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January 11, 1996

MICHAEL KAMAU HENDERSON, Plaintiff, against CENTER FOR COMMUNITY ALTERNATIVES (formerly National Center on Institutions and Alternatives/Northeast), and KATHLEEN O'BOYLE, both individually and in her capacity as Deputy director of the Center for Community Alternatives, Defendants.

The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 In this action brought under the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 et seq. (1988 & Supp. V 1993); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1988 & Supp. V 1993) ("Title VII"); 42 U.S.C. § 1983, for violations of First Amendment rights; and the New York Human Rights Law, N.Y. Executive Law § 290 et seq. (McKinney 1993) by Plaintiff Michael Kamau Henderson ("Henderson") against Defendants the Center for Community Alternatives ("CCA") and Kathleen O'Boyle ("O'Boyle") (collectively, the "Defendants"), Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that there are no genuine issues of material fact for trial and that Defendants are, therefore, entitled to judgment as a matter of law.

 For the reasons discussed herein, the motion will be granted in part and denied in part.

 Prior Proceedings

 On December 20, 1993, Henderson filed a timely charge with the New York State Division of Human Rights. That charge was cross-filed with the Equal Employment Opportunity Commission (the "EEOC"). The charge complained of the acts of race discrimination and retaliatory discrimination alleged in this action. On July 14, 1994, Henderson received from the EEOC a notice informing him of his right to sue Defendants in federal court.

 Henderson filed his Complaint on September 8, 1994, and Defendants answered on November 15, 1994. On June 1, 1995, Defendants filed their notice of this motion. After supporting and opposition papers had been submitted, oral argument was heard and the matter was deemed fully submitted on September 20, 1995.

 The Complaint

 The Complaint is based on six claims. Claim One alleges race discrimination in violation of Title VII. Claim Two alleges discriminatory discharge under Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Claim Three alleges retaliatory discharge in violation of Title VII, 42 U.S.C. § 2003e-3(a): Claim Four alleges retaliatory discharge under Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; Claim Five alleges unlawful discharge for the exercise of First Amendment rights under 42 U.S.C. § 1983; Claim Six alleges discriminatory discharge in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296.

 The Parties

 Henderson, an African-American man, is a citizen of New York.

 CCA, formerly known as the National Center on Institutions and Alternatives/Northeast ("NCIA/Northeast"), is a private, not-for-profit organization which provides direct services to professionals and clients in the criminal and juvenile justice systems and related human service systems, as well as providing training and technical assistance in those fields. CCA maintains offices and programs in both New York City and Syracuse.

 Funding for CCA's project comes primarily from public funding received through contracts for CCA services. Among the public entities paying CCA are the New York State Division of Probation and Correctional Alternatives, the New York City Office of the Deputy Mayor for Public Safety, the Onondaga County Department of Social Services, and the Onondaga County Bar Association Assigned Counsel Program. Program support and start-up funding for many CCA programs have been initiated by private foundation grants. In addition, private monies also come from donations and fee-paying clients.

 CCA's New York office runs three main projects: the Youth Advocacy Project ("YAP", the "Project" or the "Program"), Crossroads, and the Client Specific Planning Project ("CSP"). These three projects serve distinct offenders but share certain methodologies. Crossroads and YAP are both located within the same office complex, but they are run separately, each maintaining office space physically separate from the other. For the most part, each project maintains its own separate staff. Project directors have responsibility only for their own employees, and employees are not accountable to the staff of other programs.

 YAP serves as an alternative to detention for juvenile offenders, most of whom are charged with serious felony offenses, who have been detained at Spofford Juvenile Detention Center in the Bronx ("Spofford") for at least one month. The program began when the National Center on Institutions and Alternatives ("NCIA") received funding approval for YAP in 1989. Until June 30, 1992, NCIA was the parent agency for YAP. At that time, YAP broke off from NCIA and chartered NCIA/Northeast, ultimately called the Center for Community Alternatives. YAP seeks to prevent recidivism through intensive intervention, which includes case planning, court advocacy, and community support and supervision. Referrals to the program are initiated primarily by defense counsel, courts, and staff members at Spofford. Upon a client's referral, YAP case managers assess the client's needs and develop a plan to meet the needs of the client, the community, and the justice system. If the court accepts the plan and releases the child from detention conditioned upon the child's participation in YAP, a case manager is assigned to have daily contact with the client in his or her community for up to one year following the child's release.

 Crossroads is specifically designed for women offenders sixteen years of age and older with histories of substance abuse who have been charged with felonies. The program places special emphasis on working with mothers and pregnant women. If accepted into the program, Crossroads clients must commit to twelve months of day-treatment program involvement, followed by community-based case management. Crossroads staff provide intensive case management services to ensure continued abstinence and success in productive, healthy community living. Crossroads staff also regularly provide client progress reports to courts, the District Attorney, defense attorneys, and other involved agencies, such as the probation department.

 CSP, the third of CCA's programs, is the alternative sentencing service of CCA and the foundation of all agency programs. CSP is part of CCA's array of criminal justice programs and is available to criminal defendants in both federal and state courts. The form of intervention varies, tailored specifically to the needs of the client in formulating an alternative to incarceration, including treatment programs, vocational training, and housing services.

 CCA provides services primarily to members of minority groups. At the time that Henderson was discharged from his position with YAP, all of the clients of Crossroads were either black or Latino women, and ninety-five percent of YAP clients were either black or Latino.

 CCA employs a professional staff that is composed primarily of members of minority groups, many of whom work in key managerial positions. Over fifty-percent of the Crossroads professionals are either black or Latino. Of YAP's professional staff of eleven, all are either black or Latino.

 O'Boyle, who is white, is the Deputy Director of CCA in New York. In that capacity, she has administrative responsibility over the New York operations, including both YAP and Crossroads. O'Boyle is also directly responsible for the CSP. During the entire period of Henderson's tenure at CCA, O'Boyle was Henderson's highest-ranking supervisor and reviewed and approved all decisions regarding his employment.

 Relevant Non-Parties

 Marsha Weissman ("Weissman"), who is white, is the Executive Director of CCA. She is located in Syracuse but oversees operations in both Syracuse and New York City.

 YAP was directed by Christine Pahigian ("Pahigian"), who is white, until her resignation in or around April 1993.

 Charmane Wong ("Wong") is a Caribbean-American. Each of her parents had one black parent. Wong succeeded Pahigian as Project Director of YAP in August 1993 and left CCA in mid-1995.

 Crossroads is run by Kenneth Bloomfield ("Bloomfield"), its Project Director, who now serves as the acting Project Director for YAP. Bloomfield is white.

 In deciding a motion for summary judgment, "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Brennan, J., dissenting); Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)). See United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992); Burtnieks v. City of New York, 716 F.2d 982, 983-84 (2d Cir. 1983). The facts as presented here are construed accordingly, and they are limited to this motion.

 I. Henderson's Early History at YAP

 Henderson was hired by YAP on May 14, 1990, as a Case Manager, by Pahigian with the approval of Weissman and O'Boyle. As one of the first three case managers hired to effectuate the Alternatives to Incarceration contract between the City and State of New York and what was then NCIA, Henderson was involved in establishing the duties and responsibilities of a case manager. Henderson's duties included supervision and management of approximately eight YAP clients. Specifically, his responsibilities included conducting intake and background investigations, developing alternative-to-detention plans to submit to the courts, advocating to the courts for the release of clients from detention into the Program, supporting the children and their families through direct community-based contact and interaction, and regularly submitting progress reports to the courts and other appropriate individuals.

 On April 11, 1991, Henderson received his first performance review. He received a grade of "outstanding", the highest available, in eight of the ten categories in which he was rated, one "high" grade, and one "normal" grade. Based upon this performance review, Henderson received a pay raise.

 In October 1991, Pahigian promoted Henderson to the position of Senior Case Manager, with an accompanying pay raise, and that promotion was approved by O'Boyle and Weissman. In addition to his case management duties, Henderson became responsible for assisting in the supervision of three case managers, including providing them with guidance in their casework with clients.

 On October 15, 1992, Henderson received another performance review. He received exclusively "outstanding" grades and received high praise. Indeed, throughout his tenure as Case Manager and Senior Case Manager, Defendants aver that Henderson was considered by Pahigian, O'Boyle, and Weissman to be an excellent and valued employee.

 In April 1993, Pahigian resigned, and, as part of YAP's restructuring, Henderson was promoted at the behest of Pahigian and with the efforts of Weissman and O'Boyle on July 1, 1993, to the newly created position of Director of Case Management Services ("DCMS"). As the first person to fill this new position, Henderson was involved in establishing the duties and responsibilities of the DCMS. His duties included direct supervisory responsibility and training of all case management staff, consisting of one Senior Case Manager and five case managers. Henderson had exclusive authority over case management decisions and bore responsibility for maintenance of all client files and records. Because of these additional supervisory responsibilities, Henderson carried a reduced caseload of four clients during his tenure as DCMS. Among his accomplishments during his tenure was to increase significantly the number of referrals to YAP, a goal in light of the fact that the Project had failed to meet its contractual goals during the previous fiscal year.

 Just before Henderson assumed the position of DCMS, following Pahigian's resignation in April, YAP operated until August 20, 1993, without a Project Director until Wong filled the vacancy. During this time, Henderson was the highest-ranking case management employee at YAP and had extensive latitude and autonomy.

 Defendants allege that the relationship between Wong and Henderson began on poor footing, and that almost instantly upon taking over YAP, Wong experienced resistance from Henderson in accepting her supervision and authority. Their first exchange, besides mere pleasantries, consisted of an encounter in which Henderson objected to and challenged Wong's enforcement of a YAP policy on employee use of automobiles leased by the Project. Henderson asserts that the nature of this interaction was professional, not personally antagonistic.

 The details of the interaction are as follows. Case managers were allowed to use leased cars available to YAP as needed, provided use had been approved by either the Project Director or the Assistant Project Director. Because there was no Project Director at the time a memorandum was issued regarding this policy, Henderson, as DCMS, was allowed to approve the case managers' use of the cars. Several days after Wong began as Project Director at YAP, she issued a memorandum reiterating that only she or the Assistant Project Director could approve case managers' use of cars. Henderson's access to the cars remained unchanged, but he did confront Wong after learning of her memorandum, dismayed at the fact that she had made the change without first consulting with him. Defendants assert that this confrontation began a strained relationship between Henderson and Wong, marked by Henderson's refusal to adapt to Wong's different approach to management of YAP and to her tempering of his previous authority and control. Henderson states that the situation was relatively cordial once the misunderstanding had been worked out, and that there were no lingering bad feelings between him and Wong.

 III. The Crossroads Incident

 On October 15, 1993, Henderson overheard a Crossroads client, Simone, an African-American woman who was engaged in cleaning a bathroom at the YAP offices on the CCA premises, complaining that she had been compelled by the Crossroad program to do that work. Crossroads had only recently required its clients to clean the YAP bathrooms, and Simone informed Henderson of that fact. Also recently, Darrel, an African-American man, had been replaced as CCA's maintenance worker by John Clohessy ("Clohessy"), a white man. Henderson was dismayed upon learning of Crossroads' new policy. He asserts that there were two sources of his dismay. First, Henderson states, he believed that the practice of compelling Crossroads clients to clean CCA bathrooms was discriminatory and akin to slavery, because the Crossroads clients were exclusively black and Latino, because the new cleaning policy had been implemented at the same time that Clohessy had replaced Darrel, and because Clohessy had been hired to supervise the Crossroads clients, though Darrel had cleaned the CCA bathrooms without assistance. Second, Henderson states, he was bothered by the appearances presented by the Crossroads policy, believing them antithetical to the philosophy of CCA. Henderson asked Simone to stop cleaning the YAP bathrooms and advised her that he would speak to someone about the new requirement.

 When Bloomfield learned that day of Henderson's actions, he asked O'Boyle to call a meeting among the three of them. Bloomfield argued to O'Boyle that it was improper and potentially damaging from a treatment perspective for Henderson to undermine the authority of the Crossroads treatment team by giving any instructions directly to Crossroads clients. Bloomfield told O'Boyle that Henderson should have raised any concerns or objections with Bloomfield or another Crossroad employee.

 O'Boyle asked Henderson to come to her office, and Bloomfield reiterated his objections to Henderson's behavior. Henderson expressed his objection to the new cleaning policy as discriminatory, degrading to the clients, and contrary to the goals of CCA. Henderson further stated that he believed an improper appearance was presented by having the Crossroads clients cleaning, because of the stereotypes associated with that work, and in light of the fact that all of the Crossroads clients were all black or Latino. Bloomfield emphasized that all Crossroads clients were required to undertake various responsibilities in order to instill a sense of ownership of the community as part of the Crossroads treatment program, and that this was a widespread therapeutic philosophy in other, similar treatment communities. Bloomfield stressed that the client responsibilities program had been instituted by Donna Harris, the Crossroads Director of Treatment, who is black.

 Henderson alleges that at the meeting, Bloomfield suggested that Henderson himself was a racist because Henderson had objected to the policy only because all of the Crossroads clients were members of minority groups and that Henderson would not have reacted to their cleaning the YAP bathrooms had they been white. Henderson also alleges that during the meeting, O'Boyle defended the policy in part because she claimed the Crossroads clients enjoyed cleaning.

 After the meeting, Crossroads no longer required its clients to clean the bathrooms on the YAP side of the CCA facility. Henderson states that this change in policy constituted a compromise to which O'Boyle and Bloomfield reluctantly agreed. Defendants state that they believed that Henderson had raised a valid point regarding the possibility of misinterpretation of the client responsibilities by those unfamiliar with the concept of rehabilitative treatment, and they thus decided to discontinue cleaning on the YAP side of the CCA facility, while continuing it on the Crossroads side.

 Subsequent to this meeting, Bloomfield and O'Boyle never discussed the issue again with Henderson. Defendants assert that neither Bloomfield nor O'Boyle discussed the incident with Wong prior to Henderson's discharge, believing the situation to be resolved. Henderson asserts that the incident became the focus of substantial discussion among Bloomfield, O'Boyle, Weissman, and the Crossroads staff over the next several weeks, and that his actions were cast in a negative light in the course of those discussions.

 IV. The File Review

 Because YAP contracts with the City of New York, the Project is subject to periodic site visits from City contractors monitoring YAP's compliance with the terms of the contract. The City monitors were scheduled to conduct a site visit of YAP on October 26, 1993. These site visits had occurred regularly during Pahigian's tenure as Project Director, but the October 26, 1993, visit was to be the first following Wong's employment as Project Director. Typically during these site visits, monitors conducted an audit of the case management ...

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