that Lockhart continued to be critical of her in Board meetings, there is no description of specific statements and, in any event, no suggestion that the criticism was racial or racially based.
The comments made by Terrell and Lockhart were of a slightly different nature than is usually the case in a Title VII action. These comments were not racial epithets or slurs in the typical sense. They were not racially-based personal insults against Picotte, but rather criticism of the Board for hiring a caucasian person rather than an African-American. Terrell and Lockhart told Picotte that they had "nothing against her personally;" they just disagreed with the Board's hiring decision.
Neither Terrell nor Lockhart supervised Picotte. Neither woman was at the Center during business hours. Picotte herself supervised all the employees and all the daily activities that occurred at the Center. It appears that Picotte, as Executive Director, answered only to the Board as a whole (or in some instances to committees thereof). Acting individually, neither Terrell nor Lockhart had any control over Picotte's immediate job responsibilities or her job security. Neither professed to be acting or speaking on behalf of the Board. Each made it clear that they did not criticize Picotte personally but simply had a philosophical objection to her being hired due to her race.
These comments objectively may be viewed as insensitive and confrontational. Indeed, a reasonable person might be upset and annoyed by such statements. However, given the type of statements, the limited number of occasions on which they were made, the circumstances in which they were made, and the respective roles of Picotte, Terrell, and Lockhart, I do not believe that they created a workplace "permeated with discriminatory intimidation, ridicule, and insult ... that [was] sufficiently severe or pervasive to alter the condition of [Picotte's] employment and create an abusive working environment." Harris, 114 S. Ct. at 370 (citations and internal quotes omitted); see also Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2d Cir. 1987) ("To demonstrate a hostile work environment more than an episodic pattern of racial antipathy must be proven...")
; Bennett v. New York City Dep't of Corrections, 705 F. Supp. 979 (S.D.N.Y. 1989)("[Plaintiff] must prove more than a few isolated instances of racial friction. *** The incidents of harassment [must] occur either in concert or with a regularity that can reasonably be termed pervasive.") (citations omitted).
This is not a situation where the plaintiff has been subjected to vicious racial epithets or physically threatening or humiliating actions, or a pattern of such behavior over an extended period of time. See, e.g., Amirmokri v. Baltimore Gas & Elec. Co, 60 F.3d 1126 (4th Cir. 1995)(Title VII claim properly sustained where for six months plaintiff subjected to daily "national origin" epithets and name-calling, and asked to perform objectively impossible tasks); Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391 (D.C. Cir. 1995)(in sex harassment case, repeated verbal and physical harassment, culminating in rape, plainly sufficient to state a "hostile environment" claim); Erebia v. Chrysler Plastic Products Corp., 772 F.2d 1250 (6th Cir. 1985), cert. denied, 475 U.S. 1015, 89 L. Ed. 2d 311, 106 S. Ct. 1197 (1986)(plaintiff subjected to racial slurs for five years); Currie v. Kowalewski, 842 F. Supp. 57 (N.D.N.Y. 1984), aff'd, 40 F.3d 1236 (2d Cir. 1994) (employer created a hostile environment where he continually hugged plaintiff and otherwise touched her in an unwelcome manner, along with making sexual innuendos, sexual advances, and sexual talk, over an eleven month period). Rather, the comments were few in number, they were not racial insults or epithets directed at Picotte personally, and they were made by two disgruntled Board members who individually had no supervisory or other control over Picotte. Thus, while Picotte may have found Terrell and Lockhart's comments subjectively distressing, they do not separately or together create a hostile or abusive work environment and cannot form the basis of a Title VII claim.
In her effort to defeat summary judgment, Picotte raises the following factual disputes. Picotte disputes whether, during the August 22nd telephone conversation between Picotte and Terrell, Picotte affirmatively asked Terrell to "repeat her statements." Plaintiff's Response to Statement of Undisputed Facts. The Court finds this to be immaterial: the relevant issue is what Terrell said or did not say, and not whether Picotte specifically solicited such comments.
Picotte further disputes the Center's assertion that neither Lockhart nor Terrell could decide her job performance. As noted above, the Court finds as a matter of law that, as individual members of the Board, neither Lockhart nor Terrell had the power to terminate or demote Picotte. And importantly, neither affirmatively represented that their comments and opinions were those of the Board.
Picotte's only other factual disputes have to do with the Center's assertions that "Plaintiff has suffered no change in her job responsibilities" and "there have been no changes in the terms and conditions of Plaintiff's employment." Center's Statement of Material Facts at PP 19, 24. Picotte's employment was terminated on April 19, 1995, roughly three weeks after the Center filed its motion. Presumably the Center no longer contends that these statements are true. However, the issue of Picotte's termination relates more specifically to her motion for leave to supplement, and thus is not relevant to the present motion. (See discussion below.)
Nor does plaintiff come forward elsewhere in her opposing papers with any genuine dispute over the facts. Indeed, Picotte provided still further factual information about her allegations, which information is not disputed by the Center and does not alter the Court's conclusion.
Thus, the Court finds that Picotte has failed to come forward with specific facts showing that there is a genuine issue for trial. Therefore, the Center's motion for summary judgment is granted and Picotte's amended complaint is dismissed in its entirety.
PICOTTE'S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT6
By way of opposing the Center's motion for summary judgment, Picotte seeks leave to serve a supplemental complaint. Specifically, she seeks to add the allegation that "On April 19, 1995, Plaintiff was terminated by the Defendant because of her race and in retaliation for bring [sic] this Title VII complaint against her employer." Supplemental Complaint at PP 25, 31 and 38.
Under Fed.R.Civ.P. 15(a) the Court has discretion to grant a plaintiff leave to amend his pleadings. Evans v. Syracuse City School District, 704 F.2d 44 (2d Cir. 1983). Leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "Justice does so require unless the plaintiff is guilty of undue delay or bad faith or unless permission to amend would unduly prejudice the opposing party." S.S. Silberblatt, Inc. v. East Harlem Pilot Block- Bldg. 1 Hous. Dev. Fund Co., 608 F.2d 28, 42 (2d Cir. 1979).
A court may also deny leave to amend where the amended pleading is considered futile. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). "In this Circuit, an amendment is considered futile if the amended pleading fails to state a claim." Tri-State Judicial Services, Inc. v. Markowitz, 624 F. Supp. 925, 926 (E.D.N.Y. 1985). Thus, when analyzing a motion for leave to amend, the court must determine whether any facts exist under which a cause of action for retaliation could be sustained.
In this instance, Picotte is not guilty of undue delay or bad faith. She moved for leave to supplement within eight days of her employment termination. Nor can this supplement be deemed unduly prejudicial to the Center: the lawsuit was initiated only two months prior to the motion for leave to supplement; no discovery has occurred; no trial date has been set; and the Center has not yet even answered.
Nor can the supplemental complaint be deemed futile. As set forth below, the Center has not demonstrated that there are no circumstances under which Picotte's claim can be sustained.
Title VII prevents employers from firing an employee in retaliation for his opposition to a discriminatory employment practice. 42 U.S.C. 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must show: (1) participation in protected activity, of which the alleged retaliator was aware; (2) a disadvantageous employment action taken against him/her; and (3) a causal connection between the protected activity and the disadvantageous employment action. DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d. Cir.)(citations omitted), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 395, 108 S. Ct. 455 (1987) "Proof of a causal connection can be established indirectly by showing that the protected activity was followed closely by discriminatory treatment, . . ." Id.
Here, Picotte participated in protected activity by filing her Title VII lawsuit (which is obviously known to the Center). And her termination is undeniably a "disadvantageous employment action taken against her." Finally, because Picotte was terminated approximately two and one half months after bringing this Title VII action, she has adequately pled a causal relationship between her protected activity and the adverse employment action. See Manoharan v. Columbia U. Col. of Phys. & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)("Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.")(citations omitted). Thus, Picotte has set forth a prima facie case of retaliatory discharge. It cannot be said that there are no circumstances under which her claim could not be sustained.
Accordingly, this Court grants Picotte's leave to serve a supplemental complaint. Although Picotte's amended complaint fails to state a claim upon which relief can be granted, only that part of the supplemental complaint asserting that she was terminated "because of her race and in retaliation for bringing this Title VII complaint against her employer" is sustained. Fed.R.Civ.P. 15(c). Plaintiff is granted leave to file her supplemental complaint within ten (10) days of entry of this decision.
For all the above reasons, Picotte's cross-motion for leave to file a supplemental complaint (Docket #10) is granted. The Center's motion for summary judgment (Docket #8) is granted as to all claims set forth in Picotte's amended complaint and the amended complaint is dismissed. Picotte's cross-motion for partial summary judgment (Docket #10) is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
October 13, 1995.