The opinion of the court was delivered by: Mordue, District Judge.
MEMORANDUM-DECISION AND ORDER
Defendant moves for summary judgment dismissing this employment
Plaintiff, a black man, was first employed by defendant as a
part-time bus operator on August 19, 1988. On February 9, 1990,
he was promoted to full-time bus operator. Subsequently,
plaintiff applied for and was offered the position of part-time
relief supervisor and, between June 28, 1993, and October 3,
1993, he was trained for the positions of "outside supervisor"
and "inside supervisor." As of October 3, 1993, he was fully
trained for the position of "full-time relief supervisor."
According to defendant, during this training period, plaintiff
continued in his position as full-time bus operator and assumed
supervisory duties on an as-needed basis.
Plaintiff claims that between June 28, 1993, and December 7,
1994, he was subjected to numerous incidents of racial
harassment. Plaintiff's papers show that he made numerous verbal
and written complaints to his superiors, and that on December 7,
1994, after he submitted to defendant a written complaint
alleging harassment, he was demoted from the position of
part-time relief supervisor and later denied a promotion to
outside part-time supervisor.
In April 1995, plaintiff filed an administrative complaint with
the New York State Division of Human Rights ("DHR"), alleging
that he had been demoted from his position as part-time
supervisor because of his race. On October 22, 1997, DHR issued a
Determination and Order After Investigation finding "no probable
cause" that Centro had engaged in unlawful discrimination,
specifically finding: "Investigation revealed that complainant
was demoted from his job as supervisor because he made excessive
errors. Investigation did not reveal whites similarly situated
who were differently treated."
Plantiff's DHR complaint was co-filed with the federal Equal
Employment Opportunity Commission ("EEOC"). On December 1, 1997,
EEOC issued a Right to Sue Letter concluding that "the evidence
obtained during the investigation does not establish violations
of the statute."
Plaintiff filed the complaint herein on March 3, 1998, setting
forth causes of action for racial discrimination and retaliation
in connection with his demotion pursuant to Title VII
(42 U.S.C. § 2000e), section 1981 (42 U.S.C. § 1981) and New York Human
Rights Law (New York Executive Law, §§ 290-301); hostile work
environment under Title VII; and a New York common law claim for
intentional infliction of emotional distress.
Standard for summary judgment
A party seeking summary judgment must demonstrate that "there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). The moving party bears the initial burden of "informing
the . . . court of the basis for its motion, and identifying
those portions of `the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
affidavits, if any,' which it believes demonstrate the absence of
a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting
Fed. R.Civ.P. 56(c)).
The nonmoving party may defeat the summary judgment motion by
producing sufficient evidence to establish a genuine issue of
material fact for trial. See id. at 322, 106 S.Ct. 2548. The
test for existence of a genuine dispute is whether a reasonable
juror could find for the nonmoving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). The opposition may not rest on mere
allegations or denials of the moving party's pleading, but "must
set forth specific facts showing that there is a genuine issue
for trial." Fed. R.Civ.P. 56(e).
As stated by the Second Circuit in Danzer v. Norden Systems,
Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted):
As recent discrimination cases of our court have made
clear, summary judgment may not be granted simply
because the court believes that the plaintiff will be
unable to meet his or her burden of persuasion at
trial. There must either be a lack of evidence in
support of the plaintiff's position, or the evidence
must be so overwhelmingly tilted in one direction
that any contrary finding would constitute clear
In ruling on a motion for summary judgment, the Court must
resolve all ambiguities and draw all reasonable inferences in
favor of the nonmoving party. See Donahue v. Windsor Locks ...