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BEMBRY v. DARROW

May 26, 2000

MARCEL BEMBRY, PLAINTIFF,
V.
MICHAEL DARROW; JOHN MAZUROWSKI; PHILIP SCOTT AND MOHAWK VALLEY COMMUNITY COLLEGE, DEFENDANTS



The opinion of the court was delivered by: Howard G. Munson, Sr. J.

MEMORANDUM-DECISION AND ORDER

Plaintiff, an African American, began working for defendant Mohawk Valley Community College ("MVCC") on January 27, 1992, as a Building Maintenance Helper. In October 1993, plaintiff returned from a year's workers' compensation leave with a 40% right shoulder disability which caused him to be placed on permanent light-duty status during his employment with MVCC. In order to accommodate plaintiffs disability, light-duty assignments of other Building Maintenance Helpers were assigned to plaintiff, so the others were available to do the heavy-duty work plaintiff could not carry out.

Plaintiff was then assigned sole responsibility to maintain to a new building. Shortly thereafter, it was realized that plaintiffs disability could prohibit him from undertaking any heavy-work assignments required for proper building maintenance. Plaintiff was then transferred to a building with other maintenance staff to accommodate his light-duty status.

During the time period alleged in the complaint defendant MVCC employed defendants Philip Scott as a supervisor of building services, Michael Darrow as a maintenance worker and supervisor of five or six employees, including plaintiff, and John Mazurowski as working foreman in the maintenance department of MVCC, and supervisor of building maintenance workers and building maintenance helpers.

On January 6, 1995, plaintiff filed a complaint under MVCC's internal grievance procedure alleging various incidents of racial discrimination. Pursuant to MVCC internal policy, Jerome M. Brown, Dean of Human Resources and affirmative action officer for MVCC, investigated the grievance. The complaint alleged that defendants Scott, Mazurowski and Darrow discriminated against him because of his race and religion. Dean Brown's investigation of the complaint's issues included interviewing the named parties and various other members of the MVCC staff. His report, dated July 18, 1995, found that there existed sufficient evidence to support the allegations of discrimination based upon race, but not upon religion.

Plaintiff appealed this decision to the Ad Hoc Appeals Committee that decided that enough evidence existed to support the allegations based upon plaintiffs color, and recommended disciplinary action be taken against defendants Scott, Mazurowski and Darrow. A further appeal took place on August 7-8, 1996 where thirteen witnesses including plaintiff and the three individual defendants testified. Hearing Officer Dr. Linda M. Spink reported that there was evidence of some level of harassment, but concluded that it was unclear whether it related to plaintiffs race or light-duty status. The report agreed that disciplinary action be taken against the three individual defendants as recommended in the Ad Hoc Committee's report.

The MVCC internal discrimination grievance procedure considered assorted incidents of alleged discrimination by defendants which took place before the filing of his January 6, 1995 complaint. The grievances purported a derogatory raciest comment was made by defendant Scott shortly after plaintiff was hired; discrimination in when and where work breaks were allowed; letters of commendation that were withheld from plaintiff; excessive surveillance of plaintiff in the workplace; harassment by assigning heavy-duty chores to plaintiff when his physical disability required light-duty chores; supervisors frequently re-assigning plaintiff to other buildings; and encouragement by supervisors to other staff to file complaints about plaintiff with MVCC Vice President Jerry Alverman.

On August 13, 1996 plaintiff filed a complaint against MVCC with the New York State Division of Human Rights ("NYSDHR"). MVCC filed a response to the complaint detailing the course of MVCC's internal grievance procedure and how plaintiffs various claims of racial discrimination were addressed following plaintiffs complaint of January 6, 1995. Plaintiffs NYSDHR complaint referred to one additional allegation of harassment-discrimination complaint which took place on January 30, 1996. This latter incident was not covered in the MVCC reply.

According to plaintiff, the January 30, 1996 alleged discrimination occurred when he was participating in a task involving the removal of furniture from a room in the Academic Building to permit the carpets to be shampooed, during which plaintiff was injured. Following plaintiffs injury on January 30, 1996, he stayed unemployed on workers' compensation leave until December 1996. Soon thereafter he was certified by the New York Education Department/VESID as disabled under Civil Service Law § 55-a due to his physical restrictions.

There were no adverse employment actions such as demotions, salary reductions, warnings, reprimands or suspensions taken by MVCC against plaintiff. In April 1997, plaintiff was promoted from Building Maintenance Helper to Senior Clerk, a position requiring principally desk work.

On September 29, 1998, the NYSDHR issued its "DETERMINATION AND ORDER AFTER INVESTIGATION," in which it found that there was "NO PROBABLE CAUSE" to support a charge of unlawful discrimination. On October 22, 1998, the Equal Employment Opportunity Commission ("EEOC") adopted the finding of the NYSDHR, closed its file on plaintiffs charge and issued a right to sue notice.

Plaintiff instituted the instant action in federal court by filing a summons and complaint on January 6, 1999. The complaint alleges violations of Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C. § 2000-e, et seq.; 42 U.S.C. § 1981 and § 1983, and the New York Human Rights Law (§ 296 Executive Law). The plaintiff seeks monetary and punitive damages as well as costs and attorneys' fees.

DISCUSSION

Currently before the court is defendants' motion for summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. ...


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