relief. . . ." Snell, 782 F.2d at 1103. This standard of
proof applies for claims of hostile work environment brought
under Title VII as well as the HRL. See Tomka v. Seiler
Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995).
The timely filing of a charge with the EEOC is a prerequisite
to the maintenance of a Title VII action. See Butts v. City of
New York, 990 F.2d 1397, 1401 (2d Cir. 1993). In New York,
where a state agency exists to investigate charges of
employment discrimination, a charge of discrimination under
Title VII must be filed within 300 days of the occurrence of
the conduct of which the charging party complains. See Lambert
v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). In contrast,
a state claim pursuant to the HRL is subject to a three year
statute of limitations. See Quinn v. Green Tree Credit Corp.,
159 F.3d 759, 765 (2d Cir. 1998).
Defendant argues that plaintiff has identified only four
isolated incidents in support of his hostile work environment
claim: 1) Ms. Reis's late 1993 or 1994 description of a group
of African-American employees (not including plaintiff) as
"fucking moolies;" 2) Mr. Mills's 1994 reference regarding Mr.
Noriega: "that nigger is a disgrace to all of yous;" 3) Mr.
Mills's early 1995 remark regarding the United Negro College
Fund; and 4) the written statement plaintiff found on his desk
in mid-March 1995 stating, "All niggers should go back to
Africa with a Jew under each arm." Defendant contends that the
first two incidents are time-barred with regard to his federal
claim as plaintiff failed to file an EEOC claim alleging race
discrimination until November 30, 1995, more than 300 days
after the first two incidents. The isolated occurrence of two
allegedly racial comments, defendant argues, is not enough to
create a hostile work environment.
Indeed, the first two incidents described by plaintiff are
time-barred under Title VII and, even if plaintiff's
allegations were considered in their entirety, these
allegations are not enough to give rise to a hostile work
environment. Construing plaintiff's allegations of Ms. Reis and
Mr. Mills's conduct liberally, plaintiff has described only
four specific incidents involving racial comments, as opposed
to a "steady barrage of opprobrious racial comments,"
Schwapp, 118 F.3d at 110, and a number of more vague
descriptions of offensive language and conduct by Mr. Mills
that cannot be readily attributed to racial animus.*fn1 The
only other specific incident described by plaintiff occurred on
March 31, 1995, when Mr. Mills lunged at him and then,
following him into the bathroom, brushed his hand against
plaintiff's buttocks. Plaintiff states that he felt so
threatened by these actions that he felt compelled to call the
police. The law is clear that "even a single incident of sexual
assault sufficiently alters the conditions of the victim's
employment and clearly creates an abusive work environment for
purposes of Title VII liability." Quinn, 159 F.3d at 768
(citing Tomka, 66 F.3d at 1305). Here, however, while
plaintiff subjectively may have feared for his physical safety,
Mr. Mills's conduct in connection with the March 31, 1995
incident fails to rise to the same level of severity as sexual
assault, and objectively carried no racial overtones.
Considering the totality of the circumstances, plaintiff has
suggested at most that Mr. Mills uses offensive language and
has evinced a dislike for plaintiff; plaintiff has not,
however, sufficiently established a hostile work environment.
Plaintiff's claims of hostile work environment
under both Title VII and the HRL are therefore dismissed.
In his opposition papers, plaintiff suggests that he was
arguably constructively discharged because the allegedly
hostile work environment caused the onset of his mental
disorder which in turn left him incapable of returning to work,
which in turn led to his discharge. Any claim of constructive
discharge that plaintiff attempts to make cannot survive this
motion for summary judgment as he cannot show that the racial
animus and harassment he subjectively perceived was objectively
pervasive and severe enough to give rise to a hostile work
environment. As stated in Shabat v. Blue Cross Blue Shield,
925 F. Supp. 977, 982-83 (W.D.N.Y. 1996):
Plaintiff may have believed that he was being subjected to
abuse because of his national origin, religion, or disability.
His subjective reaction to his coworkers' actions has allegedly
been so severe that he has been on disability leave since 1992.
Plaintiff's own perception that his work environment was
hostile is not enough, however: to prevail on this claim, it is
also necessary that plaintiff's work environment be objectively
Thus, even if plaintiff can show a causal link among his
conflict with Mr. Mills, the onset of a debilitating medical
condition, and his discharge as a result of extended medical
leave, plaintiff must also show, which he fails to do, that his
work environment was indeed hostile to a reasonable person and
not just merely intolerable to him.
Failure to Promote and Denial of Salary Increases
Defendant asserts that plaintiff cannot establish a prima facie
case of failure to promote and that the undisputed facts show
that plaintiff received a salary increase every year of his
employment with Chase. Plaintiff fails to address directly
either of these claims in his opposition papers, but if one
were to read his papers broadly, he appears to claim generally
that he had made requests for advancement to Ms. Reis and that
she ignored these requests. However, plaintiff does not list
specific positions to which he applied and was denied, and Ms.
Reis specifically stated at her deposition that there was no
open position to consider him for during his tenure. The Court
of Appeals for the Second Circuit has held that a plaintiff
must "allege that she or he applied for a specific position or
positions and was rejected therefrom, rather than merely
asserting that on several occasions she or he generally
requested promotion." Brown v. Coach Stores, Inc.,
163 F.3d 706, 710 (2d Cir. 1998). Plaintiff falls far short of his
burden of proof and his claims of failure to promote and denial
of salary increases must be dismissed.
Retaliation Under Title VII
Plaintiff raises, for the first time, in his opposition papers
a retaliation claim under Title VII. Specifically, plaintiff
alleges that Reis failed to consider him for a promotion and
that he was excluded from certain meetings. Plaintiff states
that he may now raise this claim because it is "reasonably
related" to the Title VII claims made in his EEOC charge of
discrimination based on race filed on November 30, 1995, and he
cites Butts v. City of New York Dep't of Housing Preservation
and Dev., 990 F.2d 1397, 1401-02 (2d Cir. 1993) for this
position. Defendant contends that the retaliation claim must be
dismissed as time-barred and for failure to exhaust
administrative remedies as plaintiff failed to raise this claim
in either of his EEOC charges.
Although failure to exhaust administrative remedies is ground
for dismissal of a Title VII claim, see, e.g., Stewart v.
U.S.I.N.S., 762 F.2d 193, 197-98 (2d Cir. 1985), it is
well-established that a district court "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, 990 F.2d at 1401. In
Butts, the Court of Appeals for the Second Circuit expressly
stated that such reasonably related claims include those
alleging retaliation in response to a plaintiff's filing of an
EEOC charge of discrimination. See Shah v. New York State
Dep't of Civil Service, 168 F.3d 610 (2d Cir. 1999) (citing
Butts, 990 F.2d at 1402).
Here, plaintiff fails to qualify for this type of exception to
the exhaustion of administrative remedies requirement under
Title VII. Plaintiff filed his first EEOC Charge alleging race
discrimination and harassment on November 30, 1995. However,
plaintiff had already been terminated by Chase on October 24,
1995, and thus, the retaliatory actions alleged by plaintiff
could not have occurred in response to his EEOC filing. As
plaintiff fails to state a claim "reasonably related" to his
EEOC claims, the retaliation claim must be dismissed for
non-exhaustion of administrative remedies.
Even on the merits, plaintiff's retaliation claim must be
dismissed for failure to establish a prima facie case of
retaliation. A plaintiff must show: (1) participation in a
protected activity known to the defendant; (2) an adverse
employment action; and (3) a causal connection between the
protected activity and the adverse employment action. See
Quinn, 159 F.3d at 769 (citing Tomka, 66 F.3d at 1308).
Protected activities include the filing of a complaint with the
EEOC and opposition by employees against an employer's
discriminatory practices. See Parker v. Sony Pictures
Entertainment. Inc., 19 F. Supp.2d 141, 152 (S.D.N.Y. 1998). An
adverse action must affect the "terms, privileges, duration, or
conditions of [his] employment." Dortz v. City of New York,
904 F. Supp. 127, 156 (S.D.N.Y. 1995). A causal connection
between the protected activity and the adverse employment
action can be "established indirectly with circumstantial
evidence" by showing that "the protected activity was followed
by discriminatory treatment . . . or directly through evidence
of retaliatory animus." Sumner v. United States Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990). The plaintiff's burden in
stating a retaliation claim is slight; he may establish a prima
facie case with de minimis evidence. See Wanamaker v.
Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997).
Here, plaintiff fails to direct the court's attention to any
evidence in the record showing that he was denied promotions or
salary increases or that any adverse employment action was
causally linked to his complaints of racial discrimination.
Plaintiff claims that Ms. Reis acknowledged that she never
considered plaintiff for a promotion because of retaliatory
animus. However, in the deposition pages cited by plaintiff,
Ms. Reis stated that there simply was "no other position to
consider him for. He was a grade 6. I believe, and the next
step would be a coordinator and there was no open position."
Reis Dep. at 80-81. Plaintiff offers no other evidence that he
suffered any adverse employment action, or that any such
actions can be causally linked to protected activities by a
showing of discriminatory treatment or retaliatory animus.
Disability Under the ADA
The ADA provides that "[n]o covered entity shall discriminate
against a qualified individual with a disability because of the
disability of such individual in regard to . . . discharge of
employees. . . ." 42 U.S.C. § 12112(a). A plaintiff bringing a
claim of discriminatory discharge under the ADA bears the
initial burden of establishing a prima facie case of
discrimination. To meet this burden, a plaintiff must show
that: (1) his employer is subject to the ADA; (2) he suffers
from a disability within the meaning of the ADA; (3) he could
perform the essential functions of his job with or without
reasonable accommodation; and (4) he was fired because of his
disability. See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867,
869-70 (2d Cir. 1998).
The ADA describes an individual as suffering from a
"disability" if he makes a showing of any one of the following:
"(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as
having such an impairment." 42 U.S.C. § 12102(2). "Only a
`qualified individual with a disability may state a claim for
discrimination under the ADA;" even if a plaintiff alleges a
firing because of a medical condition, he can bring a claim
under the ADA only if his medical condition rises to the level
of a "disability." Parker, 19 F. Supp.2d at 147.
Plaintiff does not allege that he was unjustly regarded as
having a medical impairment when he in fact was not disabled.
Therefore, the court's analysis focuses on the legal standard
required in order to establish a "disability" as defined under
either subsection A or B of Section 12102(2) of the ADA and
whether plaintiff proffers sufficient facts to meet this
standard. In a recent decision, the Supreme Court articulated a
three step process for evaluating a claim of "disability" as
defined under the ADA. See Bragdon v. Abbott, 524 U.S. 624,
118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998). First, the Court
determined whether the plaintiff suffered from a physical or a
mental impairment. Second, the Court identified the life
activity indicated by the plaintiff and considered whether it
qualified as a "major life activity" under the ADA. Finally,
the Court determined whether the claimed impairment
substantially limited the major life activity. See id. Under
this analysis, "a plaintiff who showed that he had an
impairment and that the impairment affected a major life
activity would nonetheless be ineligible if the limitation of
the major life activity was not substantial." Colwell v.
Suffolk County Police Dept, 158 F.3d 635, 641 (2d Cir. 1998).
Although the ADA does not define "major life activities" or
"substantial limit[ation]," the regulations promulgated by the
EEOC under the ADA provide guidance in interpreting the ADA.
See, e.g., Ryan, 135 F.3d at 870; Francis v. City of
Meriden, 129 F.3d 281, 283 n. 1 (2d Cir. 1997). "Major life
activities" are defined under the regulations as "functions
such as caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working."
29 C.F.R. § 1630.2(i). "Substantially limits" is defined as:
(i) unable to perform a major life activity that the average
person in the general population can perform; or
(ii) significantly restricted as to the condition, manner or
duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or
duration under which the average person in the general
population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(1).
Here, plaintiff fails to show that his panic disorder
substantially limits a major life activity and therefore cannot
sustain a claim under the ADA.*fn2 Plaintiff makes only a
conclusory claim that his ability to "think as a normal person"
is impaired. He explains
that he would become dizzy at work, and that his panic attacks
impede some of his social activities, including his sexual
activity. Specifically, plaintiff stated at his deposition that
on occasion he cannot "ejaculate with her as hard" as he would
like, and that he feels "humiliated" that he is unable to "go
out of state somewhere" with a woman because he would not know
where the closest hospital was in the event that he suffered a
panic attack. As described by plaintiff, the activities of
"thinking normally" and "socializing" do not constitute major
life activities as contemplated under the ADA. Therefore,
plaintiff fails to show that he suffered a disability under the
ADA and his claim is dismissed.
Remaining State Claims
Plaintiff has two remaining state claims, discrimination on the
basis of his disability under the HRL and intentional
infliction of emotional distress. As all of plaintiff's federal
claims have been dismissed, the court declines to exercise
supplemental jurisdiction over the remaining state law claims,
see 28 U.S.C. § 1367(c)(3), and these claims are dismissed
Defendant's motion for summary judgment is granted and all of
plaintiff's federal claims are dismissed, as are his identical
claims of race discrimination and hostile work environment
under the HRL. The court declines to exercise supplemental
jurisdiction over the remaining state law claims of disability
discrimination and intentional infliction of emotional
distress, and these claims are dismissed without prejudice.