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FRANCIS v. CHEMICAL BANKING CORP.
August 11, 1999
DONAHUE ALEXANDER FRANCIS, PLAINTIFF,
CHEMICAL BANKING CORPORATION, DEFENDANT.
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
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
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
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 ¶
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 ¶
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.
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 ...