Former state employee wins $150,000 in reverse discrimination case

Black boss accused of using racist slurs
By Dan Herbeck
The Buffalo News
Aug. 25, 2007

Mark Pasternak said he lost his state job helping troubled youths because he couldn’t stand working under a black boss who called him racist names like “cracker,” “polack” and “stupid white boy.”

Pasternak was dismissed from his position as a youth worker with the state Office of Children and Family Services in 1999. But today, he feels some relief and vindication.

After a rare reverse racial discrimination trial in Buffalo’s federal court, a jury Tuesday awarded Pasternak $150,000. Jurors found that his former boss, Tommy E. Baines, discriminated against him racially and created a hostile working environment.

Federal court officials said they could not recall any reverse discrimination case in Buffalo resulting in a larger monetary verdict. Most such cases wind up being settled or dismissed before they ever go to trial.

“I’m elated and overwhelmed,” the 48-year-old South Buffalo man said in an interview Wednesday. “I feel like I’ve been to hell and back. . . . After all these years, the best feeling is, the jury heard his story and mine, and they believed me.”

A seven-member all-white jury delivered the verdict after a two-week trial and almost 10 hours of deliberations. U.S. Magistrate Judge Hugh B. Scott presided.

Pasternak was subjected to three years of cruel abuse from Baines, a veteran supervisor with the agency formerly known as the state Division for Youth, according to Pasternak’s attorney, David J. Seeger.

The abuse came in the form of race-based slurs, job sabotage and crude insults that Baines made about Pasternak in front of co-workers, according to court papers and testimony.

“You’re a white boy, and I don’t like white boys,” Pasternak quoted Baines as telling him. “Handle it.”

“He said that to me more than once, and he said many other things like that over the years I worked for him,” Pasternak told The Buffalo News. “He called me cracker, polack, Paster-rat and stupid white boy. . . . I was sick to my stomach.”

Pasternak said his boss also harassed him by removing documents from his desk and changing the locks on doors and filing cabinets that Pasternak needed access to.

The state conducted an internal investigation into Pasternak’s allegations in 1998, court records show, and the investigation resulted in a $2,000 fine against Baines. But he was allowed to continue working as a supervisor.

Baines and his attorney, William R. Hites, did not return calls seeking their comment.

In court testimony, Baines contended that he and Pasternak never got along. Baines testified that Pasternak was an insubordinate worker who started making complaints about him to other officials of the state agency almost immediately after he became a supervisor in 1995.

When Baines took the witness stand, he was never asked whether he had called Pasternak “white boy” or any other derogatory names.

Pasternak testified that Baines did make such remarks, repeatedly.

“[Baines] never denied saying those things, and I certainly pointed that out to the jury in my closing argument,” Seeger said.

A black woman who works at the state agency also testified that she heard Baines make derogatory remarks about Pasternak.

The alleged abuse led to insomnia, anxiety and depression for Pasternak, who took several medical leaves of absence before being dismissed by the state in 1999. The state later offered to rehire Pasternak, but he said he turned down the job offer because the state refused to guarantee he wouldn’t be working under Baines again.

Pasternak has since obtained a railroad job, but “working with troubled youths was his passion,” Seeger said.

In addition to suing Baines as an individual, Pasternak also tried to sue the state. But in a decision issued last year, U.S. District Judge John T. Curtin dismissed the action against the state.

Curtin ruled that the state did try to correct the problems by investigating Baines, fining him $2,000 and offering Pasternak other jobs after it dismissed him.

“The state did too little, too late,” Seeger responded. “Mark’s dilemma was that, in order to return to work, he needed to be left alone by Tommy. The state wouldn’t guarantee that for him.”

Seeger said he believes the state paid for Baines’ defense and will also pay the jury award, but he added that he is not certain of that.

Brian Marchetti, a spokesman for the state office, had no immediate comment on the matter when contacted Wednesday afternoon.

“When I was growing up, I was always taught to stay away from racial slurs . . .” Pasternak said. “This kind of conduct, from a supervisor who worked with kids, really bothered me.”

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