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November 12, 1999


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


Plaintiffs Jocelyn Whidbee and Shirlene Tranquille, both of whom are African-American, brought claims against their former employer, McDonald's Restaurant in Middletown, New York, and its owners, Ed and John Garzarelli, for (1) employment discrimination pursuant to 42 U.S.C. § 1981, seeking both compensatory and punitive damages under that statute, and New York Executive Law §§ 296 and 297 and (2) constructive discharge. The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, on several grounds discussed below. For the reasons that follow, the motion is granted.


Plaintiffs began working at McDonald's in Middletown in late 1997. Defendants John and Ed Garzarelli*fn1 are owners of Garzarelli Food Specialties, Inc., which owns and operates the McDonald's in Middletown. This lawsuit stems from a series of racially offensive comments allegedly made by a co-worker, Richard Corliss, over the span of approximately three months beginning in April 1998.

Plaintiffs allege that Corliss made racial slurs on the following occasions before they brought Corliss's conduct to the attention of Patrick Grable, the restaurant's general manager: (1) in April 1998, Corliss made unidentified racially offensive comments to Jamie Hunter, a co-worker; (2) in April or May, Corliss told Tranquille while they were having lunch in the break room that blacks and Puerto Ricans are lazy and were "bringing down Middletown," made two derogatory remarks about Mexicans, and made racially disparaging comments in reference to his ex-wife's son; (3) in early June, Corliss told Hunter that "he's a lazy black boy because he don't like to work" and that he had "a rope in the back shed to hang [Hunter's] butt"; and (4) on June 5, Hunter told Tranquille that Corliss and a co-worker identified only as "Charlotte" had called her a "skinny black bitch." Whidbee also testified that Corliss told another McDonald's crew person that Plaintiffs were "black bitches," but was unable to remember the date of this remark, other than that it occurred before July.

According to their depositions, on June 8, 1998, Plaintiffs complained to Grable that Corliss had directed racist statements towards them and other McDonald's employees during the two preceding months.*fn2 Defendants claim that Grable told them at the June 8 meeting that he would speak to Corliss; Whidbee and Tranquille claim that Grable told Tranquille that she would have to handle the problem herself.

Plaintiffs again complained to Grable on June 9 that Hunter told Whidbee on that same date that Corliss had referred to another African-American employee as a "lazy black snake." It is undisputed that Grable told Plaintiffs during their conversation that he would approach Corliss about the issue. Grable avers that he intended to speak with Corliss that afternoon, but that Corliss had left for the day before Grable had an opportunity to do so. The following day, Corliss had the day off and Grable was in New Jersey for a two-day managers' meeting.

Thus, Grable's earliest opportunity to confront Corliss was June 12. However, on June 10, Plaintiffs gave Grable written notice that they were resigning as of June 23. They told Tina Hanley, another supervisor, that the reason was Grable's failure to address Corliss's conduct, but Whidbee also testified that part of her motivation in quitting was her desire to apply to a McDonald's in Monticello, closer to her new home.

On June 11, while Grable was still away, Plaintiffs complained to Hanley that Corliss had referred to Whidbee as a "black sheep." Hanley reported the incident to Grable when Grable returned the following day, Friday, June 12. That very day, Grable met with Corliss and gave him a verbal warning, advising him that racially offensive remarks at work were unacceptable. Unfortunately, this did not put an end to Corliss's offensive interjections. On June 15, George Doty, a co-worker, reported to Plaintiffs that he heard Corliss state that he "still couldn't stand black folk."

Plaintiffs claim that they met with Grable again the following day, June 16, to report Corliss's most recent comment and cited his continued slurs as the reason for their resignations.*fn3 Plaintiffs taped this meeting without Grable's knowledge, and cite from their conversation Grable's comment that if "talking to Rich doesn't handle it or if you try talking to Rich and that doesn't do anything, then you have to leave." (Transcript of Taped Conversation between Patrick Grable, Jocelyn Whidbee, and Shirlene Tranquille at 9, attached as Exhibit 1 to Affirmation of Stephen Bergstein in Opposition to Motion for Summary Judgment). However, in a later portion of that conversation not cited by Plaintiffs, Grable stated: "[W]e can sit down with him again and then give him a choice. He's either got to stop saying it ["black sheep"] or he's got to quit." (Id. at 14.) Grable also told Plaintiffs that he had "to do some research through McDonald's, too, to find out exactly . . . which way [he] should handle [Corliss's harassment], if it can't be stopped." (Id.) And in an instance where actions speak louder than words, that very day Grable issued Corliss a written warning, stating that any further offensive conduct would result in disciplinary measures, up to and including termination.

Even this step did not deter continued harassment from Corliss, according to Plaintiffs' depositions. Tranquille testified that on or about June 17 or 18, referring to the recently reported dragging of an African-American man to death from a pickup truck in Texas, Corliss, in Tranquille's presence, expressed his desire to buy a truck, presumably in order to carry out the same act himself, and suggested that the victim may have provoked his killers. At approximately the same time, Plaintiffs stated, Corliss commented with respect to the much-publicized controversy involving false rape allegations by Tawana Brawley, an African-American woman, that "black lawyers are just out to get money from white folks." Plaintiffs concede that they never reported these statements to any of their supervisors.

In any event, it is undisputed that on June 26, Whidbee met with Patrick Grable, McDonald's District Supervisor Diane Grable, and Corliss, at which point both Patrick and Diane Grable warned Corliss that he would be terminated if he used racially offensive language again. Tranquille was given a similar opportunity to meet with the Grables and Corliss but declined to do so. Both Plaintiffs left McDonald's employ on June 26. They subsequently brought the present action.*fn4

Defendants have moved for summary judgment, arguing that: (1) Plaintiffs cannot maintain a claim under ยง 1981 because they were at-will employees, and as such, had no contract with Defendants; (2) Plaintiffs are barred from suing under the New York Human Rights Law having already filed pending administrative charges with the New York State Division of Human Rights; (3) Plaintiffs have failed to demonstrate that Corliss's conduct rose to the level of a hostile environment; (4) Plaintiffs have not shown any basis upon which Corliss's conduct may be imputed to Defendants; (5) Plaintiffs have stated ...

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