The opinion of the court was delivered by: DENNY CHIN, District Judge
In this employment discrimination case, plaintiff Bobby Leepiei
Green alleges that defendants Harris Publications, Inc. ("Harris
Publications"), Stanley Harris, and Dennis Page (collectively
"defendants") subjected him to a hostile work environment, failed
to promote him, and constructively discharged him from his
employment with Harris Publications, purportedly because of his
race and sex, in violation of federal, state, and city law. Green
also asserts a claim for intentional infliction of emotional
distress. Defendants move for summary judgment dismissing all
claims. For the reasons set forth below, the motion is granted in
part and denied in part. BACKGROUND
Construed in the light most favorable to plaintiff, the
non-moving party, the facts are as follows:
1. The Parties
At all times relevant to the instant action, Harris
Publications was a publishing company privately owned by Harris,
a white male, and in the business of publishing magazines,
including XXL, a hip-hop magazine; GuitarWorld; and Revolver.
(Compl. ¶ 11; Page Dep. at 5-6, 14, 15). At all relevant times,
Page, a white male, was the publisher of XXL, GuitarWorld, and
Revolver. (Compl. ¶ 12; Page Dep. at 6). Plaintiff is an African
American/Native American male who began his employment at Harris
Publications in December 2000 in the retail sales and promotions
department for GuitarWorld and Revolver. (Green Aff. at 1; Green
Dep. at 33-34).
2. The Alleged Discriminatory Conduct*fn1
Sometime in December 2000, while Page was on a telephone call
in his office, plaintiff overheard Page remark, "oh, those niggers."*fn2 (Green Dep. at 81, 84-85).
Approximately one month later, sometime in January 2001,
plaintiff was told by Aari Jubran, the manager of retail sales
and promotions and plaintiff's immediate supervisor, that "Page
sold [Honey magazine] because he said that . . . the `Honey
girls' [African-American Women who worked for the magazine Honey]
were uncontrollable blacks."*fn3 (Green Dep. at 81, 87;
Jubran Dep. at 25). Plaintiff does not know when Page made the
remark.*fn4 (Green Dep. at 87-88).
In the "middle months" of 2000, plaintiff overheard Page say
the words "my nigger" to a Hispanic employee in the mail room.
(Id. at 86). In approximately March or April 2001, Joan
Cadmucker, an employee of Harris Publications, approached
plaintiff and stated that she had heard Page say that a
"Blackberry pager should be called a `Whiteberry' pager because
it uses proper English." (Green Dep. at 82, 88, 248). Plaintiff
does not know when Page made the statement. (Id. at 88).
In May 2001, plaintiff learned that the position of assistant
to Donald Morris, creative director of XXL, had become available.*fn5 (Green Aff. at 1). Plaintiff interviewed for
and was offered the position by Morris. (Morris Dep. at 26).
Shortly thereafter, however, Morris withdrew the job offer,
informing plaintiff that when Morris told Page he had hired
plaintiff, Page told Morris, "no, just hire a white girl."
(Morris Dep. at 26). Morris then hired a Caucasian female to fill
the position. (Id. at 155-156).
In approximately July or August 2001, plaintiff found a picture
of Dennis Rodman on his desk that had been altered to display
exaggerated facial features. (Id. at 83, 89).
Sometime between August and September 2001, plaintiff was
offered a position in advertising sales.*fn6 (Green Aff. at
34). Plaintiff was told by a co-worker named Chris Mark that "a
rumor around the office" was that "they said [the position] was a
token job for a token nigger." (Green Dep. at 78). In November 2001, Morris was discharged from Harris
Publications.*fn7 (Green Aff. at 3). After Morris's
discharge, plaintiff was told by "a girl from Braids [magazine]"
that Harris asked certain African-American employees to "write [a
statement] that everything was okay to work [at Harris
Publications]." (Green Dep. at 212-13). Plaintiff was not asked
to write and sign such a statement. (Green Aff. at 3; Green Dep.
at 216 (where plaintiff testified as follows: "[Cadmucker] asked
me did they ask you to write something about the environment,
that the working environment here was okay. I went no. She was
like yes, they are making some selected people. I was like they
didn't ask me.")
Further, after plaintiff was offered the position, "they" began
to "harass [him] to take the position in advertising by yelling
at [him], standing over [him,] and monitoring [him] in a
degrading manner." (Green Aff. at 3).
After being offered the advertising sales position, plaintiff
was told by Greg DiBenedetto, the advertising director,*fn8
"we'll move you into the other office so we can get you out of
the ghetto." (Green Aff. at 3). Plaintiff testified at his deposition that he was uncertain as to what DiBenedetto
meant by the remark:
Q: Did you ever hear [DiBenedetto] use any
inappropriate or offensive language?
A: The only time that I heard [DiBenedetto] at what
he said was defending me was going to get you out of
Q: Your testimony was that you didn't know what he
meant [by] that?
A: Yes, I didn't know if that was because I worked in
Harlem or the broken ceilings.
Q: You didn't work in the area with the broken
A: Yes, they called it the ghetto. I don't know if he
is saying that because of the area that I worked or
because I lived in Harlem.
(Green Dep. at 93; see also id. at 38 (where plaintiff
stated that DiBenedetto "came into the office and said we are
going to get you out of the ghetto because I was living in Harlem
or towards the middle to the back of the office where the whole
construction of the office is like hanging down wires and stuff
from the ceiling")).
3. Plaintiff's Departure from Harris Publications
Plaintiff's last day of work was January 8, 2002. (Green Dep.
at 4; Rheingold Aff. ¶¶ 10, 11; Sherman Aff. Ex. G). Plaintiff
had a dentist appointment in the morning and did not arrive at
work until noon. (Green Dep. at 93). The dentist apparently
called Jubran that morning to inform him that plaintiff was going
to be late for work. (Id. 94-95). When plaintiff arrived at
work, DiBenedetto was waiting for plaintiff at his work station. (Rheingold Aff. ¶ 1; Green Dep. at 95).
According to plaintiff, the following then ensued:
I came in, there is [DiBenedetto] waiting at my cube,
where have you been, where have you been, you know,
. . . [Jonathan] Rheingold [an associate publisher of
Revolver, King, and XXL magazines and retail sales
manager for GuitarWorld magazine] wants me to talk to
you about this position [the advertising position
that had been offered to plaintiff]. You know. I'm
like I have been at the dentist. Did you talk to
[Jubran], you know that my dentist called [Jubran]
and left it on his machine. We went into
[DiBenedetto's or Rheingold's office].
. . .
[T]hey are like saying you got to be on time more. I
said I went to the dentist. He said that well, this
position is it's long hours, you have to be here
earlier. [DiBenedetto] was totally cool like we want
you to take this position, you know. Rheingold
started like I don't think this guy wants this
position, what is this guy, pretty much started
yelling and cursing at me and [DiBenedetto] was like
no, no, no, that is cool."
(Green Dep. at 95-96). Rheingold then received a phone call, at
which Lime plaintiff went to his work area, packed his belongings
and left. (Id. at 96).
On February 19, plaintiff filed a charge against defendants
with the EEOC. (EEOC Determination Letter at 3). As stated in its
determination letter, the EEOC found that (1) Harris Publications
"subjected Black employees to a racially hostile environment";
(2) plaintiff was "denied the position of assistant art director
based on his race and sex"; (3) plaintiff was "constructively discharged due to his race based upon the
discriminatory denial of the promotion he sought and the
continuous racially hostile environment that he was forced to
endure until his departure"; and (4) there is "reasonable cause
to believe that [plaintiff] was discriminated against in
violation of Title VII." (Id. at 2-3).
With respect to the finding of a racially hostile work
environment, the EEOC determined that "[t]he issue of whether
Black employees were subjected to a racially hostile environment
by [Harris Publications] is discussed in detail in the [l]etter
of [d]etermination issued pursuant to  Morris's charge (Charge
No. 160-A2-00349), and will not receive further addressed [sic]
here." (Id. at 1). The parties have not submitted Morris's EEOC
determination letter for the Court's consideration.
On September 26, 2002, the EEOC issued plaintiff a Right to Sue
letter. (Compl. ¶ 7).
Plaintiff filed the instant suit on December 13, 2002, alleging
violations of Title VII, 42 U.S.C. § 2000e et seq., as
amended ("Title VII"); the Civil Rights Act of 1991,
42 U.S.C. 1981(a) et seq. ("Section 1981"); the New York State Human
Rights Law, New York Executive Law § 290 et seq.; and the New
York City Human Rights Law, New York Administrative Code § 8-107.
On August 15, 2003, the Court held a conference at which
plaintiff agreed to withdraw any and all claims of discrimination
based upon his alleged Native-American national origin, and any
and all claims under Title VII against Harris and Page in their
The parties engaged in discovery and the instant motion for
summary judgment followed. For the reasons set forth below,
defendants' motion is denied with respect to plaintiff's
discriminatory failure to promote claim and granted with respect
to all other claims.
A. Summary Judgment Standard
Summary judgment will be granted when "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R. Civ. P.
56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 585-87 (1986). Accordingly, the Court's task is not
to "weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Summary judgment is inappropriate if, resolving all ambiguities
and drawing all inferences against the moving party, there exists
a dispute about a material fact "such that a reasonable jury
could return a verdict for the nonmoving party." Id. at 248-49
(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970));
accord Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116
(2d Cir. 1991).
To defeat a motion for summary judgment, however, the nonmoving
party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec.
Indus., 475 U.S. at 586. There is no issue for trial unless
there exists sufficient evidence in the record favoring the party
opposing summary judgment to support a jury verdict in that
party's favor. Anderson, 477 U.S. at 249-50. To that end, any
"[a]ffidavits submitted in support of or in opposition to a
summary judgment motion must `be made on personal knowledge,
shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to
testify to the matters stated therein.'" Patterson v. County of
Oneida, N.Y., No. 03-7535, 2004 U.S. App. LEXIS 14615, at *25
(2d Cir. July 15, 2004) (quoting Fed.R. Civ. P. 56(e)). The
requirement set forth in Rule 56 that the affiant have personal
knowledge and be competent to testify to the matters asserted in
the affidavit "also means that an affidavit's hearsay assertion
that would not be admissible at trial if testified to by ...