Opinion
# 2013-039-379 Claim No. 101116
08-30-2013
JOHN DOE v. STATE OF NEW YORK
Synopsis
Following a bifurcated trial on the issue of liability, the Court finds that claimant has failed to prove his claims of assault and battery and breach of a collective bargaining agreement. The Court finds no credible evidence establishing that an assault or battery occurred and, in any event, defendant cannot be held liable for the alleged conduct of claimant's supervisor where there was no evidence that the supervisor's conduct was an incident of his employment of in furtherance of defendant's business. In addition, claimant proffered no evidence that this union violated its duty to provide fair representation to claimant and, as such, claimant is precluded from bringing a cause of action against defendant for breach of the collective bargaining agreement.
Case information
UID: 2013-039-379 Claimant(s): JOHN DOE Claimant short name: DOE Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 101116 Motion number(s): Cross-motion number(s): Judge: James H. Ferreira Mayer, Ross & Hagan, P.C. Claimant's attorney: By: Damon A. Hagan, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Valerie Singleton, AAG in Charge and Toni E. Logue, Assistant Attorney General Third-party defendant's attorney: Signature date: August 30, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim, filed in the Court of Claims in September 1999, arises from actions allegedly taken by employees of the Stony Brook University Hospital and Medical Center (hereinafter Hospital) in the spring and summer of 1998. In his claim, claimant alleged that he suffered damages as a result of, among other things, his wrongful termination from his position as a clinical assistant at the Hospital following actions taken by Hospital staff constituting discrimination, sexual abuse and sexual harassment. The claim alleged seven separate causes of action including wrongful termination, negligence, intentional tort and breach of the Collective Bargaining Agreement (hereinafter CBA).
The claim has been the subject of three previous decisions by this Court. Following the completion of discovery, defendant moved for summary judgment dismissing the claim (M-77245). By Decision and Order dated December 23, 2010, the Court denied the motion without prejudice on the ground that defendant had failed to attach a copy of the claim or its answer (Doe v State of New York, UID No. 2010-039-210 [Ct Cl, Ferreira, J., Dec. 23, 2010]). Defendant thereafter filed a second motion for summary judgment (M-79426). By Decision and Order dated July 14, 2011, the Court granted summary judgment as to claimant's first, second, third, fourth and sixth causes of action and dismissed those causes of action in their entirety (Doe v State of New York, UID No. 2011-039-243 [Ct Cl, Ferreira, J., July 14, 2011]). The Court denied defendant's motion as to claimant's fifth and seventh causes of action. Subsequently, defendant filed motions seeking (1) an order directing claimant to disclose his criminal history (M-80453), and (2) leave to renew its summary judgment motion as to claimant's seventh cause of action alleging breach of the CBA (M-80454). Claimant also cross-moved for an order permitting him to depose a Hospital employee in the event the Court granted defendant's motion reopening discovery (CM-80815). By Decision and Order dated March 13, 2012, the Court denied all three motions (Doe v State of New York, UID No. 2012-039-291 [Ct Cl, Ferreira, J., Mar. 13, 2012]).
A trial on the issue of liability was held in Hauppauge, New York on December 17 and 18, 2012, on the two remaining causes of action: the fifth cause of action alleging assault and battery and the seventh cause of action alleging a breach of the CBA covering claimant's employment. At trial, claimant testified and offered one document, which was received into evidence without objection. Defendant called five witnesses in its defense and proffered several documents, which were also received into evidence without objection. Trial transcripts were received by the Court in April 2013, and the parties submitted post-trial memoranda in June 2013. The relevant evidence presented at trial is summarized as follows.
Claimant testified that he was hired by the Hospital as a clinical assistant in January 1998 (Tr. 6, 11; claimant's exhibit 1). His first supervisor at the Hospital was Carol Daly, and at the time of his termination in September 1998, his supervisor was Steve Roggemann (Tr. 13). Claimant testified that, on one occasion, Roggemann had taken exception to claimant's writing circles in the schedule book and that Roggemann told him "if you do this again I'm going to take handcuffs, whips and chains, put you over my lap and give you a spanking" (Tr. 15). Claimant further testified that Roggemann made a second similar comment regarding writing in the schedule book, namely, that "if you write again, I'm going to pinch that cheek of yours" (Tr. 16). Claimant believed the comment meant his buttock cheek (Tr. 17). Claimant testified that a third incident occurred when he went to Roggemann's office to explain to him that he had not helped a patient the previous day because the patient had requested a female nurse. Claimant told Roggemann that "I'm here to save my ass," to which Roggemann allegedly responded "what ass, that skinny bony ass of yours" (Tr. 19). Claimant stated that these three incidents occurred in the spring and summer of 1998, and that following their occurrence, he "started staying at home. My attendance was a little poor" (Tr. 19). He stated that Roggemann phoned him at home about his attendance and told him to come to his office when he returned to work. When claimant returned to work, Roggemann had prepared resignation papers for him to sign, at which point claimant left the office crying and reported the incidents to the Hospital's Employee Relations/Human Resources Office (Tr. 20).
References to the trial transcript are delineated herein as (Tr. __) for December 17, 2012 and (Tr. II. __) for December 18, 2012.
Claimant testified further that Roggemann had physically touched him. He stated that "every time" Roggemann left the office for the day, "he would go like this to my neck" and say "have yourself a good night" (Tr. 21). On another occasion, as claimant left Roggemann's office, Roggemann "grabbed [claimant's] right buttocks, [his] right hiney" (Tr. 21-23). Claimant testified that this encounter was observed by Diosdado Espinosa, a friend and co-worker. This latter physical contact occurred sometime in 1998 between "July through September" or late summer (Tr. 24). Claimant testified that he never consented to the physical contact and that he believed he was treated this way because he was gay (Tr. 23, 27). He did not know of any other worker who received a neck massage or had their buttock pinched (Tr. 28).
During cross-examination, claimant stated that Espinosa witnessed the alleged buttock touching in August 1998 (Tr. 71-73).
Following a question by claimant's counsel as to claimant's sexuality, claimant described himself as "a gay male" (Tr. 14).
During cross-examination, claimant stated that as a clinical assistant, he assisted nurses with patient care. He acknowledged that, upon his hiring on January 8, 1998, he was placed on a one-year probation (Tr. 29). As for claimant's time and attendance history, his time sheets revealed numerous absences between January and mid-September 1998, including over 12 days of absences characterized as LT/UA (lost time/unauthorized absences) and over 15 days claimant noted "sick" or "family sick" on his time sheets (see defendant's exhibit A). Claimant stated that Carol Daly, his supervisor during his first five months working at the Hospital, gave him three written warnings regarding his attendance, and had told him that he could not leave the unit short-staffed and that his job would be in jeopardy if he kept missing work (Tr. 45-46). Claimant also stated that, during the time Daly was his supervisor, he took six sick days in conjunction with regular days off or "pass days" as referred to in the time and attendance sheets (Tr. 47).
In May 1998, Daly went on extended medical leave and Roggemann became the interim nurse manager (Tr. 48). While claimant initially denied at trial that Roggemann had verbally counseled him in July 1998 regarding his absences, he stated in a 2004 deposition that he had been counseled at that time by Roggemann (Tr. 48-50). Claimant acknowledged that he signed two counseling memoranda, dated August 25 and 26, 1998, detailing his absences from work and warning him that, as a probationary employee, his continued employment was at risk if his attendance did not improve (Tr. 51-56). He denied receiving any other memoranda regarding his time and attendance (Tr. 92). Although records received into evidence indicate that claimant was terminated for poor attendance on September 8, 1998 (see defendant's exhibits E and F), claimant denied being called to Roggemann's office on that date and being told he was terminated for poor attendance (Tr. 64). Claimant also denied receiving a letter dated September 8, 1998 that was sent to his residence informing him that his termination would be effective September 23, 1998 (Tr. 65-66).
At trial and in his deposition, claimant stated that, after learning he would be terminated, he walked directly to the office of Carolyn Santora, the director of patient services and Roggemann's supervisor, to inform her about the alleged sexual harassment by Roggemann (Tr. 66-67). This was the first time he made an official report to her or to anyone at the Hospital about Roggemann's alleged conduct (Tr. 67). Claimant also filed a complaint, dated September 10, 1998, against Roggemann with the Hospital's Office of Diversity and Affirmative Action (Tr. 68-69, 88; see defendant's exhibit M). By letter dated September 25, 1998, claimant learned that a probationary review had been requested on his behalf by his union and that the review would occur on October 1, 1998 (see defendant's exhibit G). The review occurred on that date and his union representative was present (Tr. 71).
On October 30, 1998, claimant filed a criminal complaint and written statement with the Suffolk County Police Department against Roggemann regarding the grabbing of claimant's buttocks (Tr. 77-78; see defendant's exhibits P and Q). On December 14, 1998, claimant filed a charge with the Equal Employment Opportunity Commission (hereinafter EEOC) (Tr. 75-78; see defendant's exhibits N and O).
Defendant called Steven Roggemann, a licensed registered nurse for over 30 years and claimant's supervisor between May and September 1998. Roggemann testified, in relevant part, that he continues to work at the Hospital as the assistant director of nursing, supervising 40 units, and works at another hospital as an evening/night administrator (Tr. 116-119). He became the nurse manager for the approximately 70 people in the 17 South section of the Hospital on May 19, 1998, where his duties included 24-hour responsibility for the two critical care units situated there (Tr. 120, 189). At that time, he reported directly to Carolyn Santora and generally worked weekday shifts (Tr. 121). He first met claimant in May or June 1998 when claimant worked as a clinical assistant tending to patient comfort needs (Tr. 121-122, 177). Roggemann described his interaction with claimant on a daily basis as "minimal" and stated that claimant reported to him "indirectly," as claimant had other, more direct, supervisors such as the nurse in charge of the shift and the clinicians (Tr. 122 -124). Roggemann described his relationship with claimant as "[c]ordial, business" (Tr. 124).
As for the type of worker claimant was, Roggemann testified that claimant was "unreliable," had "time and attendance issues" and did not report to work when scheduled (Tr. 124). Roggemann became aware of claimant's time and attendance issues during a transition in 1998 to a new computerized scheduling system, which allowed him to see past, present and projected attendance schedules (Tr. 125; see defendant's exhibit B). He conducted "informal" counseling sessions with claimant about his attendance within a month of his arrival to the Hospital (Tr. 128). These sessions with claimant, which were not memorialized in writing, occurred "probably three times" and were "a heads-up" to claimant that there were problems with his attendance (id.). Claimant's attendance did not improve, and formal counseling occurred on August 25 and 26, 1998 in Roggemann's office in the 17 South unit (see defendant's exhibits C and D). No one else was present and the office door was left open (Tr. 131).
Roggemann estimated that, prior to issuance of the August 25, 1998 memorandum, claimant had 11 unauthorized absences, totaling 79 hours, or approximately two weeks worth of work time; 14 uses of sick leave, totaling 22 days, when he only had 9 days of sick leave available; 16 days of annual leave or vacation, when he only had 9 days of annual leave available; and six days of personal leave, when he had only accrued three days (Tr. 133, 136-137). Roggemann also testified that "[l]ost time . . . when you do not have accruals and you're not at work . . . is not at all an acceptable thing" because of the nature of the work in a critical care unit (Tr. 139, 140). Roggemann also noted the tendency of claimant to take sick days in conjunction with pass days, which were generally Saturdays and Sundays (Tr. 140-141; see defendant's exhibit A), and the fact that, on August 21, 1998, just before the formal counseling occurred, claimant was a "no-call/no show" meaning that he was scheduled to come to work but never did and never called (Tr. 142). Claimant's attendance did not improve after the two counseling sessions; claimant was an hour and 45 minutes late the day after the August 25th counseling session (Tr. 147). At both sessions, Roggemann informed claimant that his attendance must improve and that his probationary position was at risk. Claimant responded that his attendance would improve, but it did not, with claimant having five to six unauthorized absences after the August 26th session (Tr. 145, 149, 150-151). Roggemann informed claimant in person on September 8, 1998 that he recommended claimant be fired for his attendance problems, and in a memo to Human Resources dated September 8, 1998, Roggemann recommended that claimant be terminated due to "recurrent time and attendance issues, effective on or about September 23, 1998" (defendant's exhibit E; Tr. 152-153). By letter dated September 8, 1998, Human Resources notified claimant of his termination (see defendant's exhibit F; Tr. 155). Roggeman stated that, on one occasion, claimant produced a doctor's note for an unauthorized absence, but did not provide any other similar notes for other absences (Tr. 160). Later on September 8, after his meeting with claimant, Roggemann learned from Santora that claimant had made an accusation of sexual harassment and that she was transferring claimant from Roggemann's unit, which Roggemann believed was "pretty standard" procedure (Tr. 156-157).
Roggemann denied telling claimant that he would tie claimant up and spank him, or pinch him if he wrote or changed the work schedule, and denied ever physically touching claimant in any inappropriate manner (Tr. 159, 163, 167). He expressly denied ever touching claimant's buttocks or ever rubbing the back of claimant's neck (Tr. 162, 163). He also stated that he did not tell claimant to resign and that claimant never told him that he was making claimant uncomfortable (Tr. 164). He denied ever sexually harassing claimant, making disparaging or lewd comments about claimant, or commenting on his sexuality or his buttocks (Tr. 164-165, 167-168), and testified that, at no time prior to informing claimant he was being terminated, had claimant ever alleged or filed a sexual harassment claim against him (Tr. 154).
Carolyn Santora, a registered nurse and a Hospital employee for over 30 years, testified that she was the clinical director for the heart services section of the Hospital (Tr. 197-198). Her duties in that position were largely administrative (Tr. 199). Roggemann became the interim nurse manager for 17 South in early July 1998 after Daly became ill and went on extended medical leave (Tr. 200-201). Santora agreed that claimant's attendance from his hiring to when Roggemann began managing the unit was a problem and recalled that Roggemann discussed terminating claimant because of those issues in late August 1998 (Tr. 204-205). She met claimant for the first time after claimant had been informed by Roggemann that he was recommending that claimant be terminated (Tr. 206). At that meeting, claimant alleged that Roggemann had touched him and made inappropriate remarks (Tr. 206-207). In response to the allegation, she transferred claimant out of the unit, recommended that he contact the Affirmative Action Office on the main campus, and reported the complaints to the Hospital's Labor Relations Office (Tr. 208). She stated that claimant had never made these complaints about Roggemann prior to their meeting (Tr. 209).
Defendant also called Robert Holland, a carpenter at the Hospital for the past 31 years. Holland testified that, in 1998, he was also the union vice-president for the local Civil Service Employees Association (CSEA) (Tr. II. 6). He first met claimant at his probationary review on October 1, 1998, where he served as claimant's union representative. The probationary review is "a chance for the employee to dispute any of the charges that were levied against him in his termination" (Tr. II. 7; see also defendant's exhibit G). He believed claimant was terminated on "[t]ime and attendance" grounds (Tr. II. 10). Holland stated that an employee serving a probationary period could "absolutely" be terminated for even one no call/no show (Tr. II. 11). Holland recalled that, at the probationary review, claimant did not address the time and attendance issues but raised sexual harassment (Tr. II. 13). Holland was surprised by that issue as it was the first time it had been raised to him. He stated that it was not unusual for employees who had been terminated to assert charges against their employer (Tr. II. 14). Holland did not find any support for the sexual harassment charge and recalled that Labor Relations staff had undertaken an investigation of the counter-charge and concluded it was unfounded (Tr. II. 14-15). Holland did not recall claimant ever complaining that the union had not adequately represented him (Tr. II. 15). Holland also stated that the union is not affiliated with or controlled by either the Hospital or any state agency (Tr. II. 16).
By letter dated October 30, 1998, the Hospital's Department of Labor Relations sustained the decision to terminate claimant's probationary status (see defendant's exhibit H).
Next, Diosdado Espinosa, a licensed registered nurse, testified that he began employment at the Hospital as a clinical assistant in 17 South in February 1998 (Tr. II. 29, 34). He was promoted to a licensed practical nurse position in August 1998, and after other promotions, to head nurse in May 2006 (Tr. II. 30-33). He and claimant were colleagues and friends; claimant served as best man at Espinosa's wedding in July 1998 (Tr. II. 36-37). Espinosa stated that Roggemann was his supervisor in May 1998 and that he had a professional relationship with him and would occasionally greet him when he was on the floor (Tr. II. 38).
Espinosa testified that, in July 1998, he and claimant had gone to Roggemann's office in 17 South to switch work schedules (Tr. II. 40). Both asked Roggemann for a day off and Roggemann approved the request (Tr. II. 41). They both then left the office, with Roggemann following behind them, and returned to their nursing stations also located on the 17th floor (Tr. II. 43). Espinosa testified that, as they were walking to the nursing stations, claimant turned to him and said "he [Roggemann] touched my butt" and they both started laughing (Tr. II. 44, 45). According to Espinosa, claimant was not upset and was smiling when he told him (Tr. II. 44-45). The alleged touching occurred by the nursing station, which he described as a "busy" area (Tr. II. 46, 47). Espinosa stated that he did not see the touching or any physical contact between claimant and Roggemann (Tr. II. 46, 47-48, 55). He thought claimant "was joking around like, you know, I wouldn't think Mr. Roggemann would touch his butt like that" because claimant's face was "not serious to me. It's just like he was smiling" and they both were laughing (Tr. II. 48). Espinosa stated further that, after the alleged incident, he did not notice any change in the relationship between claimant and Roggemann, and, that he never had any conversation with claimant in an elevator about Roggemann grabbing claimant's buttocks (Tr. II. 51, 52). He also stated that claimant never complained to him about Roggemann calling claimant at home, grabbing claimant's hands, rubbing claimant's neck, making inappropriate comments about his buttocks or not going to work because claimant felt uncomfortable working with Roggemann (Tr. II. 53, 54). He stated that he never observed Roggemann make any references to claimant's sexuality, yell at claimant, or touch claimant (Tr. II. 55). Espinosa stated that he received a promotion to a different unit on August 6, 1998 (Tr. II. 57). During redirect examination, Espinosa explained that the promotion in August 1998 to licensed practical nurse was due to passing a written exam and was not earned through Roggemann (Tr. II. 63-64). His subsequent promotions were also the result of applying for positions and passing examinations (Tr. II. 64-66).
Fifth Cause of Action
Claimant's fifth cause of action alleges assault and battery. " 'To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact' " (Marilyn S. v Independent Group Home Living Program, Inc., 73 AD3d 892, 894 [2d Dept 2010], quoting Fugazy v Corbetta, 34 AD3d 728, 729 [2d Dept 2006]; accord Cotter v Summit Sec. Servs., Inc., 14 AD3d 475, 475 [2d Dept 2005]). "A 'valid claim for battery exists where a person intentionally touches another without that person's consent' " (Aberbach v Biomedical Tissue Servs., Ltd., 48 AD3d 716, 718 [2d Dept 2008] quoting Wende C. v United Methodist Church, N.Y. W. Area, 4 NY3d 293, 298 [2005], cert denied 546 US 818 [2005]). " 'To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, i.e., wrongful under all of the circumstances, and intent to make the contact without the plaintiff's consent' " (Holland v City of Poughkeepsie, 90 AD3d 841, 846 [2d Dept 2011], quoting Higgins v Hamilton, 18 AD3d 436, 436 [2d Dept 2005], lv denied 5 NY3d 708 [2005]). "The intent required for battery is 'intent to cause a bodily contact that a reasonable person would find offensive' " (Cerilli v Kezis, 16 AD3d 363, 364 [2d Dept 2005], quoting Jeffreys v Griffin, 1 NY3d 34, 41 n 2 [2003]), "i.e., wrongful under all the circumstances" (Zgraggen v Wilsey, 200 AD2d 818, 819 [3d Dept 1994];see also Tillman v Nordon, 4 AD3d 467, 468 [2d Dept 2004]). "An action for battery may be sustained without a showing that the actor intended to cause injury as a result of the intended contact" (Zgraggen v Wilsey, 200 AD2d at 819; see also Cerilli v Kezis, 16 AD3d at 364).
Claimant also alleges as part of his fifth cause of action "sexual harassment and other various tortious actions including, but not limited to non-specific intentional torts." In its July 14, 2011 Decision and Order, the Court dismissed claimant's sexual harassment cause of action and declined to address, as vague, claimant's allegations of "various tortious actions" and "non-specific intentional torts" (Doe v State of New York, UID No. 2011-039-243 [Ct Cl, Ferreira, J., July 14, 2011]). Thus, only the assault and battery claim portion of the fifth cause of action survives after the Court's July 14, 2011 Decision and Order. Indeed, at trial, the crux of claimant's proof centered on establishing assault and battery.
Based upon these principles and their application to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence and the testimony and demeanor of the witnesses, the Court finds that claimant has not proven his fifth cause of action sounding in assault and battery against defendant by a preponderance of the credible evidence. Preliminarily, the Court notes that in viewing the evidence, it is confronted with two sharply different accounts of claimant's interaction with Roggemann during the period from May through September 1998. In assessing the credibility of the testimony from both claimant and Roggemann, the Court cannot ignore the uncontroverted fact that claimant reported his complaints of inappropriate verbal comments and physical contact by Roggemann to Hospital officials only after he learned that he would be terminated for his poor attendance record. Specifically, claimant acknowledged that he met with Santora and filed a complaint with the Hospital's Office of Diversity and Affirmative Action after learning from Roggemann that his probationary employment status would be terminated, and stated further that this was the first time he had ever made a complaint, or filed any complaint, about Roggemann's alleged conduct (Tr. 66-69). Santora testified similarly that she met claimant for the first time after he had learned he was being fired and that she had never previously received any similar complaint about Roggemann (Tr. 205-209). Claimant also filed an EEOC charge and criminal complaint months after his termination of employment (Tr. 75-79; see defendant's exhibits N, O, P and Q). The Court finds the fact that claimant waited until after learning his job was in peril to report these serious allegations severely undercuts his testimony that these incidents ever occurred.
In any event, turning to the allegations of assault, the Court finds no credible evidence that claimant was ever "in imminent apprehension of harmful contact" (Marilyn S. v Independent Group Home Living Program, Inc., 73 AD3d at 894 [internal quotation marks omitted]). Regarding the comments Roggemann allegedly made about putting claimant over his lap and "spanking" him or pinching his buttocks if claimant wrote on the schedule board, while totally inappropriate if true, the Court does not see how such comments even if stated placed claimant in imminentapprehension of harmful contact (see Higgins v Hamilton, 18 AD3d at 436; Hassan v Marriott Corp., 243 AD2d 406, 407 [2d Dept 1997]; Hayes v Schultz, 150 AD2d 522, 523 [2d Dept 1989]; see also Restatement [Second] of Torts § 21 [1] [1965]). While claimant testified that the alleged comments were "[a]bsolutely not" appropriate, claimant never testified, nor was there any proof, that claimant believed he was in immediate fear of being pinched or spanked when such comments were made. In fact, with regard to claimant's allegation that, when Roggemann left work, he would purportedly rub claimant's neck and wish him a good night, claimant testified that "I said, wow, he's a nice guy" (Tr. 21). Additionally, claimant offered no corroborating testimony or evidence that such comments were uttered, even though the comment regarding spanking occurred at the nurse's station, which was apparently a busy section on 17 South, and claimant could not state with any reasonable certainty when the offensive remarks were made. Accordingly, the Court finds no credible evidence proving assault.
As to the battery claim, the Court finds claimant not credible and insufficient proof to establish that such physical contact occurred. Insofar as the neck rub that occurred, according to claimant whenever Roggemann left work, and putting aside the question of whether such contact was "wrongful under all of the circumstances" (Zgraggen v Wilsey, 200 AD2d at 819), no other testimony was proffered to corroborate claimant's contention. The Court finds it implausible that if such physical contact was occurring at work on a daily basis, claimant would not have reported it or co-workers would not have witnessed it and reported it.
As for the touching or grabbing of claimant's buttock, the Court again finds claimant's version of events neither credible nor supported by the evidence. Claimant stated that, after leaving Roggemann's office, Roggemann followed him and Espinosa out of the office, and, as they approached an elevator, Roggemann "grabbed my right buttocks, my right hiney" (Tr. 21). Claimant's testimony as to when such contact occurred, however, varied during the trial from sometime between July and September 1998, to late summer, to August 1998. Espinosa, who the Court found credible, testified that he never observed any such physical contact and testified that claimant was laughing when he told him the touching had happened and that he thought claimant was just joking around. Although claimant testified that he was "cursing" and upset after the incident, the record is clear that claimant made no complaint to Hospital officials until after learning that he was being terminated. Claimant's failure to recall when the contact occurred and his waiting to report the incident until after his employment was in jeopardy undermine the veracity of his allegations. Coupled with Espinosa's contradictory testimony, the lack of testimony from any other workers near the nurse's station when the alleged touching occurred, and Roggemann's forceful denials of ever making offensive comments or inappropriate physical contact (and the absence of any evidence that Roggemann had ever engaged in such conduct with any person at the Hospital), the Court finds no evidence to support the battery claim.
While claimant argues that Espinosa is not credible because Espinosa received several in-house promotions since August 1998, the Court finds otherwise. Espinosa, who has been serving as a head nurse at the Hospital since May 2006, testified credibly that the series of promotions he received, including his promotion on August 6, 1998, were due to applying for positions and passing examinations; no credible evidence was proffered to rebut this testimony or suggest that these promotions were due to Roggemann's influence or actions. The Court notes further that Espinosa's testimony that he never observed any such touching, that claimant was laughing when he told him about it, and that claimant never mentioned it or complained about Roggemann to him again, and that he saw no change in the relationship between claimant and Roggemann after the alleged incident, is generally consistent with his written statement given to the Suffolk County Police in November 1998 (see defendant's exhibit Q).
Finally, even assuming that the events as alleged by claimant took place, in view of the evidence before the Court, defendant may not be held liable. " 'Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment' " (Lombardo v Mastec N. Am., Inc., 68 AD3d 935, 937 [2d Dept 2009], quoting Fernandez v Rustic Inn, Inc., 60 AD3d 893, 896 [2d Dept 2009]). "Pursuant to the doctrine, 'the employer may be held liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment' " (Fernandez v Rustic Inn, Inc., 60 AD3d at 896, quoting Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). "However, liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business" (Fernandez v Rustic Inn, Inc., 60 AD3d at 896; see Escobar v Spartan Assemblies, 267 AD2d 272, 273 [2d Dept 1999]; Hahne v State of New York, 290 AD2d 858, 859 [3d Dept 2002]). More pointedly, "[a] sexual assault perpetrated by a hospital employee is not in furtherance of hospital business and is a clear departure from the scope of employment, having been committed for wholly personal motives" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2d Dept 2002]; see McKay v Healthcare Underwriters Mut. Ins. Co., 295 AD2d 686, 687 [3d Dept 2002], lv denied 99 NY2d 503 [2002]; Shantelle S. v State of New York, 11 Misc 3d 1088[A], 2006 NY Slip Op 50768 [U] [Ct Cl 2006]).
Here, no evidence was proffered establishing that the alleged conduct by Roggemann was an incident of his employment at the Hospital, and moreover, in no conceivable way, could such alleged conduct be considered in furtherance of the Hospital's business (see Conde v Yeshiva Univ., 16 AD3d 185, 187 [1st Dept 2005] [Court finds that university could not be found liable for acts of employee where employee "clearly acted beyond the scope of his employment, motivated by private concerns that were not even remotely related to any conduct YU could have foreseen in the performance of his duties"]; see also Doe v Rohan, 17 AD3d 509 [2d Dept 2005], lv denied 6 NY3d 701 [2005]; Bowman v State of New York, 10 AD3d 315 [1st Dept 2004]; McKay v Healthcare Underwriters Mut. Ins. Co., 295 AD2d at 687). Thus, for this reason as well, claimant's cause of action sounding in assault and battery must be dismissed.
Seventh Cause of Action
In his final cause of action, claimant alleges that defendant breached the CBA between defendant and Hospital employees, which prohibits discrimination in employment based upon sexual orientation, when it terminated claimant's employment based upon his sexual orientation (see defendant's exhibit I1, Article 25, §25.2). " 'As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to that agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract' " (Ambrosino v Village of Bronxville, 58 AD3d 649, 651 [2d Dept 2009], quoting Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 [1987], cert denied sub nom. Margolin v Board of Educ., Commack Union Free School Dist., 485 US 1034 [1988]; see Valentin v Staten Is. Univ. Hosp., 23 Misc 3d 1128[A], 2009 NY Slip Op 50977[U] [Sup Ct, Richmond County 2009]). "Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer" (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d at 508). Thus,
"[t]his Court has jurisdiction to hear claims brought by State employees based on allegations that their employer, the State of New York, has breached the provisions of a collective bargaining agreement. However, in order to adequately plead or to succeed in proving such a claim, it must be alleged and later established as a threshold requirement, that the employee's union breached its duty of fair representation toward him or her."
(Walsh v State of New York, UID No. 2003-032-072 [Ct Cl, Hard, J., July 29, 2003] [internal citations omitted] [emphasis added]; see Ahrens v State of New York, 143 Misc 2d 310 [Ct Cl 1989]; Shah v State of New York, 140 Misc 2d 16 [Ct Cl 1988]).
In the case at bar, claimant proffered no evidence to show that the union violated its duty to provide fair representation to claimant, and thus, in the absence of such evidence, claimant is precluded from bringing this cause of action against defendant. In fact, to the contrary, Holland, the CSEA officer who served as claimant's representative at claimant's probationary review on October 1, 1998, testified that he first learned of the sexual harassment allegation at the probationary review and that the union found no support for the charge (Tr. II. 12-14; defendant's exhibit G).
Claimant also offers no support or argument with respect to this cause of action in his post-trial memorandum.
The record also shows that claimant's allegations of sexual harassment were investigated by the Hospital and determined to be unfounded, and that Hospital officials took appropriate action, including transferring claimant to a different unit, after the allegations were first raised to Hospital officials.
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Finally, it bears mention that there was overwhelming evidence to support the Hospital's finding that claimant's probationary appointment should be terminated because of time and attendance problems. The record shows numerous unauthorized absences between January and September 1998, warnings from both his supervisors during that time frame to improve his attendance, informal and formal counseling sessions with claimant regarding his attendance issues, and testimony that attendance problems could provide grounds for terminating an employee with a probationary appointment.
Thus, for the aforementioned reasons, the Court concludes that claimant has failed to prove the fifth and seventh causes of action by a preponderance of the credible evidence. Accordingly, the claim is dismissed in its entirety. Any other motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
August 30, 2013
Albany, New York
James H. Ferreira
Judge of the Court of Claims