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Robinson v. State of New York Office of Children and Family Services

August 17, 2006

DWAYNE ROBINSON, PLAINTIFF,
v.
THE STATE OF NEW YORK OFFICE OF CHILDREN AND FAMILY SERVICES, LOUIS GOSSETT, JR. RESIDENTIAL CENTER (F/K/A THE NEW YORK STATE DIVISION FOR YOUTH SERVICES); STEPHEN FARKAS; ERNEST GERMANO; MICKI WARD-HARPER; BRENDA AULBACH; AND JOE IMPICCIATORE, AS INDIVIDUALS AND AGENTS FOR THE OCFS, DEFENDANTS.



The opinion of the court was delivered by: Norman A. Mordue, Chief United States District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Presently before the Court is defendants' motion for reconsideration of this Court's June 14, 2006, denial of their summary judgment motion. Also before the Court is plaintiff's cross-motion for expansion of the time within which to file a Statement of Material Facts as required by Local Rule 7.1(a)(3) in opposition to the motion for summary judgment previously decided. In this civil rights action, plaintiff alleges that he was discriminated against by his employer in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, et seq.., 42 U.S.C. § 1983 and the New York Executive or "Human Rights" Law ("HRL"), N.Y. Exec. Law §296. The Court assumes the parties' familiarity with the factual and procedural background of plaintiff's claims.

II. DISCUSSION

A. Motion for Reconsideration

1. Hostile Work Environment

Defendants asserted in their summary judgment motion that plaintiff had failed to support his allegations of employment discrimination with material evidence. As referenced in the previous Memorandum-Decision and Order denying defendants' motion for summary judgment, the fact is not lost on the Court that many of plaintiff's allegations are unsupported or ring hollow under the evidentiary analysis required by Fed. R. Civ. P. 56. However, one need only reference Second Circuit case law to observe the particularly circumspect manner in which the appellate court views allegations of racial employment discrimination such as plaintiff's.

In Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426 (2d Cir. 1999), a case remarkably similar to the one at bar, the Second Circuit reversed a district court's determination that a plaintiff's mostly vague and episodic allegations of racial hostility and disparate treatment in her workplace were insufficient to withstand summary judgment. The district court found that plaintiff's allegations concerning a racially charged work environment were not actionable because the incidents relied on by plaintiff were "infrequent, isolated and sporadic." Indeed, many of the alleged racial epithets at the heart of plaintiff's complaint were uttered by unidentified co-workers and many of plaintiff's allegations were unsupported in opposition to defendants' summary judgment motion.*fn1 Nevertheless, the Second Circuit reversed, stating that "there is neither a threshold 'magic number' of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim." Richardson, 180 F.3d at 439 (citing Rodgers v. Western-Southern Life Ins. Co, 12 F.3d 668, 674 (7th Cir. 1993); Harris v. Forklift Systems, 510 U.S. 17, 22 (1993) (noting that hostile environment analysis "is not, and by its nature cannot be, a mathematically precise test")). While the district court dismissed some of plaintiff's more vague allegations because "to infer racial animus" from those incidents "would require drawing inference upon inference," Id., 180 F.3d at 440, the Second Circuit held that plaintiff, as "the non-moving party, was entitled to the benefit of the very inferences the district court rejected." Id.. Although "isolated, minor episodes of harassment do not merit relief under Title VII," the Second Circuit stated that "whenever . . . harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse, it is actionable under Title VII, so long as the employee subjectively experienced a hostile work environment." Id. (citing Torres v. Pisano, 116 F.3d 625, 631-32 (2nd Cir. 1977) (emphasis added).

In the present case, plaintiff asserts that he experienced a hostile work environment and has cited several incidents demonstrating alleged racial animus toward African Americans including racially offensive language used by employees in the facility and a racial joke disseminated within the workplace. Defendants argue that plaintiff acknowledged no racial slurs were ever used in his presence. However, during his deposition, plaintiff stated that he did hear the term "Canadian" used in his presence and that a number of co-workers advised him that "Canadian" was commonly used by employees in place of the word "nigger."

The Court credited plaintiff's statements concerning the racial environment at Gossett in denying defendants' motion for summary judgment, and also considered the affidavits of witnesses who purported to support plaintiff's claims of racial hostility and discrimination at the facility. Contrary to defendants' argument, the Court did not "reject" three of the four affidavits submitted by plaintiff in opposition to their summary judgment motion. Instead, the Court noted that these affidavits were "in large part" incomprehensible, vague, conclusory and insufficient to create a material triable issue. If the Court had found no part of these affidavits to be of evidentiary quality, it surely would have stated so. Rather, the Court found that the opposition to defendants' motion created a material question of fact, "however weak," on the claims that plaintiff's work environment was permeated by racial hostility and disparate treatment based on employees' race.

For example, plaintiff submitted the affidavit of Patricia Randisi who affirms in vague and conclusory fashion that there had been a "number of issues brought to the attention of the Gossett administration concerning racial slurs towards or in reference to the black staff and residents." However, Ms. Randisi also averred that the word "Canadian" was a "code word"for "nigger" at the Gossett facility and that a white employee had on more than one occasion used the term "nigger." Thus, plaintiff's allegations concerning use of the term "Canadian" as a covert racial slur is not "wholly conclusory" as argued by defendants. Ms. Randisi's statements concerning the racially charged language used at the Gossett facility, as well as the comments of Consuelo Bernard (discussed below) are based on personal knowledge. Thus, the Court must reject defendants' peculiar contention that "claims by others [like Ms. Randisi and Ms. Consuelo] that [racial] slurs were used are hearsay statements not admissible on summary judgment." In support of this inaccurate restatement of the law, defendants cite Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001) which involved use of a prior inconsistent statement as evidence in chief in the context of summary judgment. The case does not stand for the proposition that a party cannot submit affidavits from persons with personal knowledge of the facts involved in a lawsuit in opposition to a motion for summary judgment and is thus inapposite to the case at bar.

In another affidavit submitted by plaintiff, Consuelo Bernard makes several seemingly incongruous statements about "student complaints" of racial slurs used in "the facility" but there are no facts detailing the students or facility to which she refers. Ms. Bernard not does even aver that she works or has worked at the Gossett residential center. However, the Court can infer that she is an employee with knowledge of the racial environment at Gossett based on the attachment to her affidavit which is a racial incident report she prepared and signed in January 2002 as a "staff" member at the Gossett facility. Moreover, she attests in one paragraph of her affidavit that she has overheard employees refer to staff members "in unacceptable derogatory racial terms such as 'lazy niggers'" and "idot spik," although she does not provide names, dates or other details concerning the alleged use of racial slurs. Crediting Ms. Consuelo as a purported employee of the Gossett center with knowledge of the racial environment as well her comments concerning racial slurs used by unidentified employees on unspecified occasions is exactly the type of inference drawing required on behalf of the non-moving party as directed by decisions such as Richardson, supra.*fn2

Finally, the undisputed evidence demonstrates that a racially offensive joke was circulated at the Gossett Facility. Oddly enough, the "Farmer's Dayvorce" joke was also one of the racial incidents involved in Richardson. In Richardson, the employees responsible for distributing the joke were terminated although they were later reinstated. In the present case, defendants point out that the culpable employee was counseled, thus demonstrating that Gossett facility administrators responded appropriately to the seriousness of the conduct. However, the Second Circuit noted in Richardson that "there were other incidents in response to which DOCS took no action, and harassment continued after [plaintiff] made her complaints. We thus believe that reasonable jurors could disagree about whether DOCS's responses were so effectively remedial and prompt as to shield DOCS from liability as a matter of law." Richardson, 180 F.3d at 442.

The same "reasonable juror" standard compelled the Court to deny defendants' summary judgment motion in this case. Counsel for the Gossett facility and each individually named defendant has presented evidence and argued vehemently that plaintiff's allegations concerning the racial environment at Gossett and the alleged refusal by management to address those concerns are false. Plaintiff, in turn, failed to oppose properly defendants' motion for summary judgment, but has nevertheless managed by the slimmest of margins to present triable questions of fact concerning the racial environment in his workplace and the actions or inactions of the individually named defendants which either contributed to the racial hostility or failed to remedy it. It ...


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