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November 3, 2004.

GEORGE McKAY, Plaintiff,

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


George McKay, a retired employee of the Department of Veteran's Affairs (the "VA"), brings this action against Anthony Principi, Secretary of the VA. McKay alleges that he was subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 when a supervisor used a racial slur in his presence. Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendant's motion is denied.

  I. BACKGROUND McKay, an African-American, was born on August 14, 1936.*fn1 From 1977 until his retirement from the VA on October 10, 2003, McKay served as a police officer at the VA Medical Center in Brooklyn, New York.*fn2 During his employment at the VA, McKay filed six different complaints with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination. McKay's first complaint (No. 95-2081), filed in 1995 and alleging disability discrimination, was settled administratively on September 2, 1997, by permanently assigning McKay to the night shift.*fn3 He alleges that in retaliation for filing and settling the 1995 complaint, he was subjected to several instances of discrimination, leading him to file five complaints with the EEOC between 1998 and 2002.*fn4 In December 2002, at McKay's request, the EEOC consolidated and dismissed the last three complaints in order to allow McKay to pursue his claims in federal court.*fn5 On March 10, 2003, McKay filed his complaint with this Court, alleging the three claims that had been dismissed by the EEOC.*fn6 Following a January 23, 2004 pre-motion conference, however, this Court dismissed with prejudice McKay's first cause of action for retaliation and third cause of action for discrimination based on age because those claims were time-barred.*fn7 Currently pending before this Court is McKay's hostile work environment claim, set forth in his January 14, 2002 EEO complaint (the "EEOC Complaint"), "in which Plaintiff alleged that he was subjected to a hostile work environment when a supervisor used a racial slur in his presence."*fn8

  McKay's hostile work environment claim centers around an alleged encounter between McKay and his then supervisor Sergeant Ramon Agosto,*fn9 in which Agosto approached McKay, and said, at least once, that the chief of the Manhattan VA had fired five "niggers." McKay described the incident on several occasions, often with conflicting accounts of what occurred. For example, after McKay filed the EEOC Complaint, he gave the following account in an affidavit during an examination by an EEO investigator:
October 23rd [Agosto] came up to me one day. I was in the lobby. I was in the emergency room. I hate to use this word but he came up to me and he said, `You know, chief of Manhattan had fired five niggers.' I looked at him and walked away. I am saying why does he say stufflike that? It was his job to make me upset and go into a fight. When I found out he used to be a fighter that if you swing at him he duck and he got your job.*fn10
Shortly after giving this account, McKay stated that "[t]his happened on several occasions. This happened November 3rd, October 23rd, November 5th."*fn11

  Five days later, during another EEO examination, McKay stated that "[Agosto] came into my space less than four feet and told me this: `The chief of Manhattan got rid of five niggers.' This is in my face and I walked away and that is the truth. . . . [H]e kept repeating it to me. Each time he repeats it I walk away. . . . He did it five times."*fn12

  The Complaint, in describing the EEOC Complaint, stated that "Sergeant Ramon Agosto, Shift Supervisor, used a racial slur when referring to African-Americans, calling them `niggers.' Plaintiff alleged that Agosto attempted to get him in a physical confrontation so that he would lose his job."*fn13

  During his deposition in this action, McKay stated that "Sergeant Agosto got in my face three times, repeated the word to me: `Chief of Manhattan fired five niggers,' in my face, closer to me than I am to you, three times he repeated to me. He wanted me to get into a fight. I walked away from him."*fn14 Later in the deposition, McKay again described the incident, stating that he believed it occurred in "November 2001."*fn15

I was on my post, I was in the lobby. Augusto walked up to me, Lieutenant Torres about ten feet away from me, he came to my office, face about little closer than I am to you, and made a statement: `The chief of Manhattan fired five niggers.' I looked at him. I didn't believe — he repeated it. I just looked at him. Then I turned away, he said it again. I kept on walking.*fn16
Finally, McKay described the events as follows:
A. . . . [A]fter he said that to me, he went back to the chief's office. I looked back, he went in the chief's office. Then like maybe five minutes, him and the chief comes out, and they were like laughing, like look at me, like you know, like . . .
Q. And after he said which thing to you did that happen?
A. When he made the statement "The chief of Manhattan fired five niggers."
Q. You saw him then go into Chief Corselli's office?
A. Yes.
Q. And where were you seated?
A. I wasn't seated. I was standing. You see, I was patrolling the lobby. The lobby was my post. The lobby and the emergency room. The chief's office like right there (indicating), the emergency room is here (indicating).*fn17
According to McKay, Lieutenant Louis Torres, who is now deceased, was the only witness to the encounter.*fn18 However, Reginald Minus, an officer at the VA, stated that he witnessed an incident in which Agosto made the alleged comment. According to Minus, in 1999 or 2000, at "about 7 o'clock in the morning," Minus, Officer Foster, Agosto and McKay were standing "in back of the ER outside the emergency room," when "the comment was made that the chief of police in Manhattan fired, you know, five `Ns.'" After making the statement, Agosto looked "straight at" Minus and McKay and Minus responded by telling Agosto that he "didn't appreciate that language."*fn19
  As several of these accounts reveal, McKay stated several times that Agosto confronted him in this manner on three or five different occasions, also describing the encounters as circular.*fn20

  Aside from this particular incident, McKay alleges that Agosto frequently made racially discriminatory comments. For example, McKay stated that he once heard Agosto say, "I used to knock niggers out."*fn21 He also described an incident in which he heard Agosto say, during a conversation about Agosto's previous employment as a dog catcher at the ASPCA, that he "used to kick niggers doors in."*fn22 McKay stated that Agosto made this comment on several occasions. "He mentioned that on the 5th. Knocked out niggers on the 5th. Knocked out niggers on the 3rd."*fn23 In his EEOC testimony, McKay also alleged that Agosto "is always coming up to you saying something using the N word," and that he "throws [the word nigger] around like it is okay."*fn24 In his pretrial deposition, he testified that Agosto "used racial remarks like `them,' `they,' `put them out there,' meaning blacks,' `they shouldn't be here,' `they should be in the office,' meaning blacks. . . . He made statements like that, several occasions."*fn25 According to McKay, at least four other employees, including Officers Minus, Heredia, Watty and Shields, told him that they heard Agosto use the "N word."*fn26 Minus corroborated McKay's allegation, stating that Agosto "says [the N word] frequently."*fn27 Heredia and Watty, however, denied having heard Agosto make any racially discriminatory comments.*fn28 Officer Cynthia Shields, who according to McKay, "transferred to another service," was not interviewed in this case.*fn29

  McKay also alleged that on several occasions Agosto treated him in a discriminatory manner on the basis of McKay's race, including unnecessarily stationing McKay at the main gate of the VA, and using his cell phone to spy on McKay.*fn30


  Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn31 "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn32 "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'"*fn33

  The movant has the burden of demonstrating that no genuine issue of material fact exists.*fn34 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts,"*fn35 and it must "come forward with `specific facts showing that there is a genuine issue for trial.'"*fn36 In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor.*fn37

  "[T]he 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."*fn38 Courts within "the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination."*fn39 Indeed, "[i]t is now beyond cavil ...

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