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January 13, 2003


The opinion of the court was delivered by: John T. Elfvin, Senior United States District Judge


Plaintiff commenced this action February 7, 2000 against his current employer — the Buffalo Police Department ("BPD"), BPD Deputy Commissioner George Loncar ("Loncar") and Lieutenant Richard Nigro ("Nigro") — alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 and New York's Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYHRL"). Plaintiff also asserts a state law claim of intentional infliction of emotional distress. Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") dismissing all claims against them. For the reasons set forth hereinbelow, defendants' motion will be granted.

While familiarity with the facts of this case is presumed, relevant facts will be discussed as they pertain to plaintiff's individual causes of action. Plaintiff, a Native American and member of the Longhouse religion,*fn2 has asserted six causes of action against defendants based on discriminatory conduct that occurred during his employment as a police officer with the BPD.*fn3 A summary of plaintiff's allegations is as follows. Beginning sometime in 1997, Winnie's co-workers and supervisors began making derogatory comments toward him regarding his Native American race and his religious beliefs. He believes the discrimination was precipitated by an incident involving a Christian religious ceremony that was held at his place of employment. Sometime on or about March 30, 1997 — Easter Sunday of that year — the BPD held an Easter Mass. in the roll-call room of D-district, to which district Winnie had been assigned. Winnie alleges that Nigro had harassed him the previous day by repeatedly telling him that he was going to be included in the ceremony as an altar boy. Winnie Dep., p. 7. Winnie says he became physically ill after hearing the comment and that, while he was walking away, Nigro followed him and continued to taunt him by insisting that he was going to be the altar boy.*fn4 The following day, Easter Mass. was held in the roll-call room. Winnie did not attend the mass but he briefly observed the religious proceedings as he walked by the roll-call room to the station's locker room. The next day, Winnie informed Lieutenant Nigro that his religious beliefs dictated that he could no longer enter the roll-call room because it had been used for Christian religious purposes. Winnie Aff. ¶ 14. Nigro approved the request; however, on Tuesday, he angrily confronted Winnie and ordered him to enter the room after noting Winnie's absence during roll call that morning. Id. at ¶ 15. During the confrontation, Winnie tried to explain the reason why he could not enter the roll-call room but Nigro responded angrily by shouting that he was "anti-Christian" and accused him of "protesting." Winnie Aff. ¶ 16. Nigro then demanded that Winnie fill out a form explaining in detail why he could not enter the room. Winnie requested that he first be allowed to speak to Deputy Commissioner Loncar about the incident. Instead, he was escorted to his Captain's office where he was promptly informed, without discussion, that he "wouldn't win" and the matter was never discussed again. Id. at ¶ 17.

Winnie alleges that Nigro's hostility toward him increased following the incident involving the Easter Mass. According to Winnie, Nigro would scream orders and work assignments at him approximately one inch from his face and he also claims that Nigro once referred to him as a "redskin." Id. at ¶ 21. In addition, Nigro incited other police officers to ridicule him with regard to his race and religion.*fn5 The harassment culminated to a point where the resulting stress caused Winnie to see a physician and the physician ordered him off-duty on January 14, 1999. Winnie Dep., p. 31. Accordingly, Winnie stopped working and on January 16, 1999 he applied to the BPD to be classified as "injured on duty" due to "job-related stress."*fn6 Loncar Aff. ¶ 5, Ex. A. Winnie's application was denied and, consequently, he was compelled to extinguish his accumulated sick time and then take unpaid disability leave as of May 19, 1999, on which he remains to date.*fn7

Winnie claims that the discrimination continued following his application for injured on duty status. While on sick leave, plaintiff alleges that he was forced to use his vacation days to attend religious services and that other Christian police officers were allowed to attend their respective religious services while out on sick leave without using vacation days. Compl. ¶ 26. Winnie also points to a several Buffalo News articles published in February of 1999 as evidence of discrimination by defendants.*fn8 Id. at ¶ 27. Additionally, Winnie alleges that Loncar made two racially insensitive comments to him during a March 11, 1999 telephone conversation.*fn9 Winnie's final allegation is that Nigro once harassed him while he had been out of work on disability. On November 3, 1999 Nigro allegedly followed from behind in his patrol car while Winnie jogged on a public road in Delaware Park. Winnie claims that Loncar "persisted for an amount of time that instilled fear into [him], leaving [him] shaking for a long time afterwards." Compl. ¶ 31.

Winnie filed several complaints with the BPD relating to the events outlined above. Winnie filed complaints with BPD Commissioner Rocco Diina ("Diina") on April 8, 1999 and April 26, 1999 regarding Loncar's alleged remarks made to him during the March 3, 1999 telephone conversation. Peterson Aff., Exs. 1, 14. On May 11, 1999 Winnie filed another complaint with Diina complaining about Loncar's refusal to accommodate Winnie's request for injured on duty status. Id., Ex. 15. On November 1, 1999 Diina received a fourth complaint from Winnie regarding the alleged incident where Loncar followed him while he had been jogging. Id., Ex. 2. Winnie filed an EEOC charge against the BPD on November 4, 1999. Id., Ex. 23. On January 19, 2000 Winnie received a letter from Michael Gaspar, an inspector with the BPD's Professional Standards Division — i.e., Internal Affairs ("IA") — indicating that all his complaints had been fully investigated but that the case was being closed because there was no evidence to sustain his allegations.*fn10 Peterson Aff., Ex. 16. To date, Winnie remains out of work on unpaid disability leave.

FRCvP 56(c) provides that summary judgment shall be entered where the movant demonstrates that there is "no genuine issue as to any material fact" and that "the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A genuine issue of fact 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). In deciding whether summary judgment is appropriate this Court must take all factual inferences in favor of the non-moving party.*fn11 Adickes v. S.H. Kress & Co, 398 U.S. 144, 157 (1970).

Of course, the summary judgment standard applies as much to discrimination cases as it does in other cases. See Ashton v. Pall Corp., 32 F. Supp.2d 82, 87 (E.D.N.Y. 1999) ("the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation"). However, courts must be aware of the fact that evidence of discrimination is rarely overt. See Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999) ("[e]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law"). In addition, courts must "also carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Ibid. Thus, the issue for this court is "whether the evidence can reasonably and logically give rise to an inference of discrimination under all the circumstances." Ibid.

Defendants first argue in support of their summary judgment motion that plaintiff cannot present sufficient evidence in support of his Title VII claims because a majority of the conduct on which plaintiff bases such claim is time-barred. This Court agrees.

A plaintiff asserting a claim pursuant to Title VII must file a charge with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the alleged discriminatory conduct. See 42 U.S.C. § 2000e-5(e)(1). Winnie filed his EEOC claim on November 4, 1999. Therefore, any conduct relied upon by Winnie for his Title VII claims must have occurred after January 8, 1999.*fn12 Plaintiff has asserted two causes of action under Title VII; a hostile work environment claim and a disparate treatment claim. Plaintiff cannot show a genuine issue of material fact regarding either claim.

Title VII states that "[i]t shall be an unlawful employment practice for an employer * * * to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII claims are analyzed pursuant to burden-shifting framework as espoused in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its offspring. In bringing a case under Title VII, plaintiff bears the initial burden of making out a prima facie case of discrimination. In order to establish a prima facie case, plaintiff must show (1) membership in a protected class, (2) that he was qualified for his position as a police officer, (3) that he suffered an adverse employment action and (4) preference for a person not of the protected class. James v. N.Y. Racing Ass'n, 233 F.3d 149, 153 (2d Cir. 2000) (citing McDonnell Douglas, at 802). The fourth element may be shown by demonstrating that the adverse action occurred under the circumstances giving rise to an inference of unlawful discrimination. Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). If a plaintiff succeeds in establishing a prima facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Ibid. Once the defendant has articulated a legitimate, non-discriminatory reason for the adverse employment action, the presumption of discrimination drops out of the analysis and the defendant "will be entitled to summary judgment * * * unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Ibid. (citing James, at 154).*fn13

For plaintiff to state a hostile work environment claim, he must show "(1) that the 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." Richardson v. N.Y. Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999) (quotations and citations omitted). The discriminatory intimidation alleged by plaintiff must be "offensive or pervasive enough that a reasonable person would find it hostile or abusive and must have been actually perceived by [Winnie] as abusive." Horsford v. Salvation Army, 2001 WL 1335005, at *9 (S.D.N.Y. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, at 21 (1993)). In determining whether an environment is hostile, this Court must look at the totality of the circumstances of the alleged conduct 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." Harris, at 23. "To withstand summary judgment, a `plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous or concerted to have altered the conditions of [his] working environment.'" Horsford, at *9 (quoting Whidbee, at 69). Isolated incidents of discriminatory comments or conduct — unless extremely serious — are not sufficient to establish a hostile working environment. See Horsford, at *9 (citing numerous cases as examples for such a proposition).

The following conduct is alleged by plaintiff to have occurred after January 8, 1999: (1) BPD's decision to deny his request to be classified as injured on duty, (2) he was forced to use vacation days to attend religious services while on sick leave, (3) four Buffalo News articles published in February 1999 outlining the Commissioner's ban on religious ceremonies at the BPD, (4) the March 11, 1999 telephone conversation between plaintiff and Commissioner Loncar during which Loncar made two racially insensitive comments regarding Native Americans, (5) an April 1999 article published in the Blue Line*fn14 in which its author — Lieutenant Mudd — blamed Winnie for the Commissioner's ban on religious ceremonies and (6) the incident in November 1999 where Lieutenant Nigro had followed Winnie in his patrol car while Winnie had been jogging on a public road. Those six incidents are insufficient to create an issue of fact whether plaintiff was subjected to a hostile working environment. First, the only incident that remotely or arguably implicates any racial or religious animus towards Winnie is Loncar's comments to him regarding Native American stereotypes. Second, all of the post-January 8, 1999 conduct occurred while Winnie had been out of work on sick leave, thereby deflating any claim that his work performance had been unreasonably interfered with. Third, even if Winnie had been on duty and subjected to such conduct, it was neither frequent nor severe. No reasonable trier of fact could view such incidents, in their totality, as creating a workplace that is subjectively and objectively offensive — to wit., "one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Staff v. Pall Corp., ___ F. Supp.2d ___, 2002 WL 31778059, at *25 (S.D.N.Y. 2002) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).

Plaintiff's other Title VII claim is based on an allegation of disparate treatment. Specifically, he claims that he was treated differently than were other police officers because he had been forced to use vacation days, during his sick leave, to attend religious ceremonies while Christian officers were not required to take vacation days in order to attend their respective religious ceremonies. However, ...

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