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August 11, 1999


The opinion of the court was delivered by: Gershon, District Judge.


Plaintiff Donahue Francis brings this action against his former employer defendant Chase Manhattan Bank ("Chase"), alleging discrimination and hostile work environment on the basis of his race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") as amended 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law ("HRL"), New York State Executive Law §§ 290 et seq.; discrimination on the basis of a disability and failure to accommodate his disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112-12117, and the New York State Human Rights Law, New York State Executive Law §§ 290 et seq.; and intentional infliction of emotional distress. Plaintiff asserts his disability is a mental condition known as panic disorder with or without agoraphobia.

Defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) to dismiss plaintiff's claims in their entirety. Defendant argues that plaintiff has failed to establish a prima facie case of discrimination or hostile work environment in violation of Title VII and the HRL, or a protected disability under the ADA. Defendant further argues that plaintiff's claim of intentional infliction of emotional distress must fail as he cannot establish the elements of such a claim. Defendant also opposes plaintiff's retaliation claim, articulated for the first time in his opposition, as procedurally barred and, alternatively, meritless as a matter of law.


Unless otherwise indicated, the following facts are undisputed.

Plaintiff Donahue Francis is a 36 year old African-American man. Defendant Chase Manhattan Bank, then known as Chemical Bank, hired plaintiff in May 1990 as a Lundy machine operator in its MICRO Data Processing Department ("MDP Department"). The Lundy operator position requires sitting at a machine, typing microencoding strips and gluing them onto damaged checks. Throughout plaintiff's tenure as a Lundy operator, Conrad Francis, an African-American man, supervised the MDP Department's evening shift, which included the Lundy machine operators, check sorters, and a printer operator. Conrad Francis rated plaintiff's performance as "Competent," an average rating, and in April and May 1992, issued oral and written warnings to plaintiff for remaining on bank premises after his shift. Plaintiff received two raises while working as a Lundy operator, which increased his salary by approximately 8 percent.

In January 1993, plaintiff's salary grade was increased and he was transferred to the position of printer operator. The printer operator receives, separates and delivers printouts of lists of checks to the check sorting machine operators and, when there is time, also assists the sorter operator. Plaintiff also began reporting to Gina Reis, a white woman. Ms. Reis consistently rated plaintiff's performance as "Competent" or "Commendable" in his position as printer operator. While Ms. Reis served as plaintiff's supervisor, plaintiff received at least three salary increases, which raised his salary by 20 percent.

Allegations of Racial Harassment and Hostile Work Environment

In early 1992, as a consequence of the merger of the Manufacturers Hanover Trust Company and Chemical Bank. Robert Mills, a white man, joined the MDP Department as a supervisor. Plaintiff alleges that beginning sometime in June 1993, Mr. Mills began to behave in an "obnoxious" manner. Plaintiff concedes that Mr. Mills behaved obnoxiously towards employees of various races and that, prior to May 1994, he did not interpret any of Mr. Mills's alleged obnoxious behavior towards him to be based upon his race or disability. Plaintiff believes, however, that beginning in 1994, "it soon became increasingly clear that my African-American heritage was the basis for his offensive harassing conduct." Francis Aff. at ¶ 4.

Plaintiff describes three specific incidents as evidence of Mr. Mills's racial harassment of him. He states that Mr. Mills told him, regarding Harry Fry Noriega, another African-American employee, "that nigger is a disgrace to all of yous." Francis Dep. at 118. Plaintiff also recalls that sometime in early 1995, in response to the distribution of United Negro College Fund brochures, Mr. Mills held up one of the brochures and stated, "why should I give money to those fucking ___ ? What have they ever done for me?" Plaintiff could not say whether Mr. Mills used the word Negroes or a racial epithet, admitting that he did not hear clearly. In March 1995, plaintiff found scribbled in pen on his desk, "All niggers should go back to Africa with a Jew under each arm," written in what he describes as "the unmistakable handwriting of Robert Mills." He believes that the comment was directed at him because he was the only black person working at that particular desk. Francis Aff. at ¶ 7.

Plaintiff further claims that Mr. Mills and Ms. Reis acted in other ways to create a racially hostile work environment. He describes Mr. Mills's racially harassing conduct as including raising his middle finger at him, slamming his hand down on plaintiff's work station while yelling "fuck you, asshole," and "you piece of shit," and eventually, stalking plaintiff and eavesdropping on his phone calls. Plaintiff also describes an instance sometime in either 1993 or 1994 when he overhead Ms. Reis saying, "Look at these fucking moolies" as she looked out into the MDP area, in which, plaintiff stated, there were numerous African-Americans. Francis Dep. at 244-45.

(Ms. Reis denies ever using the term "moolies" and states that she does not know what it means. Reis Aff. at ¶ 22. Mr. Mills admits that he has used the term "nigger" in conversation, but insists that he has never used the term in the workplace generally, nor in reference to Mr. Noriega specifically. He also denies ever following or stalking plaintiff. Mills Dep. at 17-18, 57. He received an oral counseling session from Farook Ali, an MDP Department manager, for the use of inappropriate. but not racial, language and was warned that he could be fired if he persisted in the use of such language. For purposes of the motion, plaintiff's account is taken as true.)

Chase's Investigations

In March 1994, all members of the MDP Department, including plaintiff, received and signed a notice stating that an unauthorized presence in any other department was a violation of bank policy. This notice resulted after complaints from other departments that MDP Department employees were using their telephones and offices for personal activities. On March 3, 1995, plaintiff received a written warning for violating this directive by allegedly entering an unauthorized area in another department. Plaintiff responded by going to speak with Nancy Brennan, an Assistant Vice President in Human Resources, and complaining that the warning was unfair and that he was being "targeted." Ms. Brennan met with plaintiff, Ms. Reis, Mr. Mills, and Stanley Koslowski (the Vice President responsible for all of Check Processing) on three separate occasions on March 6, 7, and 9, 1995. At these meetings, plaintiff admitted that he had been in another department, but objected to the warning as he contended that Mr. Mills had authorized him to go to the other department. Mr. Mills denied any such authorization. At the conclusion of these meetings, Ms. Brennan directed plaintiff to sign the warning with the understanding that he could respond to it in writing. Plaintiff signed the warning under protest, but did not mention race or disability in his objection.

On March 10, 1995, plaintiff told his coworker Mr. Noriega that he was concerned that Mr. Mills might be racist. Mr. Noriega responded by telling him to raise these allegations with Chase management. Defendant states that Mr. Ali overheard this conversation and promptly relayed this information to Ms. Brennan. Defendant claims that Ms. Brennan responded immediately with another investigation, notifying Mr. Koslowski, Josephine Giampiccolo, and Lorraine, Doyle, the Human Resources generalist responsible for the MDP Department. Ms. Brennan attempted to meet with plaintiff, who was out on vacation the week of March 13-17, 1995. It is undisputed that plaintiff contacted Staff Relations on his own on March 21, 1995, and spoke with a Janet Bevers, who also started an investigation, defendant contends, and informed Mr. Burchfield Moore, a senior level Staff Relations officer.

Mr. Moore interviewed plaintiff on March 28, 1995. At this interview, plaintiff told Mr. Moore that: 1) in 1993, Mr. Mills would mutter non-racial obscenities as he passed his work area; 2) Mr. Mills made a racial comment in 1994 about Mr. Noriega; 3) Mr. Mills made the above-described comment about the United Negro College Fund; 4) starting in early 1995, Mr. Mills followed him around and glared at him from time to time; and 5) Mr. Mills eavesdropped on his telephone calls. Plaintiff claims that he additionally told Mr. Moore about his belief that he was not being properly promoted and that he was being discriminated against by Ms. Reis and Mr. Mills.

On March 31, 1995, Mr. Mills told plaintiff that he had changed plaintiff's sign-out time from the previous evening to reflect the earlier time he had observed plaintiff leaving work. Plaintiff objected and disputed Mr. Mills's contention. Plaintiff claims that he also "quietly advised him that I objected to his harassing me and following me around and that I wanted him to stop," before walking away. He states that Mr. Mills came into his department soon after and "lunged at me and I reacted by recoiling back." He claims that Mr. Mills then followed him into the bathroom and brushed his hand against plaintiff's buttocks. He felt so "in fear for my life that Robert Mills would attack and kill me" that he called the police and asked them to arrest Mr. Mills for touching him. The police declined, recommending instead that he make a complaint to the "Human Rights Commission in Mineola." Mr. Ali told him to take the remainder of the evening off, thereby placing him on administrative leave. Francis Aff. at ¶¶ 15-16.

Plaintiff met with Mr. Moore again on April 11, 1995, and described the occurrences of March 31, 1995. On April 19, 1995, Mr. Moore told plaintiff that his determination was that he had not been the subject of any harassment and asked him to return to work. When plaintiff replied that he was ill, Mr. Moore took him to the Medical Department.

Allegations Regarding Plaintiff's Disability, Medical Treatment, and Termination

The first indication of plaintiff's disability came when he suffered a panic attack on May 12, 1994, which prompted him to take medical leave from that day until July 5, 1994. Plaintiff sought treatment from Dr. Roxanne Fahrenwald, an internist, at Stony Brook Hospital, who in turn referred him to Richard Murdocco, a psychotherapist. According to Mr. Murdocco's notes from his first session with plaintiff, plaintiff appeared "anxious, wringing his hands, stating he has been suffering what he defines as panic attacks. Patient states that he has been unable to assume daily activities due to his panic disorder." Murdocco Dep. at 60. Mr. Murdocco saw plaintiff on nine separate occasions over a seven week period, and diagnosed him as suffering the beginning stages of anxiety disorder with elements of agoraphobia. Mr. Murdocco describes agoraphobia as a fear of going outdoors and as a very debilitating phobia.

Plaintiff returned to work in July 1994. He states that he informed the nurses at the nurses department at Chase that he was suffering from panic attacks. He further states that he told Ms. Reis, his supervisor, as early as July 1994 that he suffered from a disorder, but acknowledges that he may not have specified that he had an anxiety disorder until November or December 1994, when he expressly requested from her a reasonable accommodation. Plaintiff states that he told Ms. Reis that he often grew dizzy from standing up at the ...

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