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October 1, 2004.

JAMES L. HARRIS, Plaintiff,

The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge



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 FRC.

  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. 2000).

  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 disabilities.

  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 ...

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