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October 26, 1999


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


This is an employment discrimination case in which plaintiff Luis R. Alonzo claims that he first was subjected to a hostile work environment on the basis of his Hispanic origin and then unlawfully terminated on the basis thereof, in retaliation for his complaints regarding the hostile work environment discrimination, or both. Defendant Chase Manhattan Bank ("Chase") has moved for summary judgment dismissing the complaint against it.*fn1 Although plaintiff obtained an extension of time within which to respond to the motion, no responsive papers have been filed. Accordingly, the averments set forth in Chase's Rule 56.1 Statement are deemed admitted.*fn2 Nevertheless, the fact that plaintiff has not responded to the motion does not mean that it should be granted automatically.*fn3 The question remains whether there is a genuine issue as to any material fact and, if not, whether Chase is entitled to judgment as a matter of law.

Hostile Work Environment

The hostile work environment claim is based upon plaintiff's assertion that a supervisor by the name of Groesser repeatedly directed offensive remarks to plaintiff that reflected racial or ethnic animus. Although Groesser denies having done so, the portion of plaintiff's deposition placed before the Court by Chase contains plaintiff's account of the alleged remarks. As the facts must be taken in the light most favorable to plaintiff in resolving this motion, the Court assumes that Groesser made the remarks attributed to him.

Chase seeks to avoid liability for the alleged remarks by contending that certain of them are time barred, that some were not based on race or ethnicity, and in any case that the statements may not be imputed to Chase because plaintiff failed to avail himself of reasonable avenues for complaint.

Chase correctly points out that all but two or three of the allegedly offensive remarks occurred more than 300 days prior to the filing of plaintiff's EEOC charge*fn4 and argues that they therefore are not permissible subjects of relief.*fn5 It contends that once the time-barred incidents and those that were not unequivocally racial or national origin related are put aside, there simply is not enough left to go to a jury on the question whether plaintiff was subjected to a hostile work environment.

The attempt to carve off the alleged comments that were not explicitly racial or national origin related is misguided. Plaintiff is entitled on this motion to all inferences that reasonably may be drawn from the facts. Imputations of stupidity or other undesirable but facially neutral comments may take on a different coloration if they occur amidst explicitly racial and ethnic epithets. That is what is alleged here. A trier therefore reasonably might determine that all of Groessner's alleged comments manifested racial or national origin related bias.

The question whether the incidents that occurred more than 300 days prior to the filing of the EEO charge in April 1993, i.e., the incidents that occurred prior to June 12, 1992, should be disregarded is a closer question. The continuing violations doctrine renders timely incidents that occurred more than 300 days prior to the filing of an EEO charge provided (1) the acts "within and without the limitations period are sufficiently similar and frequent to justify a conclusion that both are part of a single discriminatory employment practice chargeable to the employer," and (2) "the circumstances are such that a reasonable person in the plaintiff's position would not have sued earlier."*fn6 While a jury well might resolve the question in Chase's favor, the Court is unwilling at this stage to conclude that no reasonable trier could find the elements of the continuing violations doctrine satisfied with respect to plaintiff's hostile work environment claim.

Finally, Chase contends that it may not be subjected to vicarious liability for Groesser's alleged actions.

Burlington Indus., Inc. v. Ellerth*fn7 and Faragher v. Boca Raton*fn8 make clear that an employer is vicariously liable for hostile work environment employment discrimination by a supervisor with immediate or higher authority over an employee unless no adverse employment action is taken and the employer establishes that (a) it took reasonable care to prevent and correct the harassment, and (b) plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.*fn9 Here, no alleged adverse employment action is asserted in the context of the hostile work environment claim. Groesser was plaintiff's direct supervisor, one level removed. But while Chase argues that it satisfied the other elements of the defense by maintaining and disseminating a reasonable anti-discrimination policy and establishing avenues of complaint that plaintiff did not pursue, that is not enough on the facts of this case.

It is one thing for an employer to point, as does Chase, to an employee manual containing an anti-discrimination policy and setting out unpursued avenues of redress where the employee remains entirely supine. It may well be, in such circumstances, that the employer has acted entirely reasonably and that the employee has only him- or herself to blame for the employer's failure to deal with the alleged problem. After all, in such circumstances, the employer may be entirely unaware of the problem.*fn10 But that is not this case.

Here, according to his deposition, plaintiff in October 1992 went to Martin Hoffman, a senior vice president of Chase and head of plaintiff's department, and complained about Groesser's behavior, including his racial remarks.*fn11 Hoffman admits that there was a meeting, but denies that plaintiff raised the issue of discrimination. It is undisputed that Hoffman thereafter caused Groesser to take plaintiff to lunch, presumably in an effort to smooth over an obvious clash of personalities. Plaintiff claims that Groesser subsequently abused him, although he concedes that he never went back to Hoffman with further complaints.

It is common ground that recourse to Hoffman, as opposed to Chase's Human Resources Department, was not the prescribed route for complaints such as plaintiff's. Nevertheless, Hoffman was a senior official of the bank and was not involved in the alleged discrimination. If his response to plaintiff was not reasonable, the bank cannot escape liability on the basis of a printed statement in its employee handbook.*fn12

The reasonableness of Hoffman's actions presents a close question. The evidence would permit a jury to find that Hoffman (a) did not bring the problem to the attention of Human Resources, (b) alerted Groesser to the fact that plaintiff had complained about him, (c) effectively told Groesser that the problem was his to handle by telling him to take plaintiff to lunch, and (d) did nothing more about the situation than later to ask plaintiff whether Groesser had taken him to lunch. The argument in favor of the reasonableness of his action is that he had every reason to think that plaintiff would have come back to him if the problem continued and indeed was led by plaintiff's failure to do so, particularly in response to his inquiry as to whether Groesser had taken him to lunch, to believe that the problem was resolved and that no further action was indicated. The argument the ...

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