and was ordered "to work night shifts (graveyard shifts)." See id. at
¶¶ 138-139. Plaintiff also asserts that, in response to Defendant Brackett's April 15, 2016
voicemail asking that he return her call to discuss his return to work date, Plaintiff contacted his

legal counsel, "who returned the call but was unable to speak to [D]efendant Brackett." See id.
at ¶¶ 140-141. Plaintiff alleges that, on April 20, 2016, "in retaliation for his having contacted
counsel, and communicating with [State Defendants] through counsel, [P]laintiff was advised
he was 'subject to disciplinary action,'" including possible termination. See id. at ¶ 142.
As discussed above, Defendant Klaiber's December 3, 2015 letter was sent prior to
January 12, 2016; and, thus, any Title VII claim relating to that alleged misconduct is time-
barred. The same is also true with respect to Plaintiff's alleged "demotion" from a grade 18 to
grade 16 nurse, of which he was notified on July 20, 2015, based on Defendants Barber,
Klaiber, and Brackett's recommendations. See id. at ¶¶ 118-120; Dkt. No. 152-3 at ¶¶ 22-30;
Dkt. No. 152-10, Ex. G., at 1. Therefore, the Court finds that both Plaintiff's complaints about
Defendant Klaiber and his alleged "demotion" are untimely. Finally, for the reasons stated
above, the Court finds that Defendant Brackett's April 20, 2016 letter to Plaintiff does not
constitute an adverse employment action under the third prong of the McDonnell Douglas test

because it is a threat of future discipline or termination for an unexcused absence, which was
never acted upon, because Plaintiff resigned on May 4, 2016. Without an adverse action,
Plaintiff cannot succeed on his Title VII retaliation claim. Therefore, as no further instances of
retaliation remain, the Court grants State Defendants' motion to dismiss Plaintiff's second cause
of action for retaliation.

C. 42 U.S.C. § 1983 due process claim
The parties appear to agree that the Eleventh Amendment grants Defendants State of
New York and Upstate immunity from lawsuits brought pursuant to 42 U.S.C. § 1983. See Dkt.
No. 152-2 at 26; Dkt. No. 168-4 at 31-33; see also Walker v. N.Y.S. Justice Ctr. for the Prot. of
People with Special Needs, 493 F. Supp. 3d 239, 246 (S.D.N.Y. 2020). The parties also appear
to agree that the individual Defendants are state officials who "'are entitled to qualified
immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and
(2) the unlawfulness of their conduct was "clearly established at the time."'" Simon v. City of
N.Y., 893 F.3d 83, 92 (2d Cir. 2018) (quoting [District of Columbia v.] Wesby, 138 S. Ct. [ 577,]

589 [(2018)] (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088, 182 L. Ed. 2d
985 (2012))).
Before the Court inquires into the individual Defendants' qualified immunity status,
however, it must first determine whether Plaintiff has adequately alleged the individual
Defendants' personal involvement in his alleged due process violations. "'It is well settled in
this Circuit that "personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983."'" Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of
Brookfield, 950 F.2d 880, 885 (2d Cir. 1991))); accord Acosta v. Thomas, 837 F. App'x 32, 35

(2d Cir. 2020) (summary order). To do so, "a plaintiff must establish that each defendant's own
conduct violated the constitution[.]" Stone v. Annucci, No. 20-CV-1326 (RA), 2021 U.S. Dist.
LEXIS 186195, *26 (S.D.N.Y. Sept. 28, 2021) (citing [Tangreti v. Bachmann, 983 F.3d 609,
619 (2d Cir. 2020)]).
In his complaint, Plaintiff alleges that the individual Defendants "violated [his] due
process rights in having failed to advise him of the nature of the false allegations leveled against
him when he was placed on administrative leave and barred from [Defendant] Upstate on June
29, 2015." See Dkt. No. 1 at ¶ 147. Plaintiff also alleges that, during his interrogation, the
individual Defendants "subjected [him] to needless emotional harm in conducting such
interrogation in a police setting and subjecting [him] to humiliation and intimidation in an

attempt to force his resignation from employment." See id. at ¶ 148. Plaintiff asserts that the
individual Defendants "also falsely advised [him] that he was 'charged with the commission of a
crime' for the purpose of humiliation and intimidation in an attempt to force his resignation
from employment" and "wrongfully and intentionally retaliated against [him] for exercising his
rights under the union contract." See id. at ¶¶ 149-150.
In these allegations, Plaintiff generally refers to the individual Defendants as Defendant
State of New York's "administrative/supervisory staff," and he does not identify which
individual Defendants allegedly violated his rights in such ways. See id. at ¶¶ 147-149. For
example, he does not specify how Defendants Barber, Feeney, Klaiber, Thompson, or Brackett
subjected him to emotional harm or were involved with conducting his interrogation in a police
setting. See id. at ¶ 148. Plaintiff also fails to identify which individual Defendant falsely
advised him that he was "charged with the commission of a crime." See id. at ¶¶ 92, 149.
Furthermore, as discussed above, Plaintiff's generalized claim that he was intentionally

retaliated against for exercising his rights under the union contract is considered pursuant to
Title VII, and it failed because the claim was time-barred and did not contain an adverse
employment action. In any event, Plaintiff does not specify in his complaint which individual
Defendant(s) wrongfully "retaliated" against him, how those individuals caused him
humiliation, how they intimidated him, or how they otherwise violated his due process rights.
Accordingly, the Court grants State Defendants' motion for summary judgment with respect to
this claim because it is barred by the Eleventh Amendment and Plaintiff failed to identify how
the individual Defendants were personally involved in the actions.

D. Defamation claim
"Under New York law, a claim for defamation or slander must be commenced within one
year of the publication date." Thomas v. Heid, No. 8:17-CV-1213 (MAD/DJS), 2017 U.S. Dist.
LEXIS 201722, *13 (N.D.N.Y. Dec. 6, 2017) (Stewart, M.J.) (citing McKenzie v. Dow Jones &
Co., 335 F. App'x 533, 535 (2d Cir. 2009) [(summary order]); N.Y. C.P.L.R. 215(3)), adopted
by 2018 U.S. Dist. LEXIS 62285 (N.D.N.Y. Apr. 12, 2018) (D'Agostino, J.). Plaintiff admits

that he filed his federal complaint more than one year after State Defendants allegedly uttered
defamatory statements from September 22, 2015, to January 5, 2016, and after Defendant
Campagni sent her June 2015 email to the individual Defendants. See Dkt. No. 168-4 at 33;
Dkt. No. 168-5, Pl's Memorandum in Opposition to Def. Campagni's Mot., at 3-5. Nonetheless,
Plaintiff contends that he "timely commenced the defamation action against the same individual
Defendants in the State Supreme Court on November 28, 2016, which was well within the one-
year statute of limitations period." See id. Plaintiff cites to no caselaw or statute, nor does it
appear any exists, that provides that the statute of limitations for a defamation claim may be
extended in a federal action so long as a plaintiff timely alleged it in a separate state action.

It is clear that all of the alleged defamatory statements throughout the complaint, including
Defendant Campagni's June 29, 2015 email to Defendant Barber, the November 22, 2015 NOD
that erroneously stated that Plaintiff had been charged with the commission of a crime, the
December 3, 2016 letter to NYOPD, and Plaintiff's allegation that those defamatory statements
were "republished" during the arbitration hearing on December 21, 2015 and January 5, 2016,
are time-barred. This is because Plaintiff did not commence this federal action, in which he
alleges defamation, until February 28, 2017, more than one-year after Defendants allegedly
made any of the defamatory statements. Thus, the Court grants Defendants' motions with
respect to Plaintiff's defamation claim and dismisses that cause of action.

E. IIED claim
In his memoranda, Plaintiff does not appear to dispute that, "[i]n New York, a cause of
action for intentional infliction of emotional distress accrues on the date of injury and carries a
one year statute of limitations." Quinn v. United States, 946 F. Supp. 2d 267, 278 (N.D.N.Y.
2013) (Suddaby, J.) (citations omitted). Instead, he merely alleges that Defendants' actions

caused him such "profound harm" as to satisfy the elements of his IIED claim. See Dkt. No.
168-4 at 38-39; Dkt. No. 168-5, at 11-12. The only allegation that Plaintiff includes in his
complaint to support his IIED cause of action is that his "claims accrued on or about December
3, 2015, when the listed defendants forwarded a false claim to the [NYSOPD]." See Dkt. No. 1
at ¶ 160. Plaintiff additionally generalizes that "[e]ach named defendant herein intended to
cause [Plaintiff] emotional distress as punishment for his unwillingness to cooperate in their
construction of a defense to the false accusations of [Defendant] Campagni against [Defendant
Upstate]." See id. at § 158. As discussed above, Defendant Campagni's accusations against
Plaintiff occurred in June 2015, his placement on administrative leave and receipt of his NOD
occurred in July and August 2015, and he attended the arbitration hearing in December 2015
and January 2016. Plaintiff did not commence this action until February 28, 2017.
Accordingly, the Court finds that Plaintiff's claims for ITED accrued, at the latest, in January
2016; and he did not commence this action until more than one year later. As such, the Court
grants Defendants’ motions for summary judgment and dismisses Plaintiff's ITED claim as time-
barred.

IV. CONCLUSION
After carefully considering the entire file in this matter, the parties’ submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that State Defendants’ motion for summary judgment, see Dkt. No. 152, is
GRANTED; and the Court further
ORDERS that Defendant Campagni's motion for summary judgment, see Dkt. No. 155,
is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and
close the case.

IT IS SO ORDERED.

Dated: October 18, 2021 rant tafe
Syracuse, New York Senior United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314206. Public record. Not legal advice.