Preview
FILED: WAYNE COUNTY CLERK 05/18/2021 01:51 PM INDEX NO. CV087171
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WAYNE
X
In the Matter of the Application of
KURT D. THOMANN
Petitioner, VERIFIED PETITION
- against - Index No.:
BARRY VIRTS, Wayne County Sheriff,
Respondent,
For a Judgment Pursuant to Article 78 of the
Civil Practice Law and Rules.
X
Petitioner, Kurt D. Thomann, by his attorney, Jeffrey Wicks, PLLC, as and for his
Verified Petition in the above-captioned proceeding, respectfully alleges as to his own
conduct, and upon information and belief as to the conduct of others and matters of
public record, as follows:
PARTIES TO THE ACTION
1. At all times material and hereinafter mentioned, Petitioner Kurt D.
Thomann (hereafter “Petitioner”) was employed by the Wayne County Office of Sheriff
as a Correction Officer.
2. At all times material and hereinafter mentioned, Respondent Barry Virts
(hereafter “Respondent Virts”) has been the duly elected Sheriff of Wayne County with a
principal place of business at 7376 NY-31, Lyons, NY 14489.
JURISDICTION AND VENUE
3. This Court has jurisdiction pursuant to CPLR §3001.
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4. This Court also has jurisdiction pursuant to CPLR §§7801-7806 to review
determinations by bodies or officers which are in violation of lawful procedure, arbitrary
or capricious.
5. Pursuant to CPLR §§504 and 506, the venue of this proceeding is Wayne
County, the county where Petitioner and Respondent reside and where the
determinations challenged by this proceeding were made.
FACTS
6. The Petitioner graduated from the Correction Officer academy and, on
September 30, 2017 commenced employment as a part-time Correction Officer at the
Wayne County Jail, which is operated by the Respondent Virts. The Petitioner became
a full-time employee on February 2, 2018.
7. The Petitioner performed his duties in an exemplary fashion, receiving
only one warning for being several minutes late for his rounds.
8. On December 29, 2020, the Petitioner was at work and was engaged in a
political conversation with a fellow correction officer.
9. In the course of that conversation, the Petitioner referred to Michele
Obama as “a gorilla-faced racist”.
10. The officer to whom the Petitioner was speaking is not African-American,
nor was anyone who overheard the Petitioner’s statement.
11. Following the Petitioner’s statement, the other officer walked away and
made no reply to the Petitioner.
12. There was no physical altercation at that time, or any other time as a
result of the Petitioner’s statement.
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13. The following day, the Petitioner e-mailed the other officer and apologized
for his comment, which he characterized as “ignorant”.
14. On January 4, 2021, the Petitioner received a counseling memorandum
from his supervisor, Sgt. Verkey, stating that he had allegedly violated General Order
100.40, which prohibits “workplace violence” (see Exhibit A).
15. On January 6, 2021, the Petitioner received a Notice of Discipline from
the Respondent (see Disciplinary 281-2021, Exhibit B).
16. On January 11,2021, a Preliminary Disciplinary Hearing was held,
following which the Respondent Virts terminated the Petitioner’s employment, effective
January 13, 2021 (see Exhibit C).
17. In his decision, Respondent Virts specifically noted that three other Wayne
County correction officers had previously been disciplined for making derogatory,
biased, discriminatory and/or insulting statements (see Exhibit C, p.2).
18. In one instance, the correction officer used racial slurs to another
employee (see Exhibit C, p.2).
19. In none of the foregoing instances was the correction officer terminated
from employment.
20. More specifically, one officer received a five day suspension without pay
Cultural Diversity Training and was removed from the Emergency Response Team.
21. The second officer received a Letter of Reprimand and Cultural Diversity
Training.
22. The third officer, who uttered the racial slur, received a five day
suspension and Cultural Diversity Training.
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23. Respondent Virts specifically noted the disparate treatment received by
these officers and stated “the previous disciplinary sanctions imposed upon [the other
officers] would have been handled differently today”.
24. The last of the disciplinary infractions was only four years prior to the
Petitioner’s disciplinary infraction.
25. The Respondent Virts was the Wayne County Sheriff at the time of the
disciplinary infractions against all three officers
26. The Respondent Virts did not specify the manner in which such cases
would have been handled, the reason why they would have been handled differently or
the penalties he would have imposed.
27. The Petitioner thereafter filed a grievance with the Wayne County
Grievance Board, which was denied on February 3, 2021 (see Exhibit D).
28. The Petitioner has exhausted all of his administrative remedies.
AS AND FOR A CAUSE OF ACTION
PURSUANT TO C.P.L.R. §7803(3)
29. The Petitioner re-alleges the preceding paragraphs as if set forth in full
herein.
30. As set forth in the accompanying Memorandum of Law, the sanction of
termination from employment for the use of a single racial slur by an employee is so
disproportionate to the offense as to shock the conscience and constitute an abuse of
discretion as a matter of law.
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31. A review of the pertinent judicial authorities reveals that the most extreme
sanction which has been upheld by the courts for such offenses is a short-term
suspension from duty.
32. In addition, the Respondent Virts has acknowledged that he has imposed
vastly different penalties on employees who have committed similar offenses in the
past, saying only that, for unspecified reason, he has changed his mind about what the
appropriate penalty should be.
33. Based upon the foregoing, the Petitioner respectfully submits that the
penalty of termination from employment is arbitrary, capricious and an abuse of
discretion and judgment should be entered vacating this determination pursuant to
C.P.L.R. §7803(3).
Dated: April 26, 2021
Charles D/Steinman, Esq.
JEFFREY WICKS, PLLC
Attorneys for Petitioner
36 W. Main St., Suite 101
Rochester, New York 14614
Tel.: (585) 325-6070
e-mail: iwicks@wickslaw.net
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VERIFICATION
STATE OF NEVVYORK)
COUNTY OF ) ss.:
KURT D. THOMANN, being duly sworn, deposes and says that:
I am the Petitioner. I have read the foregoing Petition and know the contents thereof.
The same are true to my knowledge, except as to matters therein stated to be alleged
on information and belief and as to those matters I believe them to be true. To the best
of my knowledge, information and belief, formed after an inquiry reasonable under the
circumstances, the presentation of these papers or the contentions therein are not
frivolous as defined in subsection (c) of section 130-1.1 of the Rules of the Chief
Administrator (22 NYCRR).
KURT D. THOMANN
rj{
Sworn to before me this./
day of (1*7,2021.
ebru ekener le
Notary Public, State of New York
No. 01EK6344867
Qualified in Ontario County
Commission Expires July 11,
Notary Public
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Preview
FILED: WAYNE COUNTY CLERK 05/18/2021 01:51 PM INDEX NO. CV087171 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WAYNE X In the Matter of the Application of KURT D. THOMANN Petitioner, VERIFIED PETITION - against - Index No.: BARRY VIRTS, Wayne County Sheriff, Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. X Petitioner, Kurt D. Thomann, by his attorney, Jeffrey Wicks, PLLC, as and for his Verified Petition in the above-captioned proceeding, respectfully alleges as to his own conduct, and upon information and belief as to the conduct of others and matters of public record, as follows: PARTIES TO THE ACTION 1. At all times material and hereinafter mentioned, Petitioner Kurt D. Thomann (hereafter “Petitioner”) was employed by the Wayne County Office of Sheriff as a Correction Officer. 2. At all times material and hereinafter mentioned, Respondent Barry Virts (hereafter “Respondent Virts”) has been the duly elected Sheriff of Wayne County with a principal place of business at 7376 NY-31, Lyons, NY 14489. JURISDICTION AND VENUE 3. This Court has jurisdiction pursuant to CPLR §3001. 1 1 of 6 FILED: WAYNE COUNTY CLERK 05/18/2021 01:51 PM INDEX NO. CV087171 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2021 4. This Court also has jurisdiction pursuant to CPLR §§7801-7806 to review determinations by bodies or officers which are in violation of lawful procedure, arbitrary or capricious. 5. Pursuant to CPLR §§504 and 506, the venue of this proceeding is Wayne County, the county where Petitioner and Respondent reside and where the determinations challenged by this proceeding were made. FACTS 6. The Petitioner graduated from the Correction Officer academy and, on September 30, 2017 commenced employment as a part-time Correction Officer at the Wayne County Jail, which is operated by the Respondent Virts. The Petitioner became a full-time employee on February 2, 2018. 7. The Petitioner performed his duties in an exemplary fashion, receiving only one warning for being several minutes late for his rounds. 8. On December 29, 2020, the Petitioner was at work and was engaged in a political conversation with a fellow correction officer. 9. In the course of that conversation, the Petitioner referred to Michele Obama as “a gorilla-faced racist”. 10. The officer to whom the Petitioner was speaking is not African-American, nor was anyone who overheard the Petitioner’s statement. 11. Following the Petitioner’s statement, the other officer walked away and made no reply to the Petitioner. 12. There was no physical altercation at that time, or any other time as a result of the Petitioner’s statement. 2 2 of 6 FILED: WAYNE COUNTY CLERK 05/18/2021 01:51 PM INDEX NO. CV087171 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2021 13. The following day, the Petitioner e-mailed the other officer and apologized for his comment, which he characterized as “ignorant”. 14. On January 4, 2021, the Petitioner received a counseling memorandum from his supervisor, Sgt. Verkey, stating that he had allegedly violated General Order 100.40, which prohibits “workplace violence” (see Exhibit A). 15. On January 6, 2021, the Petitioner received a Notice of Discipline from the Respondent (see Disciplinary 281-2021, Exhibit B). 16. On January 11,2021, a Preliminary Disciplinary Hearing was held, following which the Respondent Virts terminated the Petitioner’s employment, effective January 13, 2021 (see Exhibit C). 17. In his decision, Respondent Virts specifically noted that three other Wayne County correction officers had previously been disciplined for making derogatory, biased, discriminatory and/or insulting statements (see Exhibit C, p.2). 18. In one instance, the correction officer used racial slurs to another employee (see Exhibit C, p.2). 19. In none of the foregoing instances was the correction officer terminated from employment. 20. More specifically, one officer received a five day suspension without pay Cultural Diversity Training and was removed from the Emergency Response Team. 21. The second officer received a Letter of Reprimand and Cultural Diversity Training. 22. The third officer, who uttered the racial slur, received a five day suspension and Cultural Diversity Training. 3 3 of 6 FILED: WAYNE COUNTY CLERK 05/18/2021 01:51 PM INDEX NO. CV087171 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2021 23. Respondent Virts specifically noted the disparate treatment received by these officers and stated “the previous disciplinary sanctions imposed upon [the other officers] would have been handled differently today”. 24. The last of the disciplinary infractions was only four years prior to the Petitioner’s disciplinary infraction. 25. The Respondent Virts was the Wayne County Sheriff at the time of the disciplinary infractions against all three officers 26. The Respondent Virts did not specify the manner in which such cases would have been handled, the reason why they would have been handled differently or the penalties he would have imposed. 27. The Petitioner thereafter filed a grievance with the Wayne County Grievance Board, which was denied on February 3, 2021 (see Exhibit D). 28. The Petitioner has exhausted all of his administrative remedies. AS AND FOR A CAUSE OF ACTION PURSUANT TO C.P.L.R. §7803(3) 29. The Petitioner re-alleges the preceding paragraphs as if set forth in full herein. 30. As set forth in the accompanying Memorandum of Law, the sanction of termination from employment for the use of a single racial slur by an employee is so disproportionate to the offense as to shock the conscience and constitute an abuse of discretion as a matter of law. 4 4 of 6 FILED: WAYNE COUNTY CLERK 05/18/2021 01:51 PM INDEX NO. CV087171 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2021 31. A review of the pertinent judicial authorities reveals that the most extreme sanction which has been upheld by the courts for such offenses is a short-term suspension from duty. 32. In addition, the Respondent Virts has acknowledged that he has imposed vastly different penalties on employees who have committed similar offenses in the past, saying only that, for unspecified reason, he has changed his mind about what the appropriate penalty should be. 33. Based upon the foregoing, the Petitioner respectfully submits that the penalty of termination from employment is arbitrary, capricious and an abuse of discretion and judgment should be entered vacating this determination pursuant to C.P.L.R. §7803(3). Dated: April 26, 2021 Charles D/Steinman, Esq. JEFFREY WICKS, PLLC Attorneys for Petitioner 36 W. Main St., Suite 101 Rochester, New York 14614 Tel.: (585) 325-6070 e-mail: iwicks@wickslaw.net 5 5 of 6 FILED: WAYNE COUNTY CLERK 05/18/2021 01:51 PM INDEX NO. CV087171 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/18/2021 VERIFICATION STATE OF NEVVYORK) COUNTY OF ) ss.: KURT D. THOMANN, being duly sworn, deposes and says that: I am the Petitioner. I have read the foregoing Petition and know the contents thereof. The same are true to my knowledge, except as to matters therein stated to be alleged on information and belief and as to those matters I believe them to be true. To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of these papers or the contentions therein are not frivolous as defined in subsection (c) of section 130-1.1 of the Rules of the Chief Administrator (22 NYCRR). KURT D. THOMANN rj{ Sworn to before me this./ day of (1*7,2021. ebru ekener le Notary Public, State of New York No. 01EK6344867 Qualified in Ontario County Commission Expires July 11, Notary Public 6 6 of 6