work environment. Second, he claims that after attending a meeting on December 6, 1985 to discuss his perception of a racially hostile workplace, he was retaliated against, in violation of Section 704(a) of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a), and that his employer further retaliated against him upon his filing of three separate charges with the EEOC. The Court will address each of these claims in turn.
1. Hostile Work Environment
The Second Circuit Court of Appeals has expressly recognized the existence of a cause of action under Title VII for a racially hostile work environment. See Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986). This is consistent with the Supreme Court's pronouncement that Title VII's scope "'is not limited to 'economic' or 'tangible' discrimination.'" Harris v. Forklift Systems, Inc., 126 L. Ed. 2d 295, 114 S. Ct. 367, 370 (1993) (Title VII sexual harassment claim) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986)). Rather, "the phrase 'terms, conditions or privileges of employment'" within 42 U.S.C. § 2000e-2(a)(1), "evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women in employment,' which includes requiring people to work in a discriminatorily hostile or abusive environment." Harris, 114 S. Ct. at 370 (quoting 42 U.S.C. § 2000e-2(a)(1); Los Angeles Dep't of Water and Power v. Manhart, 435 U.S. 702, 707 & n.13, 98 S. Ct. 1370, 1374 & n.13, 55 L. Ed. 2d 657 (1978)). "When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Id. (quoting Meritor, 477 U.S. at 65, 67, 106 S. Ct. at 2405); see Karibian v. Columbia Univ., 14 F.3d 773, 779 (2d Cir.), cert. denied, 129 L. Ed. 2d 824, 114 S. Ct. 2693 (1994).
"To establish a hostile atmosphere . . . plaintiffs must prove more than a few isolated incidents of racial enmity. Casual comments, or accidental or sporadic conversation, will not trigger equitable relief pursuant to the statute." Snell, 782 F.2d at 1103 (citations omitted). Rather, "whether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 114 S. Ct. at 371. "'Mere utterance of an epithet which engenders offensive feelings in an employee,' does not sufficiently affect the conditions of employment to implicate Title VII." Id. at 370 (quoting Meritor, 477 U.S. at 67, 106 S. Ct. at 2405). In evaluating the acrimony in the workplace, however, the Court must be mindful that "so long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for" the plaintiff to prove that he sustained psychological injury. 14 S. Ct. at 371 (citing Meritor, 477 U.S. at 67, 106 S. Ct. at 2405).
In addition to the foregoing, the Second Circuit Court of Appeals has held that "an employer [will be] liable for the discriminatorily abusive work environment created by a supervisor if the supervisor uses his actual or apparent authority to further the harassment, or if he was otherwise aided in accomplishing the harassment by the existence of the agency relationship." Karibian, 14 F.3d at 780 (employer liability under Title VII for hostile workplace in regards to sexual harassment).
A careful examination of all the circumstances attending plaintiff's employment with the Port Authority between 1985 and 1987 leads the Court to conclude that although JFKIA was hardly a model of racial harmony during this time period, the pervasiveness of racial epithets, and overall racial animosity, was not sufficiently extensive to warrant a finding of a hostile work environment for purposes of Title VII. For the period in question, the Court has found the number of times in which racial slurs were uttered by supervisors in the plaintiff's presence not to have exceeded five. See supra Findings of Fact P 33. Although the Court regards the use of such epithets on so much as one occasion to be deplorable, for purposes of evaluating a hostile-environment claim under Title VII, the Court expressly considers their incidence to have been sporadic, and episodic in nature. Further, the Port Authority took reasonable measures to address its concerns about racial disharmony by, among other things, holding two separate meetings in November and December 1985 to allow for an airing of employee grievances, and through its subsequent interviews of employees, and investigation concerning alleged misconduct by white supervisory personnel.
See supra Findings of Fact PP 26, 29, 31; Snell, 782 F.2d at 1104 (Employer who is aware of a racially discriminatory atmosphere adversely affecting the emotional well-being and productivity of its employees has duty to take reasonable steps to remedy it.). Thus, in view of the Court's factual findings, and the Court's ultimate finding for purposes of this analysis that any intimidating conduct by supervisors relative to the plaintiff was infrequent, and interfered minimally with the performance of plaintiff's work, see Harris, 114 S. Ct. at 371, the Court concludes that the overall level of acrimony was not sufficiently offensive, pervasive or continuous to constitute a racially hostile work environment for purposes of Title VII. See Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1042 (2d Cir. 1993); Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992); Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989); compare Snell, 782 F.2d at 1098 (providing example of unrelentingly hostile racial environment among correction officers in prison) with Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1186, 1190 (2d Cir. 1987) (dismissing claim of hostile work environment under 42 U.S.C. § 1981 as the incidents were episodic, and not sufficiently continuous or concerted to be pervasive), overruled on other grounds by Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). Accordingly, plaintiff's hostile work environment claim is dismissed.
2. Retaliation Claim
The plaintiff also asserts that, upon attending the meeting of December 6, 1985 to discuss his perception of a racially hostile environment in his workplace, he was retaliated against, in violation of Section 704(a) of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a), and that such reprisals persisted subsequent to his filing of three separate charges with the EEOC.
Section 704(a) of Title VII prohibits an employer from discriminating "against any of his employees or applicants for employment . . . because [he] has opposed any practice made . unlawful . . . by this subchapter, or because he has made a charge . . . under this subchapter." 42 U.S.C. § 2000e-3(a). "To establish a prima facie case of retaliation, 'a plaintiff must show participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action.'" Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 64 (2d Cir. 1992) (quoting Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991)). "'Once a prima facie case is made, the burden of production shifts to the defendant to articulate a legitimate nondiscriminatory reason for its actions.'" Id. (quoting Johnson, 931 F.2d at 207). If the defendant meets its burden of articulating a permissible reason for its actions, then, consistent with the teachings of St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2749 (1993), the framework of shifting burdens becomes irrelevant, and the ultimate question becomes "whether plaintiff has proven 'that the defendant intentionally . . . retaliated against [him]' because, as in the instant case, [he] engaged in protected activity." Cosgrove, 9 F.3d at 1039 (quoting St. Mary's Honor Center, 113 S. Ct. at 2749).
Proceeding immediately to the ultimate question of retaliation,
the Court finds that the defendant did not retaliate against the plaintiff in any manner as a result of his voicing of objection to the defendant's employment practices, or through the plaintiff's filing of complaints with the EEOC. See supra Findings of Fact PP 32, 34. In connection with this claim, the Court, among other things, has found that the plaintiff's application for promotion to the position of Terminal Services Agent was rejected by the defendant for legitimate nondiscriminatory reasons, namely, plaintiff's failure to pass the qualifying examination for this position. See supra Findings of Fact P 17. Accordingly, plaintiff's discriminatory retaliation claim likewise is dismissed.
II. Claim under 42 U.S.C. § 1981
Plaintiff next claims that the defendant violated 42 U.S.C. § 1981 by failing to promote him to the position of Terminal Services Agent because of his race.
42 U.S.C. § 1981, among other things, forbids discrimination in the "'making and enforcement' of contracts . . . ." Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S. Ct. 2363, 2372, 105 L. Ed. 2d 132 (1989). In regard to claims brought under this statute prior to November 21, 1991, the Supreme Court has held that § 1981 applies to an individual's claim that he was denied promotion because of his race provided that "the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer . . . ." Patterson, 491 U.S. at 185, 109 S. Ct. at 2377. In analyzing a claim brought under this section, the Supreme Court has endorsed the use of the same framework of proof applicable to disparate treatment cases brought under Title VII, with "the ultimate issue whether the defendant intentionally discriminated against the plaintiff." Id. at 186, 109 S. Ct. at 2377 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)).
Assuming for purposes of argument that a promotion from the position of Baggage Handler to the position of Terminal Services Agent constitutes "an opportunity for a new and distinct relation between the employee and the employer," Patterson, 491 U.S. at 185, 109 S. Ct. at 2377, the Court concludes that the plaintiff fails to establish a prima facie case under this statute, and furthermore--proceeding to the ultimate issue--fails to demonstrate that the Port Authority discriminated against him. In order to show a prima facie case under 42 U.S.C. § 1981, the plaintiff must "prove by a preponderance of the evidence that [he] applied for and was qualified for an available position, that [he] was rejected, and that after [he] was rejected [the employer] either continued to seek applicants for the position, or . . . filled the position with a white employee." Patterson, 491 U.S. at 186-87, 109 S. Ct. at 2378. Here, as discussed at length elsewhere within this Opinion and Order, the plaintiff has failed to demonstrate by the preponderance of the evidence that he was "qualified" for the position of Terminal Services Agent in view of his failure to pass both the written and oral portions of the eligibility examination therefor, and the Court's further factual findings that this examination was fairly administered, graded, and enforced, and constituted a reasonable measure of job performance. See supra Findings of Fact PP 9-11, 13-15, 17. Accordingly, plaintiff's claim under 42 U.S.C. § 1981 must be dismissed for failure to establish a prima facie case.
Further, even assuming arguendo that the plaintiff established a prima facie case of race discrimination under § 1981, the defendant still would prevail on this claim. Under this analysis, the Court finds the defendant employer to have rebutted any inference of discrimination through its presentation of evidence to show that the plaintiff was rejected for a legitimate, nondiscriminatory reason--in this case, his failure to pass the qualifying examination. Proceeding to the issue of ultimate concern, the plaintiff has failed to persuade the Court that the defendant intentionally discriminated against him by not promoting him. See St. Mary's Honor Center, 113 S. Ct. at 2749. Thus, this analysis provides an additional ground to dismiss the plaintiff's claim under 42 U.S.C. § 1981.
III. Pendent State Claim
Finally, plaintiff asserts a pendent state claim, that although unlabeled in the amended complaint, resounds alternatively as a claim for assault, or for intentional infliction of emotional distress, and accordingly will be analyzed under each cause of action. In this claim, plaintiff contends that the defendant, through its employees and agents, made statements directed to the plaintiff threatening or implying serious bodily injury and other forms of personal retaliation in response to plaintiff's filing of charges with the EEOC. He further asserts that the Port Authority has engaged in a practice and conscious plan of directing towards plaintiff a relentless personal attack upon plaintiff's race, moral character, and competence, and that said pattern of derogatory personal attacks has been instituted for the sole purpose of injuring and damaging plaintiff emotionally and in his career. According to plaintiff, as a result of the foregoing conduct, he has been placed in direct and immediate fear of his personal safety and well being, and has suffered intense physical and emotional distress. See Pl. Am. Compl., Count #3.
Under New York law, to recover on a claim of assault, the plaintiff must show that another person made "an intentional attempt, displayed by violence or threatening gesture, to do injury to, or commit a battery upon," his or her person. 6 N.Y. Jur. 2d: Assault--Civil Aspects § 1, at 194 (1980). A battery, in turn, "is a wrongful physical contact with the person of another had by intention of the wrongdoer and without the consent of the victim." Id. In addition, "words not accompanied by circumstances inducing a reasonable apprehension of bodily harm, such as the movements of drawing back a fist, aiming a blow, or the show of a weapon, do not constitute an assault." Id. § 3, at 196.
In the instant case, the Court finds that the plaintiff has failed to establish by a preponderance of the evidence that he was the victim of the tort of assault. The closest the plaintiff comes to asserting a civil assault is in connection with the purported incident of November 10, 1985, with respect to which the plaintiff testified that John Mitchell, a Duty Supervisor, in rebuking the plaintiff for purportedly demanding a prohibited gratuity from two elderly women for carrying their luggage, called plaintiff into his office, and then used a racial slur, backed the plaintiff against the wall, and threatened "to get [him]." See supra Findings of Fact PP 20-21. The Court finds that, in connection with this incident, the plaintiff has failed to demonstrate that Mitchell placed him in a reasonable apprehension of imminent harmful or offensive contact. Rather, the Court regards the Mitchell's threat "to get [him]," as testified to by the plaintiff, to be forward-looking, and not of such nature as to lead the plaintiff to believe that Mr. Mitchell was about to strike him at or near that point in time. Further, there was no evidence presented at trial to suggest that Mr. Mitchell raised his fist or did anything, in conjunction with any harsh words, to suggest imminent bodily contact. See 6 N.Y. Jur. 2d: Assault--Civil Aspects § 3, at 196 (1980). Indeed, the plaintiff has failed to convince the Court that on this, or any other occasion, he actually believed that he was imminently to be struck, or touched, by a Port Authority employee in a harmful or offensive manner. Accordingly, plaintiff's claim of assault is dismissed.
B. Intentional Infliction of Emotional Distress
To succeed in an action under New York law for intentional infliction of emotional distress, a plaintiff must prove:
(1) that defendant's conduct was so outrageous and shocking as to exceed all bounds of decency as measured by what the average member of the community would tolerate, (2) that defendant's conduct caused severe mental distress to plaintiff, and (3) that defendant acted with the desire to cause such distress, or acted recklessly and under circumstances that made it certain defendant knew that mental distress would result.
61 N.Y. Jur. 2d: Fright, Shock, and Mental Disturbance § 8, at 515 (1987).
In the instant case, the Court finds that the plaintiff has failed to establish that he incurred severe mental distress in connection with the use of racial slurs by his supervisors at JFKIA, or that the frequency with which racial slurs were used in his presence was sufficient to permit recovery under New York law. See supra Findings of Fact PP 16, 33; Leibowitz v. Bank Leumi Trust Co., 152 A.D.2d 169, 181-82, 548 N.Y.S.2d 513, 521 (App. Div. 2d Dep't 1989) (Employee failed to state cause of action for intentional infliction of emotional distress based on allegation that her work supervisors called her ethnic slurs; while ethnic slurs allegedly hurled at employee demonstrated narrowmindedness and meanspiritedness, their use did not rise to such extreme or outrageous level as to meet threshold requirements of tort.). In so ruling, the Court does not condone the degrading and dehumanizing practice of uttering a racial slur. There simply is no justification for the use of such words, and the Court regards their usage, in all cases, to be unpardonable, and abhorrent. Furthermore, the Court is sympathetic to the plaintiff, and does not wish to minimize his circumstances. Rather, the Court merely rules, as is the case with the federal claims, that under New York law, it is unable to hold the defendant liable in view of the evidence presented at trial. Accordingly, this claim, too, must be dismissed.
For the foregoing reasons, the Court finds for the defendant on all claims. Accordingly, the Clerk is directed to enter judgment in favor of the defendant Port Authority dismissing all claims in this action.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
March 31, 1995