time period, he provides no other verified dates or times of their
occurrences. The alleged discriminatory harassment here was not enough to
establish a hostile work environment. Infrequent remarks or episodes of
harassment will not warrant relief under Title VII; in order to be
actionable, the incidents of harassment must occur in concert or with a
regularity that can be termed pervasive, Tomka v. Seiler Corp., 66 F 3d
at 1305. The incidents here were episodic, not continuous enough or
concerted to be pervasive, and did not "sufficiently affect plaintiffs
conditions of employment to implicate Title VII." Harris v. Forklift
Systems, 510 U.S. at 19, 114 S.Ct. at 367-68.
An examination of the record discloses that other than the alleged
inappropriate statement defendant Scott made to plaintiff in February
1992, plaintiff alleges no other verified dates and places where such
comments were made to him. In order to accommodate plaintiffs
disability, he was asked to perform certain light-duty assignments
assigned to other Building Maintenance Helpers, which he could do, so the
other could perform heavy work, which he could not do. Transfers between
buildings were also undertaken to accommodate plaintiff by placing him in
work areas where he could carry out his light-duty maintenance
assignments while other workers were nearby to assist him if confronted
with a heavy duty assignment. There is no showing that any false work
performance statements were filed against plaintiff. Indeed, the three
work evaluation reports in the record show that his work was
Plaintiff further alleges that white employees received preferential
opportunities for advancement. "Multiple failures to promote are usually
viewed as discrete incidents of discrimination that do not constitute a
continuing violation." Mareno v. Madison Square Garden, 1999 WL 777952, a
*5, 1999 U.S. Dist. LEXIS 15265, at *14 (S.D.N.Y. Sept. 29, 1995). This
is because in contrast to a claim of harassment or hostile work
environment, each discriminatory failure to hire or promote is a
completed act for which plaintiff can sue at the time. Wang v. New York
City Department of Finance, 1999 WL 529559 at *10, 1999 U.S. Dist. LEXIS
11256 at *35 (E.D.N.Y. July 21, 1999).
The only specific verified incident of this type of discriminatory
conduct alleged by plaintiff took place in April 1997. At that time,
plaintiff did receive a promotion to Senior Clerk but was only elevated
from Grade 11 to Grade 12 employment level while Nancy Rooney, the white
employee he replaced, was a Grade 21. It seems that plaintiffs
contentions here are contradicted by the affidavit of Jerome M. Brown,
Dean of Human Resources and Affirmative Action Officer for MVCC, which
declares that plaintiff did not replace Nancy Rooney who was an
Administrative Assistant with a Grade 19 employment level. As
Administrative Assistant she had the responsibility of developing the
department budget, monitored expenditures, tracked spending trends and
made projections, was responsible for department purchasing functions,
maintained an inventory of physical space for two campuses, in addition
to typing and clerical duties. While some of plaintiffs duties were those
performed by Ms. Rooney, Mr. Bembry's duties did not encompass those of
Administrative Assistant. Mr. Bembry does work with data entry and budget
items, but he is not responsible for the preparation of the budget or
analysis of spending, or projections. He has no responsibility for
Assessing plaintiffs claim here in light of the above, it is apparent
that plaintiff has failed to establish even a prima facie case of
employment promotion discrimination. To make out a prima facie case of
employment discrimination in a Title VII action, a plaintiff must show
(1) that he belongs to a protected class; (2) qualification for position
for which employer sought applicants; (3) he was denied the position, and
(4) that the denial occurred under
circumstances giving rise to a reasonable inference of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817,
1824, 36 L.Ed.2d 668 (1973); McLee v. Chrysler Corp. 109 F.3d 130, 134
(2nd Cir. 1997). The same analysis applies to plaintiffs discrimination
claim under 42 § 1981. See Haggarty v. National Westminister Bank
USA, 78 F.3d 836, 838 (2nd Cir.), cert. denied, 519 U.S. 824, 117 S.Ct.
84, 136 L.Ed.2d 41 (1996). Under § 1981, plaintiff must establish
that the protected status at issue is race and that the alleged
discrimination involves one or more activities set forth in the statute.
Mian v. Donaldson, Lufkin & Jenerette Securities Corp., 7 F.3d 1085, 1087
(2nd Cir. 1993). Once the plaintiff has validated a prima facie case of
discrimination, the defendant must produce evidence that the adverse
employment action was taken for nondiscriminatory reasons. If the
defendant carries this burden of production, the plaintiff is given the
opportunity to demonstrate that the proffered reasons are pretextual.
McDonnell, 411 U.S. at 802-03, 93 U.S. at 1824. Although plaintiff
satisfies the first of the McDonnell elements, he is unable to even carry
out his very limited charge of providing the minimal evidence needed to
shift the burden to the defendants to explain the actions complained of.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253,
101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993).
Plaintiff has not shown a hostile work environment or that a continuing
violation theory should be applied to alleged discriminatory acts which
took place outside of the limitation period. While plaintiff may have
found his supervisor's conduct distressing, their conduct does not
separately or together create a hostile work environment and cannot form
the basis of a Title VII claim. Picotte v. The Community Child Care
Center of the Third Ward, Inc., 901 F. Supp. 593, 594 (W.D.N.Y. 1995).
Additionally, he has not produced any policy documents or statements of a
person involved in the decision making process that reflected a
discriminatory intent. Fields v. New York State OMRRD, 115 F.3d 116, 124
(2nd Cir. 1996). While "compelling circumstances may be sufficient to
warrant a finding of a continuing violation, Richard v. McDonnell Corp.,
469 F.2d 1249, 1253 (2nd Cir. 1972), they do not exist in this case."
Based upon these findings, it is evident that plaintiffs sixth claim is
the only alleged incident that took place within the limitation period.
This claim alleges that plaintiff was retaliated against for filing
administrative grievances and a complaint with the EEOC. He seeks relief
under Title VII, 42 U.S.C. § 1981 and § 1983 and the New York
State Human Rights Law (Executive Law § 296). Since New York courts
require the same standard of proof under the Human Rights Law as those
brought under Title VII, the court will address plaintiffs federal and
state claims simultaneously. See Miller Brewing Company v. State Division
of Human Rights, 66 N.Y.2d 498 N YS.2d 745 (1985); Van Zant v. KLM Dutch
Airlines, 80 F.3d 708, 714 (2nd Cir. 1996). Plaintiff claims that the
retaliation took place on January 30, 1996 when he was compelled to
undertake a heavy-duty job assignment which caused an injury to his left
Retaliation claims are evaluated under the burden shifting rules
established by the Supreme Court in McDonnell Douglas v. Green, supra. A
prima facie case for retaliation under Title VII requires the plaintiff
to show  participation in a protected activity known to the
defendant;  an employment action disadvantaging the plaintiff;  a
causal connection between the protected activity and the adverse
employment action. Kotcher v. Rosa & Sullivan Appliance Center, Inc.,
957 F.2d 59, 64 (2nd Cir. 1992). Upon such a showing, the defendant must
demonstrate legitimate reasons for its actions, whereupon the
plaintiff bears the burden of showing that the defendant's reasons are a
pretext for the true discriminatory motive. Johnson v. Palma, 931 F.2d 203,
207 (2nd Cir. 1991). There is no disagreement that plaintiff engaged in a
protected activity when he filed his administrative grievances and EEOC
complaint, Gallagher v. Delaney, 139 F.3d 338, 349 (2nd Cir. 1998).
Instead, the controversy focuses on whether plaintiff experienced any
disadvantaging employment actions and, if so, what causal connection, if
any exists between those actions and his protected activities.
The defendant has provided a legitimate explanation for the events that
took place. Plaintiffs entire cleaning crew had been assigned to remove
the furniture from a room in the Academic Building to permit the carpets
to be shampooed. No specific removal orders were given. If anyone asked
plaintiff to move a piece of furniture that was beyond his limitations he
could have refused to do so without fear of penalty, or, if he so chose,
could have asked for assistance. The record does not disclose that he did
either. The affidavit of crew supervisor, defendant Darrow, states that
the assignment was made to the entire cleaning crew due to normal work
necessity, that he did not direct plaintiff to move heavy furniture
because he was well aware of plaintiffs light-duty status. Furthermore,
Dean Brown specifically stated in his affidavit that he had advised
plaintiff on many occasions prior to January 1996, that if he was assigned
work beyond his physical limitations, that he was not to do the work and
would not be reprimanded for refusing.
Faced with defendants' explanation, plaintiff must produce sufficient
evidence to support a finding that it is a pretext. Plaintiff has put
forth nothing more than conclusory allegations to suggest a causal
relationship between his filing grievances and complaints and his being
assigned as part of the furniture removal crew on January 30, 1996. As to
the element of adverse employment action, plaintiff was not terminated
nor subjected to any adverse employment action cognizable under the
relevant statutes. See Wanamaker v. Columbia Rope Co., 108 F.3d 462, 466
(2nd Cir. 1997). His on the job injury was covered by workers'
compensation insurance and, after his recovery, he returned to work at
MVCC in December 1996. In April 1997, plaintiff was promoted from
Building Maintenance Helper to the clerical position of Senior Clerk.
Liability under Title VII, § 1981, and the New York Human Rights
Law is established by reference to the same legal standard and modicum of
proof, and where a Title VII claim based upon retaliation fails, the other
statutes must fail with it.
Plaintiffs § 1983 claim is also deficient because initially it
fails to allege that any of the individual defendants were acting under
color of state law and thereby it failed to state a proper claim against
them under § 1983. The claim against MVCC is deficient because it
does not plead or attempt to prove that there was a discriminatory policy
at MVCC upon which municipality liability could be based.
In order to attach § 1983 to a municipality, there must be proof of
a municipal policy or custom that contravened plaintiffs constitutional
rights. Monell v. New York City Department of Social Services,
436 U.S. 658, 94 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiff makes no
assertions or showing of an unconstitutional policy to support the §
1983 claim against the college. Moreover, the record shows that MVCC's
policy took discrimination claims seriously. Plaintiffs municipal §
1983 claim is without merit.
Accordingly, Defendants' summary judgment motion is GRANTED and
the complaint is DISMISSED in its entirety.
IT IS SO ORDERED
Dated: May 25, 2000 Syracuse, New York
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