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