BERNE — Two cases involving the dismissal of a Berne worker last September were overturned this year, one involving the collection of unemployment benefits, and the other charging discrimination. The worker, Scott Green, says, despite the ruling, he feels the town acted in a discriminatory manner.

The town’s long-time supervisor, Kevin Crosier, who fired Green, was not re-elected in November; his term ends with the year.

Green had been working part-time for the town for over two years when in July 2016 he was appointed to a full-time post with benefits. Months later, he was fired. Green contends that his dismissal was due to a disagreement over providing domestic-partner insurance to his male partner, while the town maintains that it was due to gross insubordination.

Documents provided by the town through an Enterprise Freedom of Information Law request and by Green reveal that a series of legal battles occurred following his dismissal.

Green had applied for unemployment benefits following his dismissal, but was denied this by the New York State Department of Labor and so filed an appeal, according to papers documenting the appeal decision. In February 2017, Administrative Law Judge Lauren Chatterton of the Unemployment Insurance Appeal Board ruled that Green was allowed benefits.

Chatterton writes that Green had valid excuses for not taking the letter written by Crosier telling him to meet on Sept. 15: he was unable to retrieve the letter on Sept. 12, was ill on Sept. 13, and was fired on Sept. 14.

She adds that, even if she were to consider Green’s actions insubordination, she is “not satisfied that such behavior rises to the level of misconduct under these specific circumstances.”

The town then appealed the decision to the Appeal Board, which ruled in July that Green would be denied unemployment benefits, determining that he had lost his job because of his misconduct.

The decision, written by board member Geraldine A. Reilly, states that Green should have taken the letter from Crosier, regardless of his belief that it involved insurance, and that it would be reasonable to do so given his lack of responses to other forms of communication. The opinion of the board also states that, while both Green and Crosier escalated the situation, it was Green who displayed “unreasonable and defiant behavior,” leading to his dismissal.

Discrimination denied

In June, Green had filed a complaint with the New York State Division of Human Rights, charging both Crosier and the town with discrimination based on his sexual orientation. A decision made in late November, written by Victor P. DeAmelia, the regional director of the division, states that there is no probable cause that Green was discriminated against, citing the evidence provided as insufficient.

The decision states that Crosier knew about Green’s sexual orientation when he hired and promoted him, and continues to employ Green’s partner, Timothy Lippert, as the town’s part-time building inspector and code enforcement officer. The decision states that this indicates Crosier did not fire Green for discriminatory reasons.

The statement also goes over Green’s insurance, which covered Lippert as his domestic partner and referred to him under the category of “spouse.” Green and Lippert are not married. “It appears that Complainant [Green] wished to be treated better than similarly situated heterosexual single employees by having his partner recognized as a spouse, while remaining unmarried,” the decision states.

Same-sex marriage became legal in New York State in 2011.

The decision states that Green was fired for valid, non-discriminatory reasons, and dismissed Green’s charges. He may appeal the decision by the end of January; he told The Enterprise this week he could not say whether or not he would appeal the decision.

“The Division of Human Rights, saying I received special treatment, it’s just inaccurate,” said Green. He said the insurance had been chosen specifically by himself and town Clerk Anita Clayton after he had been promoted to a full-time position. He said he wasn’t asking for more, but wanted to get what he had paid for.

Crosier said this week that the two decisions “speak volumes” about what had occurred.

“All that we did was treat him as every other employee,” he said. Crosier noted that several town employees have girlfriends who do not get benefits either.

“The truth has come out, and we have been vindicated,” he said, of the town.

Two views

Green said he had been working for the town for over two years as a part-time employee when he submitted a letter of resignation to the town board in July of 2016. He said he had too many tasks to complete with part-time hours. In response, the town offered him a full-time job that same month, complete with what Green said Crosier called a “blue-ribbon package” of benefits.

Green said that Clayton had contacted the insurance company to ask if domestic-partner insurance was provided and was told it was. Email exchanges Green provided The Enterprise show Clayton asking if Lippert could be covered as domestic partner, and a confirmation that he could be.

She signed Green up for insurance and listed Lippert as his spouse; Green said he questioned this but was told it was the correct category. He said that Clayton told him it wasn’t necessary to get married.

Green said he was told on Sept. 6 that the town could not offer insurance for Lippert. In an account written by Clayton, which The Enterprise obtained in an earlier FOIL request this spring, Clayton states that Lippert was mistakenly added. Crosier told The Enterprise that it was a clerical error that led to Lippert being insured. Green maintains that it was not a mistake.

The decision regarding Green’s unemployment benefits states that “domestic partner” did not fall under the town’s definition of “an eligible family member.”

According to Clayton’s account, Green had first spoken to her to say the policy was not a problem, and later said over the phone that it was not acceptable and should be changed. Clayton then transferred the call to Crosier.

Green told The Enterprise this week that he was not happy with the policy changes either of the times he spoke about it. He said he then had contacted his attorney, Aline Galgay, who also serves as the town of Westerlo’s attorney.

Green said Galgay had spoken with Crosier and had met with the previous town attorney for Berne, the late William Conboy Sr.; Green said Conboy had asked why Green wouldn’t get married in order to provide coverage to his partner.

“I did try to work with the town before I was fired,” said Green.

Green spoke to Crosier over the phone the next day, and said that Crosier had told him that taxpayers “wouldn’t go for” covering his partner’s insurance, and that the insurance did not cover “two people shacking up,” Green recalled. He said this week how hurt he was by the phrase, describing a committed relationship that has lasted over 20 years.

Green also said Crosier had stated that this type of policy would allow people to be able to insure their “live-ins.”

According to Clayton’s statement, Crosier wrote to Green on Sept. 12 that Lippert could be enrolled but the two would be responsible for additional costs not covered by the 85-percent premium offered to individuals and their dependents.

Green told The Enterprise that he had lost trust in Crosier because of his changing statements about the the health insurance — he said Crosier had initially told him that no coverage could be offered to Lippert.

According to Clayton’s account, she typed up a letter stating the insurance policy and asked Green to come to the town hall to pick it up on Sept. 12. Green called and told her he could not be there and that under no circumstance would he talk to Crosier without his attorney present, Clayton related.

Green said that he dropped off his timesheet on Sept. 12 at 9:30 a.m. and was not told about the letter until he was sent a text message around 2:45 p.m. from Clayton asking him to pick it up by 3 p.m., which he said he could not do unless he could be a little late, which Clayton declined to do, he said.

The decision from the Unemployment Insurance Appeal Board states that Green had said he would come in on Sept. 13 at 8 a.m. Green called in sick the next day.

On Wednesday, Sept. 14, Green said he arrived around 7:30 a.m. at the highway garage to mow the lawn and put his phone away to avoid losing it while mowing and because he could not hear it anyway. He was mowing until about 10:30 a.m., he said, until the highway department secretary, Kathy Stempel, told him Crosier was looking for him.

He said that it was then that he then saw the messages on his phone left for him by Clayton. Green said he called Galgay to ask her to accompany him; she contacted Crosier, he said.

Clayton wrote that Crosier had written a letter stating Green was to report to him by 11 a.m. on Sept. 15. Crosier and Clayton then drove to Green’s various work places, looking for him. Green was eventually spotted leaving the highway garage and had indicated that they should go to Town Hall, Clayton’s written account says.

Green said this week that he asked Crosier to meet him at Town Hall because he was embarrassed to discuss the issues surrounding his insurance and home life at the highway garage.

Green said he arrived at Town Hall and saw senior town account clerk Andrea Borst sitting in for Clayton. He said he looked for Clayton and then asked Borst where she was, as he said he did not see Clayton with Crosier at the highway garage.

Green said that he was looking for Clayton because she also serves as the town’s human resources officer, and he was hoping to talk to her about his situation. When he did not know where she was, he asked Borst to call 9-1-1.

According to a separate account from Borst, Green said that she needed to call 9-1-1 because he was being followed.

Green said that Lippert was also at Town Hall, working in his office. According to Clayton’s account, both men were in front of the building when Clayton and Crosier arrived. Clayton said Lippert jumped in front of Green, whom she said appeared angry and emotional, and said not to touch him.

According to Clayton, Crosier attempted to give Green the letter, and Borst then came out of the office to say that the dispatcher would not send anyone until the sheriff’s knew why. Clayton, and then Crosier, took over the call.

Green said that, after Crosier had arrived at Town Hall, that he asked him to open the letter or to read it to him. He also said he had previously asked it be left in his mailbox. Green said he had suspected the letter to be regarding his insurance policy and did not want to open it without his lawyer present. He said that Crosier reached out for him several times, to which Green replied, “Don’t touch me.”

Green said he edged away from Crosier and then ran past the post office and into the nearby road. He said Crosier told him he was being ridiculous, and followed him to the center line in the road.

Crosier then took the letter and, Green claims, “slammed” it into Green’s chest and said, “There, you have been served.”

Eventually, the members of the Albany County Sheriff’s Office and the New York State Police arrived. Crosier gave a sheriff’s deputy the letter to give to Green, who refused to take it.

Crosier told The Enterprise this week that Green’s allegation that he had “slammed” him was “obviously not true,” and that, if it had been, the police who arrived shortly after would have charged him.

“Anything he says, he’s just lying now,” said Crosier.

Green said that, when he asked to press charges, he was told by an officer that he didn’t look hurt.

“Supervisors do not have the right to put their hands on employees,” he said.

Clayton’s account reports that she typed a termination letter as dictated by Michael Richardson, the town’s labor consultant who Crosier had contacted. A sheriff’s deputy tried to give the letter to Green who refused to accept it, and then escorted him to the highway garage to return his keys and then escort him off town property, Clayton wrote.

“Yeah, I should have taken the letter, but I didn’t … ,” said Green, adding rhetorically, “Did I have a right to be upset?”

Crosier said he had known both Green and Lippert were gay because he knew them before they were hired; he said he considered them his friends.

Green said this week he had a good working relationship with Clayton, and considered her a friend. He also said he treated Crosier and his family with great respect, including walking them to their car the weekend before during Summerfest in Berne.

Green said, however, that there were instances in which he felt discriminated against, including when he was told he couldn’t have domestic partner coverage, but also when he said Crosier brought up the fact that Green is gay on their way to a meeting, telling him that his daughter has gay friends and he is comfortable with that, though he used to not be, Green recalled.

“It has nothing to do with work, ” said Green.