Abbott v. New York State Division of State Police

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________________

FRANK H. ABBOTT,

Plaintiff,

v. 3:19-CV-1151

NEELY JENNINGS and JEFFREY VANAUKEN

IN THEIR INDIVIDUAL CAPACITY,

Defendants.

_________________________________________

THOMAS J. McAVOY,

Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Presently before the Court is Defendants Neely Jennings and Jeffrey

VanAuken’s motion for summary judgment. Dkt. No. 53. Plaintiff Frank H. Abbott

opposes the motion, Dkt. No. 57, and Defendants reply. Dkt. No. 58. For the following

reasons, Defendants’ motion is granted.

II. BACKGROUND

Procedural History

Plaintiff commenced this action against Jeffrey VanAuken (“VanAuken”), a

Captain with the New York State Police and Plaintiff’s supervisor, and the New York

State Police (“NYSP”). He asserted claims under the Americans with Disabilities Act

(“ADA”), the Equal Protection Clause, and 42 U.S.C. § 1983. Specifically, the four

causes of action alleged in the Complaint were: 1) harassment/hostile work environment

and discrimination under the ADA; 2) failure to accommodate under the ADA; 3)

retaliation (the Complaint did not state the basis for this claim); and 4) a §1983 claim

against Defendant VanAuken asserting an equal protection claim based on VanAuken’s

discrimination of Plaintiff due to Plaintiff’s disability.

Defendants moved to dismiss the Complaint. Plaintiff responded with a cross-

motion seeking leave to amend the Complaint. In the cross-motion, Plaintiff indicated

that he withdraw his First and Second Causes of Action under the ADA, withdraw all

claims against the NYSP, and sought permission to amend the Complaint to clarify that

both remaining claims were brought under 42 U.S.C. § 1983, to add Major Neeley

Jennings (“Jennings”), a human resource official with the NYSP, as a party to the

retaliation claim (the First Cause of Action if amendment were permitted), and to add

additional facts to the “equal protection-harassment claim against VanAuken” (the

Second Cause of Action if amendment were permitted).

The Court issued a decision on the motion to dismiss and cross-motion to

amend. All claims brought under the ADA and all claims brought against the NYSP were

dismissed. See Dkt. No. 20. Further, Plaintiff’s cross-motion seeking leave to file an

amended complaint was granted only to the extent it sought to bring retaliation claims

under § 1983 against Defendants VanAuken and Jennings. Id. In reaching this

conclusion, the Court stated, inter alia, that “to the extent Plaintiff is asserting a disability

discrimination claim in the Second Cause of Action in the proposed amended complaint,

the claim is not cognizable under § 1983. Furthermore, disability is not a suspect

classification under the Equal Protection Clause.” Id. at 8-9.

An Amended Complaint was filed, Dkt. Nos. 22 – 23, and an Answer was served

by Defendants. Dkt. No. 28.

Amended Complaint

In the Amended Complaint (“AC”) Plaintiff brings retaliation claims against

Jennings and VanAuken pursuant to 42 U.S.C. § 1983. Plaintiff alleges that on January

2, 2018, he was involved in an incident while employed as a NYSP Trooper where he

was struck by a motor vehicle and forced to discharge his firearm to stop the driver of

the vehicle from striking his partner. Plaintiff suffered significant physical injuries as a

result of the incident. Thereafter, Plaintiff was on extended sick leave. Plaintiff

contends he needed time to treat his physical injuries, and while on sick leave was

diagnosed as suffering from Post-Traumatic Stress Disorder (“PTSD”) as a result of the

events on January 2, 2018. While on extended sick leave, Plaintiff was contacted by

VanAuken who was, at the time, a Captain in the NYSP, assigned to Zone 2 as the

Zone Commander, and Plaintiff’s supervisor. These contacts were by telephone and in-

person sick leave visits (“SLVs”) pursuant to NYSP's Extended Sick Leave Policy.

Plaintiff contends that VanAuken was initially supportive and “appeared to

generally care about Abbott’s progress both physically and mentally.” AC, ¶ 40.

However, Plaintiff alleges that shortly after he was diagnosed with PTSD and

depression due to the January 2, 2018 incident, VanAuken began to indicate that

Plaintiff needed to return to work. Plaintiff contends that VanAuken’s conduct and

statements were unprofessional and harassing. Plaintiff, either himself or through

representatives, made complaints to NYSP officials about VanAuken’s conduct and

statements, including to Jennings. Between January 2018 and December 2018,

Jennings was employed by NYSP as a Major in HR, where she was responsible for

"administrative oversight." Def. Statement of Material Facts (“Def. SOMF”), ¶ 3.1

Plaintiff contends that as a result of his complaints (which he characterizes as protected

activity), “he was subject to increasingly abusive comments and phone calls from

VanAuken and others,” and that “he was forced to continue with detrimental sick leave

visits by Major Jennings and was offered no alternatives.” AC ¶¶ 137, 138, see also id.

¶ 139 (“As a result of Abbott’s protected activity, he was subject to abuse by VanAuken

including being berated that he was letting his PTSD get out of hand, was repeatedly

called and asked when he was returning to work and subjected to other conduct.”).

Plaintiff contends that because of VanAuken and Jennings’ retaliation against him, he

“suffered increased PTSD symptoms, sleeplessness, anxiety, depression, nightmares,

stomach upset, difficulty in his relationship, suicidal thoughts, and other mental and

emotional distress, including regression of his treatment for PTSD.” Id. ¶ 142. He seeks

to be “compensated for this mental and emotional distress by VanAuken and Jennings.”

Id. ¶ 143.

III. STANDARD OF REVIEW

On a motion for summary judgment the Court must construe the properly

disputed facts in the light most favorable to the non-moving party, see Scott v. Harris,

127 S. Ct. 1769, 1776 (2007), and may grant summary judgment only where “there is

no genuine issue as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see O'Hara v. National Union Fire Ins. Co. of

Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011). If the movant shows that there is no

genuine dispute as to any material fact, the nonmoving party must identify probative

1 The Court cites to Defendants’ Statement of Material Facts when Plaintiff either admits the

asserted fact, or fails to provide a sufficient basis to deny the asserted fact.

evidence in the record from which a reasonable fact finder could find in his or her favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986); see Matsushita Electric

Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(The nonmoving

party must do more than “simply show that there is some metaphysical doubt as to the

material facts.”). A party opposing a properly supported motion for summary judgment

may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord

Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory

allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d

Cir. 1998); see Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)( "[A] party may not

rely on mere speculation or conjecture as to the true nature of the facts to overcome

a motion for summary judgment.") (citation omitted); Kerzer v. Kingly Mfg., 156 F.3d

396, 400 (2d Cir. 1998)(“Conclusory allegations, conjecture and speculation ... are

insufficient to create a genuine issue of fact.”).

IV. DISCUSSION

NYSP Extended Sick Leave Policy

NYSP's Extended Sick Leave Policy is governed by Members Manual Article 8,

with Article 8D9 specifically setting forth the policy for Division of New York State Police

Members (“Members”) who take Extended Sick Leave. Def. SOMF ¶ 12. Per Article

8D9, if a Member is absent for more than 3 days due to illness, the Member is required

to submit medicals to a first-line supervisor within 5 days of the occurrence. Id. ¶ 14.

For Members who are absent for more than thirty days, the policy requires a visit by the

Zone Commander or Lieutenant-BCI every thirty days (30), and after three months of

sick leave, the policy requires a visit by the Troop or Detail Commander only every three

(3) months. Pl. Response to Def. SOMF (“Pl. Resp. SOMF”),2 ¶ 15. The policy requires

the visiting official to complete a Sick Leave Progress Report (PERS-44) as well as a

memorandum detailing the Member's progress toward recovery. Per the policy, that

information is then transmitted to the Benefits Administration Unit by the Troop

Commander for review and determination of duty status by a NYSP Physician. Def.

SOMF ¶ 15.

Plaintiff contends that during his extended sick leave visits (“SLVs”) he was

subjected to a variety of insults, insistence that he ignore his doctors, and demands that

he return to light duty despite his doctors' orders. Pl. Resp. SOMF ¶ 15. Per the policy,

a Zone Commander, including VanAuken, would have no role in determining whether a

Member on extended sick leave returns to work. Def. SOMF ¶ 17. Nevertheless, Plaintiff

contends VanAuken represented that he could force Plaintiff back to work, repeatedly

indicated that Plaintiff needed to return to work, and stated that Plaintiff’s leave was

getting out of hand - all in an effort to pressure Plaintiff back to work. Pl. Resp. SOMF ¶

17. Plaintiff admits, however, that the Division Physician ultimately determines whether

a Member on extended sick leave is cleared to return to work. Def. SOMF ¶ 18.

Plaintiff’s interactions with Defendants/Plaintiff’s complaints/ Defendants’

awareness of these complaints/acts of alleged retaliation

SLVs were conducted with Abbott: on February 6, 2018, March 5, 2018, April 5,

2018, and May 9, 2018 by then-Zone Commander VanAuken; on June 12, 2018 by

then-Troop Commander William McEvoy and Lieutenant Robert Croswell; on July 19,

2018 by then-Zone Sergeant Jason Cease; on September 9, 2018 by VanAuken and

2 The Court cites to Pl. Resp. SOMF where Plaintiff has supported his denial with appropriate

record citations.

Cease; and on January 2, 2019 and April 24, 2019 by Captain Kristina Sisbower and

Cease. Def. SOMF ¶ 28. AII sick leave visits for Plaintiff were conducted at Major

McEvoy's approval and per Article 8D9, not at the independent direction of VanAuken or

Jennings. Id. ¶ 30. Plaintiff's medical records provided at the SLVs were transmitted by

Jennings to the NYSP Benefits Administration Unit. Id. ¶ 33. Those medicals went in a

confidential medical file for review by Division Physician Dr. Kelleher, who made

medical recommendations regarding Plaintiff’s ability to return to work. Id.

Defendant VanAuken conducted an SLV with Plaintiff on February 6, 2018, at

VanAuken's office in the State Police barracks in Binghamton, NY (“SP Binghamton”).

Def. SOMF ¶ 31. Defendant VanAuken said nothing “pushy or abusive” at the February

6, 2018 SLV. Id. ¶ 32. Dr. Kelleher found on February 14, 2018 that Plaintiff was still

recovering and unable to return to work at that time. Id. ¶ 34.

Defendant VanAuken conducted an SLV with Plaintiff on March 5, 2018 at

VanAuken's office at SP Binghamton. Id. ¶ 35. VanAuken gave Plaintiff a modified duty

form, and used no profanities during the meeting. Id. Plaintiff contends, however, that

VanAuken said that Plaintiff needed to come back to work and “was pushy” about

Abbott doing so. Pl. Resp. SOMF ¶ 36. On March 9, 2018, Dr. Kelleher found that

Plaintiff was still recovering and unable to return to work at that time. Def. SOMF ¶ 37.

Defendant VanAuken conducted an SLV with Plaintiff on April 5, 2018 at

VanAuken's office at SP Binghamton. Id. ¶ 36. Plaintiff contends that at this SLV

VanAuken said to Plaintiff that his “damn doctors” would keep him out of work but he

needed to get back to work. Id. ¶ 39. VanAuken and Plaintiff discussed the issue of

modified duty as an option. VanAuken did not provide Plaintiff with another modified

duty form, but, Plaintiff contends, “VanAuken brought up modified duty again and again

told Plaintiff he needed to get back to work.” Id. ¶ 40.

VanAuken and Plaintiff had a phone conversation at the end of April. During that

phone call they discussed scheduling the next SLV. VanAuken asked about the

modified duty form, and Plaintiff said he did not think his doctor would sign it. Def.

SOMF ¶ 42. Plaintiff contends that during that phone call, “VanAuken said that

Plaintiff's doctors were full of shit. He was threatening and demanding that Abbott get

the modified duty form signed and return to work.” Pl. Resp. SOMF ¶ 42. Plaintiff had

made no complaints about VanAuken before this phone call, and agrees that nothing

that occurred before or during this phone call could be deemed retaliation. Def. SOMF ¶

43.

Plaintiff asserts that on April 25, 2018, he contacted the Employee Assistance

Program (EAP) and reported to Elliot Boyce (Head Coordinator of EAP) and Joseph

McCabe (Troop C EAP Member) his concerns of harassment by VanAuken during the

April phone call. AC ¶¶ 62-64. Plaintiff admits, however, that VanAuken would not get

information about an EAP call and neither Boyce nor McCabe ever made VanAuken or

Jennings aware of Plaintiff’s EAP complaint about VanAuken. Def. SOMF ¶¶ 44-50.

Plaintiff spoke with VanAuken by phone on May 3, 2018 regarding rescheduling

an SLV. Plaintiff contends that “VanAuken immediately asked Plaintiff if he were cleared

to return to work” and, when Plaintiff said he was not, VanAuken said to Plaintiff “not to

be a dick, you weren't blown up by an I.E.D.’” Pl. Resp. SOMF ¶ 51.

On May 10, 2018, Plaintiff spoke by telephone to Maria Morris, Deputy General

Counsel to the New York State Troopers PBA ("PBA"), the police union that represents

Members of the Division of State Police. Def. SOMF ¶¶ 52-53. Plaintiff told Morris he did

not feel comfortable handing his medical records to VanAuken at SLVs, and he

complained about the frequency of SLVs. Id. ¶ 55. Morris told Plaintiff he could send

his medical records directly to HR, and she would speak to Jennings to verify this. Id. ¶

56. Abbott testified that he told Morris about VanAuken's statements to him and about

VanAuken's insistence that he get a modified duty report and return to work despite his

physicians’ orders. Pl. Resp. SOMF ¶ 55. Plaintiff points out that Morris could not recall

exactly what Abbott said in this regard, but she recalled it included concerns about the

frequency of the SLV’s, handing medical records to VanAuken, people not being

particularly sensitive to Abbott, people pressuring Abbott to return to work, and that she

reported these concerns to Jennings. See Def. Ex. 8, Morris Deposition pp. 12-15; 36.

When asked whether Abbott specifically referenced treatment by VanAuken, Morris

testified that she was not 100% certain Plaintiff was speaking specifically about

VanAuken, but stated that Abbott claimed that VanAuken was one of the people either

calling him or stopping by his house. Id. 14. As to the frequency of the SLV’s, Morris

testified: “Frank was concerned regarding the frequency with which representatives

from his station or his zone were contacting him, and I don't recall if they were

contacting him by phone or in person, but he felt that they were contacting him too

frequently and he was concerned . . . that they were not being particularly sensitive to

him.” Morris, Dep. p. 12.

Jennings and Morris had a telephone conversation regarding Plaintiff before the

May 2018 SLV. Def. SOMF ¶ 57. Morris requested, and Jennings agreed, that

Plaintiff's medical records could be submitted directly to HR rather than handed over at

SLVs. Def. SOMF ¶ 58. Morris specifically referenced VanAuken in connection with

“questions about the medical records, questions about the visits and some concerns

that Frank had had about statements that had been made to him.” Morris Dep. p. 15.

When Morris was asked whether she told Jennings that VanAuken “was being

demeaning or swearing” at Plaintiff, Morris responded: “I don’t believe I used those

words. I believe what I said was that he was making [Plaintiff] uncomfortable, but I don’t

recall.” Id. p. 36. Morris never requested to Jennings that VanAuken be counseled, and

Jennings did not tell Morris that VanAuken would be counseled. Def. SOMF. ¶¶ 59-60.

Morris also testified that she asked Jennings “about the frequency of the sick visits

because Frank Abbott had asked me to ask about that, and I did mention that he had

concerns about some of the things that they were saying to him.” Morris Dep. at 14.

Morris states that Jennings “advised that she was going to be reaching out to Captain

VanAuken and let him know that Frank could send the medical records directly and that

she would speak to him about the frequency of the visits.” Id. Morris had no other

conversations with anyone at NYSP HR regarding Plaintiff. Def. SOMF ¶ 66.

On May 11, 2018, after Jennings spoke with Morris, Jennings called VanAuken

and told him Plaintiff's medicals would now be submitted to the NYSP Benefits

Administration Unit, which VanAuken acknowledged. Def. SOMF ¶ 62. This was the

only verbal interaction they had regarding Plaintiff before the instant lawsuit was filed.

Id. ¶ 64. Based on VanAuken’s deposition testimony and Jennings’ declaration,

Defendants assert that the evidence is undisputed that Jennings said nothing during

that phone call about any other complaints that Plaintiff had about SLVs. Id. ¶ 63 (citing

VanAuken Dep., p. 54); Jennings Decl., ¶ 6. Plaintiff denies this contention based on

VanAuken's reaction to Plaintiff when he came to the May 2018 SLV, contending that

“VanAuken was visibly upset-red-faced and angry. He began the conversation with

‘where's your shit?’ and then referenced Abbott's medical records despite allegedly

knowing that Plaintiff would be sending the medical records to Albany.” Pl. Resp. SOMF

¶ 63 (citing Abbott Dep, pp. 108-110); see Abbott Dep. p. 109 (“When I walked in the

room, the captain was clenching his fists and he was angry. And the first thing he said

to me was, . . . where is your shit. And I said, excuse me. He said, you shit,3 your

medical records.”). Plaintiff’s denial is also based upon a May 14 text message from

Morris to Plaintiff where Morris gives Plaintiff the address to send his medical records,

and states: “I presume U got the message U can meet with VanAuken, but no medical

records. And I believe he was counseled on how he conducts himself with you too!” Def.

Ex. 10. Plaintiff also cites to Jason Cease’s statements during an interview in an internal

investigation conducted because of Plaintiff’s personnel complaint against VanAuken

and another officer. There, Cease stated that he believed VanAuken requested Cease

accompany him on the September 9, 2018 SLV because “I think [VanAuken] was

already aware that Frank may have been displeased with him and I just think he wanted

another witness there,” and that VanAuken “mentioned” that Morris made the

recommendation that Plaintiff’s medical records be sent directly to the Division “and now

there is this wrench in it where he is not providing his medical records to us.” Cease

Decl., Ex. A, at Bates pp. 622, 625. Plaintiff also cites to his own testimony indicating

that during the July SLV, Cease referenced a "beef" between Abbott and VanAuken,

see Abbot Dep. pp. 123-124, and to Cease’s statement during the internal investigation

3 It is unclear from the transcript whether this is a typographical error for "your shit," or whether

VanAuken was calling Plaintiff a "shit.”

indicating that there were discussions at the station about Abbott with VanAuken. See

Cease Decl., Ex. A, at Bates pp. 622-625. This, to Plaintiff, indicates that VanAuken

had been told by Jennings that Plaintiff complained about him. Further, Plaintiff

references his testimony regarding a September 2018 telephone conversation he had

with Jennings. He asserts that prior to the September 5, 2018 SLV, he and his

advocate, James Banish, called Jennings. During this phone call, Plaintiff indicated that

he wanted to complain about VanAuken’s professionalism during SLVs. See Abbott

Dep. 132-134. Jennings purportedly stated that she had addressed the issue with

VanAuken and that he would be acting in a professional manner at the upcoming SLV.

Id.

Based on this evidence, and drawing reasonable inferences in Plaintiff’s favor, a

fact finder could reasonably conclude that, before the May 2018 SLV, Jennings advised

VanAuken that Plaintiff complained about the way VanAuken was treating him at SLVs.

At the May 2018 SLV, Plaintiff contends that after he told VanAuken that he

would be providing his medical records directly to HR, VanAuken purportedly stated: “I

can force you under the division doctors, and see it's a bunch of shit and force you back

to work.” Abbott Dep. p. 110. Plaintiff then told VanAuken that he did not appreciate the

way he had been treated, that he did not appreciate being compared to another Trooper

who went out on extended medical leave, and the conversation became "a little heated."

Def. SOMF ¶ 75. According to Plaintiff, Plaintiff told VanAuken that he had always done

his job properly but felt he was now being treated unfairly. Abbott Dep. p. 112. When

asked at his deposition why he felt he was being treated unfairly, Plaintiff stated that he

felt that he was “being pushed back to work almost. Almost like a pass by shooting, so I

guess in a way I did tell him that I didn't appreciate his behavior.” Id. It is undisputed

that no one told Jennings that the May 2018 SLV had become "heated." Def. SOMF ¶

76.

Sergeant Matthew Pokigo, who recently had been made Station Commander at

SP Binghamton, visited Plaintiff at his home in May 2018 to check up on him and to

bring Plaintiff paperwork from Dr. Kelleher. Def. SOMF ¶ 78; Pl. Resp. SOMF ¶ 78; see

AC ¶ 87 (“In June 2018, Sergeant Matthew Pokigo, Abbott’s first line supervisor,

hand delivered to Abbott a letter from the New York State Police Division of State Police

Physician concurring with Abbott’s physician that Abbott was disabled at the present

time.”). Pokigo did not visit Plaintiff at VanAuken’s behest. Def. SOMF ¶ 79. Plaintiff

expressed a range of emotions to Pokigo, appeared frustrated to Pokigo, and reported

to Pokigo about VanAuken making a comment about an I.E.D. Id. ¶ 80. There is no

dispute Pokigo did not report to VanAuken or anyone else anything what Plaintiff said

about VanAuken. Id. ¶ 82.

Plaintiff's June 2018 SLV took place on June 12, 2018 at Plaintiff's house, and,

as indicated above, was attended by Plaintiff, Major McEvoy, Lt. Croswell, and PBA

delegate Davis. Id. ¶ 83. Neither McEvoy nor Croswell were aware at the time that

Plaintiff had complained about VanAuken, id. ¶ ¶ 84, 87, 89, and Plaintiff does not know

if anything Croswell said on June 12, 2018 was at VanAuken’s behest. Id. ¶ 86.

However, as also indicated above, Plaintiff testified Davis told him "they" were upset

because Plaintiff was sending medical records to Albany which they viewed as

disrespectful.

Plaintiff's July 2018 SLV visit took place at his house on July 19, 2018, and

was attended by Plaintiff and Cease. Id. ¶ 91. As indicated above, Plaintiff testified that

during this SLV, Cease referenced a "beef" between Abbott and VanAuken. See Abbott

Dep., pp. 123-124.

There was no August 2018 SLV. Id. ¶ 96. There is not dispute that Plaintiff had

no direct contact with VanAuken in June, July or August 2018. Id. ¶ 95.

Plaintiff's September 2018 SLV visit took place at Plaintiff's house on September

5, 2018, and was attended by Plaintiff, Banish, VanAuken, and Cease. Id. ¶ 97. As

indicated above, prior to this SLV, Banish and Plaintiff called Jennings on the phone. Id.

¶ 98. During this call, Plaintiff indicated that he wanted to complain about VanAuken’s

professionalism during SLVs. See Abbott Dep. 132-134. Jennings purportedly stated

that she had addressed the issue with VanAuken and that he would be acting in a

professional manner at the SLV. Id. There is no dispute that VanAuken did not harass

Plaintiff at the September 5, 2018 SLV. Id. ¶ 103. Plaintiff only spoke with Cease, and

VanAuken only commented about how nice Plaintiff's house was. Id.¶ 104. According

to Plaintiff, VanAuken acted "like he should have as a Captain in the State Police” at the

September 5, 2018 SLV. Id. ¶ 105.

It is undisputed Plaintiff had no personal contact or telephone calls with

VanAuken after September 5, 2018. Id. ¶¶ 107-108.

On September 17, 2018, Banish emailed a note from Plaintiff's treating

psychologist, Dr. Houk, to Jennings. Id. ¶ 115. The note indicated:

To whom it May Concern:

It has come to my attention that regular, monthly visits to the patient's home

are made by work colleagues.

These visits cause a significant increase in PTSD symptoms for the patient,

and impair progress in therapy for PTSD.

It is requested that these regular home visits cease and that communication

from uniformed members of the police department be provided through US

mail. This request is necessary in order that the patient be allowed to

progress in psychotherapy for his PTSD symptoms.

Id. ¶ 116.

VanAuken never saw Dr. Houk's note until after the instant lawsuit was filed, and

no one told him in September 2018 that Plaintiff had requested to be excused from

SLVs. Id. ¶ 118. Plaintiff had no SLVs with VanAuken following September 17, 2018,

Vanauken did not berate Plaintiff after September 17, 2018, and there was no harassing

conduct from VanAuken after September 17, 2018. Id. ¶¶ 118-121.

Major McEvoy became aware via Jennings that HR had received the note from

Dr. Houk opining that regular monthly sick leave visits had caused an increase in

Plaintiff’s PTSD symptoms. Id. ¶ 122. Per McEvoy's request, on September 20, 2018

Jennings provided him with a timeline with a history of Plaintiff’s injuries and medical

assessments regarding disability. Id. ¶ 123. Because Article 8D9(e) permits sick leave

visits every three months if a Member is absent for more than three months, and

because Plaintiff’s treating physician had opined that sick leave visits every month were

detrimental, it was determined by HR, in consultation with Dr. Kelleher, that Plaintiff’s

SLVs could be conducted every three months. Id. ¶ 124. Neither VanAuken nor

Jennings had any decision-making input into the terms of Plaintiff’s disability leave. Id.

¶¶ 109-112.

SLVs for Plaintiff were conducted on January 2, 2019 and April 24, 2019 by

Captain Kristina Sisbower and Cease. Id. ¶ 125. Because Jennings' job description had

changed, Major R. Anthony Oliver assumed Jennings' former role in transmittal of

documents related to 2019 SLVs. Id. ¶ 126. Thus, Defendants contend, Jennings had

no role in scheduling the January and April 2019 SLVs. See id. ¶ 127. Plaintiff opposes

this proposition, citing to an email exchange attached as an exhibit to Plaintiff’s

Counsel’s affidavit. See Dkt. No. 57, Ex. A. But, as Defendants argue, “a plain reading

of the February 2019 e-mail exchange offered by Plaintiff’s counsel is only that Major

Jennings corrected staff, who mistakenly were going to conduct monthly sick leave

visits, to advise them that his next extended sick leave visit was not due until three

months after the January 2019 visit.” Def. Reply, at 8. Thus, as Defendants also argue,

Jennings acted to make Plaintiff’s SLVs less frequent.

VanAuken had no role in scheduling or attending the January and April 2019

SLVs. Def. SOMF ¶ 128.

Plaintiff filed an internal personnel complaint with NYSP in October 2018

regarding the conduct of VanAuken and non-party Sgt. Jason Hopf. Def. SOMF ¶ 129.

Plaintiff made allegations of harassment and improper work practices by Members of

the Troop “C” supervisory staff, particularly as it relates to oversight of Plaintiff’s

extended sick leave. Def. Ex. 16. Plaintiff filed no such personnel complaint regarding

Jennings. Def. SOMF ¶ 130. Plaintiff participated in a "Member Witness Interview" on

October 16, 2018 regarding his personnel complaint, which he reviewed and signed,

and which he concedes is a fair and accurate transcript of that interview. Id. ¶ 131.

Other witnesses who were interviewed in connection with the personnel complaint

included: VanAuken, Hopf, Croswell, Davis, Trooper Christopher Condon, McEvoy,

Pokigo and Cease. Id. ¶ 132. The outcome of the personnel complaint against

VanAuken and Hopf was "unsubstantiated". Id. ¶ 133.

Plaintiff filed a Complaint with the New York State Division of Human Rights

(“DHR”) on October 26, 2018 against VanAuken, Hopf, and NYSP alleging disability

discrimination and retaliation. Id. ¶ 134. Plaintiff never filed a DHR Complaint against

Jennings. Id. ¶ 135. In his DHR Complaint, Plaintiff described the most recent act of

alleged discrimination as having occurred on May 14, 2018. Id. ¶ 136. After

investigation, and following opportunity for review of related information and evidence

by the named parties, the DHR on April 22, 2019 issued a decision determining that the

was no probable cause that respondents VanAuken, Hopf or NYSP engaged in or are

engaging in unlawful discrimination or retaliation. Id. ¶ 137.

Plaintiff alleges in this case that people at SP Binghamton were ordered by

VanAuken not to communicate with him. However, Plaintiff has no personal knowledge

that VanAuken, Jennings or anyone at NYSP gave an order to people within NYSP to

stop talking to Plaintiff. Def. SOMF ¶ 138. Rather, Plaintiff contends that another

Trooper’s wife told Plaintiff’s wife “we can’t really have anything to do with you. They’re

saying around the station for no one to talk to Frank.” Abbott Dep. p. 161. Plaintiff also

states in his Affidavit that he was told by two different officers that an order was given

for people not to speak to Plaintiff. Abbott Aff., Dkt. No. 57-1, ¶ 3.4 However, this

information does not indicate who it was that purportedly gave the order. Both

VanAuken and Jennings affirm that they never ordered anyone at NYSP not to talk or

communicate with Plaintiff. Def. SOMF ¶¶ 140-141. In addition, Defendants present

4 As Defendants point out, one of these two officers named in the affidavit is the officer whose

wife purportedly told Plaintiff’s wife that no one could speak to Plaintiff or his family.

evidence that Pokigo, Hopf, McEvoy, Cease, Condon and Davis were never told by

VanAuken, Jennings or anyone else at NYSP to avoid contact with Plaintiff or his family,

or to withhold benefits, resources or support from Plaintiff. See id. ¶ 142. Plaintiff

denies this contention by citing to the afore-referenced page of his deposition and to

paragraph 3 of his Affidavit. See Pl. Resp. SOMF ¶ 142.

Plaintiff admits that VanAuken never had any conversations with anyone involved

with PBA about not providing resources to Plaintiff, and is not aware of any

communications with PBA regarding Plaintiff. Def. SOMF ¶ 144. Plaintiff also admits

that neither VanAuken nor Jennings ever instructed or encouraged any other NYSP

employee to withhold benefits, resources or support from Plaintiff, or to avoid contact

with him or his family in any way, nor were they given any such directive by anyone at

NYSP. Id. ¶ 145

Plaintiff admits that based on the documentation generated in connection with his

SLVs and the medical documentation he submitted, Dr. Kelleher determined Plaintiff

was not capable of returning to modified duty or full and strenuous duty prior to his

retirement on December 26, 2019. Id. ¶¶ 113, 146. Plaintiff also admits that no other

NYSP employees, including VanAuken and Jennings, had any role in determining

Abbott's ability to return to work. Id. ¶ 147. However, Plaintiff contends that he was

unable to return to NYSP in part because of the psychological toll caused by

VanAuken's harassment and Jennings's failure to remedy or stop the harassment. Pl.

Resp. SOMF ¶ 143. Plaintiff also states that he “does not know if he could have

returned eventually; however, he was forced to resign as a result of the behavior of

VanAuken.” Id. ¶ 158. Plaintiff admits that neither VanAuken nor Jennings had any role

in the decision whether to approve his disability retirement. Id. ¶ 159.

Plaintiff admits he has no personal knowledge whether Jennings had any intent

to retaliate against him, Def. SOMF ¶ 161, but states “[i]ntent can be inferred from

Jennings’ refusal to modify sick leave visits which could have been done and still

complied with the policy.” Pl. Resp. SOMF ¶ 162. Regarding whether VanAuken had

the intent to retaliate against him, Plaintiff asserts “[i]ntent can be inferred from

Defendant VanAuken's treatment of Plaintiff and his insistence that Plaintiff return to

work.” Id. ¶ 163.

Analysis

"[T]he elements of a retaliation claim brought pursuant to Section 1983 'mirror

those under Title VII." Day v. City of NY, 2015 US Dist LEXIS 161206, at *16 (S.D.N.Y.

Nov. 30, 2015)(quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d

Cir. 2015)). These claims are analyzed under the burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.

Ed. 2d 668 (1973). See Roman-Malone v. City of N. Y., No. 11 Civ. 8560 (PAC), 2013

U.S. Dist. LEXIS 104368, at *14, 2013 WL 3835117, at *4 (S.D.N.Y. June 25, 2013).

To establish a prima facie case of retaliation, the plaintiff must prove that "(1) he

was engaged in protected activity;5 (2) the [defendant] was aware of that activity; (3) the

[plaintiff] suffered a materially adverse action; and (4) there was a causal connection

5 Defendants do not challenge that Plaintiff's complaints constituted protected activity, and absent

argument on this issue the Court proceeds as if Plaintiff satisfies the first element of the prima facie case.

See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (“A plaintiff may prevail on a claim for

retaliation even when the underlying conduct complained of was not in fact unlawful so long as he can

establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the

employer violated [the] law.”) (internal quotation marks and citation omitted).

between the protected activity and that adverse action." Rivera v. Rochester Genesee

Reg'I Transp. Auth., 743 F .3d 11,24 (2d Cir. 2014) (citation and internal quotation

marks omitted). The burden of proof at the prima facie stage has been characterized as

"de minimis." Hicks, 593 F.3d at 166.

“In the context of a retaliation claim, ‘an adverse employment action is any action

that could well dissuade a reasonable worker from making or supporting a charge of

discrimination.’" Morris v N.Y. State Police, 268 F Supp 3d 342, 368-369 (N.D.N.Y.

2017)(quoting Vega, 801 F.3d at 90). "This definition covers a broader range of conduct

than does the adverse-action standard for claims of discrimination. . . . '[T]he anti-

retaliation provision, unlike the substantive [discrimination] provision, is not limited to

discriminatory actions that affect the terms and conditions of employment.'" Id. at 369

(quoting Vega, 801 F.3d at 90). A plaintiff may also allege that he suffered from an

“atmosphere” of adverse employment action. Under this theory, “a combination of

seemingly minor incidents” may satisfy the adverse-action prong “once they reach a

critical mass.” Rooney v. Brown Group Retail, Inc., 2011 U.S. Dist. LEXIS 34918, at

*44-45 (E.D.N.Y. March 31, 2011)(citing Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir.

2002) (applying the “atmosphere” theory of adverse action to First Amendment

retaliation claims)); see also Barry v. New York City Police Dept., 2004 U.S. Dist. LEXIS

5951 (S.D.N.Y. April 7, 2004) (“Lesser actions or seemingly minor incidents can . . . be

considered adverse employment actions once they reach a critical mass of

unreasonable inferiority.”); Gonzalez v Bratton, 2000 US Dist LEXIS 12002, at *47

(S.D.N.Y. Aug. 21, 2000)(“[T]he accumulation of small reprisals may be aggregated so

as to permit consideration of their impact in their totality and to support their being

deemed sufficient to constitute adverse employment action . . . .” )(citing Quinn v. Green

Tree Credit Corp., 159 F.3d 759, 764 (2d Cir. 1998)). "A plaintiff may establish

causation either directly through a showing of retaliatory animus, or indirectly through a

showing that the protected activity was followed closely by the adverse action." Smith v.

Cty. of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) (citing Cobb v. Pozzi, 363 F.3d 89, 108

(2d Cir. 2004)).

If the initial burden is met, "a 'presumption of retaliation' arises, which the

[defendant] "may rebut by 'articulating a legitimate, non-retaliatory reason for the

adverse employment action.'" Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d

Cir. 2015) (brackets omitted) (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166,

173 (2d Cir. 2005)); see Holcomb, 521 F.3d at 138 (Once the plaintiff establishes a

prima facie case, "the burden shifts to the defendant to articulate 'some legitimate, non-

discriminatory reason' for its action.")(quoting McDonnell, 411 U.S. at 802). If the

defendant provides a legitimate, non-discriminatory basis for the adverse action, “‘the

presumption of retaliation dissipates,’ and the burden shifts back to the plaintiff to prove

‘that the desire to retaliate was the but-for cause of the challenged employment action.’”

Smith v. New York & Presbyterian Hosp., 440 F. Supp. 3d 303, 340 (S.D.N.Y. 2020)

(citing Ya-Chen Chen, 805 F.3d at 70). Although “but-for” causation does not require a

showing that retaliation was a defendant’s sole motive, showing that retaliation was

“simply a ‘substantial’ or ‘motivating’ factor in the [defendant’s] decision” is insufficient to

prove a retaliation claim. Id. at 340; see Vega v. Hempstead Union Free Sch. Dist., 801

F.3d 72, 90-91 (2d Cir. 2015)(“It is not enough that retaliation was a ‘substantial’ or

‘motivating’ factor in the employer's decision.”)(citation omitted). “‘[B]ut-for’ causation

does not require proof that retaliation was the only cause of the [defendant’s] action, but

only that the adverse action would not have occurred in the absence of the retaliatory

motive.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013).

Neely Jennings

Assuming, arguendo, that Plaintiff establishes a prima facie case of unlawful

retaliation against Jennings, he fails in his ultimate burden to establish such a claim.

The adverse actions allegedly caused by Jennings were primarily that she failed to

modify Plaintiff’s SLVs so that they were not conducted by VanAuken, and to reduce the

frequency of these visits after Plaintiff had been on medical leave for ninety (90) days.

See AC ¶ 138 (“As a result of Abbott’s protected activity, he was forced to continue with

detrimental sick leave visits by Major Jennings and was offered no alternatives.”); Pl.

MOL, at 8 (“Defendants were not following the sick leave policy. The sick leave policy

only required a visit with a Trooper every three months after that Trooper had been out

of work for ninety (90) days. By contrast, Defendants insisted Abbott have a sick leave

visit every month. The sick leave policy didn't require any additional calls outside of the

visit once every three months, yet Abbott was subjected to calls on a consistent basis.”);

Pl. Resp. SOMF ¶ 162 (“Intent [to retaliate] can be inferred from Jennings’ refusal to

modify sick leave visits which could have been done and still complied with the policy.”).

Defendants assert that Plaintiff’s SLVs were conducted in accordance with Article 8D9,

and neither VanAuken nor Jennings had any role in or power to change the requirement

for and/or the timing and frequency of Extended Sick Leave visits. Def. MOL at 24. This

constitutes a facially legitimate, non-discriminatory reason for Jennings’ conduct, and

shifts the burden back to Plaintiff to prove “that the desire to retaliate was the but-for

cause of the challenged employment action.” Smith, 440 F. Supp. 3d at 340 (citing Ya-

Chen Chen, 805 F.3d at 70). However, Plaintiff “adduces no sufficient evidence to

show that [Defendants’] proffered reasons are pretextual.” McPherson v. New York City

Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006).

It is undisputed that neither VanAuken nor Jennings had any decision-making

input into the terms of Plaintiff’s disability leave. Def. SOMF ¶¶ 109-112. It is also

undisputed that aII SLVs were conducted at Major McEvoy's approval and per Article

8D9, not at the independent direction of VanAuken or Jennings. Id. ¶ 30. As such,

Jennings had no personal involvement in the decision of whether or how often sick

leave visits proceeded. See Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.

2013)(To establish a defendant's individual liability in a Section 1983 lawsuit, a plaintiff

must show "the defendant's personal involvement in the alleged constitutional

deprivation.") (citations omitted); Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)(A

plaintiff must "allege a tangible connection between the acts of a defendant and the

injuries suffered."); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government

officials may not be held liable for the unconstitutional conduct of their subordinates

under a theory of respondeat superior”); Tangreti v. Bachmann, 983 F.3d 609, 618 (2d

Cir. 2020)(holding that "there is no special rule for supervisory liability" and that "a

plaintiff must plead and prove 'that each Government-official defendant, through the

official's own individual actions, has violated the Constitution.'")(quoting Iqbal, 556 U.S.

at 676).

Further, even if Jennings’ conversations with Morris and Plaintiff put her on

notice of protected activity by Plaintiff, it is undisputed that the NYSP Division Physician

ultimately determines whether a Member on extended sick leave is cleared to return to

work. Id. ¶ 18. Thus, the evidence fails to establish Jennings’ personal involvement in

the SLV determinations, or that there was a causal connection between Plaintiff’s

complaints and the alleged adverse action allegedly perpetrated by Jennings. In fact,

after Dr. Houk’s note (which opined that regular monthly SLVs had caused an increase

in Plaintiff’s PTSD symptoms) was forwarded to McEvoy by Jennings, it was determined

by HR in consultation with Dr. Kelleher that SLVs for Plaintiff would continue but be

conducted every three months.

To the extent Plaintiff contends Jennings had a role in scheduling sick leave

visits in 2019, that contention is refuted by the fact that Jennings had changed positions

at the end of 2018 and, as indicated above, her email about the 2019 SLVs indicates

only that she corrected staff who mistakenly were going to conduct monthly sick leave

visits.

To the extent that Plaintiff contends that Jennings retaliated against him by failing

to stop VanAuken from conducting the monthly SLVs, that argument is refuted by the

evidence that Major McEvoy approved the SLVs and that VanAuken held the position of

Zone Commander at pertinent times. Given the combination of these two facts, and

although the policy states that after a Member is on sick leave for more than three

months a “Troop or Detail Commander” will visit the Member, Plaintiff has not presented

evidence from which a reasonable fact finder could conclude that Jennings would have

acted any differently in the absence of an alleged retaliatory motive. See Zann Kwan,

737 F.3d at 846 (“‘[B]ut-for’ causation does not require proof that retaliation was the only

cause of the [defendant’s] action, but only that the adverse action would not have

occurred in the absence of the retaliatory motive.”).

To the extent that Plaintiff contends that Jennings retaliated against him by

ordering others not to speak with him or to deprive him of resources or support, that

contention is defeated by the fact that Plaintiff has no evidence that Jennings did any of

these things. Plaintiff’s speculation is insufficient to defeat a motion for summary

judgment. See, e.g., Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d

Cir.1993) (party “may not rely simply on conclusory statements” to defeat summary

judgment).

Because the Court finds that Jennings did not violate Plaintiff’s federal statutory

or constitutional rights, the Court need not address whether Jennings is entitled to

qualified immunity. See Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020)(“[P]ursuant

to the two-step framework articulated by the Supreme Court in Saucier v. Katz, 533 U.S.

194, 121 S. Ct. 2151, 150 L.Ed.2d 272 (2001), when an official raises qualified immunity

as a defense, the court must consider whether: (1) the official violated a statutory or

constitutional right, and (2) the right was clearly established at the time of the

challenged conduct.’” Id. (cleaned up).

Jeffrey VanAuken

Plaintiff also fails to establish an actionable retaliation claim against VanAuken.

The only potentially harassing conduct personally performed by VanAuken following his

awareness of a complaint by Plaintiff occurred at the May 2018 SLV. There, VanAuken

appeared angry and he and Plaintiff got into a “heated discussion” during which Plaintiff

felt he was being forced back to work. However, “[t]o establish a causal connection

between the protected activity and the alleged hostility, [Plaintiff] must demonstrate

‘some increase in the discrimination or harassment—either a ‘ratcheting up’ of the

preexisting behavior, or new, additional forms of harassment[.]’” Bacchus v. New York

City Dep't of Educ., 137 F. Supp. 3d 214, 244–45 (E.D.N.Y. 2015)(quoting Hall v. New

York City Dep't of Transp., 701 F.Supp.2d 318, 339 (E.D.N.Y. 2010), in turn quoting Hall

v. Parker Hannifan Corp., 824 F.Supp.2d 464, 469 (W.D.N.Y.2009)). “’If, however, ‘the

discrimination was just as bad before the employee complained as it was afterwards,

then the employee's complaints cannot be said to have led to that discriminatory

behavior.’” Id. (quoting Hall v. New York City Dep't of Transp., 701 F.Supp.2d at 339).

Plaintiff contends that VanAuken regularly pressured him to return to work, and

no reasonable fact finder could conclude that VanAuken’s comments at the May 2018

SLV represented a ratcheting up of VanAuken’s pre-existing behavior. Thus, Plaintiff

fails to establish a causal connection between his complaint about VanAuken and

VanAuken’s harassment at the May 2018 SLV. Furthermore, because Plaintiff’s

evidence indicates that VanAuken’s conduct at the May 2018 SLV was a continuation of

his harassment to force Plaintiff back to work, no reasonable fact finder could conclude

that Plaintiff’s complaint was a but for cause of the harassment. Thus, Plaintiff fails to

establish an actionable claim of retaliation against VanAuken based on workplace

harassment.

Like with Jennings, Plaintiff fails to present anything more than speculation that

VanAuken retaliated against him by ordering others not to speak with him or to deprive

him of resources or support. That speculation is insufficient to defeat the properly

supported summary judgment motion in this regard. See, e.g., Ying Jing Gan, 996 F.2d

at 532.

Finally, like with Jennings, the Court need not address whether VanAuken is

entitled to qualified immunity. See Jones v., 963 F.3d at 224.

V. CONCLUSION

For the reasons discussed above, Defendants’ motion for summary judgment, DKt.

No. 53, is GRANTED and the Amended Complaint is DISMISSED.

The Clerk of the Court may close the file in this matter.

IT IS SO ORDERED.

Dated: March 28, 2023 Cong ay

Thomas J. M¢gAvoy

Senior, U.S. District Judge

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