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March 30, 1998

COUNTY OF ERIE, BOARD OF TRUSTEES OF ERIE COMMUNITY COLLEGE, DENNIS DIGIACOMO, Individually and in his Official Capacity, and ROSE MOORE, Individually and in her Official Capacity, Defendants.

The opinion of the court was delivered by: HECKMAN


 The parties have consented to have the undersigned conduct any and all further proceedings in this case, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c). Defendants have filed a motion for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Item 25). For the reasons that follow, defendants' motion is granted in part and denied in part.


 The undisputed facts are as follows. Plaintiff, a black female, began her employment at Erie Community College (ECC) on February 2, 1987. She was initially hired to work as an Educational Opportunity Program counselor at the college's City Campus. That particular position was funded by a grant and was therefore temporary.

 On or about August 24, 1988, plaintiff applied for a permanent position in the counseling unit located at the college's North Campus. Her application was recommended by the Faculty Federation of Erie Community College (the Faculty Federation) and the ECC Director of Human Resources in September 1988. Plaintiff's transfer was approved approximately six months later by the defendant Board of Trustees.

 In January 1991, plaintiff filed a charge of employment discrimination with ECC's Affirmative Action/EEO Office in which she claimed that she had been subjected to ongoing discrimination and harassment by defendant DiGiacomo since September 11, 1989 (Item 15, P 20; Item 17, P 20; Item 30, Ex. C). *fn1" Plaintiff also alleged that minority students were being discriminated against and harassed by members of ECC's faculty and staff (Id.). Plaintiff simultaneously filed a grievance with the Faculty Federation based upon those same allegations (Item 15, P 19; Item 17, P 19).

 Plaintiff requested a medical leave of absence from August 10, 1992 to October 31, 1992 (Item 25, Ex. E). According to plaintiff, she was suffering from stress-related physical and mental illness because of defendants' discriminatory and harassing conduct toward her. Her request for leave was initially denied by defendant DiGiacomo, but later granted by ECC's Director of Human Resources (Item 15, P 24; Item 17, P 24; Item 25, Ex. E).

 On January 3, 1994, plaintiff again commenced a period of absence from work, allegedly due to her stress-related illnesses. *fn2"

 During her absence, plaintiff filed a verified complaint, dated January 7, 1994, with the New York State Human Rights Commission (Item 25, Ex. B). According to the complaint, defendants had "continued an ongoing pattern of unequal treatment and harassment" against her based on her race (Id.). Plaintiff claimed that this unequal treatment included denial of vacation requests, denial of educational advancement leave requests, being over scheduled with an unfair distribution of work, and having false accusations lodged against her. She made specific reference to a single incident on December 16, 1993, where defendant Moore allegedly wrote a false counseling memo against her. Plaintiff complaint was cross-filed with the Equal Employment Opportunity Commission (EEOC).

 On January 28, 1994, plaintiff requested medical leave for an indefinite period to commence from her January 3, 1994 absence (Item 25, Exs. D & E). Defendant DiGiacomo denied the request, citing plaintiff's poor attendance record as the basis for his decision (Id. at Ex. E, p. 1).

 Subsequently, the Director of Human Resources asked plaintiff to provide an anticipated return to work date so that her request could be processed further (Item 30, Ex. I). Plaintiff responded that her doctor recommended a recovery period of two to six months, and she designated April 4, 1994 as her tentative return date (Id., Ex. J). In a letter dated March 8, 1994, the Director of Human Resources informed plaintiff that her request for leave was being denied due to her record of absenteeism. Plaintiff was also notified that her employment would be terminated if she did not return to work by April 4, 1994 (Item 25, Ex. E, p. 1). That date was later extended to April 25, 1994 (Id. at Ex. E, p. 3).

 Plaintiff did not return to work on the specified date, and the college informed her that a hearing would be scheduled regarding the circumstances of her impending termination (Id. at Ex. E, p. 4). Although several hearing dates were set in the ensuing months, each date was canceled by the union due to plaintiff's unavailability (Item 25, Ex. D, p. 4; Item 30, P 18 & Ex. O, p. 4).

 According to plaintiff, the EEOC issued a notice of right to sue letter on or about November 8, 1994. *fn3"

 Plaintiff's termination hearing was finally held on December 12, 1994. Plaintiff did not appear at the hearing on the advise of her mental health care provider (Item 30, P 18 & Ex. L). Neither party presented witnesses (Item 25, Ex. D, p. 3).

 Upon reviewing the facts as stipulated by the parties and the exhibits in the record, Hearing Officer Anthony M. Romano found that plaintiff had neither made a good faith effort to return to active employment, nor had she filed any grievance under her collective bargaining agreement (Item 25, Ex. D). Mr. Romano concluded that plaintiff had little interest in explaining her lengthy absence from work and that she did not value her employment with ECC. He recommended that plaintiff be terminated (Id.).

 On January 27, 1995, prior to her termination, plaintiff commenced this Title VII action pro se, alleging that defendants discriminated against her in her employment based on her race, color and sex.

 Plaintiff was notified of her termination by letter dated March 2, 1995 (Item 25, Ex. C).

 Plaintiff subsequently retained counsel and filed an amended complaint on January 31, 1996. Plaintiff alleges that she was subjected to discriminatory and harassing treatment throughout her employment, that she filed charges with her employer regarding the alleged discrimination, that she was retaliated against for filing those grievances, that she was subsequently terminated, and that she suffered loss of income and physical, psychological and emotional distress as a result. Plaintiff claims that defendants' conduct violated Title VII, 42 U.S.C. §§ 2000e et seq. ; 42 U.S.C. §§ 1981, 1982, 1983 and 1985; the New York Human Rights Law, Executive Law § 290 et seq., and the common law of the State of New York.

 Following her discharge, plaintiff filed a union grievance which went to arbitration. Pursuant to the arbitrator's decision dated March 6, 1997, plaintiff was reinstated to her position without back pay but with full seniority. She was placed on probation for two years commencing from the date of reinstatement with respect to attendance-related issues (Item 30, Ex. O, p. 7).

 Plaintiff's complaint can be read as attributing her termination to both an ongoing pattern of racial discrimination and to retaliation. On June 2, 1997, defendants moved for partial summary judgment. Defendants argue that (1) plaintiff has failed to demonstrate a prima facie case of discriminatory termination, (2) plaintiff's retaliation claims and discriminatory discharge claim are barred because she did not raise them in the EEOC complaint, (3) the ruling of the New York Workers' Compensation Board has preclusive effect as to plaintiff's claim of a workplace injury, and (4) defendants DiGiacomo and Moore cannot be sued individually. Defendants arguments are addressed in turn below. *fn4"


 Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, supra, 477 U.S. at 248; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.) cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). Thus, if there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact, summary judgment is improper. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).

 Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Bryant, supra, (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). In order to avoid summary judgment, the nonmoving party is under the obligation "to make a sufficient showing of an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991). In other words, "when no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994).

 Although caution must be exercised in granting summary judgment where motive is genuinely in issue, summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact. McLee v. Chrysler Corp. 109 F.3d 130, 135 (2d Cir. 1997); see also Gallo, supra; Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 19 (2d Cir. 1995); Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994).

 As stated by the Second Circuit in Gallo :

The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution. . . . It must be kept in mind that only by reference to the substantive ...

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