The Second Circuit "has established a four-part test for the
sufficiency of an affidavit submitted pursuant to Rule 56(f). The
affidavit must include the nature of the uncompleted discovery; how the
facts sought are reasonably expected to create a genuine issue of
material fact; what efforts the affiant has made to obtain those facts;
and why those efforts were unsuccessful." Paddington Partners v.
Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994) citing Hudson River Sloop
Clearwater, Inc. v. Dep't of Navy, 891 F.2d 414, 422 (2d Cir. 1989).
If a court finds that a request for discovery is based on speculation
as to what might be discovered, the court can deny the request, even if
properly and timely made. Paddington Partners, 34 F.3d at 1138; Gray v.
Town of Darien, 927 F.2d 69, 74 (2d Cir. 1991) ("In a summary judgment
context, an `opposing party's mere hope that further evidence may develop
prior to trial is an insufficient basis upon which to justify the denial
of [a summary judgment] motion'") quoting Contemporary Mission, Inc. v.
U.S. Postal Serv., 648 F.2d 97, 107 (2d Cir. 1981); Capital Imaging
Assocs. v. Mohawk Valley Med. Assocs., 725 F. Supp. 669, 680 (N.D.N.Y.
1989) citing Waldron v. Cities Serv. Co., 361 F.2d 671, 673 (2d Cir.
1966) (citations omitted) (while "Rule 56(f) discovery is specifically
designed to enable a plaintiff to fill material evidentiary gaps in its
case . . . it does not permit a plaintiff to engage in a `fishing
expedition'"), aff'd 996 F.2d 537 (2d Cir. 1993).
Here, plaintiff's Rule 56(f) affidavit is deficient for several
reasons. First, plaintiff makes no attempt to show how the facts sought
are reasonably expected to create a genuine issue of material fact.
Instead, he states in conclusory fashion that obtaining the sworn
statements of Corey Seabrook and Robert David is "necessary to prove
[his] case, to show discrimination and an issue of material fact" Dkt.
#14, ¶ 14. "Rule 56(f) is not a shield against all summary judgment
motions. Litigants seeking relief under the rule must show that the
material sought is germane to the defense, and that it is neither
cumulative nor speculative." Sundsvallsbanken v. Fondmetal, Inc.,
624 F. Supp. 811, 815 (S.D.N.Y. 1985). Plaintiff has not made the
requisite substantive showing of materiality required at this stage.*fn2
Second, plaintiff has not offered a reasonable explanation for his
failure to obtain this discovery sooner. This is not a case where
plaintiff has been "denied reasonable access to potentially favorable
information." See Robinson v. Transworld Airlines, Inc., 947 F.2d 40, 43
(2d Cir. 1991) (plaintiff permitted to discovery before having to oppose
summary judgment where corporate defendant had not provided that
discovery before it filed its summary judgment motion). Here, plaintiff
had sufficient time in which to conduct discovery. In fact, just prior to
the court-ordered discovery deadline, plaintiff requested a 60 day
extension in order to conduct discovery from Sentry regarding these very
facts.*fn3 The Magistrate granted
plaintiff's request, and the discovery
deadline was reset to April 30, 2002. During that time plaintiff never
served a notice of deposition for Seabrook or issued a subpoena to depose
David. Dkt. #17 at ¶ 9.
Plaintiff offers no explanation for his failure to use the discovery
devices available under the Fed.R.Civ.P. to obtain the deposition of
either witness. Instead, plaintiff claims that during the extended period
for discovery, he spoke with Seabrook, who agreed to give him an
affidavit and his State Division of Human Rights complaint. However,
plaintiff claims that Seabrook did not return his attorney's phone calls.
Despite the fact that plaintiff did not obtain the sought after
discovery, he did not request more time from the Court to do so.
Instead, he let the April 30 deadline pass without taking further steps
to get the information. Plaintiff offers no explanation as to why he was
unable to obtain the testimony of David.
After Sentry filed this motion for summary judgment, plaintiff's
attorney hired a private investigator to interview Seabrook. According to
the affidavit of the investigator, Seabrook told him that he had "had
problems" with Pecora and filed a complaint with the State Division of
Human Rights. However, Seabrook refused to give an affidavit because he
was still employed at Sentry. Seabrook stated he would only testify if he
was under subpoena. Dkt. #14. Plaintiff has made no attempt to subpoena
While courts generally treat Rule 56(f) motions liberally, "[r]equests
for discovery in the face of motions for summary judgment put forth by
parties who were dilatory in pursuing discovery are disfavored."
Paddington Partners, 34 F.3d at 1139. Given plaintiff's failure to use
the simple discovery devices available to him, as well as his failure to
explain why the information requested would raise a genuine issue of
material fact sufficient to defeat summary judgment, plaintiff's motion
must be denied. Therefore, the court turns to the merits of Sentry's
motion. Powers v. McGuigan, 769 F.2d 72, 76 (2d Cir. 1985) ("where the
discovery sought would not meet the issue that the moving party contends
contains no genuine issue of fact, it is not an abuse of discretion to
decide the motion for summary judgment without granting discovery.").
2. Hostile Work Environment Claim
Initially, I reject Sentry's claim that only the part of plaintiff's
claim based on acts occurring within 300 days of the date of plaintiff's
EEOC charge is timely. The Supreme Court recently clarified the statute
of limitations applicable to hostile work environment claims. In National
Railroad Passenger Corp v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002),
the Court held:
A hostile work environment claim is comprised of a
series of separate acts that collectively constitute
one `unlawful employment practice.'
42 U.S.C. § 2000e-5(e)(1). The timely filing
provision only requires that a Title VII plaintiff
file a charge within a certain number of days after
the unlawful practice happened. It does not matter,
for purposes of the statute, that some of the
component acts of the hostile work environment fall
outside the statutory time period. Provided that an
act contributing to the claim occurs within the filing
period, the entire time period of the hostile
environment may be considered by a court for the
purposes of determining liability. . . .
The statute does not separate individual acts that are
part of the hostile environment claim from the whole
for the purposes of timely filing and liability. And
the statute does not contain a requirement that the
employee file a charge prior to 180 or 300 days
`after' the single unlawful practice `occurred.'
Given, therefore, that the incidents comprising a
hostile work environment are part of one unlawful
employment practice, the employer may be liable for
all acts that are part of this single claim. In order
for the charge to be timely, the employee need only
file a charge within 180 or 300 days of any act that
is part of the hostile work environment.
Morgan, 122 S.Ct. at 2074-75.
Here, the last act occurred on September 25, 2000, when plaintiff
alleges that he was constructively discharged. It is undisputed that
plaintiff filed an EEOC charge on February 22, 2001, well within the
statute of limitations period. Dkt. #12, Ex. 22. Accordingly, all of the
allegations plaintiff raises in support of his hostile work environment
claim will be considered by the Court in determining Sentry's motion.
Morgan, 122 S.Ct. at 2074-75.
B. Summary Judgment in Discrimination Cases
When deciding a motion for summary judgment brought pursuant to
Fed.R.Civ.P. 56, a court's responsibility is to determine whether there
are issues to be tried. Duse v. Int'l Bus. Machs. Corp., 252 F.3d 151,
158 (2d Cir. 2001); see also Larsen v. NMU Pension Trust, 902 F.2d 1069,
1073 (2d Cir. 1990). Summary judgment will be granted if the record
demonstrates that "there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986); Larsen, 902 F.2d at 1073. "A fact is `material' for these
purposes if it `might affect the outcome of the suit under the governing
law.' . . . An issue of fact is `genuine' if `the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.'"
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir.
2001), quoting Anderson, 477 U.S. at 248; see also Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The general principles underlying summary judgment apply equally to
discrimination actions. Abdu-Brisson v. Delta Air Lines, Inc.,
239 F.3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary
judgment may be appropriate even in the fact-intensive context of
discrimination cases"). Although courts should be cautious about granting
summary judgment in cases where motive, intent or state of mind are at
issue, see Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.
1988); Montana v. First Fed. Sav. and Loan Ass'n of Rochester,
869 F.2d 100, 103 (2d Cir. 1989), "the salutary purposes of summary
judgment — avoiding protracted, expensive and harassing trials
— apply no less to discrimination cases than to . . . other areas
of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (summary
judgment rule would be rendered sterile if mere incantation of intent or
state of mind would act as a talisman to defeat an otherwise valid
motion). In determining whether summary judgment should be granted, the
court resolves all ambiguities and draws all reasonable inferences in
plaintiff's favor. Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d
C. Hostile Work Environment
To defeat a motion for summary judgment based on a hostile work
plaintiff must present sufficient evidence that would permit
a trier of fact to find two things: (1) the existence of a hostile work
environment; and (2) a specific basis for imputing the hostile
environment to the employer. Fitzgerald v. Henderson, 251 F.3d 345,
356-57 (2d Cir. 2001). For the reasons set forth below, I find that
plaintiff has failed to raise a genuine issue of material fact on either
To establish a hostile work environment, plaintiff "must produce
evidence that `the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim's employment.'" Cruz v.
Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) quoting Harris v.
Forklift Sys., Inc, 510 U.S. 17, 21 (1993). It is not enough to show
"[i]solated instances of harassment." Cruz, 202 F.3d at 570. "Rather, the
plaintiff must demonstrate either that a single incident was
extraordinarily severe, or that a series of incidents were `sufficiently
continuous and concerted' to have altered the conditions of [his] working
environment." Id. citing Perry v. Ethan Allen, Inc., 115 F.3d 143, 149
(2d Cir. 1997).
In examining whether a hostile work environment was created, courts
look to 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." Harris, 510
U.S. at 23. "Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment — an environment
that a reasonable person would find hostile or abusive — is beyond
Title VII's purview." Harris, 510 U.S. at 21.
With respect to racial harassment, a plaintiff "need not be the target
of other instances of hostility in order for those incidents to support
[his] claim. Nor must offensive remarks or behavior be directed at
individuals who are members of the plaintiff's own protected class.
Remarks targeting members of other minorities, for example, may
contribute to the overall hostility of the working environment for a
minority employee." Cruz, 202 F.3d at 570 (internal citations omitted).
Here, plaintiff bases his claim of a hostile work environment on the
following facts: 1) in 1998, his then supervisor Comstock falsely
reported to Sentry that plaintiff intended to return from work following
surgery on a date sooner than plaintiff intended; 2) in February 2000,
Pecora told plaintiff's coworkers that she was going to "get him" for
violating Sentry's Attendance Policy by not seeking her permission to
leave the line for a court appearance; 3) a March 2000 dispute with
Pecora regarding charging plaintiff with an Attendance Policy violation
based on the statement of a coworker; 4) Pecora's "watching" plaintiff
closely in September 2000; 5) two unspecified incidents in which Pecora
unsuccessfully attempted to charge plaintiff with Attendance Policy
violations for minor incidents; 6) a statement by a coworker that Pecora
called another coworker a "dumb Mexican"; and 7) that two other
African-American employees at Sentry "had trouble" with Pecora and may
have filed complaints against Sentry.
Viewing the evidence in the light most favorable to plaintiff, see
Cifarelli, 93 F.3d at 51, I find a reasonable jury could not find in
plaintiff's favor. The incidents alleged by plaintiff are insufficient in
their severity or pervasiveness to constitute a racially hostile work
environment. See Williams v. County of Westchester, 171 F.3d 98, 100 (2d
Cir. 1999). There is no
evidence in the record that either Comstock's or
Pecora's conduct toward plaintiff was race-based. At most, plaintiff
established that Pecora may not have liked him, but that is not enough.
He must produce evidence that he was discriminated against because of his
race, and he has failed to do so. Richardson v. New York State Dep't of
Corr. Serv., 180 F.3d 426, 440 (2d Cir. 1999).
Further, no reasonable jury would find that the acts of his supervisors
were `abusive'. That plaintiff felt he was "picked on" is insufficient to
support a hostile work environment claim. Williams, 171 F.3d at 100-101
(plaintiff's subjective feeling of uncomfortableness about his work
environment insufficient to create hostile work environment); see also
Ricks v. Conde Nast Publ'n, Inc., 6 Fed. Appx. 74, 2001 WL 273835 (2d
Cir. 2001) (unpublished opinion) (affirming grant of summary judgment to
employer where plaintiff failed to assert sufficient evidence of a
hostile work environment by alleging, among other things, "public
humiliation" by her employer's verbal berating).
Williams is instructive. In Williams, plaintiff alleged that he did not
have a good feeling about his employment, that a minority coworker had a
"gut, personal feeling" that he did not belong in the office and that
there was "an atmosphere of uneasiness", that plaintiff found a file with
racist material near his office either, and that he was consistently
given menial tasks despite his 28 year tenure with the employer. The
Second Circuit affirmed the District Court's grant of summary judgment,
after trial, for the employer on the grounds that these allegations were
insufficient as a matter of law to constitute a racially hostile work
environment. Williams, 171 F.3d at 101. The Court took note that Williams
had not alleged that a single racial epithet was directed at him or that
racially derogatory comments were used in the workplace. Id.
Similarly here, plaintiff has failed to produce sufficient evidence
that his work environment was "permeated with discriminatory
intimidation, ridicule, and insult." Harris, 510 U.S. at 21. The
plaintiff must show "more than a few isolated incidents of racial enmity."
Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986). "[T]here
must be a steady barrage of opprobrious racial comments." Schwapp v. Town
of Avon, 118 F.3d 106, 110 (2d Cir. 1997) quoting Bolden v. PRC Inc.,
43 F.3d 545, 551 (10th Cir. 1994).
It is undisputed that the only racial epithet of which plaintiff is
aware is an alleged comment reported to him by another co-worker who
himself claims he heard Pecora call a third employee a "stupid Mexican."
While hearsay racist comments not directed at plaintiff or even his
particular race may be probative of a hostile work environment, such
evidence must be produced by plaintiff in admissible form. See Whidbee
v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 71 (2d Cir. 2000)
("while second-hand comments may be relevant, a district court deciding a
summary judgment motion must be provided with admissible evidence
demonstrating the truth of the non-movant's assertions."); Howley v. Town
of Stratford, 217 F.3d 141, 154-55 (2d Cir. 2000). Here, plaintiff has
not provided an affidavit from the co-worker who allegedly heard this
In any event, even assuming plaintiff submitted that proof in
admissible form, he would still fall woefully short of the required
evidence needed to establish a hostile work environment. This is not a
case in which repeated explicitly racist comments, jokes, and epithets
were used. See, e.g. Schwapp, 118 F.3d at 103 (10 to 12 instances of
explicitly racist conduct precluded summary judgment in hostile
work environment case). Instead, plaintiff bases his claim on his own
subjective feelings about Pecora's conduct toward him, which is not
enough. To sustain a claim, the conduct in question must objectively and
subjectively create a hostile work environment. See Harris, 510 U.S. at
21-22; Schwapp, 118 F.3d at 110.
Even if plaintiff could raise an issue of fact regarding the existence
of a hostile work environment, Sentry would still be entitled to summary
judgment because plaintiff cannot show a specific basis for imputing the
hostile work environment claim to Sentry. When the alleged harasser is a
supervisor, the employer is presumed to be absolutely liable for the
harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
However, where, as here, the employer takes no "tangible employment
action" against the employee, its liability is subject to what has become
known as the Burlington/Faragher affirmative defense.*fn4
To invoke the defense, Sentry must show that it (a) "exercised
reasonable care to prevent and correct promptly any . . . harassing
behavior, and (b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; see also
Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998).
Here, Sentry has shown its entitlement to this defense. There is no
dispute that Sentry had a written Non-Harassment and Non-Discrimination
policy that specifically prohibited harassment or discrimination based on
race. The policy specified several ways in which an employee could report
that he or she believed they were discriminated against, including a
confidential report to the Director of Human Resources, the Employment
Supervisor, or the Benefits and Compensation Manager. According to the
policy, Sentry would "promptly and effectively" investigate "in a
confidential manner" any complaints of harassing conduct. Dkt. #12, Ex.
2. The policy also stated that "any form of retaliation against employees
for exercising their rights under this policy is strictly prohibited and
will be treated as a violation of this policy to the same extent as
discrimination or harassment." Id. It is undisputed that plaintiff
received a copy of the policy. Dkt. #12, Ex. 3. Based on these facts,
Sentry has satisfied the first element of the defense. See Leopold v.
Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001) (employer met burden on
first element by demonstrating the existence of an harassment policy and
a complaint procedure); Caridad v. Metro-North Commuter R.R., 191 F.3d 283,
295 (2d Cir. 1999) (same).
Additionally, Sentry met its burden of showing that plaintiff's actions
in failing to avail himself of the complaint procedure were
unreasonable. It is undisputed that plaintiff never filed a complaint of
discrimination with Sentry against Pecora or Comstock pursuant to this
policy. Dkt. #10, ¶ 6; Dkt. #12, Ex. 8 at 70-71. At no time during
any of the three or four discussions with Miller did plaintiff claim that
he felt Pecora was discriminating against him on account of his race.
Plaintiff claims that he did not report that Pecora was harassing him
believed Sentry would not have addressed the issue. Dkt. #12,
Ex. 8 at 70-71. However, this contention is belied by the record, which
shows that Miller promptly investigated plaintiff's concerns that Pecora
was "picking on" him and charging him with unfounded Attendance Policy
violations by meeting with plaintiff, Pecora, and Pecora's manager. In
addition, not one of the Attendance Policy violations that plaintiff
claimed were improper was charged to him. As such, plaintiff's experience
with complaints to Miller resulted in quick action and findings in his
favor. Therefore, plaintiff's concerns that his complaints would not be
addressed are insufficient to preclude summary judgment in favor of
Sentry. Faragher, 524 U.S. at 807-808 ("[W]hile proof that an employee
failed to fulfill the corresponding obligation of reasonable care to
avoid harm is not limited to showing an unreasonable failure to use any
complaint procedure provided by the employer, a demonstration of such
failure will normally suffice to satisfy the employer's burden under the
second element of the defense."); see also Leopold, 239 F.3d at 246
(finding employer entitled to defense where plaintiff failed to report
harassment out of fear of reprisal or inaction by employer because "[a]
credible fear must be based on more than the employee's subjective
belief. Evidence must be produced to the effect that the employer has
ignored or resisted similar complaints or has taken adverse actions
against employees in response to such complaints."); Caridad, 191 F.3d at
295 (same). Accordingly, Sentry is entitled to summary judgment pursuant
to the Burlington/Faragher affirmative defense.
D. Constructive Discharge
Lastly, there is insufficient evidence to withstand summary judgment on
the issue of plaintiff's constructive discharge. To establish a
constructive discharge, plaintiff must show that his employer
deliberately made his working conditions so intolerable that he was
forced to resign. Whidbee, 223 F.3d at 73; Stetson v. NYNEX Serv. Co.,
995 F.2d 355, 360 (2d Cir. 1993); Pena v. Brattleboro Retreat,
702 F.2d 322, 325 (2d Cir. 1983). This burden is not an easy one to
carry. The Second Circuit has held that a constructive discharge cannot
be established simply through evidence that the "employee was
dissatisfied with the nature of his assignments," "the employee feels
that the quality of his work has been unfairly criticized," or "the
employee's working conditions were difficult or unpleasant." Stetson, 995
F.2d at 360. Therefore, "a claim of constructive discharge must be
dismissed as a matter of law unless the evidence is sufficient to permit
a rational trier of fact to infer that the employer deliberately created
working conditions that were `so difficult or unpleasant that a
reasonable person in the employee's shoes would have felt compelled to
resign.'" Id. at 361, quoting Pena, 702 F.2d at 325.
In my view, no rational trier of fact could reasonably conclude from
these facts that the benign incidents about which plaintiff complains
made plaintiff's working conditions "so difficult or unpleasant that a
reasonable person in the employee's shoes would have felt compelled to
resign." Pena, 702 F.2d at 325. The evidence shows only that plaintiff
was unhappy with the watchful eye Pecora kept on his attendance and
timeliness. Plaintiff claims he quit because he believed Pecora was
putting too much "pressure" on him. Dkt. #12, Ex. 8 at 70-71. That kind of
employee concern does the not meet the stringent standard for
demonstrating constructive discharge. See Gray v. York Newspapers, Inc.,
957 F.2d 1070 (3d Cir.
1992) (employee's subjective interpretation that
continued employment would be uncomfortable and demeaning and would lead
to demotion or termination in the future does not constitute constructive
It is not enough that a reasonable person would have "preferred not to
continue working for that employer." Spence v. Maryland Cas. Co.,
995 F.2d 1147, 1156 (2d Cir. 1993). Plaintiff must show that his job had
become "intolerable" to the point that he was "forced into an involuntary
resignation." Pena, 702 F.2d at 325; Stetson, 995 F.2d at 360 quoting
Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1162 (3d Cir. 1993)
(even "hypercritical supervision" and "unfair and unwarranted treatment
[are] by no means the same as constructive discharge."). Here, a
reasonable jury could not find that Pecora's actions were abusive. In
fact, plaintiff received an above average performance review from Pecora
in July 2000 and, as a result, was given a raise. Dkt. #12, Ex. 16. At
the time of his resignation, plaintiff may have felt that he was treated
harshly and unfairly, but he "could not reasonably have felt at that time
that he had no alternative but to resign." Stetson, 995 F.2d at 361.
Further, plaintiff did not tell Sentry that the reason for his leaving
was his perceived racial discrimination by Pecora. Rather, he stated that
he no longer wanted to work and that he was thinking about opening his
own restaurant. Under these circumstances, plaintiff cannot establish a
constructive discharge. See West v. Marion Merrell Dow, Inc., 54 F.3d 493,
498 (8th Cir. 1995) ("[a]n employee who quits without giving her employer
a chance to work out a problem is not constructively discharged");
Clowes, 991 F.2d at 1161 (reasonable employee will usually explore
alternative avenues thoroughly before coming to the conclusion that
resignation is the only option). Accordingly, Sentry is entitled to
For the foregoing reasons, Sentry's motion for summary judgment (Dkt.
#10) is granted, plaintiff's motion for further discovery (Dkt. #14) is
denied, and plaintiff's complaint is dismissed with prejudice.
IT IS SO ORDERED.