after meeting with plaintiff, Varghese, and Palma to investigate
the tape recorder incidents, Felski and Bodee-Isidore concluded
that plaintiff had created a hostile work environment.
3. Record as a Whole
Considering the evidence as a whole, resolving all conflicts
in the evidence, and drawing all reasonable inferences in
plaintiffs favor, I conclude that no reasonable jury could find
that defendant dismissed plaintiff because of his race.
a. The Evidence Not In Dispute Favors Defendant
The undisputed evidence supports granting defendant's motion.
First, even assuming Varghese, Chmielewski, and Palma made
derogatory remarks to plaintiff about African-Americans, these
remarks are irrelevant because none of these employees had a
role in the decision to dismiss plaintiff. This Court has
explained that "proof of pretext cannot rest upon `statements by
non-decision makers, or statements by decision makers unrelated
to the decisional process itself. . . .'" de la Concha v.
Fordham Univ., 5 F. Supp.2d 188, 194 (S.D.N.Y. 1998) (quoting
Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct.
1775, 104 L.Ed.2d 268 (1989)); see Gorley v. Metro-North
Commuter R.R., No. 99 Civ. 3240(NRB), 2000 WL 1876909, 2000
U.S.Dist. LEXIS 18427, at *18 (S.D.N.Y. Dec. 22, 2000) ("As a
general matter, stray comments are not evidence of
discrimination if . . . they are made by individuals without
decision-making authority." (citing Price Waterhouse, 490 U.S.
at 277, 109 S.Ct. 1775)). In fact, as supervisor of the
pathology department, plaintiff was in a position to reprimand
these employees for their comments. Plaintiff, therefore, cannot
contend that the racial animus of his own employees played a
role in his dismissal. See, e.g., Thernidor v. Beth Israel Med.
Ctr., 683 F. Supp. 403, 413 (S.D.N.Y. 1988) ("In sum,
[defendant]'s limited role in the termination process precludes
a finding that his racial animus was responsible for
Second, as defendant employed plaintiff for twenty years but
dismissed him within three months of Varghese's first complaint,
plaintiff maintains that the disproportionate time span affords
an inference of discrimination. (See Pl. Mem. at 5-6).
Plaintiff is mistaken. While a short time span between hiring
and firing an employee weakens an inference of discrimination,
see Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d
Cir. 1997) (listing a short time period between hiring and
firing as one factor that weighs against plaintiff in a
discrimination case), a long time span does not mandate a
finding that a discharge was racially motivated. Here, the
length of employment, if anything, weighs against plaintiff. For
19 years, defendant consistently recognized plaintiffs work
performance and repeatedly promoted him. It was only after
plaintiffs last promotion, and after his employees complained,
that defendant took action. The short, two-year period between
plaintiffs promotion and termination weakens plaintiffs claim.
Plaintiff provides no evidence as to why defendant would promote
him to supervisor and then, within two years, discharge him
because of his race. Additionally, because the allegations
against plaintiff were serious, defendant's swift response was
Third, the remaining evidence not in dispute is insufficient
to make out a discrimination claim. That plaintiff is
African-American and was dismissed does not, by itself, give
rise to an inference of discrimination.
b. Plaintiffs Conclusions Are Not Supported By The
Ultimately, plaintiff's case rests on his conclusion that when
Varghese, Chmielewski, and Palma complained about him, Felski
"presum[ed]" his guilt, without investigating further. (See
Minton Dep. at 105). Plaintiff lacks, however, any evidence to
support this claim. Contrarily, defendant offers concrete and
specific proof that it acted legitimately. See Woroski v.
Nashua Corp., 31 F.3d 105, 109-10 (2d Cir. 1994) (stating that
"a plaintiff opposing [a summary judgment] motion must produce
sufficient evidence to support a rational finding that the
legitimate, nondiscriminatory reasons proffered by the employer
were false, and that more likely than not the [alleged unlawful
reason] was the real reason for the [termination]"). There is no
dispute that each time an employee complained about plaintiff, a
supervisor met with plaintiff to discuss the matter. As
defendant offered plaintiff an opportunity to respond to each
complaint against him, his claim that defendant failed to
investigate these allegations is without merit.
Nonetheless, even if Felski and the other supervisors were
wrong in believing the complaints of Varghese, Chmielewski, and
Palma over plaintiffs denials, the result would be the same. A
defendant need only believe in good faith the allegations
against an employee, regardless of whether the allegations are
true. See Agugliaro v. Brooks Bros., Inc., 927 F. Supp. 741,
747 (S.D.N.Y. 1996) ("Even assuming defendants were wrong in
their belief that plaintiff had engaged in . . . misconduct,
what is significant is that they based their decision to dismiss
plaintiff on that belief, and not on his age, gender, or pension
status."); see also Cerwinski v. Insurance Servs. Office,
Inc., No. 96-9368, 1997 WL 234672, 1997 U.S.App. LEXIS 10616,
at *6 (2d Cir. May 8, 1997). Because plaintiff does not contend
that Felski and Bodee-Isidore did not believe in good faith that
he had engaged in inappropriate conduct, plaintiffs wrongful
termination claim cannot succeed. See Agugliaro, 927 F. Supp.
at 747 (dismissing plaintiffs age discrimination claim, in part,
because "plaintiff admitted at his deposition that he could
present no facts to show that . . . the critical person involved
in making the decision to fire plaintiff did not actually
believe that he had engaged in sexual conduct"); Newman v.
Montefiore Med. Ctr., No. 96 Civ. 2687, 1996 WL 741599, 1996
U.S.Dist. LEXIS 19172, at *13 (S.D.N.Y. Dec. 27, 1996)
(applying Agugliaro's good faith belief standard to race
In addition, plaintiffs conclusion that he was treated
differently than his predecessor, Krummins, also lacks merit. At
his deposition, plaintiff admitted that he and Krummins held the
same responsibilities as supervisor. (Minton Dep. at 102-03).
According to plaintiff, the only difference in treatment was
that his supervisors conducted formal meetings with Krummins,
but not with him. (Id. at 102). Although plaintiff has not
submitted any evidence to support this allegation, even if it is
accurate, it does not make out a discrimination claim.
Hence, sufficient evidence does not exist to permit a jury to
find that defendant terminated plaintiffs employment on the
basis of race. Rather, the evidence demonstrates that plaintiff
was discharged because he repeatedly acted inappropriately as
supervisor. Accordingly, plaintiffs wrongful termination claim
III. Hostile Work Environment
Plaintiff also contends that defendant subjected him to a
hostile work environment in violation of Title VII and the
NYHRL.*fn5 Plaintiff, however, has not presented sufficient
evidence to permit a reasonable jury to find in his favor.
Accordingly, plaintiffs hostile work environment claim is also
A. Applicable Law
The Supreme Court has held that Title VII prohibits conduct
"requiring people to work in a discriminatorily hostile or
abusive environment." Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).*fn6 To prevail
on a hostile environment claim under Title VII, a plaintiff must
establish both (1) a hostile work environment and (2) a basis
for imputing the harassing conduct to the employer. Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). To establish a
hostile work environment, the plaintiff must show that his
workplace was "permeated with `discriminatory intimidation,
ridicule, and insult . . . that is sufficiently severe or
pervasive to alter the conditions of [his] employment and create
an abusive working environment.'" Howley v. Town of Stratford,
217 F.3d 141, 153 (2d Cir. 2000) (quoting Harris, 510 U.S. at
21, 114 S.Ct. 367). Whether the working environment was
"hostile" or "abusive" depends on the "totality of the
circumstances," including: "the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a `mere offensive utterance'; and whether it
unreasonably interferes with an employee's work performance."
Richardson, 180 F.3d at 437 (quoting Harris, 510 U.S. at 23,
114 S.Ct. 367). This analysis is done from both a subjective and
objective viewpoint. Id. at 436.
When a plaintiff accuses a supervisor of harassment, the
employer's liability is presumed. See Tomka, 66 F.3d at 1305.
When a non-supervisor is alleged to have created the hostile or
abusive environment, however, "the employer will generally not
be liable unless the employer either provided no reasonable
avenue of complaint or knew of the harassment but did nothing
about it." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766
(2d Cir. 1998) (internal quotation marks omitted); see
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct.
2257, 141 L.Ed.2d 633 (1998).
Here, even assuming the facts alleged by plaintiff are true,
plaintiffs hostile work environment claim fails for two reasons:
(1) plaintiff has not demonstrated that he found the work
environment hostile or abusive; and (2) plaintiff has not shown
that defendant should be liable for the conduct of plaintiffs
1. Plaintiffs Subjective Viewpoint
Plaintiff fails to even allege that he found the work
environment hostile. Plaintiff contends that the racial remarks
of Varghese and Palma were "ongoing," but gives no indication
that the remarks were severe or pervasive. Rather, at his
deposition, plaintiff explained that he and Varghese remained
friends despite Varghese's alleged racial animus. Plaintiff also
stated that Palma's comments did not offend him. In fact, as
supervisor, plaintiff promoted both Varghese and Palma even
after hearing their beliefs about African-Americans.
Additionally, at his deposition, plaintiff stated that the
employees at the histology lab were "one family." Thus, in light
of plaintiffs favorable treatment of Varghese and Palma, and of
his expressed satisfaction with the environment in the lab,
plaintiffs hostile work environment claim has no merit.
2. Defendant's Liability
Even if plaintiff could establish that Varghese and Palma
created a hostile work environment, plaintiff has not shown a
basis for imputing their conduct to defendant. Defendant
maintained a Human Resources Department for its employees to
deal with complaints of harassment; yet plaintiff never notified
the Hospital of any concerns. (See Bodee-Isidore Aff. ¶ 4,
Exs. 1, 2; Minton Dep. at 45-46, 85). Further, at his
deposition, plaintiff explained that the only action he took to
notify the Hospital of the purported racial harassment was to
deny "emphatically" the claims made against him by Varghese,
Chmielewski, and Palma. (Minton Dep. at 45-46). Plaintiffs
response, instead, was for his attorney to send letters to
Varghese and Chmielewski, threatening to sue them, not for
discrimination but for defamation.
Moreover, alleging hostile work environment as a supervisor,
plaintiff attempts to turn such a claim on its head. Typically,
liability is imputed to a defendant-employer when the plaintiff
was not in a position to stop the harassment. In other words,
Title VII protects those employees who are in no position to
protect themselves from a "discriminatorily hostile or abusive
environment." Here, although plaintiff was in a position to stop
the alleged harassment of his subordinates, he failed to take
any appropriate action. He did not suspend them; he did not dock
their pay; he did not demote them; he did not even report them
to the Hospital's Human Resources Department. Cf. Burlington
Indus., 524 U.S. at 762, 118 S.Ct. 2257 ("[O]ne co-worker . . .
cannot dock another's pay, nor can one co-worker demote another.
Tangible employment actions fall within the special province of
the supervisor. The supervisor has been empowered by the company
. . . to make economic decisions affecting other employees under
his or her control."). It is not surprising, then, that
plaintiff fails to even suggest a reason why the purported
abusive conduct of Varghese and Palma should be imputed to
Accordingly, defendant's motion with respect to plaintiffs
hostile work environment claim is granted.
IV. Intentional Infliction of Emotional Distress
Plaintiff also claims that defendant's conduct constituted
intentional infliction of emotional distress.*fn7 To state a
claim for intentional infliction of emotional distress under New
York law, a plaintiff must plead and prove the following four
elements: (1) extreme and outrageous conduct; (2) intent to
cause severe emotional distress; (3) a causal relationship
between the conduct and the resulting injury; and (4) severe
emotional distress. See Bender v. City of New York,
78 F.3d 787, 790 (2d Cir. 1996); Howell v. New York Post Co.,
81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993). To
satisfy the first element, the alleged conduct must be "so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized society." Murphy v. American Home
Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232,
448 N.E.2d 86 (1983) (citation omitted); accord Howell, 81 N.Y.2d at 122,
596 N.Y.S.2d 350, 612 N.E.2d 699 (noting that the element is
"rigorous and difficult to satisfy").
Here, no reasonable jury could find that defendant's conduct
was extreme or outrageous. In fact, no reasonable juror could
find that plaintiff has satisfied any of the elements of a claim
for intentional infliction of emotional distress. Accordingly,
defendant's motion for summary judgment with respect to
plaintiffs claim of intentional infliction of emotional distress
V. Breach of Contract
Plaintiffs final claim, for breach of contract, is also
without merit. Under New York law, "absent an agreement
establishing a fixed duration, an employment relationship is
presumed to be a hiring at will, terminable at any time by
either party." Sabetay v. Sterling Drug Inc., 69 N.Y.2d 329,
333, 514 N.Y.S.2d 209, 506 N.E.2d 919 (1987); accord Jones v.
Dunkirk Radiator Corp., 21 F.3d 18, 21 (2d Cir. 1994)
(affirming that the employment-at-will doctrine gives "an
employer . . . a nearly unfettered right to discharge an
As plaintiff does not dispute that he was an at-will employee,
he may not proceed with his breach of contract claim.
Accordingly, summary judgment with respect to plaintiffs breach
of contract claim is granted as well.
For the reasons stated above, defendant's motion for summary
judgment is granted as to all claims, and the complaint is
dismissed, with prejudice. The Clerk of the Court shall enter