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GREEN v. HARRIS PUBLICATIONS

August 11, 2004.

BOBBY LEEPIEI GREEN, Plaintiff,
v.
HARRIS PUBLICATIONS, INC., STANLEY HARRIS, and DENNIS PAGE, Defendants.



The opinion of the court was delivered by: DENNY CHIN, District Judge

OPINION

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 the ghetto.
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 ceilings?
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 individual capacities.

  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.

  DISCUSSION

  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 ...


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