United States District Court, Northern District of New York
June 24, 1999
RICHARD PHIPPS, PLAINTIFF,
NEW YORK STATE DEPARTMENT OF LABOR, DEFENDANT.
The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM-DECISION & ORDER
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.
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.
Shortly after plaintiff filed his transfer request, Richard
Vitkay ("Vitkay"), an ISD investigator, informed plaintiff of
slur" allegedly made by Greene concerning plaintiff.
Specifically, Vitkay alleges that, in referring to plaintiff,
Greene stated: "he was going to get that lazy nigger."
See Pl.Ex. 10; Vitkay Aff. at ¶¶ 5, 7, 10, 13. Vitkay
subsequently reported his conversation with Greene, as well as
perceived "racial problems" that he believed existed in the ISD
Unit, to defendant's Division of Equal Opportunity Development
("DEOD") office. See Pl.Ex. 10. Greene's alleged racial slur
also became the focus of the grievance meeting held on June 9,
1993. See Phipps Aff. at ¶ 42-45. Present at that meeting were
plaintiff; Joseph Lattanzio ("Lattanzio"), a Labor Relations
Representative from the DOL's Office of Employee Relations; and
Karen Watson, a representative from DOL management. Plaintiff
alleges that Lattanzio violated DOL procedure by failing to
refer his grievance to DEOD. Instead, Lattanzio prepared a
written "Step II Decision" holding, inter alia, that plaintiff
had been "duly transferred" to ISD and, therefore, was not
permitted to transfer back to SGMU.*fn2 See Pl.Ex. 13.
Following an appeal of that decision, plaintiff was reassigned
to SGMU in September 1993.*fn3 See Pl.Ex. 20.
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
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
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. In
that charge, plaintiff alleged, in relevant part:
On or about June 9, 1993, I reported an alleged
racial slur on the part of a supervisor in
Internal Security. On or about August 26, 1993, I
was involuntarily redeployed to perform clerical
duties in the Unemployment Insurance, Out of State
On or about September 7, 1993, I requested to be
sent back to my official position. I requested
this of Joe Baez, Director of Grants management.
On September 10, 1993, Mr. Baez denied my request
saying that I was assigned elsewhere. On
information and belief, Ed Drago, who is white,
was allowed to go back to his original position
after being redeployed.
Plaintiff received a Right-To-Sue Letter on April 8, 1997, and
timely filed his federal Complaint on July 3, 1997. Defendant
now moves to dismiss plaintiff's Complaint in its entirety
pursuant to FED.R.CIV.P. 56.
A. Treatment of the Parties' 7.1(a)(3) Statements
Defendant submitted a 7.1(a)(3) Statement consisting of 11
numbered paragraphs. See N.D.N.Y.L.R. 7.1(a)(3). In opposition,
plaintiff submitted a 7.1(a)(3) Statement consisting of 129
paragraphs, which detailed many of the allegations set forth in
plaintiff's federal Complaint. Thereafter, defendant filed a
Responsive 7.1(a)(3) Statement, admitting and denying the facts
set forth in plaintiff's opposing 7.1(a)(3) Statement.
Plaintiff then filed a "supplemental" 7.1(a)(3) Statement,
addressing the 11 facts set forth in defendant's original
Rule 7.1(a)(3) of the Local Rules for the Northern District
of New York provides, in relevant part:
The opposing party shall file a response to the
[movant's] Statement of Material Facts. The
non-movant's response shall mirror the movant's
Statement of Material Facts by admitting and/or
denying each of the movant's assertions in matching
numbered paragraphs. Each denial shall set forth a
specific citation to the record where the factual
issue arises (emphasis added). The non-movant's
response may also set forth any additional material
facts that the non-movant contends are in dispute.
Any facts set forth in the Statement of Material
Facts shall be deemed admitted unless specifically
controverted by the opposing party.
Because plaintiff's 129 paragraph response did not mirror the
7.1(a)(3) Statement submitted by the defendant, the facts set
forth in defendant's 7.1(a)(3) Statement are deemed admitted.
See Osier v. Broome County, 1999 WL 304683, at *3 (N.D.N.Y. May
11, 1999); Riley v. Town of Bethlehem, 5 F. Supp.2d 92, 93
("Rule 7.1(f) is not a suggestion, nor is it a rule of general
guidance upon which attorneys are free to impose their own
interpretations of what must be submitted."). Moreover, the
parties' "responsive" and "supplemental" 7.1(a)(3) Statements,
not provided for under the Local Rules, will not be considered
by the Court in addressing defendant's motion for summary
B. The Standard for Summary Judgment
The standard for summary judgment is well-settled. Under
FED.R.CIV.P. 56(c), if there is "no genuine issue as to any
material fact . . . the moving party is entitled to a 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." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574
, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see
also Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81,
86 (1996). The moving party bears the initial burden of
"informing the . . . court of the basis for its motion, and
identifying those portions of `the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317
, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986) (quoting FED.R.CIV.P. 56(c)). The initial burden is to
demonstrate "that there is an absence of evidence to support
the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.
Once the moving party has met its burden, the non-moving
party must come forward with specific facts showing that there
is a genuine issue for trial. See Celotex Corp., 477 U.S. at
322, 106 S.Ct. 2548; Matsushita, 475 U.S. at 585-86, 106 S.Ct.
1348. A dispute regarding a material fact is genuine if a
reasonable jury could return a verdict for the non-moving
party; that is, whether the non-movant's case, if proved at
trial, would be sufficient to survive a motion for judgment as
a matter of law. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When
reasonable minds, however, could not differ as to the import of
the evidence, then summary judgment is proper. Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied,
502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).
Although the trial court must resolve all ambiguities and
draw all inferences in favor of that party against whom summary
judgment is sought, Ramseur v. Chase Manhattan Bank,
865 F.2d 460, 465 (2d Cir. 1989); Eastway Const. Corp. v. City of New
York, 762 F.2d 243, 249 (2d Cir. 1985) cert. denied,
484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), the motion will not
be defeated by a non-movant who raises merely a "metaphysical
doubt" concerning the facts or who only offers conjecture or
surmise. Delaware & Hudson Ry. Co. v. Consolidated Rail Corp.,
902 F.2d 174, 178 (2d Cir. 1990), cert. denied, 500 U.S. 928,
111 S.Ct. 2041, 114 L.Ed.2d 125 (1991) (quoting Matsushita, 475
U.S. at 586), 106 S.Ct. 1348; see also Western World Ins. Co.
v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Indeed,
the non-moving party's opposition may not rest on mere
allegations or denials of the moving party's pleading, but
"must set forth specific facts showing that there is a genuine
issue for trial." FED.R.CIV.P. 56(e).
Although the Court is mindful that "summary judgment is
ordinarily inappropriate where an individual's intent and state
of mind are implicated," Meiri v. Dacon, 759 F.2d 989, 998 (2d
Cir. 1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88
L.Ed.2d 74 (1985), it is clear that "conclusory allegations of
discrimination are insufficient to satisfy the requirements of
Rule 56(e)." Id. (citations omitted); see also
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
C. Plaintiff's State Law Claims
Defendant argues that the Eleventh Amendment renders this
Court without subject matter jurisdiction to hear plaintiff's
statutory claims under N.Y. HUMAN RIGHTS LAW § 290 et seq.
("HRL"), and the common law claims for intentional infliction
of emotional distress, prima facie tort and negligent
supervision/training. See Def. Mem. of Law at 1-5.
The Eleventh Amendment bars suits against states by their own
citizens in federal court in the absence of waiver by the state
or abrogation by Congress. See Welch v. Texas Dept. of Highways
and Public Transp., 483 U.S. 468, 472, 107 S.Ct. 2941, 97
L.Ed.2d 389 (1987); Kentucky v. Graham, 473 U.S. 159, 167 n.
14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). State waiver will be
found "only where stated `by the most express language or by
such overwhelming implications from the text as [will] leave no
room for any other reasonable construction.'" Pazamickas v. New
York State Office of Mental Retardation and Dev. Disabilities,
963 F. Supp. 190, 196 (N.D.N.Y. 1997) (quoting Edelman v.
Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662
Nothing in the HRL provides any basis for finding that New
York State has waived its Eleventh Amendment immunity. See
Kilcullen v. New York State Dep't of Transp., 33 F. Supp.2d 133,
137 (N.D.N.Y. 1999) (citing Mete v. New York State Office of
Mental Retardation and Developmental Disabilities, 984 F. Supp. 125,
134 (N.D.N.Y. 1997), aff'd, 162 F.3d 770 (2d Cir. 1998));
Pazamickas, 963 F. Supp. at 196 (citing Jungels v. State
University College of New York, 922 F. Supp. 779, 784 (W.D.N Y
1996), aff'd, 112 F.3d 504, 1997 WL 219065 (2nd Cir. 1997);
Moche v. City Univ. of New York, 781 F. Supp. 160, 167-69
(E.D.N.Y. 1992), aff'd, 999 F.2d 538 (2d Cir. 1993); Cassells
v. University Hosp. at Stony Brook, 740 F. Supp. 143, 147-48
(E.D.N.Y. 1990)). Thus, plaintiff's HRL claims against
defendant, a state agency, are barred by the Eleventh
Amendment, as are plaintiff's common-law claims. See
Pazamickas, 963 F. Supp. at 196; Jungels, 922 F. Supp. at 784
(citing Mascheroni v. Board of Regents of the Univ. of
California, 28 F.3d 1554, 1557-60 (10th Cir. 1994)); see also
Fonseca v. Columbia Gas Sys., Inc., 37 F. Supp.2d 214, 230
(W.D.N.Y. 1998); Percesepe v. New York State Dep't of Labor,
1996 WL 1057165, at *2 (E.D.N.Y. Dec. 12, 1996), aff'd,
125 F.3d 844 (2d Cir. 1997), cert. denied, ___ U.S. ___, 119 S.Ct.
877, 142 L.Ed.2d 777 (1999).
D. Exhaustion of Administrative Remedies — Reasonably
Defendant next argues that the cause of action sounding in
retaliation is not included in, nor reasonably related to,
plaintiff's administrative complaint filed with the NYSDHR, and
is, therefore, barred due to plaintiff's failure to exhaust his
"A district court only has jurisdiction to hear Title VII
claims that either are included in an EEOC charge or are based
on conduct subsequent to the EEOC charge which is `reasonably
related' to that alleged in the EEOC charge." Butts v. New York
Dep't of Housing, Preservation & Dev., 990 F.2d 1397, 1401 (2d
Cir. 1993) (citations omitted). The purpose of the exhaustion
requirement is to "encourage settlement of discrimination
disputes through conciliation and voluntary compliance." Id.
The filing requirement provides notice to the party charged
with a violation and gives that party an opportunity to comply
with Title VII before the commencement of a lawsuit and to
participate in conciliation. See Davis v. Weidner,
596 F.2d 726, 729 (7th Cir. 1979); McNight v. Dormitory Auth. of the
State of New York, 995 F. Supp. 70, 76 (N.D.N.Y. 1998).
A complaint "must be sufficiently precise to identify the
aggrieved individual and the agency and to describe generally
the action(s) or practice(s) that form the basis of the
complaint." See 29 C.F.R. § 1614.106(c). In this case,
plaintiff filed his SDHR Complaint on January 13, 1994,
claiming, inter alia, that he reported an alleged racial slur
made by his supervisor, and shortly thereafter, was
involuntarily redeployed to a position involving clerical
tasks. See NYSDHR Complaint, at ¶ 1-3. Moreover, plaintiff
contends that while his white co-workers were permitted to
return to their original positions following redeployment,
plaintiff was not permitted to do so. See id. at ¶ 4.
The Court finds that plaintiff's administrative charge
reasonably alleges both racial discrimination and retaliation.
First, plaintiff's reporting of Greene's alleged racial slur
constitutes a protected activity. See Wimmer v. Suffolk County
Police Dept., 176 F.3d 125, 134 (2d Cir. 1999); Quinn v. Green
Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998); Gallagher
v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998); Del Castillo v.
Pathmark Stores, Inc., 941 F. Supp. 437, 438-39 (S.D.N.Y. 1996).
Second, plaintiff's NYSDHR complaint reasonably alleges
retaliation based on plaintiff's charge that defendant
involuntarily redeployed him shortly after reporting Greene's
alleged racial slur. A careful reading of the administrative
charge reflects allegations sufficient to place defendant on
notice regarding claims of racial discrimination and
retaliation. The Court further notes that the additional
specific incidents of workplace discrimination and retaliation
contained in plaintiff's federal Complaint, which occurred
before and after plaintiff filed his SDHR charge, are similar
and reasonably related to those charges, and would therefore
fall within the scope of the NYSDHR's investigation under the
first and third Butts exceptions. See Butts, 990 F.2d at
1402; McNight, 995 F. Supp. at 77; Dargento v. Bally's Holiday
Fitness Ctrs., 990 F. Supp. 186, 193 (W.D.N.Y. 1997).
Significantly, defendant acknowledges that all of plaintiff's
retaliation claims grow out of the same incident — plaintiff's
reporting of alleged acts of racial discrimination to
defendant. See Def. Mem. of Law at 10.
E. Plaintiff's Race Discrimination Claim
Under the familiar burden-shifting paradigm set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973), a plaintiff claiming
discrimination must first satisfy the de minimis burden of
establishing, by a preponderance of the evidence, a prima facie
case of discrimination. See St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993);
Fisher v. Vassar College, 114 F.3d 1332, 1335, 1340 & n. 7 (2d
Cir. 1997) (en banc), cert. denied, ___ U.S. ___, 118 S.Ct.
851, 139 L.Ed.2d 752 (1998). To establish such a case, a
plaintiff must show four elements: (1) membership in a
protected group; (2) qualification for the position; (3)
adverse employment action; and (4) circumstances giving rise to
a reasonable inference of race discrimination. See Hicks, 509
U.S. at 506, 113 S.Ct. 2742; see also Austin v. Ford Models,
Inc., 149 F.3d 148, 152 (2d Cir. 1998); Fisher, 114 F.3d at
If a plaintiff succeeds in establishing a prima facie case,
the burden of production shifts to the employer to articulate
a clear and specific legitimate, nondiscriminatory reason for
its conduct. See Fisher, 114 F.3d at 1335-36. Although the
burden of production shifts to the defendant, the ultimate
burden of persuasion remains always with the plaintiff. See id.
at 1335 (citing Hicks, 509 U.S. at 507, 113 S.Ct. 2742); see
also Raskin v. The Wyatt Co., 125 F.3d 55, 64 (2d Cir. 1997).
If the employer satisfies this burden, "the presumption
raised by the prima facie case is rebutted, and drops from the
case." Hicks, 509 U.S. at 510, 113 S.Ct. 2742. (internal
quotations and citations omitted).
"The plaintiff then has the opportunity to demonstrate `that
the proffered reason was not the true reason for the employment
decision,' and that race was." Fisher, 114 F.3d at 1336
(quoting Hicks, 509 U.S. at 507-08, 113 S.Ct. 2742). The
plaintiff's opportunity to show the employer's proffered reason
was false now merges with his ultimate burden to persuade the
trier of fact that he has been the victim of discrimination.
See Hicks, 509 U.S. at 508, 113 S.Ct. 2742; Fisher, 114 F.3d at
1337; see also Hollander v. American Cyanamid Co.,
172 F.3d 192, 199 (2d Cir. 1999); Cronin v. Aetna Life Ins. Co.,
46 F.3d 196, 203 (2d Cir. 1995) ("[T]he plaintiff is not required to
show that the employer's proffered reasons were false or played
no role in the employment decision, but only that they were not
the only reasons and that the prohibited factor was at least
one of the `motivating' factors.")
Applying the McDonnell Douglas paradigm to the present case,
the Court finds that plaintiff has made the "minimal" showing
necessary to establish a prima facie case of racial
Defendant does not contest that plaintiff belongs to a class
of protected persons and that he was qualified for the position
in which he worked; thus, the first and second elements of
plaintiff's prima facie case are satisfied. See, e.g., Morris
v. Northrop Grumman Corp., 37 F. Supp.2d 556, 572 (E.D.N Y
1999). With respect to the third prong, plaintiff alleges,
inter alia, that defendant made a racially derogatory remark
about him; failed to act on his approved transfer back to SGMU;
subjected him to inadequate and unequal working conditions over
an extended period of time, which included inadequate access to
a telephone and computer, and assignment to "high risk" areas
in New York City; and involuntarily redeployed him to a
position of significantly less prestige and responsibility.
Plaintiff claims that defendant's actions were racially
motivated and directed solely at him and that his white
co-workers were not subjected to similar actions and working
conditions. In response, defendant argues that plaintiff's
allegations do not constitute adverse employment action or give
rise to an inference of discrimination sufficient to satisfy
the third and fourth prongs of a prima facie case of
Defendant's arguments, however, fail to recognize that
adverse employment action is "not limited to `instances of
discrimination in pecuniary emoluments'", de la Cruz v. New
York City Human Resources Admin. Dept. of Soc. Services,
82 F.3d 16, 21 (2d Cir. 1996) (quoting Rodriguez v. Board of
Educ., 620 F.2d 362, 366 (2d Cir. 1980)), and may include
instances where plaintiff was transferred to a less prestigious
unit with little opportunity for advancement or where the
employer's actions negatively affected the terms or conditions
of plaintiff's employment. See Richardson v. New York State
Dep't of Correctional Serv., 180 F.3d 426, 444 (2d Cir. 1999)
("[T]he transfer and reassignment — which involved different
job responsibilities and a move to a position involving contact
with the prisoner population — constituted an adverse
employment decision."); Gallagher, 139 F.3d at 349 (transfer to
position with less prestige and customer contact sufficient to
find a material adverse change); Wanamaker v. Columbian Rope
Co., 108 F.3d 462, 466 (2d Cir. 1997) ("We recognize that, as
in retaliation cases brought under Title VII, the ADEA does not
define adverse employment action solely in terms of job
termination or reduced wages and benefits, and that less
flagrant reprisals by employers may indeed be adverse."); de la
Cruz, 82 F.3d at 21 (citing Day v. Derwinski, 771 F. Supp. 588,
592 (S.D.N.Y.) ("If an employee's transfer to a different job
is motivated by race or age considerations, it is obviously a
discriminatory action affecting terms or conditions of
employment."), aff'd, 953 F.2d 635 (2d Cir. 1991)); Collins v.
Illinois, 830 F.2d 692, 702-04 (7th Cir. 1987) (lateral
transfer involving equal pay and benefits with change in
constitutes adverse employment action). Here, while plaintiff's
pecuniary benefits may have remained the same after his
transfer, under the standard enunciated in de la Cruz, the
Court finds that plaintiff's workplace conditions and transfer
from a position of significant responsibility to a position
consisting mainly of menial, clerical tasks, sufficient to
satisfy the third element of his prima facie case. See Greenway
v. The Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998)
("Courts — not juries — should determine whether the initial
McDonnell Douglas burdens of production have been met.").
Moreover, viewing the totality of plaintiff's allegations of
racial discrimination, the Court finds that they occurred under
circumstances giving rise to an inference of discrimination.
See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 314 (2d
Cir. 1997) (noting that the jury "will be entitled to view the
evidence as a whole in assessing whether there was
impermissible discrimination and whether [defendant's]
proffered explanation is a pretext for that discrimination.")
(citing Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040,
48 L.Ed.2d 597 (1976)); see also Schwapp, 118 F.3d at 110;
Fierro, 13 F. Supp.2d at 488. Accordingly, the Court finds that
plaintiff has met his de minimis burden of establishing a prima
facie case of racial discrimination.
At this point, a presumption of unlawful discrimination
places upon the defendant the burden of producing
an explanation to rebut the prima facie case
— i.e., the burden of "producing evidence" that
the adverse employment actions were taken for a
legitimate, nondiscriminatory reason. The defendant
must clearly set forth, through the introduction of
admissible evidence, reasons for its actions which,
if believed by the trier of fact, would support a
finding that unlawful discrimination was not the
cause of the employment action.
Hicks, 509 U.S. at 506, 113 S.Ct. 2742 (quotations omitted);
see also Trustees of Columbia Univ., 131 F.3d at 312.
The explanations proffered by the employer must be "clear and
specific," Gallo, 22 F.3d at 1226 (quoting Meiri, 759 F.2d at
997); Ryduchowski v. The Port Auth. of New York and New Jersey,
1998 WL 812633, at *8 (E.D.N.Y. Nov. 19, 1998) (noting that
shifting the burden to the employer "forces the defendant to
`give an explanation for its conduct, in order to prevent
employers from simply remaining silent while the plaintiff
founders on the difficulty of proving discriminatory intent.'")
(quoting Fisher, 114 F.3d at 1337), and must address "each of
the adverse employment actions of which plaintiff complains."
Ryduchowski, 1998 WL 812633, at *8 (emphasis added); see also
Riedinger v. D'Amicantino, 974 F. Supp. 322, 329 (S.D.N Y
Plaintiff's prima facie case is predicated on specific
alleged acts of discrimination: (1) Greene's alleged racially
derogatory comment referring to plaintiff as a "lazy nigger";
(2) Kilb's refusal to act on plaintiff's request to transfer
back to SGMU; (3) plaintiff's involuntary redeployment to the
Out of State Residents Unit where his job responsibilities were
reduced and he performed clerical tasks; (4) defendant not
assigning plaintiff and not providing him with access to a
telephone and computer; (5) defendant providing plaintiff a
work station located near a copy machine; (6) defendant's
delays in acting on plaintiff's reports of racial
discrimination and retaliation; (7) defendant only assigning
plaintiff to field work in "high crime" areas in New York City;
and (8) defendant's investigation into plaintiff's time
reports, and delays in approving plaintiff's travel vouchers.
Evidently relying on its earlier arguments that the majority of
plaintiff's allegations should be dismissed because plaintiff
failed to exhaust his administrative remedies, and that those
allegations are also insufficient to establish a prima facie
case of discrimination,
defendant proffers a legitimate, nondiscriminatory reason to
only one of plaintiff's allegations. Specifically, defendant
contends that plaintiff was involuntarily redeployed because he
was not working on critical assignments at that time.
See Def. Mem. of Law at 15. Defendant's reason, however, does
not encompass the host of other specific incidents of
discrimination that are part of plaintiff's prima facie claim.
Because defendant has not offered "clear and specific"
legitimate, nondiscriminatory reasons with respect to
plaintiff's other allegations of racial discrimination, see
Gallo, 22 F.3d at 1226, the Court finds that defendant has not
satisfied its burden of production sufficient to trigger the
third prong of McDonnell Douglas. See, e.g., Hicks, 509 U.S. at
510, 113 S.Ct. 2742 ("The defendant then knows that its failure
to introduce evidence of a nondiscriminatory reason will cause
judgment to go against it unless the plaintiff's prima facie
case is held to be inadequate in law or fails to convince the
factfinder."); Richardson, 180 F.3d at 444-45; Frazier v.
Rominger, 27 F.3d 828, 831 (2d Cir. 1994). Accordingly,
defendant's motion for summary judgment with respect to
plaintiff's racial discrimination claim is denied.
F. Plaintiff's Retaliation Claim
Defendant next moves for summary judgment dismissing
plaintiff's claim of retaliation.
Retaliation claims pursuant to 42 U.S.C. § 2000e-3 are also
subject to the familiar McDonnell Douglas burden-shifting
analysis described above. See Grant v. Bethlehem Steel Corp.,
622 F.2d 43, 46 (2d Cir. 1980). "To establish a prima facie
case of retaliation, an employee must show ` participation
in a protected activity known to the defendant;  an
employment action disadvantaging the plaintiff; and  a
causal connection between the protected activity and the
adverse employment action.'" Wimmer, 176 F.3d 125, 134 (quoting
Quinn, 159 F.3d 759, 769 (2d Cir. 1998)). Courts have held that
the plaintiff's burden at this stage is slight, and "[a
plaintiff] may establish a prima facie case with de minimis
evidence." Wanamaker, 108 F.3d at 465 (analyzing retaliation
claim under the ADEA) (citing Dister v. Continental Group,
Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)); see also Donato v.
Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 633 (2d
Cir. 1996), cert. denied, 519 U.S. 1150, 117 S.Ct. 1083, 137
L.Ed.2d 218 (1997).
"To establish the first of these elements — participation in
a protected activity — plaintiff need not prove that the
conditions against which he protested actually amounted to a
violation of Title VII." Wimmer, 176 F.3d 125, 134; see also
Davis v. State University of New York, 802 F.2d 638, 642 (2d
Cir. 1986). Rather, plaintiff must demonstrate "only that he
had a `good faith, reasonable belief that the underlying
challenged actions of the employer violated the law.'" Wimmer,
176 F.3d 125, 134 (quoting Manoharan v. Columbia Univ. College
of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)).
Plaintiff's reporting of Greene's alleged racial slur
constitutes protected activity. See Sumner v. United States
Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) ("In addition to
protecting the filing of formal charges of discrimination,
[Title VII] protects as well informal protests of
discriminatory employment practices, including making
complaints to management, writing critical letters to
customers, protesting against discrimination by industry or by
society in general, and expressing support of co-workers who
have filed formal charges."); Stordeur v. Computer Assocs.
Int'l, Inc., 995 F. Supp. 94, 105 (S.D.N.Y. 1998); Barcher v.
New York Univ. Sch. of Law, 993 F. Supp. 177, 184 (S.D.N Y
1998) ("A `protected activity' includes the registering of a
complaint of a Title VII violation, which `need not take the
form of a formal claim filed with a court or administrative
agency . . . [but] may simply be an objection voiced to the
Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 410
(S.D.N.Y. 1996)), aff'd, 172 F.3d 37 (1999); Del Castillo, 941
F. Supp. at 438-39.
To establish adverse employment action, plaintiff alleges
much of the same incidents that supported his discrimination
claim. These include, inter alia, (1) involuntary redeployment
to the Out of State Residents Unit; (2) field work assignments
to "high crime" areas in New York City; (3) Kilb's refusal to
act on plaintiff's transfer back to SGMU; (4) not being
provided adequate resources to complete his job
responsibilities; (5) defendant's investigation of plaintiff's
time reports and denial of his travel vouchers; and (6)
defendant's delays in acting upon plaintiff's employment
grievances in a timely manner. As previously discussed, these
incidents constitute adverse employment action sufficient to
establish the second prong of a prima facie case of
retaliation. See discussion supra, at 560-61; Gallagher, 139
F.3d at 349; Wanamaker, 108 F.3d at 466; de la Cruz, 82 F.3d at
Plaintiff also satisfies the causal connection prong for a
prima facie case of retaliation. Plaintiff reported Greene's
alleged racially derogatory remark as early as June 1993, in a
formal written grievance filed with defendant. The remark was
also the subject of discussion between the parties at
subsequent meetings and hearings. Defendant's alleged
retaliatory acts occurred as early as August 1993. The
additional acts of alleged retaliation occurred throughout
early 1994 (after plaintiff filed his NYSDHR complaint), and
recommenced in 1996. The temporal relationship between the
protected activity and the adverse employment action is
sufficient to find a causal connection between plaintiff
engaging in protected activity and the resulting adverse
employment action. See Richardson, 180 F.3d 426, 440
("[B]ecause the transfer and reassignment were the first
actions [defendant] took after [plaintiff] returned from the
leave on which she filed her EEOC charge, there was sufficient
evidence that the transfer and reassignment were causally
related to [plaintiff's] engagement in protected activity.");
Quinn, 159 F.3d at 769; Taitt v. Chemical Bank, 849 F.2d 775,
777 (2d Cir. 1988) ("Proof of causal connection can be
established indirectly by showing that the protected activity
was followed closely by discriminatory treatment. . . .").
Having concluded that plaintiff has established a prima facie
case of retaliation, the burden shifts to defendant to
articulate a legitimate, nondiscriminatory reason for taking
adverse employment action. See Hollander, 172 F.3d at 199.
Relying solely on its arguments that plaintiff failed to
establish a prima facie case of retaliation, defendant does not
proffer any reason for its actions. Accordingly, defendants
have not met their burden of production under the McDonnell
Douglas scheme with respect to these incidents and, thus, its
motion for summary judgment with respect to plaintiff's
retaliation claim is denied. See Richardson, 180 F.3d 426,
For all of the foregoing reasons, defendant's motion for
summary judgment is granted in part, and denied in part.
Defendant's motion for summary judgment is GRANTED with respect
to plaintiff's state law claims, and DENIED with respect to
plaintiff's federal law claims for racial discrimination and
IT IS SO ORDERED.