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GREENE v. TRUSTEES OF COLUMBIA UNIVERSITY

December 9, 2002

JOHN GREENE, PLAINTIFF,
V.
THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge

  OPINION & ORDER

Pursuant to Federal Rule of Civil Procedure 60(a), we hereby modify the original order we entered on November 8, 2002 and issue the following revised order. On June 30, 1999, pro se*fn1 plaintiff John Greene ("Greene" or "Plaintiff") filed a complaint against his former employer, defendant Columbia University, and against individual Columbia employees, defendants George Smartt*fn2, Franz Crook, Jim Conlon, Humberto Morchano, Terry Burdick, and former employee Larry Williams. The complaint alleged employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, and Title 8 of the New York City Administrative Code. Greene claims that he was subjected to a hostile work environment, disparate treatment, disparate impact, retaliation, and constructive discharge. Greene also brings tort claims for "menacing and harassment," negligent hiring and retention, and intentional infliction of emotional distress. On September 6, 2000, we referred the case to Magistrate Judge Ellis for case management and dispositive motions. On September 30, 2002, Judge Ellis issued his Report and Recommendation ("Report"). For the reasons that follow, we adopt Judge Ellis' Report and grant Defendants' Motion for Summary Judgment. The underlying facts are set out in Judge Ellis' Report and we presume familiarity.

A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith (S.D.N.Y. 1985), 618 F. Supp. 1186, 1189; see also Pizarro v. Bartlett (S.D.N.Y. 1991), 776 F. Supp. 815, 817. We have reviewed the Report and are convinced that there is no facial error.

I. INTRODUCTION

On June 30, 1999, pro se*fn1 plaintiff John Greene ("Greene") filed a complaint against his former employer, defendant Columbia University ("Columbia"), the trustees of Columbia University, and against individual Columbia employees, defendants George Smartt,*fn2 Franz Crook, Jim Conlon, Humberto Morchano, Teny Burdick, and former employee Larry Williams. The complaint alleged employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, and Title 8 of the New York City Administrative Code. Greene claims that he was subjected to a hostile work environment, disparate treatment, disparate impact, retaliation, and constructive discharge. Greene also brings tort claims for "menacing and harassment," negligent hiring and retention, and intentional infliction of emotional distress.

On March 26, 1997, Greene filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging retaliation and discrimination based on his race and color. Defendants' Affidavit in Support of Summary Judgment, dated December 2001 ("Def. Aff.") at Exh. 2. The EEOC issued a Right to Sue letter on April 30, 1999. Greene filed the instant action on June 30, 1999. The case was referred to the undersigned by the Honorable Whitman Knapp for general pretrial supervision and for dispositive motions. On December 13, 2001, the Columbia defendants*fn3 filed a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

First, Columbia defendants argue that Greene's discrimination claims are time-barred because the most recent date of discrimination is January or February 1996, and his EEOC Charge was brought in March 1997. Reply Memorandum of Law on Behalf of Certain Defendants in Support of Their Motion for Summary Judgment Dismissing the Complaint, dated January 22, 2002 ("Def. Repl.") at 4. Second, Columbia defendants argue that Greene's discrimination claims are barred by the Faragher/Ellerth [Faragher v. City of Boca Raton, 524 U.S. 775,807 (1998), Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)] defense, and therefore Columbia University is not vicariously liable for the alleged hostile work environment. Memorandum of Law on Behalf of Certain Defendants in Support of Their Motion for Summary Judgment Dismissing the Complaint, dated December 12, 2001 ("Def. Mem.") at 21. Third, Columbia defendants assert that Greene's allegations and evidence are insufficient to establish a hostile work environment. Def. Mem. at 28. Fourth, Columbia defendants argue that Greene fails to demonstrate a prima facie case of retaliation, and his constructive discharge claim must fail. Def. Mem. at 29. Finally, Columbia defendants state that Greene's tort claims for menacing and harassment,*fn4 negligent hiring and retention, and intentional infliction of emotional distress are time-barred. Def. Repl. at 4. Columbia defendants argue that Greene has not proven his prima facie case as to the tort claims and that, furthermore, his negligence actions are barred by the Workers' Compensation Law.

For the reasons which follow, I respectfully recommend that Columbia defendants' motion for summary judgment be GRANTED.

II. BACKGROUND

A. Greene's Employment at Columbia

Greene began his employment with Columbia University ("Columbia") in 1982 on the support staff of the Facilities Management Department. Plaintiffs Deposition Transcript ("Pl. Dep.") at 7-8; Defendants' Statement of Undisputed Facts ("Deft. Stm.") at ¶ 2, 3. In 1984, Greene became a Special Police Officer at Columbia. Pl. Dep. at 8; Def. Stm. at ¶ 4. By letter to George Smartt ("Smartt") dated August 27, 1997, Greene resigned his position, stating no reason for his departure. Def. Aff. at Exh. 7; Pl. Dep. at 160-161.

During the relevant time period, the individual defendants held positions in the Columbia University Department of Security and Safety. Pl. Dep. at 324-25; Def. Aff. at 5. Smartt was the Director of the Department, Jim Conlon ("Conlon") was its Associate Director, and Franz Crook ("Crook") was the Operations Manager. Complaint ("Compl.") at ¶ 20. During the two years before Greene's departure, his direct supervisor was Sergeant Terry Burdick ("Burdick"). Affidavit of John Greene, dated March 27, 1997, attached to Def. Aff. as Exh. 3 ("Greene Aff."), at ¶ 3. Beginning about six months prior to Greene's departure, Sergeant Humberto Morchano ("Morchano") also directly supervised Greene. Id. at ¶ 1. Defendant and former co-worker Larry Williams ("Williams") was employed by Columbia as a Security Officer from approximately March 1996 to March 26, 1997. Def. Stm. at ¶¶ 9, 10.

B. Facts Relating to Hostile Work Environment

1. Burdick's Remarks and the Buckwheat Incident

Greene's claims of racial harassment are based on alleged incidents occurring between early 1996 and 1997. Greene asserts that in January or February 1996, Burdick, one of his direct supervisors, began treating him in a derogatory, abusive and hostile manner by calling him "Buck" and "Buckwheat," alluding to the show, "Little Rascals." Compl. at ¶ 20; Pl. Dep. at 276-77.

Greene claims Burdick used these terms repeatedly for nearly a year until January 1997. Greene Aff.; Pl. Dep. at 118, 275-78. Greene never complained of this treatment to Columbia until January 1997. Pl. Dep. at 121. He claims that Burdick's taunts were in reference to a prior incident in which a medical student told Greene that people like him were called "young buck" in Tennessee. Id. at 69-70, 326. The student was taken by Greene and Officer Kevin Carabella*fn5 to their supervisor, Crook, and the student repeated his comment. Id. at 70. Crook took the student to the Associate Dean of the Medical School, and the student was disciplined.*fn6 Id.

a In January or February 1996, Burdick called Greene off his post in order to show him an advertisement that was clipped from the Sunday New York Daily News in the presence of Officers Lloyd Jackson ("Jackson") and Gilbert Rivera ("Rivera"). Id. at 80-81, 85-86, 89, 106, 332; Compl. at ¶ 24. The clipping advertised "Buckwheat" dolls, but the "wheat" portion of the word was crossed out. Pl. Dep. at 86; Compl. at ¶ 24. Burdick said to Greene, "This is you," adding that, "you look just like this and all black people with nappy hair." Pl. Dep. at 81. Greene responded, "You call me off my post to humiliate me and show me this?" Pl. Dep. at 81. According to Greene, Burdick laughed, smirked and walked away. Id. Greene later found the advertisement taped to his locker and took photos of it. Id. at 106; Compl. at ¶ 24; Exh. attached to Plaintiffs Response to Summary Judgment Motion. When Jackson, Rivera and another officer, Michael Zaragoza, were also present in the locker room, Burdick pointed to the advertisement, announced that he had put it up, laughed, and said to Greene, "That's you." Pl. Dep. at 111, 260. Greene complained about the incident to Crook, but Crook told him not to worry about it since Greene was already looking for other jobs in Atlanta. Id. at 351.

Greene did not complain about the Burdick incidents with the Columbia Office of Equal Opportunity and Affirmative Action ("Columbia EOAA Office"), nor did he file a union grievance or file a complaint with the EEOC. Id. at 119. However, during this period, Greene was aware of his right to file a complaint with the State Division of Human Rights ("SDHR") and/or the EEOC, as he had filed a claim in 1991 for racial discrimination*fn7 which was dismissed. Id. at 130. He also was familiar with union grievance procedures and knew of the Columbia EOAA Office. Id. Greene also admits that Columbia's policy against discrimination and its procedures were posted widely around the campus and available in published forms. Def. Stm. ¶ 23-24.

Greene claims that the 1996 incident with Burdick prompted his stress-related absence from work for five days, from January 28, 1997, to February 1, 1997 Id. at 269-70. Greene also claims that the stress caused him to be absent from work for three weeks in January or February 1997. Greene Aff. at ¶ 14.

2. The Santa Claus Picture


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