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March 25, 1998


The opinion of the court was delivered by: PARKER



 Plaintiffs Patrick A. Barrow and Keith R. Purnell have asserted claims against the Burke Rehabilitation Hospital, Inc. ("Burke") for racial discrimination and retaliation, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and the New York State Human Rights Law, Executive Law § 296 et seq. During the events giving rise to this action, both plaintiffs were employees of Burke.

 Burke has moved for summary judgment with respect to the claims asserted by plaintiff Purnell. Purnell claims that Burke subjected him to a racially hostile working environment, terminated him on the basis of race, and retaliated against him for opposing workplace discrimination. For the reasons that follow, Burke's motion for partial summary judgment is granted.


 Burke is a non-profit health care facility providing medical care and rehabilitation assistance to patients who have suffered a debilitating illness or injury. In January 1996, Burke hired Keith Purnell, an African-American, as a Shipping/Receiving Clerk. Purnell was hired by Michael Nestler, and was directly supervised by Patrick Barrow, the co-plaintiff in this case. Mr. Nestler was Mr. Barrow's supervisor.

 On December 16, 1996, Burke terminated Purnell's employment, for the stated reason of excessive absenteeism. Burke's policy, as stated in the employee handbook that Purnell received and read, was that an employee could be dismissed for excessive absenteeism. Prior to his termination, Purnell, in June, September, and October 1996, received three written warnings, known as Employee Corrective Action Notices, regarding his pattern of absenteeism. Most of Purnell's numerous absences came immediately before or after a weekend off from work. Each Notice stated clearly that additional missed days would lead to further disciplinary action. Each Notice was discussed with Purnell, who acknowledged his undeniably poor attendance record. When Purnell was terminated by Nestler in December 1996, he had been absent from work for 6 of the previous 9 days. At the time of his termination, Purnell was given a fourth Employee Corrective Action Notice.

 During Purnell's tenure at Burke, he clashed with his supervisor, co-plaintiff Barrow. For example, Purnell informed Nestler of his belief that Barrow was lazy and failed to adequately manage the shipping/receiving work. Nestler subsequently discussed these perceptions with Barrow, in the presence of Purnell. Although Purnell believes he was terminated in part because he was "caught in the middle" between Barrow and Nestler, Purnell admits that the conflict between Barrow and Nestler, sparked in part by his statements about Barrow, had nothing to do with race. Indeed, at no time during his employment did Purnell complain to or notify anyone at Burke that he believed he was being discriminated against on account of race.

 Purnell has alleged several incidents in support of his claim that Burke was a racially hostile work environment. On three or four occasions, Nestler allegedly made racially derogatory remarks to or about African-American employees. Only two of these incidents occurred during Purnell's employment at Burke. On December 22, 1995, prior to Purnell's employment at Burke, Nestler allegedly told Barrow "hurry up and get his black ass out of Burke" after they had an argument. On March 15, 1996, Nestler confined Barrow to Nestler's office and made threatening gestures toward him with something that looked like a knife. In September 1996, Nestler again allegedly made racially derogatory remarks to Barrow, which Purnell purportedly overheard. In January 1997, after the termination of Purnell's employment at Burke, Nestler again directed racially derogatory remarks to Barrow, which resulted in Barrow filing a complaint with the City of White Plains Police Department.


 A motion for summary judgment should only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Hayes v. New York City Dep't. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Hayes, 84 F.3d 614 at 619.

 In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities in the light most favorable to, and draw all reasonable inferences in favor of, the party opposing the motion. Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 382 (2d Cir. 1996); In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996).

 The Court must not weigh evidence or assess the credibility of potential witnesses, for such evaluations are to be conducted solely by the jury. Hayes, 84 F.3d at 619; United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994); Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). A finding of disputed material facts that could reasonably be resolved in favor of either party ...

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