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.
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. ...