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June 24, 1999


The opinion of the court was delivered by: McAVOY, Chief Judge.


Plaintiff Richard Phipps brings the instant action against defendant New York State Department of Labor ("DOL"), alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and N.Y. HUMAN RIGHTS LAW § 290 et seq. Plaintiff also alleges state law claims of negligent supervision/training, prima facie tort and intentional infliction of emotional distress. Plaintiff seeks declaratory and injunctive relief, monetary damages, and attorneys' fees.

Presently before the Court is defendant's motion for summary judgment pursuant to FED.R.CIV.P. 56 seeking dismissal of the Complaint in its entirety.

I. Background

Because this is a motion for summary judgment by the defendant, the following facts are presented in the light most favorable to plaintiff. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).

Plaintiff, an African-American male, was hired by DOL in 1980 as an Employment and Training Grants Management Specialist III ("ETGMS III") in the Special Grants Management Unit ("SGMU"). In that capacity, plaintiff was responsible for implementing and monitoring DOL's employment and training programs and administering state funding for various community-based work and youth programs.

In 1992, plaintiff was voluntarily transferred to the DOL's Internal Security Department ("ISD"). Although he retained his title as an ETGMS III, plaintiff's new duties included investigating fraud within the DOL's Unemployment Insurance Division. Plaintiff was teamed up with another investigator, and reported to Ina Lawson ("Lawson") and Alan Greene ("Greene"), his Field Supervisors; Carolyn Walker ("Walker"), ISD Unit Chief; and Charles Kilb ("Kilb"), Director of Audit and Control for the DOL. In April 1993, plaintiff requested a transfer back to the SGMU. After Director Kilb initially denied that request, the DOL Personnel Office approved the transfer in June 1993. Director Kilb, however, refused to act upon plaintiff's approved transfer.*fn1 On May 28, 1993, plaintiff filed a formal grievance concerning defendant's inaction in effectuating his transfer request back to SGMU. See Pl.Ex. 9.

During the pendency of plaintiff's appeal of Lattanzio's decision, plaintiff was involuntarily redeployed to the "Out of State Residents" Unit, a unit within the Unemployment Insurance Division. See Phipps Aff. at 87. Plaintiff argues that this redeployment was racially motivated, and in retaliation for reporting both the alleged racial slur made by Greene and defendant's failure to adequately address his complaint. See id. at ¶¶ 75-90. In response to his redeployment, plaintiff filed a second grievance on August 26, 1993, see Pl.Ex. 17, and a formal complaint with DEOD alleging racial discrimination and harassment.*fn4 See Pl.Ex. 10. Specifically, plaintiff contends that there were sufficient volunteers within ISD to fill the redeployment positions and plaintiff's ETGMS III job classification made him unsuitable for redeployment.*fn5 See Phipps Aff. at ¶¶ 76, 78. Furthermore, plaintiff contends that he was the only employee at the ETGMS III level to be involuntarily redeployed by defendant. See id. at ¶ 86. In his new position, plaintiff claims that his duties were menial and clerical in nature, and included, inter alia, opening and sorting the mail. See id. at ¶ 87. Plaintiff further claims that his new job duties were not comparable to the duties he performed in his previous positions, and he soon became the source of "ridicule and derision" by his peers and supervisors. See id. at ¶¶ 88-89. Unlike white employees who were permitted to return to their original work duties, plaintiff alleges that he performed clerical tasks in his redeployed position for one month, until he was reassigned back to SGMU in September 1993 following a favorable outcome on his earlier appeal. See id. at ¶ 90.

Shortly after returning to SGMU in September 1993, plaintiff alleges that he was subjected to continued discrimination and was retaliated against for filing a complaint with DEOD. Specifically, plaintiff alleges that he was: (1) not given any work assignments for a period of eight months; (2) assigned a desk located next to the photocopier machine and was "engulfed by the copier's exhaust fumes and deafened by the noise whenever it was operated"; (3) denied use of a telephone for seven months, and only obtained access to a telephone by purchasing a device that permitted him to connect to a co-worker's existing telephone line; (4) denied access to a computer necessary to complete his assignments; (5) the only person in SGMU to handle youth contracts, a high-stress assignment typically spread out among the other account executives; and (6) the only person assigned to work in high risk/high crime areas in New York City. See id. at ¶¶ 173-94.

On December 15, 1993, DEOD issued its formal report regarding the allegations raised in plaintiff's September 17, 1993 racial discrimination complaint.*fn6 See Pl. Ex. 30. Although the report found no evidence to support the charge of racial discrimination or retaliation, the report noted that:

  There is no question that Mr. Phipps' perception
  that he has been victimized is credible. Mr.
  Phipps[,] through some subtle bureaucratic
  stratagems[,] may have been unfairly treated,
  which has caused harm to him and may affect his

See id.

The federal Complaint also alleges racial discrimination and retaliation in connection with defendant's failure to reimburse plaintiff for work-related travel expenses incurred during August 1996. Specifically, defendant denied reimbursement on plaintiff's travel voucher and issued plaintiff a Notice of Interrogation based on allegations that plaintiff improperly included travel time in calculating his workday hours.*fn8 See Phipps Aff. at ¶¶ 195-204; Pl.Ex. 34. In arguing that he was unfairly investigated and wrongly denied reimbursement on his travel voucher, plaintiff alleges that his actions were consistent with instructions received from his previous supervisors, and there was no written policy disallowing an employee to include travel time as part of his workday hours. See Phipps Aff. at ¶¶ 211, 213, 217-18; see also Pl.Ex. 34. Significantly, plaintiff contends that he was:

  the only person in my grade and title subjected to
  an Inspector General's investigation for including
  travel time as part of my . . . workday and for
  leaving a training session early after those
  segments relating to my programs had concluded.

Phipps Aff. at ¶ 222.

Although the Inspector General's Office recommended plaintiff be reimbursed for his travel expenses, it also recommended that plaintiff "be counseled for leaving the training sessions before they were completed." Pl.Ex. 34. Plaintiff filed a third grievance with DEOD in late 1996 regarding defendant's investigation of plaintiff's travel expenses. See Pl.Ex. 55.

Plaintiff also alleges that his work regarding youth contracts limited the quality of training and tasks he received and, therefore, foreclosed plaintiff from promotional opportunities enjoyed by his co-workers. See Phipps Aff. at ¶¶ 234-40. Following relocation to another building, plaintiff alleges that he was physically segregated from his co-workers, and once again placed near a photocopy machine. See id. at ¶¶ 244-48. Citing his relocation as the "final straw that broke my back and resolve," plaintiff sought early retirement, which reduced the size of his retirement package. Id. at 249-51.

On January 14, 1994, plaintiff filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR"). See Pl.Ex. 62; Def. 7.1(a)(3) Stmt. at Ex. A. ...

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