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 ...