United States District Court, S.D. New York
August 11, 2004.
BOBBY LEEPIEI GREEN, Plaintiff,
HARRIS PUBLICATIONS, INC., STANLEY HARRIS, and DENNIS PAGE, Defendants.
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
A. The Facts
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).
B. Procedural History
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).
C. The Instant Action
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 the
affiant is insufficient to create a genuine issue for trial."
Id. at *26; see also H. Sand & Co. v. Airtemp Corp.,
934 F.2d 450, 454-55 (2d Cir. 1991) (hearsay assertion that would not
be admissible if testified to at trial is not competent material
for a Rule 56 affidavit).
I consider in turn plaintiff's claims for (1) failure to
promote, (2) hostile work environment, (3) constructive
discharge, and (4) intentional infliction of emotional distress. 1. Failure to Promote Claim
a. Applicable Law
The "ultimate issue" in any employment discrimination case is
whether the plaintiff has met his or her burden of proving that
the adverse employment decision was motivated at least in part by
an "impermissible reason," i.e., that there was discriminatory
intent. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 146 (2000); Fields v. N.Y. State Office of Mental
Retardation & Developmental Disabilities, 115 F.3d 116, 119 (2d
Cir. 1997). Cases brought under Title VII are analyzed pursuant
to the three-step test set forth in McDonnell Douglas and
refined in later cases. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506; Stern v. Trustees of Columbia Univ.,
131 F.3d 305, 311-12 (2d Cir. 1997).
With respect to a discriminatory failure to hire or promote
claim, a plaintiff must first establish a prima facie case of
unlawful discrimination by showing that (1) he is a member of a
protected category, (2) he applied for an available position, (3)
he was qualified for the position, and (4) he was rejected under
circumstances that give rise to an inference of discrimination.
Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000);
De La Cruz v. N.Y. City Human Resources Admin. Dep't of Soc.
Servs., 82 F.3d 16, 20 (2d Cir. 1996). "An inference of
discrimination may arise if the position remains open and the
employer continues to seek applicants of the plaintiff's qualifications  or if the position was filled by
someone not a member of plaintiff's protected class." Gomez v.
Pellicone, 986 F. Supp. 220, 228 (S.D.N.Y. 1997) (citing
McDonnell Douglas, 411 U.S. at 802; De La Cruz,
82 F.3d at 20).
Second, if the plaintiff establishes a prima facie case, a
rebuttable presumption of discrimination arises, and the burden
then shifts to the defendant to "articulate a legitimate, clear,
specific and nondiscriminatory reason" for the employment
decision. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.
1995); see also Reeves, 530 U.S. at 143.
Third, if the employer articulates a nondiscriminatory reason
for its actions, the presumption of discrimination is rebutted
and it "simply drops out of the picture." St. Mary's Honor
Ctr., 509 U.S. at 511 (citation omitted). The burden then shifts
back to the plaintiff to show, without the benefit of any
presumptions, that more likely than not the employer's decision
was motivated, at least in part, by a discriminatory reason.
See id. at 515-16; Lanier v. I.B.M. Corp.,
319 F. Supp. 2d 374 (S.D.N.Y. 2004).
To meet this burden, the plaintiff may rely on evidence
presented to establish his prima facie case as well as
additional evidence. It is not sufficient, however, for a
plaintiff merely to show that he satisfies "McDonnell Douglas's
minimal requirements of a prima facie case" and to put
forward "evidence from which a factfinder could find that the
employer's explanation . . . was false." James v. N.Y. Racing
Ass'n, 233 F.3d 149, 153 (2d Cir. 2000). Instead, the key is whether there
is sufficient evidence in the record from which a reasonable
trier of fact could find in favor of plaintiff on the ultimate
issue, that is, whether the record contains sufficient evidence
to support an inference of discrimination on the basis of race or
gender or some other impermissible factor. See id. at 157;
Connell v. Consolidated Edison Co. of N.Y., Inc.,
109 F. Supp. 2d 202, 207-08 (S.D.N.Y. 2000).
As the Second Circuit observed in James, "the way to tell
whether a plaintiff's case is sufficient to sustain a verdict is
to analyze the particular evidence to determine whether it
reasonably supports an inference of the facts plaintiff must
prove particularly discrimination." 233 F.3d at 157; see
Lapsley v. Columbia Univ., 999 F. Supp. 506, 513-16 (S.D.N.Y.
1998) (advocating elimination of McDonnell Douglas test in
favor of simplified approach focusing on ultimate issue of
whether sufficient evidence exists to permit jury to find
discrimination); see also Norton v. Sam's Club,
145 F.3d 114, 118 (2d Cir. 1998) ("The thick accretion of cases
interpreting this burden-shifting framework should not obscure
the simple principle that lies at the core of anti-discrimination
cases. In these, as in most other cases, the plaintiff has the
ultimate burden of persuasion."). b. Analysis*fn9
Plaintiff claims that defendants discriminated against him
based upon his race and sex by denying him the assistant position
with XXL. (Compl. ¶¶ 28-30). Defendants argue that summary
judgment should be granted in their favor because, inter alia,
plaintiff cannot make out a prima facie case because he (1)
was not qualified for the position with Morris and (2) cannot
establish that he was denied the position under circumstance that
give rise to an inference of discrimination. (Defs.' Mem. at
Plaintiff argues that summary judgment should be denied because
(1) plaintiff was qualified for the job, (2) he was illegally
denied the job based upon his race and sex, and (3) defendants'
reason for denying him the position is pretextual. (Pl.'s Opp. at
10-21). Because a reasonable juror could conclude that defendants
discriminated against plaintiff in failing to hire him for the
assistant position, defendants' motion for summary judgment with
respect to this claim is denied.
At the outset, I assume that plaintiff has made out the prima
facie case required by McDonnell Douglas indeed, Morris
offered him the position and thus a jury could find that plaintiff was qualified for the position. (Morris Dep. at 26).
Defendants have articulated a legitimate, nondiscriminatory
reason for plaintiff's termination, contending that "Rheingold
denied the request to transfer [p]laintiff to a position on XXL
magazine an entirely different magazine and department than
that to which [p]laintiff had been assigned because he had been
grooming [p]laintiff for a position in [a]dvertising [s]ales and
neither [p]laintiff nor  Morris consulted him about
[p]laintiff's transfer." (Def.'s Mem. at 16 (citing Rheingold
Aff. ¶¶ 5, 6; Page Dep. at 130)). Hence, I proceed directly to
the ultimate question of whether plaintiff has presented
sufficient evidence from which a reasonable jury could find
discrimination. I do so by evaluating first plaintiff's evidence,
then defendants' evidence, and finally the record as a whole,
keeping in mind the elusiveness of proof of discrimination and
the principle that the jury is "entitled to view the evidence as
a whole." Stern, 131 F.3d at 314; see also Siano v.
Haber, 40 F. Supp. 2d 516, 520 (S.D.N.Y. 1999), aff'd mem.,
201 F.3d 432 (2d Cir. 1999).
i. Plaintiff's Evidence
Plaintiff offers, inter alia, the following evidence in
support of his discriminatory failure to promote claim:
First, Morris testified that plaintiff was denied the job
because Page told Morris "to just hire a white girl." (Morris
Dep. at 45, 52, 53-54). Morris then did, in fact, hire a
Caucasian female to fill the position. (Id. at 155-56). Second, when plaintiff approached DiBenedetto about an
available promotion director position, he was told by DiBenedetto
that "they had already hired a girl." (Compl. ¶ 42; Green Dep. at
Third, plaintiff points to several purportedly discriminatory
comments. On at least two occasions plaintiff overheard Page use
the word "nigger": once while Page was on the telephone in his
office, and once while Page was in the mailroom and referred to a
mailroom employee of Hispanic origin as "my nigger." (Green Dep.
at 81, 84, 86). Plaintiff was told by co-workers that Page made
the following two discriminatory remarks: (1) the women who
worked for Honey magazine were "uncontrollable blacks" and (2) a
"Blackberry pager should be called a `Whiteberry' pager because
it uses proper English." (Id. at 81-82, 87-88, 248). After
being denied the assistant position, plaintiff found on his desk
a picture of Rodman that had been altered to display exaggerated
facial features. (Id. at 83, 89).
Fourth, the EEOC determined that (1) defendants failed to
promote plaintiff based upon his race and sex, (2) defendants
created a hostile work environment, and (3) plaintiff was
constructively discharged from Harris Publications. (EEOC
determination letter at 3).
ii. Defendant's Evidence
Defendants offer, inter alia, the following evidence in
support of their motion for summary judgment: First, Rheingold denied the request to transfer plaintiff to
XXL because he had been grooming plaintiff for a position in
advertising sales, and neither plaintiff nor Morris consulted him
about plaintiff's transfer. (Rheingold Aff. ¶¶ 5, 6; Page Dep. at
Second, Morris did not have the unilateral authority to
transfer employees between magazines without approval. (Morris
Dep. at 66, 85-86; Page Dep. at 42, 150).
Third, none of the discriminatory comments, if made, were
directed at plaintiff.
Fourth, plaintiff has no idea when, if ever, the remarks
regarding the Honey magazine women and the Blackberry pagers were
made. (Green Dep. at 82, 87-88, 248).
Fifth, with respect to the altered Rodman picture, defendants'
point to Morris's testimony that (1) the picture was created
sometime in 1997 over three years prior to plaintiff's
employment by Harris Publications by an individual who was not
employed by the defendant, and (2) Morris retained a copy of the
picture to show to various employees of Harris Publications.
(Morris Dep. at 239-42; Morris Dep. at 13, 141-43, 153-54,
iii. The Record As a Whole
Considering the evidence as a whole, and resolving all
conflicts in the evidence and drawing all reasonable inferences
in plaintiffs' favor, I conclude that a reasonable jury could
find that plaintiff's race and sex were factors in his failure to obtain the assistant position. Plaintiff interviewed for and was
subsequently offered the position by Morris, who then withdrew
the offer, telling plaintiff that Page told him "no, just hire a
white girl." (Green Dep. at 26). Morris then hired a Caucasian
female to fill the position. (Morris Dep. at 155-56). On these
facts alone a reasonable jury could find that plaintiff was
discriminated against on the basis of his sex and race by
defendants' alleged preference for "a white girl" for the
assistant position. Hence, even assuming that some or all of the
alleged discriminatory comments and the EEOC determination are
inadmissible, as defendants contend, their motion for summary
judgment is denied with respect to this claim.
I note that in addition to their arguments with respect to the
assistant position, defendants argue that plaintiff has failed to
present a prima facie case for failure to promote with
respect to the promotions director position. (Defs.' Mem. at 10;
see also Compl. ¶ 42 (stating that when plaintiff requested a
promotion director position, he was told by DiBenedetto that
"they had already hired a girl")). It appears, however, that
plaintiff is not arguing a claim for discriminatory failure to
promote with respect to this position. Rather, plaintiff is using
the fact that the position was filled by a female as evidence of
the "discriminatory hiring and promotion policy of the
defendants." (Compl. ¶ 42). In any event, as plaintiff only
inquired about the position after it was filled, he cannot
present a prima facie case for defendants' discriminatory
failure to promote him to that position. See Legrand v. N.Y. Rest.
School/Education Mgmt Corp., 02 Civ. 2249, 2004 U.S. Dist. LEXIS
12893, at *18-19 (S.D.N.Y. July 12, 2004). Thus, to the extent
that plaintiff was asserting such a claim, summary judgment is
granted in favor of defendants.
2. Hostile Work Environment Claim
a. Applicable Law
To prevail on a hostile work environment claim under Title VII,
"a plaintiff must first show that the harassment was sufficiently
severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment." Feingold
v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (internal
quotations and citations omitted); see also Cruz v. Coach
Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (to defeat a
summary judgment motion on a claim of racially hostile work
environment, "a plaintiff must produce evidence that the
workplace was permeated with discriminatory intimidation,
ridicule, and insult, that was sufficiently severe or pervasive
to alter the conditions of the victim's employment") (internal
quotation marks omitted).
The misconduct shown must be severe or pervasive enough to
create an objectively hostile or abusive work environment, and
the victim must also subjectively perceive the environment to be
abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
Additionally, the plaintiff must demonstrate that a specific
basis exists for imputing the conduct that created the hostile environment to the employer. Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 715 (2d Cir. 1996).
As the Second Circuit held in Patterson v. County of Oneida,
No. 03-7353, 2004 U.S. App. LEXIS 14615 (2d Cir. July 15, 2004):
The matter of whether the conduct alleged was so
"severe or pervasive" as to create "an objectively
hostile or abusive work environment," is to be
decided based on the totality of the circumstances,
in light of such factors as 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."
Id. at *50-51 (quoting Harris, 510 U.S. at 21, 23). Further,
"where reasonable jurors could disagree as to whether alleged
incidents of racial insensitivity or harassment would have
adversely altered the working conditions of a reasonable
employee, the issue of whether a hostile work environment existed
may not properly be decided as a matter of law." Id. at *51.
Plaintiff alleges that defendants subjected him to "a blatantly
hostile work environment for black persons." (Compl. ¶ 53).
Defendants argue that summary judgment should be granted in their
favor with respect to this claim because, inter alia,
plaintiff "cannot point to a single racially hostile or abusive comment or incident directed toward him during the thirteen
months that he worked for Harris Publications." (Defs.' Mem. at
6). The only argument plaintiff makes with respect to his hostile
work environment claim is that because the EEOC found that
"defendants subjected African American employees to a racially
hostile environment," "questions of fact are presented for a jury
to decide." (Pl.'s Opp. at 27). For the reasons set forth below,
no reasonable juror could conclude that plaintiff's work
environment was "`permeated with discriminatory intimidation,
ridicule and insult'" that was so severe or pervasive as to alter
the conditions of his employment. Torres, 116 F.3d at 630-31
(quoting Harris, 510 U.S. at 21).
In considering plaintiff's claim, I first address the extent
upon which I rely on plaintiff's EEOC determination letter and
then proceed to the merits of the claim.
i. EEOC Determination Letter
The consideration, if any, to be given to EEOC findings is
within the sound discretion of the trial judge. Paolitto v. John
Brown E.&C., 151 F.3d 60, 65 (2d Cir. 1998) (establishing Second
Circuit's rule that consideration to be given agency's
determination is within the trial judge's discretion, depending
on its quality and factual detail); see also Parrish v.
Sollecito, 280 F. Supp. 2d 145, 166-67 (S.D.N.Y. 2003) ("the
EEOC charge . . . should be excluded because the documents
relating to the EEOC investigation and findings . . . contain
hearsay statements not necessarily made under reliable
circumstances"); Sadki v. SUNY College at Brockport, 310 F. Supp. 2d 506, 517
(W.D.N.Y. 2004) (in declining to exclude agency decision from
evidence on a summary judgment motion, the court noted that, as
the decision "sets forth a number of relevant facts and evidence,
and explains how that evidence supports an inference of
discrimination," "[t]his is not a case where the agency's
decision is conclusory and completely devoid of analysis")
(internal quotations and citations omitted).
Here, plaintiff's own sworn statements either differ from or
contradict many of the EEOC's specific findings with respect to
plaintiff's hostile work environment claim. For example, the
determination states that plaintiff was asked and refused to sign
a statement that he had not been subjected to racial harassment
on the job (EEOC determination letter at 2), while plaintiff
states in his affidavit and during his deposition that he was not
asked to sign such a statement. (Green Aff at 3; Green Dep. at
Further, according to the EEOC determination plaintiff began
training for the advertising sales position but "objected to a
transition period during which he was expected to learn and
perform the new position while continuing to perform his old
one." (EEOC determination letter at 2). Neither plaintiff's
affidavit nor his deposition testimony makes mention of such a
situation, however, and in fact, according to plaintiff's
deposition testimony, plaintiff never accepted the job offer.
(Green Dep. at 74, 227-28). Consequently, I exercise discretion to exclude the EEOC's
specific findings with respect to plaintiff's hostile work
environment claim. As to the EEOC's final conclusion that
plaintiff was subjected to a hostile work environment, I assume
for purposes of this motion that it is admissible.
ii. The Merits
At the outset, I assume, as I must, that the subjective element
of the hostile work environment claim has been satisfied, that
is, plaintiff perceived his work environment to be hostile and
abusive.*fn11 (Green Aff. at 3 (where plaintiff has alleges
that the "racial slurs and attention to [his] race" that he was
experiencing while working for Harris Publications "was making
[him] sicker and sicker")); see also Powell v. Consolidated
Edison Co. of N.Y., Inc., 97 Civ. 2439, 2001 U.S. Dist. LEXIS
2706, at *46 (S.D.N.Y. March 13, 2001) ("there can be no dispute
that the subjective requirement has been met, since [plaintiff]
has clearly stated in sworn testimony that he perceived his
working environment to be racially hostile"). Plaintiff has,
however, failed to put forth sufficient evidence with respect to the objective element. For the reasons set forth below, I
conclude that no reasonable juror could conclude that the
discriminatory conduct was so severe or pervasive as to alter the
conditions of plaintiff's employment.
First, plaintiff may not rely on the "token nigger" rumor as
support for his claim. Plaintiff alleges that Mark told plaintiff
that the rumor existed in the office. (Green Dep. at 78). Rumors
are not evidence. Indeed, plaintiff cannot identify the
individual who made the statement or when the statement was made.
See Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,
183 F.3d 155, 160 (2d Cir. 1999) (summary judgment was granted on claim
where plaintiff's "statement as to what he `was told' was hearsay
that would not be admissible at trial"). Hence, the "token
nigger" rumor is inadmissible.
Second, comments that plaintiff learned of second-hand, such as
the "uncontrollable blacks" and "Blackberry pager" remarks, add
little to plaintiff's hostile environment claim. As to the
"uncontrollable blacks" remark (see Green Dep. at 81, 87 (where
plaintiff testifies that Jubran told plaintiff that Page made the
comment to Jubran)), it was not directed at plaintiff, nor does
he allege that it was said in the presence of any African
American employees. Moreover, plaintiff does not know when the
remark was made. Similarly, the "Blackberry pager" remark (see
id. at 82, 88, 248 (where plaintiff testifies that Cadmucker
told plaintiff that she heard Page make the remark)), was not
directed at plaintiff, nor does he allege that it was said in the presence of any African American employees. Plaintiff
also does not know when this remark was made. Consequently, under
the present circumstances, evidence of the retelling of these
alleged discriminatory statements that were made at some
unspecified point in time, perhaps not even during the relevant
period of employment, is not evidence of the existence of a
hostile work environment.
Third, the "my nigger" and "oh those niggers" remarks (see
id. at 81, 84-85, 86) are stray remarks at best. Danzer v.
Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir. 1998) ("Stray
remarks, even if made by a decision maker, do not constitute
sufficient evidence [to support] a case of employment
discrimination."). They were not directed at plaintiff, nor can
he provide any context surrounding the circumstances under which
the comments were made. Given the employment setting of a
publishing company that produces magazines geared towards, inter
alia, the hip-hop culture, without more, no reasonable juror
could conclude that the words were said in a discriminatory
Fourth, plaintiff attributes five of the complained of
discriminatory incidents (the "just hire a white girl,"
"uncontrollable blacks," "Blackberry pager," "my nigger," and
"oh, those niggers" comments) to Page, an individual with whom he
had very little contact throughout his employment with Harris
Publications. Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d
Cir. 1997) ("whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and
severity of those slurs, considered cumulatively in order to
obtain a realistic view of the work environment") (internal
quotation marks and citations omitted). Specifically, aside from
his initial interview, during plaintiff's thirteen months of
employment he could only recall the following three conversations
Q: Other then your interview, did you ever speak with
A. I can't remember, I can't remember if there was
small talk. I can't remember.
. . .
Q: Other than during the interview, you can't recall
any other conversation that you had with  Page?
. . .
Q: Tell me about your conversations with  Page.
. . .
A: [Page] walked past where I was temporary [sic]
sitting and said how are you doing.
Q: You said?
Q: That was the extent of the conversation?
Q: You testified that you spoke with  Page at the
A: Yes. Q: Was that the Christmas party 2000 or 2001?
A: The Christmas party 2000. . . .
Q: Do you remember what you and  Page spoke about?
A: I can't remember.
Q: Then you testified that you once went into his
office to give him a CD?
A: Yes, to drop off a CD in his office.
Q: Did you speak when you dropped off the CD?
A: I told him I was putting a CD. He wanted the CD
and I told him I was putting it in his office.
Q: Did you have any conversation other than that?
Q: Is that the only time?
A: Oh, as I recall he walked past me and said thanks.
(Green Dep. at 64-67, 241). Significantly, with respect to Harris
and individuals with whom plaintiff did interact, specifically,
Jubran and Rheingold, plaintiff testified that he did not feel
discriminated against by such individuals. (Green Dep. at 68
(where plaintiff was asked "Do you believe [Jubran] discriminated
against you?" plaintiff responded, "I have no reason to believe
that"), 99-100 (where plaintiff was asked "Do you think
[Rheingold] was discriminating against you?" plaintiff responded,
"No, he has been cool"), 128 (where plaintiff was asked "Do you believe [Harris] discriminated against you?"
plaintiff responded, "No")).
Fifth, the two incidents that were directed at plaintiff, the
"ghetto" remark by DiBenedetto and the picture of Rodman (see
Green Dep. 38, 83, 89, 93), are not sufficiently severe or
pervasive to enable plaintiff to overcome defendants' motion for
summary judgment. See Alfano v. Costello, 294 F.3d 365, 374
(2d Cir. 2002) ("As a general rule, incidents must be more than
`episodic; they must be sufficiently continuous and concerted in
order to be deemed pervasive.'") (quoting Perry v. Ethan Allen,
Inc., 115 F.3d 143, 149 (2d Cir. 1997)); Quinn v. Green Tree
Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) ("As a general
matter, isolated remarks or occasional episodes will not merit
relief under Title VII; . . . to be actionable, the incidents of
harassment must occur in concert or with a regularity that can
reasonably be termed pervasive."), abrogated on other grounds
by, AMTRAK v. Morgan, 536 U.S. 101 (2002).
In sum, given the thirteen-month time period involved, the
conduct alleged by plaintiff, while certainly offensive and
unquestionably inappropriate, was not sufficient to create a
hostile work environment. After considering all of the
circumstances discussed above in combination with plaintiff's
failure to promote claim, such conduct is insufficiently severe
or pervasive as a matter of law to have "altered the conditions
of [plaintiff's] employment and create[d] an abusive working
environment." Feingold, 366 F.3d at 149 (internal quotations
and citations omitted). Consequently, as no reasonable juror could
conclude that plaintiff was subjected to a hostile work
environment, summary judgment is granted in favor of defendants
with respect to this claim.
Finally, the EEOC determination, even assuming it is admissible
to the extent discussed above, does not dictate a different
result. The bare conclusion, unsupported by any specific,
concrete, admissible evidence, is insufficient to generate a
genuine issue of material fact for trial.
3. Constructive Discharge Claim
a. Applicable Law
In a recent decision, the Supreme Court held that "a
hostile-environment constructive discharge claim entails
something more [than a showing of a hostile work environment]: A
plaintiff who advances such a compound claim must show working
conditions so intolerable that a reasonable person would have
felt compelled to resign." Pennsylvania State Police v. Suders,
124 S. Ct. 2342, 2354 (2004); see also Kirsch v. Fleet
Street, Ltd., 148 F.3d 149, 161 (2d Cir. 1998) (an employee is
constructively discharged when an employer "deliberately [makes]
his working conditions so intolerable that he [is] forced into an
Plaintiff alleges that the racial slurs and harassment the he
endured at Harris Publications "altered the conditions of his employment to such an unbearable degree, that [he] left the
job." (Compl. ¶ 65). Defendants argue that summary judgment
should be granted in their favor with respect to plaintiff's
constructive discharge claim because plaintiff "abandoned his job
because he did not want the responsibilities of the [a]dvertising
[s]ales position," not because his working conditions were
intolerable. (Defs.' Mem. at 21).
Plaintiff's only argument with respect to his constructive
discharge claim is that because the EEOC determined that
plaintiff "was constructively discharged due to his race based
upon the discriminatory denial of the promotion and the
continuous racially hostile environment that he was forced to
endure until his departure," "questions of fact are presented for
a jury to decide." (Pl.'s Opp. at 27).
For the reasons stated in connection with plaintiff's hostile
work environment claim, no reasonable juror could conclude that
plaintiff was constructively discharged due to his race. See
Legrand, 2004 U.S. Dist. LEXIS 12893, at *13-14 ("The same
circumstance and facts that a court examines in reviewing a
plaintiff's hostile work environment claim are examined on a
plaintiff's constructive discharge claim."). Even assuming the
EEOC's conclusion that plaintiff was constructively discharged
because of his race is admissible, the EEOC determination is not
binding, and on the record before the Court, no reasonable jury
could find a constructive discharge. Accordingly, defendants'
motion for summary judgment with respect to this claim is
granted. 4. Intentional Infliction of Emotional Distress Claim
a. Applicable Law
To prevail on a claim for intentional infliction of emotional
distress under New York law, plaintiff must plead and prove the
following four elements: (1) extreme and outrageous conduct; (2)
intent to cause severe emotional distress; (3) a causal
relationship between the conduct and the resulting injury; and
(4) severe emotional distress. See Bender v. City of New
York, 78 F.3d 787, 790 (2d Cir. 1996); Howell v. N.Y. Post
Co., 596 N.Y.S.2d 350, 353 (1993).
In analyzing an intentional infliction of emotional distress
claim, courts look to the first element whether the conduct was
extreme or outrageous. Stuto v. Fleishman, 164 F.3d 820, 827
(2d Cir. 1999). Without "sufficiently outrageous" conduct, no
claim for intentional infliction of emotional distress can be
established. Howell, 596 N.Y.S.2d at 353 ("[T]he `requirements
of the rule are rigorous, and difficult to satisfy.'") (quoting
Prosser & Keeton on Torts § 12, at 60-61 (W. Page Keeton ed.,
5th ed. 1984))); see also Daniels v. Alvarado, 03 Civ.
5832, 2004 U.S. Dist. LEXIS 3893, at *16 (E.D.N.Y., March 12,
2004) ("Racial slurs on their own do not constitute conduct so
`extreme and outrageous' in nature as to sustain a claim for
intentional infliction of emotional distress."). b. Analysis
Plaintiff alleges that defendants' failure to promote plaintiff
based solely upon his race and sex "was extreme[,] outrageous and
intolerable in a civilized society." (Compl. ¶ 50). Plaintiff
further alleges that the environment of racial hostility at
Harris Publication caused plaintiff extreme emotional and
psychological distress. (Compl. ¶ 73). Defendants argue that
summary judgment should be granted in their favor with respect to
plaintiff's intentional infliction of emotional distress claim
because (1) to the extent that the claims involves incidents that
occurred prior to December 13, 2001, the claim is time-barred
under the governing one-year statute of limitations, and (2)
plaintiff fails to allege conduct that rises to the level of
extreme and outrageous. Plaintiff makes no argument with respect
to this claim.
Regardless of whether the alleged incidents comprising
plaintiff's claim are timely, the conduct simply does not rise to
the level of conduct that is "so outrageous in character, and so
extreme in degree as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a
civilized community." Murphy v. Am. Home Prods. Corp.,
461 N.Y.S.2d 232, 236 (1983); see also Petrosino v. Bell
Atlantic, 99 Civ. 4072, 2003 U.S. Dist. LEXIS 4616, at *34
(E.D.N.Y. March 20, 2003) ("New York sets a high threshold for
conduct that is "extreme and outrageous."); see also
Daniels, 2004 U.S. Dist. LEXIS 3893, at *17-18 (employer's
characterization of plaintiff employee as a "stupid nigger" is insufficient to sustain an
intentional infliction of emotional distress claim); Leibowitz
v. Bank Leumi Trust Co., 152 A.D.2d 169, 548 N.Y.S.2d 513 (2d
Dep't 1989) (use of the terms "Hebe" and "Kike" were not found to
be so extreme or outrageous as to meet the threshold requirement
for intentional infliction of emotional distress). Thus, as no
reasonable juror could conclude that plaintiff has established a
claim for intentional infliction of emotional distress, summary
judgment is granted in favor of the defendants with respect to
For the reasons set forth above, defendant's motion for summary
judgment is granted in part and denied in part. The parties shall
appear for a pretrial conference on August 20, 2004 at 3:00 p.m.