Findings of Fact, P40 supra. Thus, because plaintiff has failed to sustain her burden of proving that the poor evaluations were in fact due to "impermissible factors," no Title VII claim lies.
Hostile Work Environment
15. The Supreme Court has noted on more than one occasion that the prohibition contained in Title VII against discrimination "with respect to . . . compensation, terms conditions, or privileges of employment because of . . . race [or] sex . . . ," 42 U.S.C. § 2000e-2(a)(1), is not limited to "economic or tangible discrimination," but rather "evinces a congressional intent to strike at the entire spectrum of disparate treatment . . . in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Systems, 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993) (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986))(internal quotation marks omitted).
16. Thus, "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." Harris, 510 U.S. at 21, 114 S. Ct. at 370 (citations omitted); Meritor, 477 U.S. at 65, 106 S. Ct. at -2405.
17. However, "mere utterance of an . . . epithet which endangers offensive feelings in a employee" does not sufficiently affect the conditions of employment to implicate Title VII." Harris, 510 U.S. at 21, 114 S. Ct. at 370 (citations omitted); Meritor, 477 U.S. at 67, 106 S. Ct. at 2405-06. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment . . . is beyond Title VII's purview." Harris, 510 U.S. at 21, 114 S. Ct. at 370 (citations omitted); Meritor, 477 U.S. at 67, 106 S. Ct. at 2405.
18. Whether an environment is hostile or abusive can only be viewing the totality of the circumstances. Harris, 510 U.S. at 21, 114 S. Ct. at 370; Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996).
19. Finally, it need be noted that a hostile or abusive environment is not actionable under Title VII unless the alleged conduct "was caused by discriminatory animus." Jemmott, 85 F.3d at 67.
20. Plaintiff has failed to prove that the environment in which she was working was discriminatorily hostile or abusive. While in no way condoning defendant Phillips' disparaging comments on the issue of race, they do not in themselves constitute a "hostile" or "abusive" environment because there were at most six such comments, and they were made over a period of years.
In fact, the only conduct which took place in the workplace which could even be considered "hostile" or "abusive" involved Mr. Del Priore. However, because there is no evidence to support the notion that Mr. Del Priore's conduct was caused by discriminatory animus, his actions do not lead to a Title VII violation.
Title IX Claims
21. The Second Circuit has held that Title VII standards are to applied in interpreting Title IX of the Education Amendments of 1972, 20 U.S.C. § 1981-1988, which prohibits discrimination on the basis of gender in educational programs and activities receiving federal financial assistance. Torres v. Pisano, 116 F.3d 625, 630 n.3 (2d Cir. 1997); Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (2d Cir. 1995). Thus, for the reasons provided in PP 1-20 supra, plaintiff cannot show a Title IX violation on the basis of gender.
22. Accordingly, the court does not reach the question of whether Title IX extends to employees involved in federally funded educational programs. Compare Lakoski v. James, 66 F.3d 751, 754 (5th Cir. 1995)("Given the availability of a private remedy under Title VII for aggrieved employees, we are unwilling to [find] . . . an implied right of action for employment discrimination") with Henschke v. New York Hospital-Cornell Medical Center, 821 F. Supp. 166, 171-73 (S.D.N.Y. 1993) (holding that a private right of action does indeed exist under Title IX for employees involved in federally funded educational programs).
Claims Under 42 U.S.C. § 1981
23. Title VII standards are also applied to claims of unlawful discrimination under 42 U.S.C. § 1981. Hargett v. National Westminster Bank, U.S.A., 78 F.3d 836, 838, cert. denied, U.S. , 117 S. Ct. 84, 136 L. Ed. 2d 41 (1996). Accordingly, the court concludes that plaintiff has failed to prove a violation of 42 U.S.C. § 1981.
Claims Under New York Executive Law and the Administrative Code New York City
24. New York courts require the same standard of proof for claims brought under § 296 of the New York Executive Law as is required for those brought under Title VII. Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n.4 (2d Cir. 1995); see also Miller Brewing Co. v. St. Div. of Human Rights, 66 N.Y.2d 937, 489 N.E.2d 745 498 N.Y.S.2d 776 (1985) The same may be said for employment discrimination claims raised under the Administrative Code of the City of New York. Alie v. NYNEX Corp., 158 F.R.D. 239, 244 (E.D.N.Y. 1994); Landwehr v. Grey Advertising, Inc., 211 A.D.2d 583, 622 N.Y.S.2d 17, 18 (1st Dep't 1995). The court thus dismisses these claims as well.
Prima Facie Tort
25. Under New York law, the elements necessary to establish a prima facie tort are (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, (4) by an otherwise lawful act. Hughes v. Patrolmen's Benevolent Assoc. of the City of New York, Inc., 850 F.2d 876, 882 (2d Cir. 1988); Hannah v. Metro-North Commuter Railroad Co., 753 F. Supp. 1169, 1177 (S.D.N.Y. 1990).
26. As regards the first element, the Second Circuit has held:
The sole motivation for the damaging acts must have been a malicious intention to injure plaintiff. Where there are other motives, such as profit, self-interest, or business advantage, there is no recovery under the doctrine of prima facie tort.
Marcella v. ARP Films, Inc., 778 F.2d 112, 119 (2d Cir. 1985). Plaintiff has proved no facts which could lead to the court's conclusion that defendants acted toward plaintiff with such disinterested malevolence.
27. Plaintiff has maintained that Phillips' statement to Vargas that he intended to "break [plaintiff's] power," exhibited disinterested malevolence. Even if the court were to credit Mr. Vargas' testimony and assume that defendant Phillips did indeed make the statement, the evidence suggests that defendant Phillips sought to take this action out of his own self-interest. He felt threatened by plaintiff's influence at Cornell, and he sought to diminish that influence.
28. The only other conduct which could even arguably satisfy the first element of the prima facie tort was Mr. Del Priore's treatment of plaintiff. However, though Mr. Del Priore does seem to have been unduly harsh with plaintiff on more than one occasion, plaintiff has not proven that he maliciously intended to injure her.
29. Thus, the court concludes that defendants are not liable under the prima facie tort.
Intentional Infliction of Emotional Distress
30. In order to sustain a claim for intentional infliction of emotional distress, a litigant must establish four elements: (1) extreme and outrageous conduct on the part of defendants, (2) intent on the part of the defendant to cause, or disregard of a substantial probability of causing, severe emotional distress, (3) a causal connection between defendants' conduct and the injury suffered, and (4) severe emotional distress suffered by plaintiff. Howell v. New York Post Co., 81 N.Y.2d 115, 121, 612 N.E.2d 699, 702, 596 N.Y.S.2d 350, 353 (1993); Wolff v. City of New York Financial Services, 939 F. Supp. 258, 263 (S.D.N.Y. 1996).
31. In order to satisfy the first element of a claim of intentional infliction of emotional distress, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Wolff, 939 F. Supp. at 263. Moreover, the Second Circuit has stated approvingly that New York courts have been very strict in applying this test. Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d. Cir. 1985).
32. The court readily concludes that there is no evidence showing the existence of conduct that is so extreme and outrageous that it satisfies the first element of this tort. Accordingly, the claim is dismissed.
The court has determined that plaintiff has failed to prove any of her claims and therefore dismisses the case from this court with each party to bear its own costs.
Dated: September 4, 1997
New York, New York
Constance Baker Motley
United States District Judge