This is the decision following the liability trial of Walter Foley's claim that while employed at Creedmoor Psychiatric Center, he was subject to discrimination and a hostile work environment because of his age.

At the time of trial, Mr. Foley was a safety officer, 62-years old, who had been at Creedmoor for 20 years. Officer Foley's case centers on the actions and statements of Stephen Critelli, who was claimant's supervisor from 2006 to 2015,^[FN2] and held the rank of sergeant.

Sgt. Critelli testified that "me and Walter worked together for a long time . . . more than 15 years."^[FN3] When Critelli advanced to the rank of sergeant, he became claimant's supervisor while they were working the same tour of duty. Foley testified that beginning about five years earlier, "The feeling . . . that I got was that I was getting too old for him," and that Critelli, who was only two years younger than claimant, preferred the company of younger officers.

Davie Olivo, a Creedmoor safety officer since 2007, who was supervised by Critelli until the sergeant retired, noted that Walter Foley was called the "mayor of the south campus" because he does his job there very well. Officer Olivo remembers Critelli telling claimant to "Shut the f—k up."

Hilario Fournier, a safety officer at Creedmoor from 2010 to 2014 (and then at another State facility) testified that Critelli was "like a drill sergeant in a way . . . [but] he went a little bit overboard." Officer Fournier implied that any safety officer could be on the receiving end, but it was claimant more so than others, especially with comments on his uniform, which was a standard item on claimant's annual evaluations for years.

Fournier said the sergeant would make critical comments in front of others, "degrading the person." Fournier testified that Critelli "used to curse" at Foley, although he could not recall any specifics.

Dr. Irwin Elstein, a physician at Creedmoor, would see Foley about twice a week and call him if he needed assistance with a patient. Dr. Elstein had a favorable opinion of Walter Foley: "he works very well . . . he's very good at what he does." One day in 2013, during a lunch break, Dr. Elstein was talking with claimant out of doors, Critelli came by and turned to Foley, saying, "Shut the f- -k up."

For his part, the sergeant testified that he did not treat Foley differently from any other safety officer under his supervision. As for cursing at Officer Foley:

"Q. . . . Did you ever curse at him?

A. Over the course of 15 years, I'm sure I have.

Q. . . . Do you recall any specific instance of having done so?

A. No."

Sgt. Critelli testified he and Foley, on numerous occasions, noted that they were both getting old, talked about their grandchildren, recalling that he would remark, "we're old men now." Claimant testified about a more pointed reference: Critelli holding the door and saying, "come on, old man."

Once while Foley was waiting for the much younger Officer Acevado, who had made an arrest and effectively stood in for him, Critelli commented "Foley, how does it feel to be 20 years younger?" On another occasion, at a pre-shift briefing, Critelli said, "[T]here's an old man driving a green Scion. I don't mean you Foley." The sergeant contended that he was referring to a man in the parking lot who was selling cigarettes; claimant drove the same make and color of car.

Officer Foley testified, "It would be, hi, Steve, how are you, and then he'd use the word, shut the f—k up, Foley, just out of the blue . . . anything to get a laugh out of the younger guys." Sometime in 2012, "I finally had it," and the two men went to see the head of safety at Creedmoor, Chief Herman Felton. Officer Foley told Chief Felton that he did not appreciate the way Sgt. Critelli spoke to him. Foley said that Critelli calmed down a little, but then went back to his old ways.

Critelli complained about what are known as "250" reports, which are filled out electronically, and cover, for example, situations involving an assault or when a resident is caught smoking. The sergeant maintained that some reports from Foley were missing or that his 250's were filled out in minimal fashion. Critelli described claimant's reporting of incidents that required 250's as "lackadaisical." Foley said it was a software problem that fellow safety officer Olivo straightened out. On that note, this exchange occurred with the sergeant:

"Q. . . . What did you do after Mr. Foley showed the location of the [250] files?

A. I guess I was happy."

In the field, claimant testified about several incidents in which he believed he was subject to differential treatment. In one instance, Foley recommended that a patient wandering the grounds be sent for psychiatric evaluation, but Critelli complained that he should have been told about it first.

Another time, claimant was witness to a loud dispute, as it turned out between mother and son over a wallet (the status of either vis a vis Creedmoor was not clear). After Foley told the son to return the wallet to his mother, the former "started banging on the car," causing Foley to request backup, which did not arrive for 40 minutes. The next day, according to claimant, Sgt. Critelli told a group of officers that they should not call for backup unless they were "on the ground being pummeled."

A third incident came about when Foley had learned that a female resident reported a man on the grounds had touched her. He told a patrol officer to drive around with this resident and the staff person familiar with the situation so as to point out the offender. Critelli overheard this, stopped the search and went out himself. After what claimant described as a quick look, the sergeant came back and said, "we couldn't find anyone, Foley." Foley's take on the matter was that Critelli "was always trying to embarrass me."

In addition, Critelli criticized Foley for not sending in the fingerprints of new employees, but on the stand, the sergeant allowed for the possibility that it may have been a computer problem.

Critelli reported that beginning in January of 2013 over a period of three or four months, Foley took a gas credit card and the keys home, including on one occasion, the key ring with the "grand master" key. Chief Felton testified that the grand master, which opened every door in Creedmoor, was critical in keeping the facility secure from an unauthorized leaving or entry, as well as providing access in case of fire to certain locked spaces.

The key ring was found the next morning in the side door pocket of Foley's car (see claimant's exhibit 12 and defendant's exhibit A). Foley assumed it had been in his overcoat and would have been hard to notice and then must have fallen out - - hardly credible testimony because of the bulk of the key ring.

A safety officer at Creedmoor subject to discipline would face such in a number of steps: a verbal counseling or warning; written or formal counseling; and then a notice of discipline. That was not done here. Critelli testified that Chief Felton told him that for Foley, he, Critelli, had the option of putting claimant in for a notice of discipline or an evaluation by the Employee [*2]Health Service (EHS). The sergeant chose the latter.

Sgt. Critelli's email, dated April 25, 2013, in its entirety, reads as follows:

"I am requesting a EHS evaluation for Walter Foley Safety Officer. Walter Foley in the last six months has shown increased memory loss. For example taking home state credit cards for fueling the safety cars. This has happened at least seven times since January 2013. Walter Foley has taken [home] the 112 keys used to enter the SATs office since January 2013 at least 10 times. And Thursday April 18th 2013 Walter Foley went home with all the grand master keys that [were] on the SATs key ring. That same night Sgt Haynes left a message on his answering machine asking if he had the keys. Walter Foley called back to Creedmoor and Told Officer Lunday that he Did not have the keys. On Friday Sgt Critelli spoke with Officer Foley about the missing keys and again Foley said that he did not have them. Sgt Critelli asked Foley about the message that Sgt Hynes [Haynes] left on his home answering machine and Foley did not remember the message and did not remember calling back creedmoor and speaking to officer Lundy. Sgt Critelli along with Officer Foley found the grand master keys in Foleys personal car." [claimant's exhibit 2].

In early June of 2013, Walter Foley's wife died in an automobile accident, and he was away from work for about a month. Not long after his return, during the pre-shift briefing, claimant was asked to go upstairs and see Adrienne Jones, the director of human resources at Creedmoor. The director handed him a letter (claimant's exhibit 3). Dated August 20, 2013, it stated that Creedmoor was requiring Foley to be examined by the Employee Health Service to determine his fitness to perform the duties of a Safety and Security Officer I, and scheduled an appointment for him within a week. The stated reasons were:

"You appear to have showed increased memory loss. Within the last few months you have been forgetful in leaving work keys and credit cards for the next shift. You have been constantly reminded to complete assignments such as reports, and getting complete information as it pertains to the Safety Department policy and procedures. Recently, your appearance has been disheveled."

On September 10, 2013, a letter from the EHS medical director, Richard A. Ciulla, based in Albany County, cleared Foley to return to work, noting that he was "evaluated" by a psychologist (claimant's exhibit 11).

Officer Foley showed an excellent memory on the witness stand. He explained that there were other workers who did not wear ties and/or had their shirt tails out, but were not harassed by Critelli:

"Q. . . . Do you recall who any of those individuals were? . . .

A. Jermaine Stevens was the tie. The shirt untucked would be to Ms. Bonaparte, I think it's Tamika, and George Williams.

Q. All right. How old are those individuals?

A. George is about 55, Tamika's about 48, Stevens is about 40."

As this Court stated at trial in initially demurring on the need for rebuttal testimony by claimant:

"Look, Mr. Foley was a very strong witness on his behalf. He was very assured, he was very confident, he had a strong personality."

This all was driven by Sgt. Critelli. The testimony of Director Jones and Chief Felton does not persuade otherwise - - they protested a little too much. Felton somewhat defensively testified, "the final decision was mine." In fact, Chief Felton stated that Foley was "really good with dealing with clients and with staff," but after his wife died, "he just wasn't as on his game. . . as he was normally" - - Critelli's email was sent about six weeks before Mrs. Foley's death. That Jones and Felton put their official stamp on the EHS option only served to impute responsibility to Creedmoor.

Foley likely should have been subject to some kind of corrective supervision or discipline for taking the master key home with him. With that said, the use of EHS sounds in age discrimination, and Foley vigorously advanced his contention that Critelli's statements and actions created a hostile work environment for him.

With respect to age discrimination, Foley points to no lost wages or benefits - - or to the lost opportunity for overtime, assignment or advancement. Melman v Montefiore Med. Ctr., 98 AD3d 107 (1st Dept 2012). Nor does Sgt. Critelli's behavior support a cause of action for a hostile work environment (Forrest v Jewish Guild for the Blind, 3 NY3d 295 [2004]; Harris v Forklift Systems, Inc., 510 US 17, 21[1993]).^[FN4]

Foley feared losing his job:

"Q. . . . You heard Sergeant Critelli testify that he did not want to put documents in employees' records. Isn't that correct?

A. He said that, but sent me to Employee Health Services and risk losing my job? . . . But if I had failed, I would have lost my job. I would rather have taken a NOD [Notice of Discipline]."

Claimant's anxiousness suggests possible causes of action for the negligent or intentional [*3]infliction of emotional distress. The negligent infliction thereof would generally require a threat of physical harm which was not present here (Taggart v Costabile, 131 AD3d 243, 253 [2d Dept 2015]). Finally, an action for the intentional infliction of emotional distress is barred against the State of New York as against public policy (Peterec v State of New York, 124 AD3d 858 [2d Dept 2015]).

In view of the foregoing, Walter Foley has failed to prove his age-related causes of action by a preponderance of the evidence; the Clerk of the Court is directed to dismiss claim No. 124596.

Let judgment be entered accordingly.