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WINNIE v. CITY OF BUFFALO POLICE DEPARTMENT

United States District Court, Western District of New York


January 13, 2003

BRIAN WINNIE, PLAINTIFF,
v.
CITY OF BUFFALO (POLICE DEPARTMENT (BPD)), BPD DEPUTY COMMISSIONER GEORGE LONCAR AND BPD LIEUTENANT RICHARD NIGRO, DEFENDANTS.

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

MEMORANDUM AND ORDER*fn1

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, plaintiff's offer of proof in support of such claim is inadequate to defeat defendants' summary judgment motion.

Plaintiff has not met the minimal burden of establishing a prima facie case of disparate treatment because he cannot satisfy the fourth prong of a Title VII action by showing an inference of religious or racial discrimination.*fn15 "A plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably." Norville v. Staten Isl. Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999). The employees to be compared must be "similarly situated in all material aspects." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). In this case, Winnie does not identify any other officer who was treated more favorably than himself because he cannot identify any other officer who was not required to take vacation days in order to observe a religious ceremony under the same circumstances as his own request.

Plaintiff points to Loncar's deposition testimony as evidence of disparate treatment. Loncar testified about Winnie's inquiry to him about the BPD's policy with regard to attending religious ceremonies while an officer is out on sick leave. Loncar testified regarding Winnie's request as follows:

"[Winnie] asked basically whether or not, you know, what the department's policy was regarding officers leaving their place of confinement while on sick leave to attend religious services. I advised him that generally the department's policy was officers were permitted to do that.
"His situation was somewhat different. The normal permission to leave for religious or concurrence to leave for religious observance inferred that the officer would be going to someplace local, leave his place of confinement for an hour or two, go to church and then return home.
"In Officer Winnie's situation, he advised me that he would be going to or he observed his religious beliefs or ceremonies, whatever, in Canada, and that it sometimes was — he was gone for a day or two. And I told him for his own protection, that he would probably have to continue to use his leave time to do that because he would be out of — not only away from his home, he would be out of the country." Loncar Dep, pp. 33-34.
Loncar further explained the BPD's confinement policy when asked if Winnie would have had to take regularly scheduled days off in order to attend his religious services:

"[I]f those were his regularly-scheduled days off, he could have gone and done whatever. * * * [T]he confinement only pertains to those hours which he ordinarily would have been working. So if he was a day person, he would have, even on a day when he would have been working, say he was working from * * * 6:45 to 4:45, his confinement would only have been through those hours. If the observance would have been after those hours, he would have been free to go." Loncar Dep., pp. 36-37.
Such testimony does show that other police officers may not have been required to take vacation days to attend their respective religious services. Yet, that fact does not equate to unequal, or disparate, treatment because, as Loncar testified, he based his statement to Winnie on his assumption that an officer leaving his place of confinement would only be absent "for an hour or two." Plaintiff's inquiry to Loncar was premised on the fact that he would absent from his place of confinement for up to a "day or two." Loncar merely explained to Winnie that, in his opinion, the BPD's confinement policy dictated that Winnie take a vacation day in order to protect himself if, in fact, he was going to be absent from his home for such an extended period of time. Plaintiff identifies no other officer who was allowed to leave his place of confinement for such an extended period to observe a religious ceremony without being forced to utilize a vacation day. Thus, plaintiff has failed to even present a prima facie case of discrimination based on disparate treatment because he has failed to show that similarly situated police officers received more preferable treatment.*fn16

Nonetheless, even if this Court were to find otherwise, plaintiff has offered nothing to show that defendants' confinement policy — a legitimate, non-discriminatory reason for requiring plaintiff to utilize vacation days to leave his place of confinement for an extended period of time — is somehow a pretext for discrimination. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981) (explaining that under Title VII's burden-shifting framework the plaintiff may rebut defendant's articulated non-discriminatory reason by offering proof that such reason was merely a pretext for discrimination). Winnie's evidence does not reasonably support an inference of discrimination and summary judgment is therefore mandated against him with regard to his disparate treatment claim. See Farias, at 98 (holding that a defendant is entitled to summary judgment unless plaintiff offers reasonable evidence of discrimination).

Defendants next argue that plaintiff has failed to establish a section 1981 claim because he has not shown that the BPD intentionally discriminated against him because of his race or that his workplace was permeated with severe or pervasive hostility towards him.*fn17

Plaintiff asserts a hostile working environment claim under section 1981.*fn18 In support, Winnie offers several instances of conduct that he perceived as racial harassment. First, plaintiff contends that he frequently received "derogatory notes in [his] mailbox at work or on the schedule board at work." Winnie Aff. ¶ 7. As examples of such conduct he offers (1) a note purportedly posted on a schedule board, which stated that plaintiff was not to be called for overtime during his vacation, with a notation written below which stated, "P.S. I struck oil on the reservation, so I won't be needing anything extra." Winnie Aff., Ex. 4, (2) a racially derogatory joke entitled "Never trust an Indian" that had been left in his mailbox, Id., Ex. 5, and (3) a photocopy of an article about Indian culture with parts of the article underlined and racially insensitive remarks noted on the margins. Id., Ex. 6. Second, plaintiff asserts that his co-workers and supervisors directed racially insensitive remarks towards him. In particular, he alleges that Lieutenant Nigro made several comments relating to both his race and religious beliefs.*fn19 Third, plaintiff cites a series of articles published in the Buffalo News regarding the BPD's ban on religious ceremonies and argues that such articles blame him for the BPD's new policy. Winnie Aff. ¶¶ 28-32, Exs. 8-11. Fourth, Winnie offers the two racially discriminatory remarks Loncar made to him during the March 11, 1999 phone conversation.*fn20 Winnie Aff. ¶ 34, Ex. 14. Finally, plaintiff points to the previously detailed conduct that occurred after he had left work in January of 1999 as further evidence of a hostile working environment. Plaintiff's allegations are insufficient to support a section 1981 claim.

First, with regard to the notes left in his mailbox and the message posted on the message board, plaintiff does not indicate — even approximately — the dates of those occurrences. Second, although plaintiff has alleged multiple instances of comments and statements that, according to him, show a hostile working environment, only a handful of such statements have anything to do with Winnie's race.*fn21 Third, the conduct alleged by plaintiff is not objectively severe in nature.*fn22 Fourth, none of the conduct at issue was physically threatening or humiliating to plaintiff. Finally, plaintiff has not shown that the conduct unreasonably interfered with his work performance. In sum, plaintiff's allegations, viewed in their totality and taken as true for the purposes of this motion, amount to nothing more than sporadic and isolated instances of offensive utterances. Such is not enough to constitute a hostile working environment. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments."). Plaintiff has failed to show a genuine issue of fact that could support his claim of a hostile work environment. Summary judgment must therefore be granted to defendants on such claim.*fn23

Finally, plaintiff's state law claim of intentional infliction of emotional distress will be dismissed. Under New York law, to establish a claim of intentional infliction of emotional distress a plaintiff must show that a defendant engaged in "extreme and outrageous conduct" in which he "intentionally or recklessly" caused the plaintiff "severe emotional distress." Mariani v. Consol. Edison Co. of N.Y., 982 F. Supp. 267, 273 (S.D.N.Y. 1997). The statute of limitations is one year and "all acts occurring before the limitations period are excluded from consideration." Ibid. (quotations and citations omitted). Winnie filed this action February 7, 2000; he is therefore limited to defendants' conduct that occurred after February 7, 1999. There is simply no conduct alleged by plaintiff within that time period that could constitute extreme and outrageous conduct that was done with an intent to cause him emotional distress. Plaintiff's claim is therefore dismissed.

Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted and that the clerk of this court shall close this case. S.U.S.D.J.

*fn2 The Longhouse religion is associated with the Iroquois Confederacy of Native Americans. Winnie Dep., p. 10.

*fn3 Plaintiff asserts three separate causes of action for race discrimination — section 1981, Title VII, and NYHRL — and he asserts two causes of action under Title VII and NYHRL for religious discrimination. Plaintiff's sixth cause of action is a tort claim for intentional infliction of emotional distress.

*fn4 It is not readily apparent from the record — and Winnie does not clearly explain — why he had been so severely affected by such prospective activity.

*fn5 Winnie claims that he was given the "cold shoulder" by other officers and that he was subjected to rumors of drug use, racially offensive remarks, derogatory notes left on his desk and a message board at work and hostile looks. Winnie Aff. ¶¶ 6,7,18; Pl.'s Mem. Law, p. 6; Compl. ¶¶ 23-25.

*fn6 Pursuant to New York General Municipal Law § 207-c, an employee designated as injured on duty is eligible to receive disability compensation.

*fn7 Loncar denied Winnie's request on the following grounds: "no injury, not connected to performance on duty and no medical diagnosis." Loncar Aff. ¶ 6.

*fn8 In February 1999, Loncar issued a department-wide directive banning any type of religious activity within BPD buildings. Plaintiff has submitted four Buffalo News articles which describe the ban and which also contain interviews of several Buffalo police officers that pertain to such. None of the articles refers to Winnie by name; however, one article — entitled "Police officer's sick leave claim spawned new ban" — describes the ban on religious activity as an effort by the BPD to protect its interests "because [an] officer is seeking extended paid sick leave." Peterson Aff., Exs. 7-10.

*fn9 Specifically, Winnie alleges that Loncar stated that he needed to get his "[Native American] women to take control of the reservation" and that he thought Winnie "was going to be the head croupier" out at the reservation. Compl. ¶ 28.

*fn10 IA's investigation was prompted by Loncar. Following Loncar's denial of Winnie's request for injured on duty status, the Police Benevolent Association, Winnie's union, filed a grievance on February 8, 1999. A grievance hearing was held before Loncar on February 18, 1999; however, he denied the grievance because nothing had been offered "to warrant a change in the determination of the IOD request." Loncar Aff. ¶ 9, Ex. 10. Loncar subsequently directed IA to investigate Winnie's allegations of harassment that were revealed to him during the grievance hearing. Accordingly, on March 25, 1999, IA interviewed Winnie and several other BPD employees regarding the allegations. On May 20, 1999, IA issued a memorandum to Loncar indicating that their investigation revealed that Winnie's allegations were without merit. Id. at ¶ 13, Ex. F. IA's investigation concluded with the January 19, 2000 letter to Winnie.

*fn11 Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("Conclusory allegations, conjecture and speculation * * * are insufficient to create a genuine issue of fact."). Furthermore, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, at 322.

*fn12 Plaintiff concedes that fact and does not argue that defendant's conduct constituted a continuing violation which would warrant an exception to Title VII's 300-day statute of limitations period.

*fn13 This Court notes that plaintiff's claims pursuant to section 1981 and NYHRL are analyzed under the same framework as a Title VII discrimination claim. See Whidbee v. Garzarelli Food Specialties, 223 F.3d 62, 69 (2d Cir. 2000); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 n. 4 (2d Cir. 1995).

*fn14 The Blue Line is a newspaper published by the local union of the Buffalo Police Department. Winnie Aff. ¶ 33.

*fn15 Plaintiff has satisfied the first three prongs of a prima facie Title VII action. He is a Native American who has shown that he was qualified for his job as a police officer. He has also shown that he suffered an adverse employment action by being forced to utilize vacation time in order to observe his religious beliefs.

*fn16 Plaintiff's only other offer of proof in support of his disparate treatment claim comes from his affidavit. "I have been forced to use vacation days to attend my religious services while on sick leave, whereas, upon information and belief, Christian officers are allowed to attend their religious services while remaining on sick leave without being forced to use their vacation days." Winnie Aff. ¶ 27 (emphasis added). Such a conclusory allegation is not enough to defeat summary judgment. See Kerzer, at 400; cf. Lujan v. Nat'l Wilflife Fed'n, 497 U.S 871, 888-889 (1990) (explaining that a non-movant's conclusory allegations, contained within an affidavit, are insufficient to defeat a FRCvP 56 motion).

*fn17 Plaintiff's section 1981 claim is subject to a three-year statute of limitations and is analyzed under the same framework as a Title VII action. See Whidbee, supra note 13, at 69. Thus, conduct that occurred prior to January 8, 1999 — conduct that is time-barred under Title VII's 300-day limitations period — is cognizable under section 1981.

*fn18 "Section 1981 provides a cause of action for race-based employment discrimination based on a hostile working environment." Whidbee, supra note 13, at 69.

*fn19 According to plaintiff, Nigro commented to another officer, "No matter how much you hammer an Indian they [sic] will never go to Internal Affairs, Downtown, did you know that?" Winnie Aff. ¶ 12. In addition, Winnie points to Nigro's comments to him following the Easter Mass. incident as being, among other things, "anti-Christian." Id. at ¶¶ 14-20.

*fn20 See supra note 9.

*fn21 Many of the comments and remarks offered by Winnie as evidence of a hostile working environment refer to his religion rather than his race. Such comments cannot be considered inasmuch as section 1981 solely addresses racial discrimination. See Harvey v. NYRAC, Inc., 813 F. Supp. 206, 209 (E.D.N.Y. 1993) ("§ 1981 only prohibits racial discrimination").

*fn22 Moreover, while Winnie may have subjectively perceived a hostile working environment, that is not enough to sustain a claim under section 1981. Plaintiff must also show a hostile working environment that is objectively offensive. See Staff, at *25 ("In order to be actionable, a racially objectionable environment must be both objectively and subjectively offensive, `one that a reasonable person would find hostile or abusive * * *.'").

*fn23 Plaintiff's claims under New York's Human Rights Law, N.Y. Exec. Law § 290 et seq., will also be dismissed inasmuch as such are analytically identical to that of a Title VII and a section 1981 claim.


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