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October 13, 1995


The opinion of the court was delivered by: LARIMER

 This is a Title VII action brought for alleged race discrimination. The plaintiff ("Picotte") alleges that defendant Community Child Care Center of the Third Ward (the "Center") subjected her to a course of harassment, ridicule and discrimination on the basis of her race and color. Presently before the Court is the Center's motion to dismiss the amended complaint *fn1" (which has been converted to a motion for summary judgment) and Picotte's cross-motion for partial summary judgment and for leave to file a supplemental complaint. For the reasons stated below, Picotte's cross-motion for leave to file a supplemental complaint is granted, and the Center's motion for summary judgment is granted as to all claims set forth in Picotte's amended complaint, and perforce to all claims in the proposed supplemental complaint, except that claim or claims arising from Picotte's allegation that she was terminated "by the defendant because of her race and in retaliation for bring [sic] this Title VII complaint against her employer." Picotte's cross-motion for partial summary judgment is denied.


 The relevant facts are essentially undisputed. Picotte is a caucasian female. The Center is a not-for-profit corporation formed in 1967 by citizens who were concerned about the absence of child care facilities in predominantly African-American neighborhoods. The Center is open to children of all races and nationalities but, probably because of its location, it receives applications from fewer caucasian families than families of other racial and ethnic backgrounds. The Center's Board consists of fifteen persons, the majority of whom are caucasian.

 Picotte alleges that she had no problem performing her duties until August 9, 1994, when one of the members of the Board, Katheryn Terrell ("Terrell"), scheduled a private meeting with her. Terrell was and is a Board member but not an officer of the Board. She had not participated in the Board's June decision to hire Picotte because she had been convalescing following surgery. Terrell had just returned to her Board activities in August.

 At their meeting, Terrell told Picotte that the Executive Director of the Center should be an African-American. Terrell, who is African-American, indicated that because the Center was an African-American community institution serving primarily African-American children, an African-American Executive Director would provide a positive role model. Terrell never stated that her opinions were the opinions of the Board. Terrell told Picotte that she had no criticism of Picotte personally or of her work performance. This meeting greatly upset Picotte.

 Several days later Terrell and Picotte had a telephone conversation during which Terrell questioned Picotte's attempts to seek funds from the City of Rochester. During this conversation Terrell reiterated her opinion that the Executive Director of the Center should be an African-American but that she did not have any criticism of Picotte's job performance.

 On or about August 17th, at a meeting of the Board of Directors, a new member of the Board, Ruby Lockhart ("Lockhart"), also an African-American, stated that she was disappointed that the Board had chosen a caucasian person and not an African-American as its Executive Director. That Picotte was doing a fine job and was a fine person was readily admitted by Lockhart. Other members of the Board defended their choice by indicating that no qualified African-American applied for the position. Lockhart did not request any Board action, and none was taken.

 Like Terrell, Lockhart was not an officer of the Board and she did not participate in the Board's June decision to hire Picotte (because she was not yet a member).

 On August 22nd, Picotte telephoned Terrell about Terrell's concerns. During their conversation, Terrell repeated her views that the Director should be an African-American, though she had nothing against Picotte personally. On this same date, Picotte wrote a grievance letter to the Board, detailing these events and complaining that Lockhart and Terrell practiced racism and bigotry. She requested that they be removed from the Board but indicated that she remained committed to her job and the well-being of the children.

 On September 30th, Picotte sent a memo to the Board stating that, until her grievance was addressed and resolved to her satisfaction she would be out of work on disability. In her memo, Picotte indicated that the events set forth in her grievance had affected her physically, mentally and emotionally and that "under doctors orders," she could no longer work.

 The Board held a special meeting on October 5th during which Picotte's grievance was specifically addressed and Picotte was asked to express her views. At this meeting the Board issued "guidelines" as follows:

The Community Child Care Center's Board can not function properly if members take actions contrary to the best interest of the Center and its workers. Therefore, (1) All grievances should be brought before the [Center's] Board of [sic] discussion and approval of action; (2) Board members should accept the Board's final decision; and (3) if any member can not or will not do this, then that member should not be on the Board.

 At this October 5th meeting, the Board decided to conduct another session to investigate Picotte's grievances. At this meeting, which was on October 10th, Terrell and Lockhart were separately questioned. At Terrell and Lockhart's request, an independent third party was permitted to attend these sessions.

 As a result of its investigation, the Board concluded that the Center had not engaged in intentional discrimination against Picotte. While individual Board members may have agreed or disagreed with their comments, the Board determined that the sentiments expressed by Lockhart and Terrell were not reflective of the policy of the Board, nor ...

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