Baity v. Kralik (51 F. Supp. 3d 414, 2014)

United States District Court for the Southern District of New York 2014-09-30

Citations

Full opinion text

ORDER

KENNETH M. KARAS, District Judge:

Plaintiff W. Terrell Baity (“Baity”), by his counsel, Michael H. Sussman, brings this Action against Defendants James Kra-lik (“Kralik”) and the County of Rockland (“Rockland County” or “the County”), alleging that Defendants discriminated against him on the basis of his race by terminating him from his position as a probationary corrections officer with the Rockland County Department of Corrections. Before the Court is Defendants’ Motion for Summary Judgment. (See Dkt. No. 26.) For the following reasons, Defendants Motion is Granted.

I. BACKGROUND

A. Plaintiffs Rule 56.1 Statement

“Local Civil Rule 56.1 calls for a summary judgment movant to submit ‘a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried,’ and for the opposing party to submit ‘a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.’ ” Johnson v. IAC/Interactive Corp., 2 F.Supp.3d 504, 507 (S.D.N.Y.2014) (quoting Local R. 56.1(a)-(b).) In responding to a Rule 56.1 statement, the party opposing the motion for summary judgment is “required by [the district’s] Local Rules to specifically respond to the assertion of each purported undisputed fact by the movant and, if controverting any such fact, to support its position by citing to admissible evidence in the record.” Risco v. McHugh, 868 F.Supp.2d 75, 86 n. 2 (S.D.N.Y.2012) (citing Local Rule 56.1(b), (d), and Fed.R.Civ.P. 56(c)). “If the opposing party then fails to controvert a fact set forth in the movant’s Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule.” Johnson, 2 F.Supp.3d at 507; see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003). The purpose of this rule, and counsel’s compliance with the same, is to assist the Court by narrowing the scope of the issues to be adjudicated and identifying the facts relevant and admissible to that determination. See Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir.2001) (“The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.”).

Plaintiffs Response to Defendants’ Rule 56.1 Statement fails to comply with the spirit, if not the letter of the rule. (See PL’s Resp. to Defs.’ Rule 56.1 Statement (“PL’s 56.1 Resp.”) (Dkt. No. 35).) Many of Plaintiffs purported denials — and a number of his admissions — improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants’ asserted facts without specifically controverting those same facts. (See, e.g., PL’s 56.1 Resp. ¶¶ 32, 52, 56, 61, 75, 77, 78, 86, 88, 94, 95, 107, 108, 109, 115, 116, 130, 161, 162, 163, 169, 178, 179, 183, 191); see also Costello v. N.Y. State Nurses Ass’n, 783 F.Supp.2d 656, 661 n. 5 (S.D.N.Y.2011) (disregarding a plaintiffs responses to a defendant’s Rule 56.1 Statement where the plaintiff responded with conclusory assertions or legal arguments). Furthermore, a number of Plaintiffs purported denials quibble with Defendants’ phraseology, but do not address the factual substance asserted by Defendants. (See, e.g., PL’s 56.1 Resp. ¶¶ 29, 40, 52, 56, 58, 101, 103, 106.) In other instances, counsel neither admits nor denies a particular fact, but instead responds with equivocal statements such as: “Admit, but defendant omits the balance of plaintiffs testimony,” (PL’s 56.1 Resp. ¶ 75), “Admit, but note that she provided no counseling memorandum to plaintiff and never provided a copy of this document to the plaintiff,” (id. ¶ 86), “Deny. Plaintiff was interviewed one week before he commenced his employment and after he had passed his physical agility and psychological test and after he had been offered employ[ ]ment,” (id. ¶ 6 (in response to Defendants’ statement about the date of Plaintiffs interview and the individuals who conducted the interview)), or “Deny as stated,” (id. ¶ 29). Some of Plaintiffs 56.1 statement responses include citations to evidence in the record, (see, e.g., PL’s 56.1 Resp. ¶¶ 6, 29), however, responses that “do not point to any evidence in the record that may create a genuine issue of material fact[] do not function as denials, and will be deemed admissions of the stated fact.” Risco, 868 F.Supp.2d at 86 n. 2 (internal quotation marks omitted) (quoting Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 458 n. 1 (S.D.N.Y.2011); see also Costello, 783 F.Supp.2d at 661 n. 5 (disregarding the plaintiffs responses where plaintiff failed to specifically dispute defendant’s statements)); Buckman v. Calyon Sec., 817 F.Supp.2d 322, 328 n. 42 (S.D.N.Y.2011) (noting that “56.1 statements not explicitly denied by plaintiff are deemed admitted”); Geoghan v. Long Island R.R., No. 06-CV-1435, 2009 WL 982451, at *6 (E.D.N.Y. Apr. 9, 2009) (“Since plaintiffs response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by. plaintiff for purposes of this motion.”). Lastly, several of Plaintiffs purported denials lack citations to admissible evidence or any evidence to support his contention, in violation of Fed. R. Civ. P. 56(c) and Local Rule 56.1. (See, e.g., Pl.’s 56.1 Resp. ¶¶4, 137, 138, 141, 155, 199); see also Holtz, 258 F.3d at 73-74 (explaining that where there are no citations to admissible evidence, or the cited materials do not support the purported undisputed facts in a party’s Rule 56.1 statement, those assertions must be disregarded); Costello, 783 F.Supp.2d at 661 n. 5 (disregarding a plaintiffs responses to a defendant’s Rule 56.1 statement where the plaintiff failed to refer to evidence in the record). “Allowing a Local Rule 56.1 statement to substitute for the admissibility requirement set forth in Fed.R.Civ.P. 56(e) ‘would be tantamount to the tail wagging the dog,’ ” and “would risk creating tension between Local Rule 56.1 and Fed. R.Civ.P. 56....” Holtz, 258 F.3d at 74 & n. 1 (quoting Rivera v. Nat’l R.R. Passenger Corp., 152 F.R.D. 479, 484 (S.D.N.Y.1993)).

Plaintiffs counsel’s submissions related to the instant Motion fail to cure the deficiencies in Plaintiffs 56.1 Statement and instead impede the Court’s attempts to determine which, if any, material facts are in dispute. For example, Plaintiffs Memorandum in Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Mem.” (Dkt. No. 36)) contains no citations to the record, despite making a number of fact-based arguments. In addition, unlike the usual attorney affirmations, which merely attach copies of documents alleged to be relevant and admissible and identify those documents for the Court, Plaintiffs counsel submitted an affirmation that includes arguments and factual assertions. (See Aff. of Michael H. Sussman in Opp’n to Defs.’ Mot. (“Sussman Aff.”) (Dkt. No. 38).) This affidavit improperly attempts to introduce exhibits without any authentication, (see Sussman Aff. ¶ 5), and further contains argument about how the Court should interpret these exhibits, (id. ¶ 8 (“An ‘investment’ of $12,000 is not very significant as against a county budget of over $680,000,000.”)). See also Fed. R.Civ.P. 56(c)(4) (providing that an affidavit or declaration used to oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declar-ant is competent to testify on the matters stated). Accordingly, “[i]n resolving this motion, the Court has- relied only on the exhibits to the affirmation that contain admissible evidence, and has not considered the improper assertions and arguments contained in the affirmation, or the exhibits to the affirmation containing inadmissible evidence.” Risco, 868 F.Supp.2d at 86 n. 2 (citing Wyler v. United States, 725 F.2d 156, 160 (2d Cir.1983) (“An affidavit of the opposing party’s attorney which does not contain specific facts or is not based on first-hand knowledge is not entitled to any weight.”)); see also Little v. City of New York, 487 F.Supp.2d 426, 433 n. 2 (S.D.N.Y.2007) (“The law is clear that an attorney’s affirmation that is not based on personal knowledge of the relevant facts is to be accorded no weight on a motion for summary judgment.”).

Plaintiffs Affidavit also contains a surfeit of improper averments, including statements not based on Plaintiffs personal knowledge and conclusory statements that are nothing more than speculation. (See, e.g., Pl.’s Aff. in Opp’n (“Baity Aff.”) ¶ 6 (Dkt. No. 37) (“We have progressive discipline at the jail for all officers and had any superior attached seriousness to these incidents, I would have been given a documented verbal counseling”), ¶ 7 (“[Correctional Officer] Helehowski ... developed a reputation for missing time during his probationary period ... [Plaintiff] had a reputation for excellent attendance and punctuality.”), ¶ 8 (describing the evaluation of Correctional Officer Dillon as noting “that he is a young officer learning the job” and concluding that “this is not positive language”).) See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 131 n. 12 (2d Cir.2004) (noting that district court was free to disregard hearsay statements and speculation in affidavits); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, *4-5 (S.D.N.Y. Jan. 24, 2007) (disregarding' inadmissible portions of a plaintiffs affidavit in analyzing motion for summary judgment); Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556, 568-69 (E.D.N.Y.1999) (same).

Regrettably, this is not the first time that a court in this courthouse has had to take the extraordinary step of admonishing Plaintiffs counsel concerning his obligations to follow the Local Rules of this Court, as well as several courts’ Individual Practices. Plaintiffs counsel has been reprimanded for such conduct a number of times over more than seven years, including as recently as two months ago. See, e.g., Frawley v. Putnam Hosp. Ctr., No. 12-CV-3374, Dkt. No. 83, at 1-2 (S.D.N.Y. July 17, 2014) (ordering Plaintiffs counsel to re-file his client’s response to the defendant’s Rule 56.1 statements and to conform them with the court’s Individual Practices); Risco, 868 F.Supp.2d at 86 n. 2 (cataloguing the deficiencies with Plaintiffs counsel’s Rule 56.1 response and “admonishing Plaintiffs counsel concerning his obligations to follow the Local and Individual Rules” of the court); Vero v. Pepsi Cola of the Hudson Valley, No. 10-CV4112, Dkt. No. 17, at 1 n. 1 (S.D.N.Y. Apr. 3, 2012) (noting that Plaintiffs counsel “failed to support many of his denials with citations to the record,” and further failed to comply with the court’s Individual Practices); Tomlins v. Village of Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d 357, 361 n. 2 (S.D.N.Y.2011) (admonishing Plaintiffs counsel for repeated failure to follow the court’s Individual Practices and declining to consider averments in plaintiffs 56.1 Statement that “[were] not supported by, or that were contradicted by, admissible evidence, or that [were] legal arguments under the guise of undisputed facts” (citations omitted)); Woods v. Newburgh Enlarged City Sch. Dist., 473 F.Supp.2d 498, 504 n. 3 (S.D.N.Y.2007) (admonishing Plaintiffs counsel for failing to cite to the record in his Memorandum and his Rule 56.1 statement, and for including material allegations not otherwise-asserted or supported), aff'd sub nom. Woods v. Newburgh Enlarged City Sch. Dist., 288 Fed.Appx. 757 (2d Cir.2008); Copeland v. Sears, Roebuck & Co., 25 F.Supp.2d 412, 417 n. 1 (S.D.N.Y.1998) (disregarding a denial in plaintiffs 56.1 statement that was not supported by citations to admissible evidence). As Judge Ramos previously remarked about Plaintiffs counsel’s filings in Risco, “[i]t simply will not do for counsel to say that genuine issues of material fact exist and then rely on the Court to go find them. Much more is expeetéd from an experienced member of the bar of this Court and will henceforth be strictly required.” 868 F.Supp.2d at 86 n. 1. At long last, the Court urges Mr. Sussman to take Judge Ramos’s warning to heart. At some point, more than an admonition will be appropriate.

Although the Court is not required to search the record for genuine issues of material fact that the party opposing summary judgment failed to bring to the Court’s attention, Holtz, 258 F.3d at 73, the net result of Plaintiffs counsel’s deficiencies has been to impose on the Court the burden of parsing the entirety of the record in the instant case to ensure that Plaintiffs claims receive thorough and just consideration. Therefore, for the reasons discussed above, in analyzing the instant motion, the Court has .disregarded: (1) purported “denials” in Plaintiffs 56.1 Statement that do not actually deny or refute the specific facts asserted by Defendants, are not supported by citations to admissible evidence in the record, are contradicted by other admissible evidence in the record, or that are improper legal arguments; (2) improper assertions and arguments contained in Plaintiffs counsel’s affirmation that are clearly not based on personal knowledge or the record; and (3) the improper portions of Plaintiffs Affidavit. However, the Court is “mindful that ‘[t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.’ ” Johnson, 2 F.Supp.3d at 508 (alteration in original) (quoting Giannullo, 322 F.3d at 140). Therefore, the Court has only relied upon uncontroverted paragraphs of Defendants’ Rule 56.1 Statement where the record evidence duly supports Defendants’ contentions.

B. Factual Background

Plaintiff is an African-American man who applied for a position as a corrections officer with the Rockland County Department of Corrections in either 2005 or 2006. (Decl. of Robert B. Weissman (“Weissman Deck”) Ex. B (Excerpted Tr. of Dep. of PI. W. Terrell Baity (“Baity Tr.”)), at 18 (Dkt. No. 27).) On March 19, 2008 Plaintiff was interviewed for the position by Lieutenant Jill King and Captain John Liska, (see Dec. of Captain Jill King (“King Deck”) ¶ 1 (Dkt. No. 30); Deck of Captain John Liska (“Liska Deck”) ¶ 4 (Dkt. No. 29)), both of whom are Caucasian, (see Baity Tr. 22-23). King and Liska ranked Plaintiff second overall in a list of 24 candidates, including a number of Caucasian candidates, and recommended to Chief William Clark (“Clark”) that Plaintiff be hired. (See King Deck ¶ 4; Liska Deck ¶ 7.) Clark accepted King and Liska’s recommendation and hired Plaintiff. (See King Deck ¶ 5; Liska Deck ¶ 8.)

All new corrections officers in the Rock-land County Department of Corrections are required to pass a two-year probationary period, during which time the individual works as an at-will employee, and after which a decision is made as to whether to hire the individual as a permanent corrections officer. (See Weissman Deck Ex. C (Tr. of Dep. of Captain William J. Clark (“Clark Tr.”)), at 13; Baity Tr. 30.) Plaintiff began working as a probationary corrections officer on June 30, 2008. (See Baity Tr. 23.) Plaintiffs performance reviews provided as part of discovery in this case, which date from September 2008 through September 2009, rate Plaintiffs performance as “Satisfactory” in all categories. (See Baity Aff. Ex. 1; Sussman Aff. ¶ 9.)

1. Gowins Incident

On the morning of September 23, 2009, Plaintiff was involved in an incident with an inmate, Alfred Gowins (“Gowins”). (See Baity Tr. 46-47.) The specifics of this incident, though immaterial to the instant case, are not entirely clear. In fact, an internal investigation of the incident by the Rockland County Bureau of Criminal Investigation determined, after interviewing the “[cjomplainants, witnesses and all parties involved” and an “extensive[ ] review” of the “surveillance tape,” found that there was “no evidence to prove or disprove any violation of law.” (Weissman Decl. Ex. K (Jan. 8, 2010 Report from Detective Barb-era to Captain Conjura), at 1.) According to Plaintiffs September 28, 2009 incident report, which Plaintiff corroborated during his deposition in this case, (see Baity Tr. 63), Plaintiff “told inmate Gowins ... that he had court for the third time in about fifteen minutes ... [and] that intake was waiting on him to get ready to go to court. (Weissman Decl. Ex. F (Sept. 23, 2009 Mem. from Baity to White (“Incident Report”)), at 1.) “Inmate Gowins then began to become hostile!,] [s]aying among other things T don’t give a fuck if you’re a C.O., youf’re] still a bitch ass[’].” (Id.) Plaintiff handcuffed Gowins to take him to an intake holding cell and placed him in the “IV Room so [Gowins] could calm down and ... get himself together.” (Id.) In the IV Room, Plaintiff removed Gowins’s handcuffs. (See Baity Tr. 58.) When Gowins was putting on his shoes, he said, “Just cause you’re a C.O. I’m supposed to be scared” and “Whatcha wanna to [sic] do?” while approaching Plaintiff “in an aggressive man[ner].” (Incident Report at 1-2.) Plaintiff told Gowins to place his hands on the wall, but Gowins refused, then resisted Plaintiffs attempt to restrain Gowins. (Id. at 2.) Plaintiff then reported that other officers entered the IV Room, “place[d] Inmate Gowins on the floor and handcuffed him.” (Id.) In his deposition in this case, Plaintiff stated that he and Gowins “were just wrestling,” but that “[a]fter the incident with [Plaintiff] and [Gowins], [Gowins] got thrown to the ground ... [and] may have injured himself then.” (Baity Tr. 62.) The Initial Reportable Incident Report submitted to the New York State Commission of Corrections on September 23, 2009 indicated that Gowins “received injuries to nose and cheekbone while being restrained.” (Weissman Decl. Ex. G, at 3.) Plaintiff testified that he had “hurt his back a little bit” during the incident and missed two days of work because of his injury. (Baity Tr. 66.) A video recording captured the incident, however, at various times in the recording, portions of Plaintiffs and Gowins’s bodies were not visible or the men were entirely off-screen. (See Baity Tr. 71, 77; Sussman Aff. Ex. 3 (video recording).)

On September 28, 2009 Gowins’s fiancée and his mother reported that Gowins had been assaulted by Plaintiff on September 23, 2009. (Weissman Decl. Ex. H, at 1.) They further reported that Plaintiff had choked Gowins, “slam[med] his head against the wall,” and, after he had been restrained, “kicked inmate Gowins in the face multiple times causing a fractured left ocular, fractured nose and fractured jaw.” (Id. at 1-2.) They reported that Gowins was “transported to the Nyack ER where his injuries were treated by staff’ before Gowins was returned to jail. (Id. at 2.) The same day, Detective Beckles from the New York City Police Department’s Internal Affairs Unit contacted the Rockland County Sheriffs Department regarding the Gowins incident, noting that Gowins’s mother “state[d] that Officer Baity and another Officer assaulted her son on 9/23/09,” and that Gowins’s mother alleged that Gowins “was kicked and punched in the face and taken to Nyack Hospital with a fractured jaw.” (Weissman Decl. Ex. I, at 1.)

On October 2, 2009, the Rockland County Sherriffs Department received a fax from L’Tanya Watkins, Esq., noting that she represented Gowins “with respect to serious physical injuries that he incurred as a result of an assault which occurred at the Rockland County Jail on September 23, 2009. (Weissman Decl. Ex. J, (Letter from L’Tanya Watkins to Rockland County Sheriff Department (“Watkins Letter”)), at 2.) In the same letter, Ms. Watkins requested “the preservation of any and all video surveillance” related to the incident, and the production of “any written statements taken from Mr. Gowins as a result of this incident.” (Id.)

On September 21, 2012, Gowins filed suit against Rockland County, Plaintiff, and ten “John Doe” correctional officers in the District Court for the Southern District of New York, alleging violation of his civil rights and police brutality. (Weissman Decl. Ex. L, at 6.) In Gowins’s complaint, he alleged that he suffered “severe physical injuries,” including “a fractured orbital bone, fractured nose, and injuries to [his] neck and back.” (Id. at 5.) This suit, Gowins v. County of Rockland, et. al, Dkt. 12-CV-7154, is still ongoing. (See Defendants’ 56.1 Statement (“Defs.’ 56.1”) ¶ 63; Pl.’s 56.1 Resp. ¶ 63.)

2. Plaintiff’s Co-Worker Conflicts

On December 30, 2009 Plaintiff, who was assigned to the front desk, called the Intake area and spoke to Officer O’Sullivan (“O’Sullivan”) via stenophone, a device akin to a speakerphone, which can be overheard by others in the immediate vicinity. (King Decl. ¶ 8.) Plaintiff told O’Sullivan that Plaintiff was sending in a property release form for an inmate to release money to a visiting relative. (See id.) O’Sullivan, who had been a corrections officer for twenty years, told Plaintiff that release forms having to do with money are processed through the front desk and that there was no need to send the form to Intake, as Intake has no control over the money. (See id.) Plaintiff responded by telling O’Sullivan that Plaintiff knew the proper procedure and that “they’d been doing it [Plaintiffs] way for a long time”— for at least the two or three months that Plaintiff had been at the desk. (See id. ¶ 9; Baity Tr. 96-97.) Plaintiff then hung up on O’Sullivan. (Baity Tr. 96.)

O’Sullivan called Plaintiff back, thinking that they had accidentally been disconnected, and tried to explain to Plaintiff that, even though all other property release forms go through Intake, requests for release of money go through the front desk, which is responsible for generating the appropriate checks. (King Decl. ¶ 9.) Plaintiff abruptly ended the conversation. (See id. ¶ 9; Baity Tr. 97.) In describing the incident, Plaintiff stated that “O’Sullivan is a hot head and he spoke to me rude[ly]” and characterized the conversation as “an argument between co-workers” of the sort “[t]hat happens in any job.” (Baity Tr. 96.) Plaintiff also stated that O’Sullivan was “yelling” and that Plaintiff “didn’t have time to argue with him” because of the visitors he needed to assist. (Id. at 97.)

King heard the conversations between Plaintiff and O’Sullivan and spoke with Plaintiff, asking him why he kept hanging up on O’Sullivan. (King Decl. ¶ 10.) King testified that Plaintiff denied hanging up on O’Sullivan, (id. ¶ 10), though in Plaintiffs Affidavit, he acknowledges that he had hung up on O’Sullivan, (Baity Aff. ¶ 4). Regardless, King told Plaintiff that O’Sullivan was correct in the procedure he explained to Plaintiff and told Plaintiff that he should not have hung up on O’Sullivan and should not be rude to jail staff in the future. (See King Aff. If 10; Baity Tr. 98.)

The next day, December 31, 2009, King and Sergeant Mueller (“Mueller”) witnessed an incident in which a social worker asked Officer Ludwig (“Ludwig”) to call an inmate down from Intake Housing for him. (King Deck ¶ 12.) Ludwig, who had 25 years of experience at the jail, called Intake Housing, where Plaintiff was working. (See id.) According to King, “Ludwig barely got the inmate’s name out of his mouth when [Pjlaintiff stated, ‘He refused’ and disconnected the stenophone ... [before] Ludwig [had] the opportunity to even explain why the inmate was being requested.” (Id.) Plaintiff testified that he said “[the inmate] doesn’t want to see the social worker,” to which Ludwig “said he refused[?], and [Plaintiff] said, yes, he refused.” (Baity Tr. 101.)

Mueller and King spoke with Plaintiff about his interaction with Ludwig. Mueller asked Plaintiff why he cut off Ludwig mid-sentence before he was told who was requesting to see the inmate. (King Deck ¶ 13.) Plaintiff claims to have explained that Ludwig “hangs up on us all the time.” (Baity Tr. 102.) Mueller told Plaintiff that it was unprofessional to act that way. Plaintiff also told Mueller that “hanging up on [Ludwig] was a joke, like he does to us.” (Id. at 103.) Plaintiff explained that he “didn’t think it was something so bad where a grown man was crying or something. ... I pressed a button, and that was it.” (Id. at 102-03.) King and Mueller recall Plaintiff becoming “very defensive,” and telling them that “Ludwig was a ‘crybaby’ to complain” about the incident. (King Deck ¶ 13.) They explained to Plaintiff that they had witnessed the incident personally, (see id.), and Plaintiff told them that “going forward next time [Ludwig, hangs up on him] then [Plaintiff would] complain[,] too.” (Baity Tr. 103.) At the end of this discussion with Plaintiff, King recalls that “[P]laintiff started to mutter something under his breath about Officer Ludwig that we were unable to clearly hear.” (King Deck ¶ 13.) Plaintiff denies muttering anything at the end of this conversation. (Baity Aff. ¶ 5.)

On January 1, 2010, Muller submitted a memorandum to King that described the December 31, 2009 incident and noted that:

I was somewhat taken aback by Officer Baity’s cavalier attitude in response to my counseling of him. Rather than “man-up” and agree that the acted inappropriately and unprofessionally, he spent his efforts deflecting and stating that he was joking. Officer Baity stated that Officer Ludwig is always joking but cannot take a joke in return.... After some additional conversation, Officer Baity did acknowledge he was wrong but he was still muttering under his breath about Officer Ludwig as I exited the post. I feel that the attitude shown by Officer Baity is less than desirable and something that we should collective- • ly monitor going forward.

(Weissman Deck Ex. N (Jan. 1, 2010 Mem. from Mueller to King (“Mueller Mem.”)), at 1.) The following day, January 2, 2010, King wrote a memorandum to Captain Conjura in which she described both the December 30, 2009 and December 31, 2009 incidents and concluded that: “I feel that these two incidents involving Officer Baity are of concern especially since this officer is still on probation and may be indicative of future problems. Officer Baity’s probation period should be closely monitored.” (Weissman Deck Ex. M (Jan. 2, 2010 Mem. from King to Conjura (“King Mem.”)), at 2.)

3. Plaintiff’s Termination

Chief Clark had “final decision-making power” regarding “passing a [corrections officer] from [his or her] probationary period to permanent [corrections officer status],” though this decision is made “on the input from the supervisors” including the “[s]hift supervisors, lieutenants and the captains and the undersheriff.” (Clark Tr. 14.) In some cases, Clark’s boss, Under-sheriff Tom Guthrie (“Guthrie”) became involved in determinations concerning an officer’s probationary period as well. (Id. at 19.) Clark’s usual practice involved providing about a month’s notice to- the captains, lieutenants, and the sheriff that an officer’s probationary period was coming to an end, to allow staff members who had concerns about that officer to raise them with Clark, who could consider those concerns. (Id. at 16-19.) Chief Clark testified that complaints filed by a correctional officer’s supervisors are “taken into serious consideration” in determining whether to pass that officer from probationary to permanent status. (Id. at 29.)

With respect to Plaintiff, Clark was ill and out of the office for most of Plaintiffs probationary period. (Id. at 36.) In fact, Clark “didn’t speak with [Plaintiff] much during his probationary period, but remembered that “any time [Clark] met him, [Plaintiff] was respectful, [and] looked great in a uniform.” (Id. at 35.) Accordingly, Clark testified that he did not make the final determination about whether to pass Plaintiff to permanent corrections officer, but rather “went by the recommendation of the captain [Conjura] and the undersheriff [Guthrie].” (Id. at 36.) In addition “Captain Liska had part of a decision in it, but not much.” (Id.)

Captain Conjura (“Conjura”) read the King Memo and Mueller Memo and testified that he characterized them, collectively, as a “serious incident.” (Weissman Deck Ex. D (Tr. of Dep. of Joseph Conjura (“Conjura Tr.”)), at 88.) According to Conjura, “[we] need a cohesive working environment between staff at the jail[,]” and Plaintiffs behavior as described in the memoranda suggests “a tendency of behavior to be confrontational, not just with one officer but with two in a very relatively short period of time.... It goes against a good cohesive working relationship.” (Conjura Tr. 88-89.) Clark remembered Conjura noting that “Baity had to go” because “we had an assault pending” that “didn’t look good” “[i]n [their] own internal investigation,” because “there were some complaints about Baity, [including about] his attitude,” and because “he had an incident with a sergeant ... which is taken very serious[ly] at [the] facility.” (Clark. Tr. 37.) Accordingly, Conjura recommended that Plaintiffs probation be terminated before he became a permanent employee. (Conjura Tr. 57-58.) Clark and Conjura testified that- Captain Liska also recommended Clark terminate Plaintiff. (Clark Tr. 38; Conjura Tr. 57.) Clark testified that Conjura and Liska “refuted” Clark’s “high opinion of Mr. Baity” by telling Clark that Plaintiff “had a bad attitude and [that] he was a problem.” (Clark Tr. 44.)

After speaking with Conjura and Liska, Clark called Guthrie to obtain his opinion about whether Plaintiff should be promoted. (Id. at 45, 55.) Clark testified that he had previously spoken to Guthrie and that Guthrie was aware of the captains’ recommendations. (Id. at 56.) Clark relayed his opinion about Plaintiffs employment to Guthrie, (id. at 57), and, despite the fact that Clark “wanted to keep Baity,” Guthrie said to fire Plaintiff, (id. at 55). Conjura prepared the paperwork to terminate Plaintiffs probationary employment, and Clark signed it. (Id. 58.)

On June 10, 2010, Plaintiff received a call from Conjura and Liska, informing him that his probationary employment would be terminated and instructing him to turn in his badge, gun, and other equipment. (See Baity Tr. 105-06; Weissman Deck Ex. O (June 10, 2010 Mem. from Conjura to Clark), at 1.) The following day, Plaintiff signed a letter acknowledging that his probationary services were being terminated, effective June 25, 2010 and turned in his badge and gun. (See Baity Tr. 107-08; Weissman Deck Ex. P (Termination of Probationary Servs.), at 1.)

A Other Corrections Officers

In Plaintiffs Complaint, he claims that certain Caucasian corrections officers whose employment records were worse than Plaintiffs have nonetheless been promoted to permanent status. (See Compl. ¶ 17 (Dkt. No. 1).) In Plaintiffs responses to Defendants’ Interrogatories and in Plaintiffs deposition, he identified these officers as Joseph Helchowski (“Helchow-ski”), Gregory Dillon (“Dillon”), Gordon Heller, (“Heller”), James Enright (“En-right”), and “Dan.” (Baity Tr. 112; Weiss-man Deck Ex. W, Pl.’s Answer to Defs.’ Interrogatories ¶ 3.)

Plaintiffs only justification for his belief that Helchowski’s record was inferior to Plaintiffs was that Helchowski was absent too often during his probationary period, though Plaintiff did not know why Hel-chowski was absent. (See Baity Tr. 112-113.) However, at no point during Hel-chowski’s probationary period did Hel-chowski’s absences exceed his allotment of sick days, personal days, and vacation days. (See Liska Deck ¶ 36.) In addition, there were no complaints about Helchow-ski during his probationary period. (See Clark Tr. 59.) Plaintiff testified that he was unaware of anything that Helchowski did that was similar to what Plaintiff allegedly did, as documented by the Mueller and King memoranda and the documentation of the Gowins incident, though Plaintiff disputes he did anything wrong in any of the incidents discussed above. (See Baity Tr. 113; Pl.’s 56.1 Resp. ¶ 158; Defs.’ 56.1 ¶ 159.)

Plaintiffs explanation for how Dillon’s record was inferior to his own was that he “got arrested and spent a night in jail, but he still made his probationary period.... So he got off saying he was not guilty.” (Baity Tr. 113-14.) In the abstract, Plaintiffs explanation is not incorrect, however, it fails to incorporate several uncontested facts. For example, Dillon was arrested along with the other occupants of the car involved, and charged with criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. (See Liska Decl. ¶ 10.) He pleaded “Not Guilty,” (id. ¶ 18), and the drug charges against Dillon were eventually dismissed, (id. ¶24; Sussman Aff. Ex. 7 (Cert, of Disposition in New York v. Dillon), at 1.) The only charge that was not dismissed was a seatbelt violation. (See Cert, of Dismissal in New York v. Dillon, at 1.) Following the arrest, Liska suspended Dillon with pay on February 16, 2011, which was later changed to suspension without pay on February 18, 2011, when Liska proffered formal departmental charges against Dillon. (See Liska Decl. ¶¶ 12, 15, 17.) Liska testified that she then conducted an investigation into the substance of the charges, during which she was informed that the criminal drug charges against Dillon had been dismissed and the case sealed. (Id. ¶¶ 22-25.) On May 27, 2012, Liska dropped the departmental charges against Dillon, at which time he returned to his work as a corrections officer. (Id. ¶ 28.)

Dillon is Clark’s nephew, and to avoid the appearance of impropriety, Clark re-cused himself from the review of Dillon’s probationary status. (See Liska Decl. ¶ 30; Declaration of Former Chief Joseph McDonald (“McDonald Decl.”) ¶ 4 (Dkt. No. 28); Clark Tr. 66-67.) Chief Joseph McDonald (“McDonald”) was the decision-maker for the review of Dillon’s probationary status. (See McDonald Decl. ¶ 5.) Neither Clark, Conjura, Guthrie, nor Sheriff Kralik played a role in reviewing Dillon’s probationary status or the decision to make him permanent. (See McDonald Decl. ¶¶ 8-10.) Liska recommended that Dillon be made permanent. (See Liska Decl. ¶ 34.) On January 27, 2012, McDonald wrote to Dillon to inform him that he had passed probation and that he would be considered permanent as of January 27, 2011. (See Weissman Decl. Ex Y (Letter from McDonald to Dillon), at 1; Liska Decl. ¶ 35.)

Lastly, neither Plaintiff nor Conjura could recall any behavioral problems with Heller, Enright, or “Dan” during their probationary terms. (See Baity Tr. 112; Conjura Tr. 114-15.) Nor is there any evidence in the record to support a finding that these officers had behavioral problems. In fact, the performance reviews of Enright and Heller produced by Defendants show almost exclusively “Satisfactory” ratings across all performance categories. (See Sussman Ex. 6.)

C. Procedural History

Plaintiff filed his Complaint on January 20, 2012. (See Dkt. No. 1.) Defendants County of Rockland and James F. Kralik in his official capacity filed an Answer on March 16, 2012. (See Dkt. No. 4.) Following discovery, on February 18, 2014, Defendants filed their Motion for Summary Judgment along with a Memorandum in Support (“Defs.’ Mem.”), a Declaration of Robert B. Weissman in Support, a Rule 56.1 Statement, and several other Declarations in Support. (See Dkt. Nos. 25-32.) Plaintiff filed his Memorandum in Opposition along with an Affidavit of the Plaintiff in Opposition, an Affidavit of Michael H. Sussman in Opposition, and a Rule 56.1 Response and Counterstatement. (See Dkt. Nos. 35-38.) Defendants filed a Reply Memorandum of Law (“Defs.’ Reply Mem.”) and a second Declaration of Robert B. Weissman in Support (“Weissman Second Decl.”). (See Dkt. Nos. 33-34.) The Court held oral argument on September 12, 2014. (See Sept. 12, 2014 Oral Argument Transcript (“Sept. 12, 2014 Tr.”).) On September 15, 2014, Plaintiff submitted an additional letter to supplement his earlier filings in this case, per the Court’s invitation at oral argument. (See Letter from PI. to Court (Sept. 15, 2014) (“PL’s Supp. Letter”) (Dkt. No. 40).) The Court asked for this letter because Plaintiffs counsel tendered new arguments at oral argument in opposition to the Summary Judgment Motion. On September 17, 2015, Defendants submitted a letter in response to Plaintiffs supplemental letter. (See Letter from Defs. to Court (Sept. 17, 2014) (“Defs.’ Supp. Letter”) (Dkt. No. 41).)

II. DISCUSSION

A. Standard of Review

Before the Court is Defendants’ Motion for Summary Judgment. Summary judgment shall be granted where the movant shows that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care L.L.C. v. Dep’t of Health & Mental Hygiene of City of N.Y., 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE ”) Prods. Liab. Litig., MDL Nos. 1358, M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt., L.L.C., No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).

“In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also Borough of Upper Saddle River, N.J. v. Rockland Cnty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314, 2014 WL 1621292, at *12 (S.D.N.Y. Apr. 22, 2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. Price-Waterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.2013) (alterations, citation, and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a non-movant] need[s] to create more than a metaphysical possibility that his allegations were correct; he need[s] to come forward with specific facts showing that there is a genuine issue for trial,” Wrobel v. Cnty. of Erie, 692 F.3d 22, 30 (2d Cir.2012) (emphasis and internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) (citing, inter alia, Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009)).

“A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir.1994). Indeed, “[b]eeause writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer’s corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Id. Still, it is “beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001). In fact, “the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases.” Beale v. Mount Vernon Police Dep’t, 895 F.Supp.2d 576, 583 (S.D.N.Y.2012) (internal quotation marks omitted); see also Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) (same). Thus, the Supreme Court has “reiterated that trial courts should not treat discrimination differently from other ultimate questions of fact.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks omitted).

B. Analysis

1. Plaintiffs Individual Capacity Claim

In addition to claims against Rockland County and Sheriff Kralik in his official capacity, Plaintiffs Complaint purports to assert a claim against Kralik in his individual capacity. (See Compl. ¶¶ 4-5.) Defendants claim that Plaintiff failed to personally serve Kralik, pursuant to the applicable Federal and New York state rules and that all individual claims against him should therefore be dismissed. (See Defs.’ Mem. 2.) Under Rule 4(e) of the Federal Rules of Civil Procedure, service may be effected on an individual by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed.R.Civ.P. 4(e)(l)-(2).

Plaintiff does not claim to have served Kralik personally or at his home. (See Pl.’s Mem. 8.) Rather, Plaintiff asserts that “the County Clerk accepted service on his behalf as his apparent agent.” (Id.) However, the affidavit of service upon which Plaintiff relies identifies the individual at the county clerk’s office who accepted service, but includes no indication that she was authorized to accept service on behalf of Kralik as an individual, or that she represented the same. (See Weissman Deck Ex. S (Aff. of Service), at 1.) Instead, the affidavit states that the process server “served the summons on Kaitlyn Quinn-Clerk, who is designated by law to accept service on behalf of County of Rockland Clerk O/B/O/ Kralik.” (Id.) Plaintiff has provided no evidence that Kralik designated the county clerk to receive service of process on his behalf pursuant to N.Y. C.P.L.R. 318, nor has Plaintiff even suggested that such authorization exists. (See Pl.’s Mem. 7-8.) The county clerk is authorized by N.Y. C.P.L.R. § 311(a)(4) to accept service of process for the county and, by extension, county officials in their official capacity. However, such a statute does not render service on the clerk sufficient service for an individual sued in his individual capacity. See, e.g., Bogle-Assegai v. Connecticut, 470 F.3d 498, 507-08 (2d Cir.2006) (affirming the dismissal of claims against individual defendants where the plaintiff served the attorney general’s Office under an analogous Connecticut service statute but did not provide for personal service). Moreover, even if the clerk had represented to Plaintiffs process server that she was authorized to accept service for Kralik in his individual capacity, there is no evidence in the record of any appointment, or that Kralik knew that the clerk made such a representation, and therefore service cannot be sustained under N.Y. C.P.L.R. § 308(3). See Jackson v. Cnty. of Nassau, 339 F.Supp.2d 473, 479 (E.D.N.Y.2004) (noting that “representations made by an individual who accepts service of process are not binding on the defendant in the absence of proof that the defendant himself knew of such representations,” and that “accepting process for another party does not mean the acceptor was appointed to do so” (internal quotation marks omitted)). Thus, Plaintiff has not demonstrated that it has served Kralik under the means provided by Federal Rule of Civil Procedure 4(e)(2).

Pursuant to Rule 4(e)(1), the Plaintiffs may also effect service on the Individual Defendants by following New York law. Pursuant to New York Civil Practice Laws and Rules § 308(2), a natural person may be served by

delivering the summons within the state to a person of suitable age and discretion at the actual place of business ... of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” ... within twenty days of [the delivery].

N.Y. C.P.L.R. § 308(2). “New York courts have construed ‘actual place of business’ to include (1) a place where the defendant regularly transacts business, or (2) an establishment that the defendant owns or operates, where there is a clear identification of the work performed by her within that place of business.” Velez v. Vassallo, 203 F.Supp.2d 312, 325 (S.D.N.Y.2002) (citations and internal quotation marks omitted).

Here, Plaintiff does not contest the fact that Kralik left office in December 2011 and was replaced by Sheriff Louis Falco on January 2, 2012. (Defs.’ 56.1 ¶¶ 135-36; Pl.’s 56.1 Resp. ¶¶ 135-36.) Thus, Kralik was no longer employed by the County at the time Plaintiff commenced this action on January 20, 2012, and service at a county office simply cannot amount to personal service at Kralik’s “actual place of business” pursuant to N.Y. C.P.L.R. § 308(2). See Colvin v. State Univ. Coll. at Farmingdale, No. 13-CV-3595, 2014 WL 2863224, at *14 (E.D.N.Y. June 19, 2014) (“A defendant’s ‘actual place of business’ is his or her ‘business address at the time of service, and not when the cause of action arose.’ ” (quoting Jackson, 339 F.Supp.2d at 478)). Perhaps as testament to the weakness of this argument, Plaintiff does not even suggest that the Court should find Kralik to have been served at his place of business. (See Pl.’s Mem. 7-8.)

In addition to the fact that Plaintiffs actions do not satisfy the statutory requirements for service upon an individual defendant, Defendants’ Answer, which in its very first sentence clearly identifies the party answering the Complaint as “Defendant County of Rockland, also [sued herein as] James F. Kralik sued ... in his official capacity as Sheriff, County of Rockland,” (Answer at 1 (Dkt. No. 4)) — and the absence of any motion to dismiss or answer filed by Kralik in his individual capacity— should have placed Plaintiff and his counsel on notice that Kralik had not been properly served. Indeed, this is not the first case involving deficient service by Plaintiffs counsel, as Plaintiff previously initiated an action against Kralik relating to Plaintiffs employment with Rockland County in which Plaintiff failed to serve Kralik, despite having appropriately served the County. (See Baity v. Kralik, No. 10-CV-8127 (Dkt. No. 5) (granting Plaintiffs request to dismiss the case without prejudice to permit service of Kralik).) More than 120 days have elapsed since the filing of this lawsuit, yet Plaintiff, who is represented by counsel in this action, has not provided the Court with a reason for his failure to serve Kralik, or, for that matter, sound grounds for Plaintiffs purported belief that service of the Rockland County Clerk’s Office was sufficient to provide for personal service of Kralik. The Court will therefore dismiss Plaintiffs claims against Kralik in his individual capacity. See, e.g., Hailey v. Connecticut, No. 10-CV-1787, 2011 WL 6209748, at *3-4 (D.Conn. Dec. 14, 2011) (granting the defendant’s motion to dismiss where the “[p]laintiff has failed to serve [the defendants] in their individual capacities” as required by state law); Chen v. Holder, No. 10-CV-2432, 2011 WL 6837761, at *7-9 (E.D.N.Y. Dec. 29, 2011) (dismissing claims against a defendant in his individual capacity due to insufficient service, where the plaintiff failed to serve the defendant at his “actual place of business” and was given opportunities to cure the service defect but failed to do so); Davis v. Mara, 587 F.Supp.2d 422, 427 (D.Conn.2008) (granting a motion to dismiss claims against state employee defendants in their individual capacities because the plaintiff failed to effectuate personal service according to state law, where service was accepted by the Connecticut Office of the Attorney General, but where defendants had not authorized the office to accept service on their behalf in their individual capacities); Richards v. N.Y. State Dep’t of Corr. Servs., 572 F.Supp. 1168, 1173 (S.D.N.Y.1983) (granting a motion to dismiss claims against two defendants in their individual capacities where they were not personally served, despite the plaintiffs attempts to serve these defendants through their co-workers).

Plaintiff objects to the fact that Defendants never raised the failure to serve Kralik prior to their Motion for Summary Judgment and suggests that Defendants should be barred from relying on failure to serve as grounds for an affirmative defense. (See PL’s Mem. 8.) However, Kra-lik has never appeared in his individual capacity in this ease. (See Defs.’ 56.1 ¶ 141; Pl.’s 56.1 Resp. ¶ 141 (denying this fact, but providing no citation to the record, nor making any statement to the contrary that would refute it).) Defendants’ official filings conspicuously omit the phrase “in his individual capacity” when referencing the parties represented by Defendants’ counsel, (see Answer at 1 (Dkt. No. 4) (“James F. Kralik sued ... in his official capacity as Sheriff’ (alterations in original)); Defs.’ 56.1 (filed “[o]n behalf of defendant County of Rockland (also s/h/a James F. Kralik sued in his official capacity)”); Notice of Motion (Dkt. No. 26) (brought only by the County of Rockland).) Unfortunately, Defendants’ correspondence with the Court has been less clear with respect to counsel’s limited representation. (See Letter from Defs. to Court (Apr. 25, 2013) (Dkt. No. 11) (“We represent the County of Rockland and James F. Kralik in the above-referenced § 1983 employment civil rights suit.”); Letter from Defs. to Court (June 18, 2013) (Dkt. No. 14) (“We represent the defendants in this employment civil rights case.”); Letter from Defs. to Court (Aug. 22, 2013) (Dkt. No. 15) (same); Letter from Defs. to Court (Nov. 21, 2013) (Dkt. No. 19) (same).) Nonetheless, Plaintiff has not offered an acceptable reason for his failure to properly serve Kralik in his individual capacity.

At oral argument, Defense counsel informed the Court that counsel has not contacted Kralik and does not know where he is located. (See Sept. 12, 2014 Tr. 13-14.) Moreover, when asked by the Court about the nature of Kralik’s personal involvement and whether Kralik was served, Plaintiffs counsel could only express his “view” that “if [Kralik] has the responsibility on behalf of the County ... if there [are] discriminatory actions taken by his second, his undersheriff, making such a direction, [Kralik] is responsible,” and that he further believed “that the County was accepting service for Kralik in all his capacities” despite the fact that he was the former sheriff and was no longer in office. (See id. at 48-50.) Plaintiff conceded that he does not “allege that Kralik did [anything] at all ... that violated [Baity’s] rights,” but maintained that Kralik is nonetheless responsible for the decisions made by the undersheriff. (See Sept. 12, 2014 Tr. 46-47.) However, Plaintiff has failed to provide the Court with any legal authority to support his contention that supervisory responsibility is sufficient grounds' for individual liability under § 1983 here, despite ample time to do so, especially where there is no evidence that Kralik ever knew about the subordinate’s decision, let alone that it might have been discriminatory. To the contrary, the law in the Second Circuit is clear that “a supervisor may be held liable [under § 1983] if he or she was personally a ‘direct participant’ in the constitutional violation,” and that “a ‘direct participant’ includes a person who authorizes, orders, or helps others to do the unlawful acts, even if he or she does not commit the acts personally.” Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir.2014). Thus, even if Kralik had been properly served in his individual capacity, the record is not sufficient to support Plaintiffs § 1983 claim against him. See, e.g., Armstrong v. Metro. Transp. Auth., No. 07-CV-3561, 2014 WL 4276336, at *26 (S.D.N.Y. Aug. 28, 2014) (dismissing the plaintiffs § 1983 claim against the defendants in their individual capacities where “nothing in the record” suggests that the defendants were personally involved in the conduct forming the basis for the plaintiffs claim).

2. Monell Liability

Plaintiffs remaining claims are against the Rockland County and against Kralik in his official capacity, which is tantamount to a claim against the municipality itself. See Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir.2012) (“A claim asserted against an individual in his official capacity ... is in effect a claim against the governmental entity itself ... for ‘official-capacity suits generally represent only another way of pleading an action' against an entity of which an officer is an agent.’” (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978))). Plaintiffs Complaint asserts a cause of action solely pursuant to 42 U.S.C. § 1983. (See Compl. ¶ 20.) The law of the Second Circuit is clear that “local governing bodies ... may be sued directly under § 1983 only where a violation of rights resulted from the government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Fierro v. N.Y.C. Dep’t of Educ., 994 F.Supp.2d 581, 588 (S.D.N.Y.2014) (internal quotation marks omitted) (quoting Nagle v. Marron, 663 F.3d 100, 116 (2d Cir.2011)).

Rather than engage with Defendants’ contention that Plaintiff has not demonstrated the existence of a Rockland County policy or custom sufficient to provide grounds for Monell liability, Plaintiffs Memorandum in Opposition makes the bold argument that a provision of the County’s charter obviates the need to examine the County’s Monell liability at all. (See Pl.’s Mem. 9-10.) By Plaintiffs account, several provisions of the County’s Code require the County to “assume responsibility for ... the discriminatory acts of any employee of the Sheriffs office” regardless of whether they were pursuant to a custom or policy. (See id.) In short, Plaintiff argues that, through these provisions, Rockland County accepts vicarious liability for Sheriff office personnel and waives the Monell requirements for § 1983 claims against the County. This argument is unavailing.

While 42 U.S.C. § 1988 provides an avenue for the application of state law in federal civil rights actions, including § 1983 claims, it only permits the use of state law that “is not ‘inconsistent with the Constitution and the law of the United States.’ ” Jund v. Town of Hempstead, 941 F.2d 1271, 1279 (2d Cir.1991) (quoting Burnett v. Grattan, 468 U.S. 42, 48, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984)). Here, Plaintiffs purported application of the Rockland County Code runs directly counter to federal law, specifically the Supreme Court’s interpretation of § 1983 liability in Monell, which held that “it is [only] when execution of a government’s policy or custom ... inflicts the injury that the government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694, 98 S.Ct. 2018. Furthermore, the imposition of vicarious liability is “incompatible with § 1983’s causation requirement.” Reynolds v. Giuliani, 506 F.3d 183, 190 (2d Cir.2007); see also City of Canton v. Harris, 489 U.S. 378, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (same). Therefore, the Court will not adopt Plaintiffs novel reading of the Rockland County Code as providing vicarious grounds for § 1983 liability that circumvent the requirement that Plaintiff demonstrate liability under Monell without resorting to the principle of respondeat superior.

The Court’s rejection of Plaintiffs argument comports with the conclusion of every court to have considered it. While it does not appear that any court in the Second Circuit has specifically addressed this issue, a number of other circuits have, and have held that state and municipal vicarious liability statutes may not provide the grounds for a § 1983 action. See Siler v. Webber, 443 Fed.Appx. 50, 53 (6th Cir.2011) (holding that a Tennessee statute, which created a state-law cause of action against a county for any injury resulting from any act or failure to act on the part of a deputy, and thus allowed vicarious liability, conflicted with § 1983, which did not, and thus could not be used to maintain a federal action against county under § 1983); Henley v. Edlemon, 297 F.3d 427, 430 n. 6 (5th Cir.2002) (rejecting Plaintiffs attempt to rely on state law vicarious liability statute as grounds for liability “in their § 1983 suit because it is inconsistent with federal law”); Palmer v. Sanderson, 9 F.3d 1433, 1438 (9th Cir.1993) (holding that “a state statute imposing vicarious liability” to be “inconsistent with the laws of the United States,” and thus cannot be the basis for a § 1983 action (alteration omitted and internal quotation marks omitted)).

Plaintiffs Memorandum in Opposition makes no mention of Defendants’ argument that Defendants cannot be held liable under Monell, apart from Plaintiffs summary statement that “the county’s extensive discussion of Monell liability is misplaced and ignores the assumption of responsibility for the acts and omissions of all employees of the Sheriffs department, as set forth in the charter.” (Pl.’s Mem. 10.) Accordingly, the Court could find Plaintiff to have abandoned any claim that Monell liability applies. See Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir.2014) (noting that “in the case of a counseled party, a court may, when appropriate, infer from a party’s partial opposition that relevant claims or defenses that are not defended have been abandoned”); Parrilla v. City of New York, No. 09-CV-8314, 2011 WL 611849, at *1 n. 4 (S.D.N.Y. Feb. 16, 2011) (finding that the plaintiffs § 1983 claim to have been abandoned where the “[p]laintiff failed to address or oppose [the defendants’ arguments regarding municipal liability or qualified immunity”); Broadhurst v. Cnty. of Rockland, No. 07-CV-9511, 2011 WL 5142760, at *7 (S.D.N.