United States District Court, N.D. New York
October 1, 2004.
JAMES L. HARRIS, Plaintiff,
FRANZISKA RACKER CENTERS, INC. Defendant,
The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
AMENDED MEMORANDUM DECISION AND ORDER
James Harris ("plaintiff") was employed by Franziska Racker
Centers ("FRC") from October 25, 2000, and was dismissed from
employment there on December 18, 2000. On or about June 29, 2001,
plaintiff filed discrimination charges with the Equal Employment
Opportunity Commission ("EEOC"). The charges alleged
discrimination on the basis of race, sexual harassment, and
retaliation for making complaints. No claim of disability
discrimination under the Americans with Disabilities Act was
asserted. The EEOC investigated plaintiff's charges and determined that there were no statutory violations by
Plaintiff received a Right to Sue letter from the EEOC, and
filed this lawsuit on February 12, 2002, claiming violations of
42 U.S.C. § 2000e racial and sexual discrimination,
42 U.S.C. 12 disability discrimination, and New York State Executive Law
§ 290, et seq. The complaint asserts that (1) he was subjected
to a hostile work environment based on race from his co-employee,
Claud Brown, who often told "nigger jokes" which he, an
African-American, found offensive; (2) a supervisor, Jessica
Simons, made sexual advances, demanded sexual favors as a
condition of his employment, and sent him pornographic e-mails
and letters and telephoned him in the middle of the night; and
(3) that he was discriminated against because of disabling
injuries sustained at work.
Currently before the court are defendant's two motions for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure, one to dismiss the complaint, the other for
judgment on defendant's counterclaim. Plaintiff has entered
opposition to each motion.
Rule 56 of the Federal Rules of Civil Procedure permits summary
judgment where the evidence demonstrates that "there is no
genuine issue of any material fact and the moving party is
entitled to judgment as a matter of law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509,
91 L.Ed.2d 202 (1986). Summary judgment is properly regarded as an
integral part of the Federal Rules as a whole, which are designed
"to secure the just, speedy and inexpensive determination of
every action." Celotex Corp. v. Catreet, 477 U.S. 317, 326, 106 S. Ct. 2548, 2554, 91 Ed.2d 265 (1991) (quoting Federal Rule of
Civil Procedure 1). In determining whether there is a genuine
issue of material fact a court must resolve all ambiguities and
draw inferences against the moving party. United States v.
Diebold, 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed.2d 176
(1962) (per curiam). An issue of credibility is insufficient to
preclude the granting of summary judgment. Neither side can rely
on conclusory allegations or statements in affidavits. The
disputed issue of fact must be supported by evidence that would
allow a "rational trier of fact to find for the non-moving
party." Mashusita Electric Industries v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed.2d 538 (1986).
Unsupported allegations will not suffice to create a triable
issue of fact. Goenga v. March of Dimes Birth Defects
Foundation, 51 F.3d 14, 18 (2d Cir. 1995). Nor will factual
disputes that are irrelevant to the disposition of the suit under
governing law preclude the entry of summary judgment. Anderson,
477 U.S. at 247, 106 S. Ct. at 2509.
Summary judgment is appropriate in discrimination cases for
"the salutary purposes of summary judgment avoiding protracted,
expensive and harassing trials apply no less to discrimination
cases than to commercial or other areas of litigation. Meiri v.
Dacon, 759 F.2d 989, 998 (2d Cir. 1985). The "impression that
summary judgment is unavailable in discrimination cases is
unsupportable." McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d
Cir. 1994). The Supreme Court has also reiterated that the trial
courts should not "treat discrimination differently from other
ultimate questions of fact." Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 2109,
147 L.Ed.2d 105 (2000) (quoting St. Mary's Honor Center v. Hicks,
509 U.S. 502, 524, 113 S. Ct. 2742, 125 L. Ed.2d 407 (1993)).
Determination of employment discrimination claims made pursuant
to administrative proceedings or contractual grievance processes are not given any preclusive
effect under doctrines like res judicata in future suits to
redress grievances under Title VII. Hewitt v. Alcan Aluminum
Corporation, 185 F. Supp.2d 183, 187 (N.D.N.Y. 2001). The
remedies in an administrative action or under a grievance
procedure are different than those available under Title VII,
and, in any event, the federal courts are intended as the final
arbiter of rights under Title VII, not administrative agencies or
tribunals. Bembry v. Darrow, 97 F. Supp.2d 281, 285 (N.D.N.Y.
Title VII Race Discrimination Claim:
FRC is a non-profit corporation licensed by the New York State
Health Department to provide services to people with
developmental disabilities and other handicapping conditions. FRC
operates several community residences for persons with
Plaintiff, a male Afro-American, was employed as a residence
counselor at the Evergreen residence in Dryden, NY. He usually
worked the 11:00 pm 9:00 am night shift and was responsible for
the day-to-day care of the occupants.
Plaintiff maintains that he was subjected to racial
discrimination in a hostile work environment based upon two
comments and one joke made by fellow employee, Claud Brown.
Plaintiff recalls that between November 10 and 13, 2000, Brown
said something about the "Ku Klux Klan" (Def. Ex. 4 plft's Dep.
p. 58, 61). On two other unspecified dates, Brown made "some joke
about a bus load of niggers going over a cliff." (Def.'s Ex. 4
plft's Dep. p. 61), and that a female co-worker liked "dark
meat." (Counter Statement ¶ 57). Plaintiff did not identify any
other specific remark or joke made by Brown or any other FRC
employee. (Def. Ex. 4 ptlf.'s Dep. p. 67). Plaintiff's
recollection of Brown's comments is vague; he could not recall the whole emphasis of the Ku Klux Klan comment, and states "it
was some reference about watching out for the Ku Klux Klan and
then he [Brown] laughed" (Def. Ex.4 ptlf.'s Dep. p. 58).
Plaintiff never told Brown that he found his jokes offensive, he
merely ignored him, and, in fact, found Brown's poor work
performance more bothersome than his racial jokes. (Def. Ex 4
ptlf.'s Dep. p. 68, 73).
On November 28, 2000, plaintiff met with Patricia Montanez, one
of his supervisors, and complained about Brown's poor work
performance and his racial comments. She suggested that plaintiff
make Brown aware that these comments make him feel uncomfortable,
and to discuss the matter further with Residence Coordinator at
Evergreen, Frank Leahy. (Montanez affd. p. 3). Plaintiff was
happy with her response to his concerns. (Def. Ex. e ptlf.'s
Dep. p. 84).
During November 2000, plaintiff also talked with Audrey
Griswold, the Assistant Residence Coordinator at the Evergreen
Residence. She reported to Frank Leahy, who had overall
responsibility for Evergreen. (Griswold affd. ¶ 1). Plaintiff
made her aware of Brown's racial comments (Id. at ¶ 13). He did
not complain of being harassed, intimidated or threatened by
Brown. (Id. at ¶¶ 18, 19). Griswold told plaintiff to advise
Brown that he was offended and he agreed to do so. (Id. at ¶ 14).
Plaintiff felt that Griswold was very receptive to his
problems.(Def. Ex. e pltf.'s Dep. pp. 71, 74).
After her meeting with Plaintiff, Griswold met with Brown and
told him that his racial remarks to plaintiff were inappropriate
and instructed him not to make any more such remarks to plaintiff
and to apologize to him. Brown indicated that he understood, and
would follow her instructions (Griswold affd. ¶ 16). After this
meeting with Brown, she heard nothing further about the matter.
She saw plaintiff regularly and discussed other matters with him,
but he never again complained about racial comments or make any other
accusations against Brown. (Id. ¶¶ 16, 17). She assumed that the
matter was resolved and saw no reason to bring it to Frank
Leahy's attention. (Id. ¶ 18).
To establish a hostile work environment claim, plaintiff must
allege that Claud Brown's conduct was sufficiently severe or
pervasive to alter the conditions of his employment and create an
abusive working environment. Harris v. Forklift Systems,
510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L. Ed.2d 295 (1993) (quoting
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67,
106 S.Ct. 2399, 2405, 91 L. Ed.2d 49 (1986)). The conduct must be
intimidating, hostile, or offensive, with discriminatory
intimidation, ridicule, and insult permeating the workplace.
Tomka v. Seiler Corp, 66 F.3d 1295, 1305 (2d Cir. 1995).
Considering all of the circumstances, a reasonable person would
have to find the environment hostile or abusive, and the victim
must have subjectively so perceived it. Harris v. Forklift
Systems, 510 U.S. 17, 21-23, 114 S.Ct. 367, 370-71,
126 L. Ed.2d 295 (1993), Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62, 69-71 (2d Cir. 2000). "Conduct that is `merely
offensive' and `not severe or pervasive enough to create an
objectively hostile or abusive work environment'" is insufficient
to establish a Title VII discrimination claim. Torres v.
Pisano, 116 F.3d 625, 631 (2d Cir.), cert. denied, 522 U.S. 997,
118 S.Ct. 563, 139 L. Ed.2d 404 (1997).
Comments and behavior, although boorish and inappropriate,
simply do not rise to the level of behavior necessary for a jury
reasonably to conclude that they were sufficiently severe or
pervasive to alter the condition of plaintiff's employment.
Isolated incidents of discriminatory comments or conduct is not
sufficient to establish a hostile work environment. Faragher v.
City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283,
141 L. Ed.2d 662 (1998) ("`simple teasing,' . . . offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
the `terms and conditions of employment.'"); Harris v. Forklift
Systems, Inc., 510 U.S. at 21, 114 S.Ct. at 370 ("`mere
utterance of an . . . epithet which engenders offensive feelings
in an employee,' . . . does not sufficiently affect the
conditions of employment to implicate Title VII"); Quinn v.
Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) ("As a
general matter, `isolated remarks or occasional episodes of
harassment will not merit relief under Title VII; in order to be
actionable, the incidents of harassment must occur in concert or
with a regularity that can reasonably be termed pervasive'.");
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("For
racist comments, slurs, and jokes to constitute a hostile work
environment, there must be `more than a few isolated incidents of
racial enmity,' . . . meaning that `[i]nstead of sporadic racial
slurs, there must be a steady barrage of opprobrious racial
comments. . . .'"); Snell v. Suffolk County, 782 F.2d 1094,
1103 (2d Cir. 1986) ("To establish a hostile atmosphere . . .
plaintiffs must prove more than a few isolated incidents of
Plaintiff's allegations do not establish hostile work
environment harassment. Although plaintiff may have found some of
Claud Brown's alleged comments objectionable, those comments were
sufficiently isolated and discrete that a trier of fact could not
reasonably conclude that they pervaded plaintiff. The workplace
plaintiff describes cannot, as a matter of law, be said to be
permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently pervasive to alter the conditions of his
employment and create an abusive working environment. Patterson
v. CBS, Inc., 2000WL 66337 at *8 (S.D.N.Y. May 22, 2000).
Additionally, after learning of Claud Brown's conduct,
plaintiff's employer, through Audrey Griswold, quickly took steps to ensure that it would not
be repeated. Plaintiff's problem was addressed immediately, it
was neither disregarded or left to languish. The employer used
reasonable care to promptly address and further prevent the
inappropriate conduct complained of by plaintiff, and incurred no
hostile work place liability as a result. Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742, 764, 118 S. Ct. 2257, 2270, 141
Ed.2d 633 (1998).
Title VII Sexual Harassment Claim:
In his unverified complaint, plaintiff contends that a fellow
employee, Jessica Simon, whom he thought was his supervisor,
subjected him to a hostile work environment through sexual
harassment. Simon's job title was, supervising residence
counselor, she was listed under Supervisory Staff on the
Evergreen telephone list, was a part of his orientation team and
signed the certification that he had completed the orientation
program, and had some oversight on a modest portion of his work.
Plaintiff's declaration that he thought Simon would fire him if
he refused her sexual advances is directly contradicted in pages
180, 181 of his Deposition testimony where he states that, to his
knowledge, Jessica Simon did not have the authority to fire or
hire people for FRC. Plaintiff alleges that he informed Frank
Leahy, Residence Coordinator at Evergreen, about the sexual
harassment, but was told that if he said anything more about it,
he would be fired. (Complaint ¶ 13).
42 U.S.C. S 2000e et seq. ("Title VII"), provides, in relevant
It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion,
sex, or national origin . . . 42 U.S.C. § 2000e-2(a). While any form of sexual harassment may be considered
undesirable, Title VII's scope is limited to "pervasive" or
"severe" harassment that alters the conditions of employment and
creates an abusive work environment. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed.2d 295 (1993).
A plaintiff must either demonstrate a single extraordinarily
severe incident, or a series of incidents that were sufficiently
"continuous and concerted to have altered the conditions of her
(his) working environment." Crux v. Coach Stores, Inc.,
202 F.3d 560, 570 (2d Cir. 2000).
In order to prevail on a claim that sexual harassment caused a
hostile work environment in violation of Title VII, a plaintiff
must establish two elements:
First, the plaintiff must show 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 and create an abusive work
Second, the plaintiff must show that "a specific basis exists
for imputing the conduct that created the hostile environment to
the employer." Howley v. Town of Stratford, 217 F.3d 141,
153-54 (2d Cir. 2000).
An employer is presumed absolutely liable if the victim's
supervisor perpetrated the harassment, though the employer may
interpose an affirmative defense to rebut that presumption.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765,
118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). When the alleged harasser is
a co-worker, however, the plaintiff must demonstrate that the
employer "`failed to provide a reasonable avenue for complaint or
if it knew, or in the exercise of reasonable care should have
known, about the harassment yet failed to take appropriate
remedial action.'" Howley, 217 F.3d at 154. Defendant disputes that Jessica Simon was plaintiff's
supervisor. The affidavits of Frank Leahy and Audrey Griswold,
Resident Coordinator and Assistant Resident at Evergreen
respectively, state that Jessica Simon was a co-worker with
plaintiff, she performed the same direct care work as that
performed by plaintiff and the other residence counselors, was an
hourly employee, making $9.50 per hour in 2000, she had no
authority to discipline employees or to hire, fire or promote
employees at FRC, and that her direct supervisor was Audrey
Griswold, the same person who supervised plaintiff. (Leahy affd.
at ¶¶ 19, 29); (Griswold affd. ¶¶ 21, 22).
There is a difference between a "supervisor" in the colloquial
sense and a "supervisor" under the rubric of Title VII. The
assignment of vicarious liability to the employer for the
action's of a supervisor is predicated on the assumption that an
alleged supervisor has authority to undertake or recommend
tangible employment decisions affecting the employee, or has
authority to direct the employee's daily work activities. Mack
v. Otis Elevagtor, 326 F.3d 116, 117 (2d Cir. 2003). While
Jessica Simon's job title, Evergreen telephone listing,
orientation training certifier and some oversight responsibility,
may indicated a modicum of supervisory authority, her position
was not endowed with the typical (and for Title VII purposes,
relevant) trappings of authority set forth in Mack, and there
is no evidence in the record to support plaintiff's assertion
that Jessica Simon was his supervisor at the Evergreen Residence.
To the contrary, the undisputed evidence shows that it was Audrey
Griswold, not Simon who supervised plaintiff.
Because Jessica Simon was not plaintiff's supervisor for Title
VII purposes, plaintiff can only hold FRC liable for her alleged
actions if FRC was negligent because it either provided no
reasonable avenue for complaint or knew of the harassment but did
nothing about it. Richardson v. New York State Department of Correctional Services,
180 F.3d at 426, 441 (2d Cir. 1999).
In the complaint plaintiff alleges that when he protested to
Frank Leahy about Jessica Simon's sexual advances, Leahy told him
that he new what was going on and, if plaintiff continued to
complain about it, he would be fired. (Complaint ¶ 14).
In his affidavit, Frank Leahy, explains, that shortly after
plaintiff began working at Evergreen, he was advised by another
staff member that Jessica Simon had visited Evergreen late at
night when she was not scheduled to work, and, that during the
visit, she and plaintiff spent considerable time on computer
activities unrelated to any employment duties. He then met with
Simon and plaintiff individually and explained that such visits
were unsuitable and were not to take place again.
Simon apologized saying that she was just helping him to "learn
the ropes," and did not realize it would be a problem. Plaintiff
reiterated Simon's statement, told Leahy that "nothing happened,"
and made no mention of any sexual activities between them during
the visit. Leahy later met privately with plaintiff and gave him
a chance to discuss Simon's night visits. Plaintiff made no
mention of any improprieties that took place during her visit,
and gave no indication that Simon had harassed him or undertook
any unfitting behavior.
During the term of his employment at Evergreen, Plaintiff never
complained to him concerning Simon engaging in offensive sexually
related conduct or verbal or written communications.
He did not threaten plaintiff with discharge if he reported
Simon's visit. He confronted plaintiff about it because
unauthorized night visits were unacceptable. At no time did
plaintiff even hint that Simon harassed him sexually or
otherwise. (Leahy affd. ¶ s 21-26). "The gravamen of any sexual harassment claim is that the
alleged sexual advances were unwelcome." Meritor Savings Bank,
477 U.S. 57, 68, 106 S. Ct. 2399, 3406, 91 L. Ed.2d 49 (1986).
Recognizing that coercion may take forms subtler than direct
physical attacks, the Supreme Court took care in Meritor to
articulate that the plaintiff alleging harassment need not
demonstrate that "her actual participation" was involuntary. It
suffices that she show "by her conduct . . . that the alleges
sexual advances were unwelcome." Id. "In determining whether
conduct was unwelcome, the nature of the sexual advances and the
context in which they occurred are to be viewed in light of the
totality of the circumstances at issue." Henson v. City of
Dundee, 682 F.2d 897, 903 (11th Cir. 1982), cert. denied,
529 U.S. 1068, 120 S.Ct. 1674, 146 L. Ed.2d 483 (2000). "Where a
plaintiff's action in the workplace shows that he was a willing
participant in the conduct at issue, courts are less likely to
find that the conduct was `unwelcome' or `hostile.'" Balletti v.
Sun-Sentinel Co., 909 F. Supp 1539, 1547 (S.D. Fla. 1995).
Plaintiff testified that Jessica Simon came to see him at work,
talked about sex and touched him, (Def. Ex. 4 Pltf.'s Dep. p.
115). He was shocked, but laughed it off (Id. at p. 119). They
"spoke a lot that night," but he said nothing to her in response
to this sexual activity. (Id. at pp. 119-120). He never
complained to her or gave her any indication at all that her
conduct was unwelcome. (Id. at p. 121). Plaintiff did not find
her conduct to be "offensive," instead he claimed merely that,
"[he] didn't know what to think of it." (Id. at p. 125) During
the same period, she invited him to meet here at Stewart Park.
Plaintiff did meet her there, and they engaged in consensual
sexual activity. (Id. at pp. 127, 128). Plaintiff admitted that
he consented to her having oral sex in her car at Steward Park. The e-mail plaintiff sent her shortly after she had visited him
at work also demonstrates that he was not the victim of unwelcome
advances, but willingly took part in their sexual relationship.
Plaintiff's e-mail stated that he was "worried about her," and
offered to help her by transporting "small stuff" in his truck.
He also asked her if she would be transferring to "Hook,"
(Another residence operated by FRC), and asked her to help him to
also get transferred to the Hook residence.
Audrey Griswold, was the Assistant Residence Coordinator at
Evergreen during the period that plaintiff worked there, and was
his immediate superior. Over plaintiff's employment period, she
observed that plaintiff and Jessica Simon were extremely friendly
to each other. It was apparent from the way they sat near each
other, laughed when they spoke together and showed other friendly
behaviors toward one another, that they were quite fond of each
other. It was certainly evident from her observations of their
interactions with each other that plaintiff liked Simon and that
her feelings were mutual.
Plaintiff never complained or even suggested to her that Simon
had engaged in any sexual harassing activity or other offensive
conduct of any nature whatsoever. If plaintiff had made a report
to her of deviant conduct by Simon or anyone else, it would have
been processed in accordance with FRC' Policy on Sexual
Harassment. (Griswold affd. ¶ s 26, 27).
Plaintiff never advised his immediate supervisor, Audrey
Griswold or Frank Leahy, the Residence Coordinator, about Simon's
sexual activities. (Griswold ¶ 27, Leahy ¶ 25). Nor did he use
FCR's sexual harassment procedure to have his alleged sexual
harassment investigated and remedied. During oral argument on
this motion, plaintiff's counsel claimed that plaintiff did not
know about the sexual harassment investigation procedure because
it was not in FCR's employees handbook. However, the record clearly shows that on
October 25, 2000, plaintiff attended a required new employees
orientation meeting where the plaintiff signed a form
acknowledging that, among the material reviewed at the meeting
was the FRC's employees handbook and Sexual Harassment Procedure.
(Def. Ex. 8, 10, 11). FCR's Policy on Sexual Harassment is
clearly set forth on p. 5 of the employee's handbook, it states;
Franziska Racker Centers does not allow or condone
sexual harassment of or by employees, volunteers,
consultants, students, interns, service providers or
contractors. A procedure is established with
guidelines to conduct an investigation and provide
remedies in sexual harassment matters. (emphasis
At page 89 of his Deposition testimony, plaintiff acknowledged
that he had read the employee handbook. The employee handbook
language clearly shows that a sexual harassment policy was in
place, and plaintiff only had to bring the sexual harassment
issue to his immediate supervisor's attention to put an
investigation in motion, but he did not do so.
Plaintiff's deposition testimony and e-mail dispel any notion
that he made it known to Jessica Simon that her sexual advances
were unwelcome. Although plaintiff subsequently began to dislike
her, "Over time," this dislike developed not from her willingness
to engage in sexual activity, but because "she was a poser, she
wanted to be black but couldn't. She made too many slang (sic),
too much stuff about dating niggers and stuff like that . . . she
was trying to live in a black world". (Def, Ex, 4 pltf.'s Dep.
at 125, 126).
Plaintiff's deposition statements, e-mail, the Leahy and
Griswold affidavit information, and his failure to report the
situation or use the complaint procedure provided by the
employer, demonstrate that his claim of being sexually harassed
by Jessica Simon is unavailing.
Title VII Disability Discrimination: Plaintiff further claims that he was discriminated against
because he sustained crippling, work related injuries to his hand
and shoulder and he was not permitted to seek medical treatment
for them. The record shows that plaintiff was not severely
injured, and he did receive treatment for both injuries.
Defendant first asserts that the court has no jurisdiction over
this claim because plaintiff failed to state it in his EEOC
charge. It is true that courts have no jurisdiction to hear
claims not alleged in the employee's EEOC charge. The purpose of
this exhaustion requirement is "to give the administrative agency
the opportunity to investigate, mediate, and take remedial
action." Stewart v. United States Immigration & Naturalization
Service, 762 F.2d 193, 198 (2d Cir. 1985). However, claims which
are "reasonably related" to the EEOC charge may be brought in a
subsequent federal court action. Butts v. City of New York
Department of Housing Preservation and Development,
990 F.2d 1397, 1402 (2d Cir. 1993). Such claims are permitted to continue
where "the conduct complained of would fall within the scope of
the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination." Id. The court finds that
plaintiff's declaration in his EEOC complaint that he was "not
allowed to go seek medical treatment when he was seriously
injured," reasonably related to a disability discrimination claim
and would expect that the EEOC, in investigating the complaint,
would consider the merits of the claim.
Plaintiff sprained his right wrist while moving a television
set on November 22, 2000. (Def. Ex. 4, ptlf.'s Dep. at 135). The
medical records submitted by plaintiff show that he sprained the
wrist and was treated and released. (Def. Ex. 15). He was given a
restriction that he could not use his upper right arm at work for
four days. (Def. 15 Medical Records). On or about December 9, 2000, plaintiff claimed his right arm
was injured when he was punched by a female resident. (Def. Ex 4
pltf's Dep. at 136). Medical records submitted by FRC indicate
that he was again treated and released, and was subject to a
twenty pound weight lifting restriction until the end of December
2000, a period of three weeks. (Def. Ex. 16 Medical Records).
Plaintiff does not allege that he suffered a disability which
substantially limited his major life activities.
A disability under the ADA "does not include temporary medical
conditions, even if those conditions require extended leaves of
absence from work" because such conditions are not substantially
limiting. Halpern v. Abacus Technology Corporation,
128 F.3d 191, 199 (4th Cir. 1997). "Courts within this circuit and the
vast majority of courts elsewhere which have considered the
question, have held that temporary disabilities do not trigger
the protections of the ADA because individuals with temporary
disabilities are not disabled persons within the meaning of the
act." Graaf v. North Shore University Hospital,
1 F. Supp.2d 318, 321 (S.D.N.Y. 1998); Davis v. Bowes, 1997 WL 655935
(S.D.N.Y. Oct. 20, 1997). Furthermore, courts have held, as a
matter of law, that a weight lifting limitation such as
plaintiff's, when compared to an average person's abilities,
"does not constitute a significant restriction on one's ability
to lift, work or perform any other major life activity."
Williams v. Channel Master Satellite Systems, Inc.,
101 F.3d 346, 349 (4th Cir. 1996), cert. denied, 502 U.S. 1240,
117 S. Ct. 1844, 137 L. Ed.2d 1048 (1997); Strassberg v. Hilton
Hotels Corp., 1997 WL 53134 (S.D.N.Y. August 28, 1997), aff'd.
173 F.3d 846 (2d Cir. 1999).
Plaintiff's injuries were relatively minor and did not prohibit
him from working as a residence counselor, albeit with some
minimal restrictions for short periods. These injuries did not qualify as disabilities under the ADA.
Title VII Retaliatory Discharge Claim:
Plaintiff maintains that he was fired from his job at Evergreen
because of his race, his complaints of race discrimination and
sexual harassment, and the disability he sustained from
work-related injuries during his employment at the Evergreen
FRC states that the only reason plaintiff's employment was
terminated was because of his communications with third parties
about Evergreen residents in violation of FRC's Confidential
Policy, and his highly indiscreet, sexual oriented and
conjectural comments to other FRC employees regarding residents
at Evergreen. (Walker affd. at ¶¶ 21, 22).
Prior to plaintiff's discharge, Gail Walker, Director of Human
Services of FRC, had a meeting with Frank Leahy and Richard
Rasmussen, Assistant Director of Residential Services for FRC,
Frank Leahy, a Residence Coordinator for FRC, and Leahy's
supervisor, where plaintiff's actions were reviewed. At the
conclusion of the meeting, they concurred that plaintiff's
employment should be terminated based on his violation of FRC's
Confidential Policy, and his creation of an unsafe work
environment by upsetting other Evergreen Residence staff with his
inappropriate, unfounded and speculative claims of abuse. (Walker
aff'd. at ¶ 23).
Title VII prohibits an employer from discriminating against an
employee who takes action in opposition to an unlawful employment
practice. 42 U.S.C. § 2000e-3(a); Kotcher v. Rosa & Sullivan
Appliance Center, Inc., 957 F.2d 59, 64 (2d Cir. 1992).
Retaliation claims are tested under the three-step burden
shifting analysis set forth in McDonnell Douglas. A plaintiff
establishes a prima facie case for retaliation by showing that:
(1) he/she was engaged in a protected activity of which her
employer was aware; (2) he/she suffered some disadvantageous employment action; and (3) there was a causal connection between
the protected activity and the adverse employment decision. Van
Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.
1996). The causal connection can be established directly through
evidence of retaliatory animus directed at plaintiff by
defendant, or indirectly by showing either that other employees
engaged in similar conduct were given more favorable treatment,
or that the adverse action closely followed the protected
activity. Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991);
Davis v. State University of New York, 802 F.2d 638, 642 (2d
Cir. 1986). Once a prima facie case is established, the burden of
production shifts to the defendant employer to "articulate a
legitimate, nondiscriminatory reason for its actions." Kotcher,
957 F.2d at 64. If the defendant meets its burden of production,
then the plaintiff must show that defendants' proffered reasons
were pretextual. Kotcher, 957 F.2d at 65.
At their orientation meeting, incoming employees of FRC are
required to execute a Confidential Policy document containing the
Any information pertaining to individuals served by
Franziska Racker Centers is strictly confidential. It
is not to be discussed, except among appropriate
Franziska Racker Centers Personnel, and professional
personnel of other agencies directly involved with
the individuals and their families, and only where
written permission has been gained from the
individual or their family. Franziska Racker Centers
conforms with New York State confidentiality laws.
Perusal of records without specific professional
reason is not permitted.
I have read the above statements and agree to abide
by the Franziska Racker Centers' policy.
On October 25, 2000, plaintiff signed a copy of this statement
acknowledging that he had read and received it on that date.
(Def.'s Ex. 9). Additionally, he was given a copy of the FRC
Employee Handbook. The Policy of Confidentiality is also set
forth on Page 5 of this handbook, under the general heading of,
Policy Statements. (Def.'s Ex. 10). Thus, the record does not support that plaintiff was ambushed by the enforcement of the
In early December 2000, plaintiff displayed a bothersome
inclination to conjecture about intimate sexual activities, which
he claimed some residents had taken part in. His telling other
FRC staff members about these occurrences, gave rise to anxiety,
and created an unsafe and disruptive work environment at the
residence. He also made similar comments to persons not connected
with FRC. The statements reached ("SG") the mother of ("LC"), a
resident of Evergreen, and on December 18, 2000, she called Mr.
Leahy to tell him that she was deeply disturbed by the comments
plaintiff had made concerning her daughter. She was advised of
the comments by another daughter of SG, with whom plaintiff had
several conversations concerning LC. Plaintiff had insinuated
that LC had been sexually abused and had wondered whether, based
upon stretch marks he observed, LC had sexual relations. (Leahy
affd. pages 8-10). Plaintiff's behavior here, was unauthorized
and a straightforward violation of FRC's Confidential Policy. The
decision to terminate plaintiff was based entirely on his
misconduct, and not in any way connected with his discrimination
Defendant FRC has articulated a legitimate and
non-discriminatory reason for firing plaintiff, in that Walker,
Rasmussen and Leahy genuinely believed that plaintiff had
violated FRC's policy of confidentiality by the unauthorized
disclosure of information regarding alleged events at the
Evergreen Residence. In response, plaintiff has failed to
demonstrate that the proffered reason is merely a pretext for
racial bias. The record demonstrates that Walker, Rasmussen and
Leahy were solely responsible for the decision to terminate
plaintiff's employment and, furthermore, fails to support the
inference that they harbored discriminatory animus against Harris
or other minorities. State Law Claims:
A district court may decline to exercise supplemental
jurisdiction over a claim if it "has dismissed all claims over
which it has original jurisdiction." 28 U.S.C. S 1367(c)(3).
Dean v. Westchester County District Atorney, Office, 119 F.
Supp.2d 424, 433 (S.D.N.Y. 2000). Consequently, as all federal
claims have been dismissed, the Court exercises its discretion
and will dismiss the remaining state law claims, plaintiff's
claims made pursuant to New York Executive Law §§ 290 et
seq., and defendant's state law counter claim for libel.
("Compulsory counter claims may be dismissed where, as here, the
initial claims giving rise to federal jurisdiction are
dismissed." Scott v. Long Island Savings Bank, 937 F.2d 738,
Accordingly, defendant's motion for summary judgment is
GRANTED, and the complaint is DISMISSED, plaintiff's and
defendant' remaining state law claims are DISMISSED without
prejudice to their being brought in the appropriate New York
state court for further proceedings.
IT IS SO ORDERED.
© 1992-2004 VersusLaw Inc.