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United States District Court, S.D. New York

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 that summary judgment may be appropriate even in the fact-intensive context of discrimination cases."*fn40

  However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue and circumstantial evidence may reveal an inference of discrimination.*fn41 This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law."*fn42 But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment."*fn43 "`[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment.'"*fn44


  A. Scope of the Hostile Work Environment Claim

  In order to assess the sufficiency of McKay's hostile work environment claim, I must first determine what evidence may appropriately be considered. Defendant contends that McKay may only present evidence of, and related to, the alleged encounter between Agosto and McKay. Plaintiff, on the other hand, seeks to include as part of his hostile work environment claim not only evidence of, and related to, Agosto's comments regarding the chief of Manhattan having "fired five niggers," but evidence of all racial discrimination that occurred during his employment at the VA.*fn45 For the following reasons, McKay's claim must be confined to Agosto's comments regarding the chief of Manhattan having "fired five niggers" and other conduct attributed to Agosto.*fn46

  "A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge."*fn47 Plaintiff points out that his EEOC Complaint contains the words "Hostile Work Environment," which, under other circumstances, might have allowed McKay to allege the whole gamut of discriminatory conduct that occurred at the VA, including claims that would have otherwise been time-barred. In National Railroad Passenger Corp. v. Morgan, the Supreme Court held that "consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for purposes of assessing the liability, so long as an act contributing to that hostile environment takes place within the statutory time period."*fn48 However, the procedural history of this case excludes it from the Morgan holding.

  On February 23, 2004, I signed a Stipulation and Order, in which plaintiff agreed that "Plaintiff's second cause of action for discrimination based on race is dismissed with prejudice, except for Plaintiff's hostile work environment claim, set forth in Plaintiff's EEO Complaint #200H-0527-2002100912, [dated January 14, 2002,] in which Plaintiff alleged that he was subjected to a hostile work environment when a supervisor used a racial slur in his presence."*fn49 The Stipulation and Order makes it crystal clear that the gravamen of the remaining cause of action was the alleged use of a racial slur by Agosto, not a general hostile work environment claim. Moreover, the record reveals that Agosto's misconduct has always been the basis of McKay's January 10, 2002 EEOC Complaint. Evidence of this includes the Notice and Acceptance of Plaintiff's Complaint, dated February 12, 2002, in which the EEO formulated Plaintiff's issue, based on his initial interview with an EEO counselor, as "[w]hether the complainant was subjected to a hostile work environment on the basis of race (African American) and in reprisal for prior EEO activity when: On October 23, 2001, November 5, and November 6, 2001, he heard Sergeant R.A. of the Police Service use racial slurs when referring to African American employees."*fn50 Likewise, the Complaint asserts that the EEOC Complaint "was filed because 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."*fn51 Finally, in his deposition, McKay agreed that the encounter with Agosto was the "basis" of the EEOC Complaint.*fn52 Accordingly, I will only consider evidence that concerns, or relates to, Agosto's discriminatory conduct.

  B. The Hostile Work Environment Claim

  In order to defeat a motion for summary judgment on a hostile work environment claim, 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 working environment.'"*fn53 The defendant's conduct must have both created an objectively hostile work environment and have subjectively caused the victim to perceive the work place as hostile.*fn54 Courts must consider the totality of the circumstances surrounding the claim,*fn55 which "may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."*fn56 "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."*fn57 Recognizing, however, that certain comments and racial slurs are more offensive than others, "`[t]he offensiveness of the individual actions complained of is also a factor to be considered in determining whether such actions are pervasive.'"*fn58

  Defendant asserts the following in support of the motion for summary judgment:

With regard to plaintiff's only surviving claim in this lawsuit — that a racial slur by his supervisor — Ramon Agosto — created a hostile work environment — summary judgment should be granted. Plaintiff's claims of hostile work environment fail as a matter of law because he has identified only one instance of a racial remark having been made in his presence. That single remark does not rise to the level of a hostile working environment. Mr. McKay's remaining allegations regarding alleged remarks made outside of his presence were not "sufficiently continuous and concerted" to be considered severe or pervasive.*fn59
Contrary to defendant's assertion, however, McKay alleged multiple times that Agosto repeated the "Chief of Manhattan" comment, and that Agosto approached him in this manner on more than one occasion. Although McKay has provided conflicting accounts of the encounter, when viewing the evidence in the light most favorable to plaintiff, a reasonable juror could find that there were indeed multiple encounters. Moreover, plaintiff's allegation that Agosto "got in his face" in order to draw McKay into a physical altercation adds to the severity of the incident by making it "physically threatening."

  Plaintiff also alleged that Agosto used the word "nigger" on a regular basis, pointing to at least two specific incidents in which he overheard Agosto use the slur. Officer Minus also testified that Agosto used the word "nigger" regularly. These allegations sufficiently allege a "steady barrage of opprobrious racial comments."

  One court has aptly observed that "[f]ar more than a `mere offensive utterance,' the word `nigger' is pure anathema to African-Americans. `Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as `nigger' by a supervisor in the presence of his subordinates.'"*fn60 Or, as another court noted, "[g]iven American history, we recognize that the word `nigger' can have a highly disturbing impact on the listener. Thus, a plaintiff's repeated subjection to hearing that word could lead a reasonable factfinder to conclude that a working environment was objectively hostile."*fn61

  In sum, viewed in a light most favorable to plaintiff, McKay has alleged that Sergeant Agosto: (1) confronted McKay in a physically threatening manner on multiple occasions by getting in his face and repeatedly uttering a highly offensive and racially charged statement; (2) repeatedly invoked racial slurs, including the term "nigger" both in and out of McKay's presence; and (3) unnecessarily placed McKay on guard duty and spied on him because of his race.*fn62 Considering these allegations together, McKay has produced sufficient evidence from which a trier of fact could find a hostile work environment. While this may be a close call, "[i]t is the province of the jury, rather than the Court, to define the limits of appropriate conduct in the workplace."*fn63


  For the foregoing reasons, defendant's motion for summary judgment is denied. The Clerk of the Court is directed to close this motion [#19 on the docket sheet]. A conference is scheduled for November 11 at 10:00 a.m.


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