CLAIMS JUDICIAL SABOTAGE: After Exposing Racism At State Agency, Harlem Man Claims Judges Crush His Case By Denying Jury Trial Six Years Later

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[The Black Star News Investigates]

Carl Finn. Photo credit: Nate Adams

Harlem Man Smells 'Conspiracy' In His Case

After fighting for justice for six years has Carl Finn reached the end of the line? Finn says he was fired when he exposed discrimination against Black employees at a New York State agency.

And, even though an appellate court recently declined to hear his case after it was dismissed on a summary judgment motion, the Harlem resident says he won't throw in the towel. "The courts knew I had a solid case and yet judges denied me a day before a jury," he says. "At every stage, the courts subverted justice."

The U.S. Court of Appeals of the Southern District of New York recently declined his motion for oral argument for reconsideration. The court had also earlier denied his appeal of the District Court's ruling dismissing the case.

Carl Finn's story starts in 2005, when he joined the Rockland Psychiatric Center, a unit of the New York State Office of Mental Health. There, he says, he quickly found out that East Indian and White employees were favored in hiring, promotions, and overtime hours allotment over Blacks. "African Americans were the last to receive equal overtime as opposed to Whites and East Indians. Blacks were also not promoted as East Indians and Whites were," he says.

Even after Black employees passed Civil Service exams for promotions, they were held back in their same positions, sometimes for as long as two years, he says. East Indians and Whites, on the other hand, were promptly promoted. 

After he constantly complained about this blatant pattern of discrimination, he was threatened with dismissal and ultimately fired on December 18, 2006, Finn says.

He filed a complaint with The New York State Division of Human Rights, before he was fired, and the division concluded he had probable cause to support his allegations. "The data proves my allegations," Finn says. "That's why the Division of human rights found probable cause."

The official reason management gave for his December termination was that he had engaged in a verbal altercation with two other employees, on December 17, 2006, Finn says. "It was a set up. They were hoping I would throw a punch at the fellow employee who was notorious for assaulting fellow workers over a 10 year period," he says. "In any case, I was never afforded due process so how could you fire me based on someone else's allegations?"

Finn says he made numerous complaints about the overtime, promotion and hiring discrimination, including to James Bopp, the director at Rockland Psychiatric Center.  He also tried to mobilize other co-workers to complain about the discrimination.  

On the day he was fired, when he came to work, Finn posted six flyers on the walls, to encourage other employees who were willing to fight for their rights and against discrimination, to step forward and contact the Nyack, New York, chapter of the NAACP. Employees who had been denied overtime and promotions were urged to contact the chapter's President Frances Pratt, and her phone number was included. 

When The Black Star News reached her by telephone, Pratt, who at the time did arrange a meeting with the management says she did the best she could to get the agency to address Finn's grievance. "My hands were tied," she says. 

Finn believes the flyers he posted was the last straw for management. "My flyer also referred to management as a bunch of racist cowards who hid behind their office titles and condoned the illegal practices," Finn recalls. He listed the names of the managers he claimed condoned the discrimination, on the flyer. They were: The Executive Director, Bopp; Human Resources and Personnel Director Jerry Forman; Deputy Director of Administrative Services David Carabello; and, Director of Administrative Services, James Gewirtzmann.   

Finn was summoned to the office of Nirijana Patel, head of the Nutrition Department, where he worked as a food services employee, and he was handed a letter stating that he was on administrative suspension. "I was penalized for exercising my right to free speech," he says.  

Prior to the suspension, Finn had been called for a disciplinary hearing after, he says, a supervisor "falsely accused me of threatening another employee."

So in January 2007, when Finn was called in for another internal hearing in connection, he says, with the flyer incident, although he did appear, he objected that he was being subjected to two hearings on two separate matters. "The department's own rules and regulations prohibited a second disciplinary hearing before a pending one has been resolved," he says.

"They realized they had violated my first amendment rights to free speech by firing me after I posted the flyers on the walls. Now they wanted to make it look like it was because of an argument with co-workers," Finn says.

"I made my objections known to Brenda Gamble, the president of union, Local 421 CSEA, and Jerry Forman the human resources and personnel director and Larry Decker, the labor relations specialist," he says. "I was aware of the rules and regulations against initiating a second procedure before resolving a pending one."

Dr. Christopher Travella, the current director of Rockland Psychiatric Center didn't return a recent call from The Black Star News, seeking comment. Jerry Forman, head of human resources and personnel director, also didn't return a message seeking comment. 

After his termination, the Office of Mental Health tried blocking Finn's unemployment insurance benefits claim contending he had been terminated for "misconduct" and that he had abandoned the internal hearing.

Teresa DeMeo, an administrative law judge at the New York State Unemployment Insurance Appeal Board, ruled in Finn's favor. She agreed that he had asked for adjournments so he could hire a lawyer. 

"Moreover, the claimant has established that the employer had reason to misrepresent events after it learned that his Human Rights complaint filed a month prior to suspension, for which probable cause was later found by the agency," Judge DeMeo concluded, in a clear rebuke to Finn's employer.

Judge DeMeo went further, even touching on merits of Finn's discrimination allegations. The judge noted that after an investigation, NY Division of Human Rights "concluded that probable cause existed to support the claimaint's complaint made a month prior to suspension that the employer was engaging in unlawful racial discrimination relating to his employment."

"After Judge DeMeo, I thought I was getting closer to justice," Finn recalls.

In January, 2008, Finn was informed of a hearing date before an Administrative- Law Judge of the New York State Division of Human Rights, Judge Thomas J. Marlow. 

On the Friday before the hearing, scheduled for January 7, Finn says he got a phone call from a lawyer with the Division of Human Rights named Angela Dougan-Sherrer. "She told me she was taking over my case. This was out of the clear blue sky. I had never met with her to discuss my case and she wasn't familiar with it," he says.

Finn says before the sudden last-minute switch, he had been dealing with another lawyer named Bellew McMannus, who had handled his case.  

On January 7, Dougan-Sherrer herself, who had said she was the new lawyer,  didn't show up, Finn recalls.

Instead, he was approached by the Division of Human Rights (DHR) Deputy Commissioner, Thomas Shanahan, who informed him that Finn would not have a hearing that morning. "He accused me of threatening Angela Dougan-Sherrer when I spoke with her on the phone on the Friday before the hearing," Finn said. "That I had allegedly threatened to come after her and her family. What he said was outrageous and preposterous." 

Finn continues: "Think about it. If I had threatened Dougan-Shearer don't you think she would have called the police that same date? Why didn't the police come to my home that Friday? Why didn't the police come to arrest me on Monday, when I showed up for the hearing? Couldn't they have found a better way to throw my case?"

Shortly thereafter Finn received a letter from the Division of Human Rights informing him that his case had been dismissed for "administrative convenience" -- allegedly, for "non-cooperation" on his part. An  administrative law judge, Thomas J. Marlow, granted the Division's request to dismiss the case.   

Latisha Theodore Green, the deputy commissioner of external affairs at the New York State Division of Human Rights didn't return a phone message from The Black Star News, seeking comment for this article.

"I was devastated but I didn't give up," Finn recalls. 

Representing himself, Finn filed an Article 78 motion asking the New York State Supreme Court to review Judge Marlow's decision. Finn maintained that his First Amendment, Fifth Amendment, and, Fourteenth Amendment rights, had been violated.  

There was a hearing on June 4, 2008, before State Supreme Court Justice Eileen A. Rakower,  with Finn representing himself, and the state represented by Michael Swirsky, lead attorney for the New York State Division of Human Rights. 

Justice Rakower reversed Judge Marlow's decision. Although the Division of Human Rights had the power to recommend that a case be dismissed for "administrative convenience," Justice Rakower wrote, "its authority is not unfettered." 

The Division of Human Rights had claimed that when told that Dougan-Sherrer would be his new lawyer, Finn became "angry, loud, very hostile and threatened to physically harm her and her family."

Justice Rakower concluded: "The Division does not explain how Mr. Finn's statements either made him unavailable or unwilling to attend a hearing, or how holding a hearing would not benefit him or how processing his complaint would not advance the State's human rights goals."

"The judge ordered the Division of Human Rights to put my case back on the calendar," Finn recalls.

This time Finn decided to hire a private attorney, Steven Seltzer, of Manhattan, to file his case in Federal court under Title VII, which prohibits employment discrimination based on race,  religion, sex, national origin, and disabilities.  "I didn't want my case to be sabotaged in State Supreme Court again," he recalls.

In May 2008, Finn filed a lawsuit in U.S. Federal District Court, in White Plains, New York, naming as defendants: Rockland County New York State office of Mental Health; New York State Office of Mental Health; Jerome Forman, the director of human resources and personnel at Rockland; Osmond Clarke, the supervising cook at Rockland; and, Niranjana Patel, head of nutrition department at Rockland.

Finn says "this was the beginning of the true nightmare."

"The State of New York stalled and delayed my case from going forward for three and half years through multiple adjournments granted by Federal District Judge Kenneth M. Karas," Finn says.  

He says Joanne Skolnick, the assistant attorney general handling the case, asked for numerous adjournments,  claiming she was sick with a foot ailment. "She did not produce any medical records. The judge kept granting it as if she was the only assistant attorney general who could have argued the case," Finn says. 

The deposition and discovery started in 2009 before Magistrate Judge Paul E. Davidson. The state tried to get the case dismissed numerous times between January 14, 2010 and April 1, 2010. Judge Davidson denied the motions.

Finn says Skolnick also intimidated witnesses. Records show that Finn's attorney, Seltzer, also complained at one point to the judge that Skolnick had practically hijacked one female witness whom he had subpoenaed, Mary Durandisse, in the middle of a deposition hearing on May 25, 2010 and taken her to the bathroom where Seltzer could not follow. Durandisse was a junior supervisor who had worked at Rockland for 25 years. 

In a Declaration to the court dated November 22, 2010, Seltzer said after he had insisted that he would have to be in on any conversation during the deposition, Skolnick "instructed the witness to go with her and physically escorted the witness to the elevator and down to the ground floor" lobby. When Seltzer followed, Skolnick and Durandisse returned to the elevator and all the parties rode back upstairs whereupon, Skolnick "and the witness both simultaneously entered the women's restroom."  

The state once again asked for the case to be dismissed. On February 1, 2011, there was a preliminary conference for trial before District Court Judge Karas. 

Another assistant attorney general, Joshua Pepper, was now handling the case on behalf of the state.

Finn says his lawyer, Seltzer, protested when Judge Karas basically instructed Joshua Pepper, on how he wanted the state's summary judgment motion to be filed.

He says Seltzer also objected when Judge Karas consented to Pepper request to refer to the flyer incident in his summary judgment brief; Seltzer felt that only a jury could decide whether that was protected speech.

The opposing parties then departed to await instruction from Judge Karas on a date for the oral arguments for the summary judgment brief and the answer.   

Over the next nine months, there was no oral argument or any additional appearance before Judge Karas. The case had been transferred to Judge Louis Vincent Brichetti, who granted the state's summary judgment motion without any further hearings.

"He held no oral argument on the pending summary judgment motion. He simply dismissed the case," Finn says. "He took over the duties of the jury and sided with the defendants without giving me my day in court."

When asked why Judge Brichetti dismissed the case without oral argument, Stephanie Circovich, the spokesperson for the U.S. Southern District Court of New York says "We don't comment" on a ruling.

Justice Karas, the original judge on the case, didn't return a phone message from The Black Star News, seeking comment for this article.

On March 29, 2012, Finn's attorney, Seltzer, filed an appeal with the New York State Court of Appeals for the Second Circuit, asking it to reverse Judge Brichetti's ruling. 

A three-judge panel -- Justices Jose A. Cabranes; Reena Raggi; and, Peter W. Hall -- affirmed Judge Brichetti's ruling on December 10, 2012 in a summary order.

In part, the judges wrote that "the District Court held that Finn had not shown a genuine dispute of fact regarding alleged discrimination in RPC's overtime distribution" and added that "the differences in overtime hours were minimal to begin with, and are easily explained by the higher rate at which African-American employees declined overtime opportunities."

Regarding Finn's retaliation claim, under Title VII, the appellate judges wrote that the "defendants have provided nonretaliatory reasons for Finn's termination, and Finn has not pointed to evidence that reasonably supports a finding of unlawful retaliation." 

When it came to the flyers Finn had posted at work urging co-workers to join him in reporting the alleged discrimination at Rockland Psychiatric, and Finn's contention that his First Amendment rights had been violated, the appellate judges ruled that Finn's speech was "threatening, rude, and offensive." 

"Having reviewed the record, we conclude that no reasonable jury could find that Finn was retaliated against because of protected speech," the appellate judges wrote.

When reached by telephone, Catherine O'Hagen Wolfe, a spokesperson for the Court of Appeals, Second Circuit, said: "The court speaks by its decision and we won't have a comment beyond that."

"First of all, New York State's own Department of Human Rights found in their investigation that in fact there was widespread overtime discrimination, so how can the lower court and appellate judges find otherwise?" Finn says. "Even better, I encourage African American past and current victims of overtime pay discrimination, promotion denials, and illegal hiring practices at Rockland Psychiatric Center to come forward."

Finn's attorney, Seltzer, filed an appeal, asking for a rehearing; the same three appellate judges denied the petition on February 5, 2013.

"Despite our best efforts and our belief in the merits of Mr. Finn's claims the Second Circuit unfortunately disagreed with our position," Seltzer, the attorney, tells The Black Star News. "As the attorney on the matter, I respect the second circuit's conclusion."

Finn says "to add insult to injury" the State Attorney General has sent him a bill for $6,404.22 claiming it's the amount that the government is owed in printing and copying costs for the documents in connection with the case.

When reached by telephone, Joshua Pepper, the assistant attorney general, declined to comment. 

"This battle is not over," Finn says. "This is nothing but a clear conspiracy to keep me away from a jury trial."

 

Comments on this article can be submitted to Milton@blackstarnews.com 

 

 

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