The opinion of the court was delivered by: HOMER
Plaintiff, a former employee of defendant Quad/Graphics, Inc. [hereinafter Quad], alleges that he was discriminated against by the defendants on the basis of his race, religion, national origin and ethnicity beginning in August 1990 and continuing through his last day of work on July 12, 1993. Plaintiff seeks compensatory and punitive damages, and declaratory and injunctive relief under 42 U.S.C. § § 1981 and 2000e,
as well as under the New York Human rights Law, N.Y. Exec. L. § 296 (McKinney Supp. 1996).
Presently pending is defendants' motion for summary judgment (Docket No. 24). For the reasons which follow, defendants' motion is granted in part and denied in part.
Plaintiff, currently a citizen of both the United States and Egypt, immigrated to the United States from Egypt in 1985. He is a practicing Muslim. Plaintiff speaks English as a second language but does not consider himself fluent in English. Plaintiff was hired by Quad, a commercial printer of magazines, as a temporary employee on July 24, 1990 and became a regular, full-time employee on or about October 1, 1990. Quad is headquartered in Wisconsin and employs approximately 1,000 workers at its facility in Saratoga Springs, New York. The individually named defendants are all supervisory employees of Quad.
During plaintiff's employment at Quad, co-workers periodically addressed comments to plaintiff about his ethnicity, religion and the like. Plaintiff reported some but not all to his supervisors.
These comments included being called a "nigger," "sand nigger" and "camel jockey," and implications and hazing about involvement in the World Trade Center bombing and terrorism. They also included comments by co-workers over a paging system. That system allowed all employees to make announcements through handsets at their work stations over a loudspeaker system. Beginning in May 1992, co-workers utilized the system to imitate plaintiff's accent and for similar purposes.
Plaintiff filed a charge of discrimination with the New York State Division of Human Rights (DHR) on October 7, 1993. This complaint was dismissed by DHR for administrative convenience on August 15, 1994. Plaintiff also filed a written charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) on October 7, 1993. Plaintiff received a "Notice of Right to Sue" from the EEOC on May 3, 1994. This action followed within ninety days of this notice.
II. Summary Judgment Standard
Under Fed. R. Civ. P. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), cert. denied, 481 U.S. 1029 (1987). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party. Federal Deposit Ins. Corp. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994); see also Heyman v. Commerce and Industry Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). Once the moving party has provided sufficient evidence to support a motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed. R. Civ. P. 56(e); accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).
The trial court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see also Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987). The non-movant may defeat summary judgment by producing specific facts showing that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
The Second Circuit has stated that caution must be used when determining whether to grant summary judgment in employment discrimination cases:
. . . Employment discrimination is often accomplished by discreet manipulations and hidden under a veil of self-declared innocence. An employer who discriminates is unlikely to leave a "smoking gun" . . . attesting to a discriminatory intent. . . . A victim of discrimination is therefore seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence. . . . Consequently, in a Title VII action, where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate. . . .
The defendants move for summary judgment on the following grounds: (1) all claims against defendants Dutcher, Clothier, Robarge and Kirk, in their individual capacities, must be dismissed as a matter of law; (2) all claims for damages or a jury trial under Title VII and section 1981, as amended, must be dismissed with respect to any alleged acts of discrimination occurring prior to November 21, 1991; (3) all claims under Title VII for acts of discrimination occurring before December 11, 1992 must be dismissed; (4) plaintiff's constructive discharge claims fail to state claims upon which relief may be granted; (5) all claims under Title VII of religious or other types of unlawful discrimination not specifically set forth in plaintiff's administrative charges are not within the jurisdiction of this Court; (6) plaintiff's claims against the defendants for the creation of a hostile work environment under Title VII and section 1981 are legally insufficient; and (7) there is insufficient proof that certain acts of discrimination alleged by plaintiff arose from his race, religion, national origin or ethnicity.
A. Claims Against Defendants in Their Individual Capacities
The defendants assert that the individual defendants are not "employers" as defined in 42 U.S.C. § 2000e(b) and are, therefore, not liable in their individual capacities under Title VII for any of the damages allegedly suffered by plaintiff.
Title VII defines employer as "a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person . . . ." 42 U.S.C. § 2000e(b). Courts in the Second Circuit have divided regarding the interpretation of the word "agent". However, the Second Circuit has recently addressed the issue of whether an employer's agent may be held individually liable under Title VII and has unambiguously held that "individual defendants with supervisory control over a plaintiff may not be held personally liable under Title ...