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February 8, 2001


The opinion of the court was delivered by: David G. Larimer, Chief District Judge



Plaintiff, James H. Murungi ("Murungi"), a black male originally from Kenya, was employed as a clinical pharmacist by the Veterans Administration ("VA"). He began working at the VA Rochester Outpatient Clinic ("Rochester") in December of 1994 and was terminated on September 4, 1998. Plaintiff maintains that his supervisors at the VA discriminated against him on account of his race. Specifically, plaintiff alleges that he was subjected to a hostile work environment and that the VA twice failed to promote him, then demoted him, and ultimately terminated him. Moreover, plaintiff alleges that the VA retaliated against him for complaining about his working conditions.

Plaintiff initiated this action alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Pending before this Court is defendant's motion for summary judgment as to the second cause of action, the Title VII claim. Defendant also filed a motion to dismiss the remaining causes of action, which plaintiff has not opposed.*fn1


The Rochester facility is part of the Veterans Integrated Service Network 2 ("VISN 2"), which includes facilities in Buffalo; Batavia; Bath; Canandaigua; Syracuse; and Albany, New York. Before plaintiff began his tenure with the VA, Rochester was affiliated with the Buffalo VA Medical Center ("Buffalo"). As a result, the Rochester pharmacy was supervised by Buffalo personnel. Plaintiff was hired by George Jones ("Jones"), the Buffalo pharmacy manager, who is black. Jones retired in January of 1997, and Theodore Pudhorodsky ("Pudhorodsky"), who is white, took over Jones's position. Plaintiff alleges that the discriminatory conduct began after Jones retired.

Starting in April of 1997, Rochester began the process of affiliating with the VA Medical Center in Canandaigua ("Canandaigua"). Until shortly after plaintiff's termination in September of 1998, Buffalo and Canandaigua shared oversight of Rochester. At the time of his termination, plaintiff was the only black individual working at Rochester.


Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Under Rule 56(e), a party opposing the motion for summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial."*fn2 "Summary judgment is appropriate even in discrimination cases, for . . . `the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to . . . other areas of litigation." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).

A. Hostile Work Environment

In order to succeed in a Title VII hostile work environment claim, "a plaintiff must demonstrate: `(1) that his workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.'" Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996)) (alterations omitted). The conduct in question must be "so `severe or pervasive' as to create an `objectively hostile or abusive work environment,'" and it must be such that "the victim `subjectively perceive[s] the environment to be abusive.'" Richardson v. N.Y. State Dep't of Correctional Serv., 180 F.3d 426, 436 (2d Cir. 1999) (alteration in original) (quoting Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993)).

Here, plaintiff's subjective belief has not been called into question. What is challenged, however, is the objective nature of the working environment. The Court must, therefore, determine whether plaintiff's working environment was such that "a reasonable person who is the target of discrimination would find the working conditions so severe or pervasive as to alter the terms and conditions of employment for the worse." Id.

At the outset, it should be noted that plaintiff does not advance a separate hostile work environment cause of action in his complaint. Although plaintiff's complaint and affidavit in opposition to the motion for summary judgment use the phrase "hostile work environment," plaintiff has made little effort to show that his workplace was pervaded with the necessary level of discriminatory intimidation. The record here contains no evidence of racial epithets. Moreover, plaintiff has offered no evidence, other than his own conclusory opinion, that the complained of conduct was, in fact, based on plaintiff's race or ethnicity.*fn3 Plaintiff appears convinced that any negative comment must, because he is black, be race-based. For example, plaintiff was asked during his deposition whether anyone ever used derogatory racial terms in his presence. He suggested that such terms had been used. See Murungi Deposition, p. 78. However, the only example he offered was that Pudhorodsky told him on several occasions that: "You are not as good as you think you are."*fn4 Id. at pp. 79-80. Although critical of Murungi, such a comment appears to be quite neutral in terms of race. Plaintiff also noted that Kenneth Kellick ("Kellick"), the Clinical Pharmacy Coordinator at Buffalo, questioned his researching ability. According to plaintiff, this comment must also have related to his race or ethnicity because plaintiff was a skilled researcher, and Kellick must have been questioning his competency simply because of his race. Id. at 80. Every critical comment does not become discriminatory simply because the recipient disagrees with its content.*fn5

Plaintiff also alleges that he was subjected to physical violence in the workplace. He states generally that Pudhorodsky "physically attacked" and "falsely imprisoned" him on October 23, 1997, that he was humiliated, and that he feared for his safety. Murungi Affidavit, ¶¶ 19, 30-31. Plaintiff has once again failed to illustrate how this confrontation was in any way racially motivated. In fact, plaintiff's papers scarcely explain what occurred during this alleged assault.

Pudhorodsky maintains that, on the day in question, plaintiff started to leave the pharmacy, apparently to see a patient. See Pudhorodsky Affidavit, ¶ 22. Because plaintiff was scheduled to work in the pharmacy at that time, Pudhorodsky twice asked plaintiff where he was going, and plaintiff refused to respond. Murungi, in his submission to this Court, has not refuted this version of the events. According to Pudhorodsky, he then grabbed the door knob and again asked where plaintiff was going. Plaintiff told Pudhorodsky that he was going to see a patient. Pudhorodsky released the door knob, and plaintiff left.

Viewing the facts in a light most favorable to plaintiff, it appears that this "assault"consisted of Pudhorodsky's challenging plaintiff about leaving the pharmacy and his briefly preventing plaintiff from exiting the pharmacy area. At most, Pudhorodsky pushed plaintiff during the altercation. See Murungi Deposition, p. 172. Again, although this altercation may have been ...

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