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
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
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.
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,
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
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
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
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 ...