The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff brings this employment discrimination action against defendants pursuant to Title 42 U.S.C. §§ 1981and 1983 and the New York State Human Rights Law, N.Y. Exec. Law § 296, et seq. Plaintiff, who is Caucasian, was employed as a youth aide by the New York State Office of Child and Family Services ("NYSOCFS") beginning in 1976. Defendant Baines, an African-American, was plaintiff's supervisor from 1995. Defendant Johnson, who is sued in his official capacity only, is the Commissioner of the NYSOCFS. Plaintiff alleges that Baines waged a three-year campaign of harassment and retaliation, which included race-based slurs and epithets, job sabotage, and the fostering of animosity against Pasternak by his co-workers. After he took a series of medical leaves of more than one year's duration, plaintiff's employment was terminated pursuant to the Civil Service Law. Plaintiff alleges that he was constructively discharged from the position. Both defendants have moved for summary judgment dismissing the complaint.
According to his deposition, plaintiff began his employment with the New York State Division for Youth in 1978 and in 1994 became a Youth Division Aide ("YDA") III. Pasternak Dep., Item 46, Exh. 1, pp. 14-15. In July 1995, defendant Baines became plaintiff's supervisor at the Buffalo Evening Reporting Center ("ERC"), a NYSOCFS facility in Buffalo, New York. Id., p. 56. Plaintiff alleges that Baines waged a three-year campaign of race-based harassment and retaliation against him, finally resulting in plaintiff's constructive discharge.
Specifically, in his deposition, plaintiff states that in October 1995, Baines referred to an outside auditor as a "red neck white boy from Kentucky." Id., p. 101. In November 1995, Baines referred to plaintiff as a "stupid Polack." Id., p. 99. In January 1996, plaintiff attended a training session in Rochester, New York. In the middle of the day, Baines telephoned the training session and ordered plaintiff to leave. When plaintiff later asked why he was ordered to leave the session, Baines allegedly told plaintiff, "you're white, I don't like white boys so handle it." Id., p. 103. In December 1996, Baines allegedly referred to a former football teammate as a "big smart old white boy . . . ." Id., p. 106. In January or February 1997, Baines changed the locks on an office door and file cabinets to which Pasternak was to have access. When plaintiff asked Baines why he did this, Baines allegedly replied, "I don't like white boys, handle it." Id., p. 107. In March or April 1996, plaintiff heard Baines telling plaintiff's African-American co-workers that "the brothers" were working while the "white boy" was not. Id., p. 109. In January or February 1997, plaintiff heard Baines say that he was going to "get the rats[,] especially the white boy." Id., p. 110. Additionally, in March or April 1997, Baines referred to plaintiff as "Pasterat" in both a memorandum and on a telephone answering machine. Id., p. 111.
In response to plaintiff's complaints, the Special Investigations Unit of the NYSOCFS conducted an investigation into the allegations of misconduct by Baines. Plaintiff and several co-workers were interviewed. In a report dated April 21, 1998 (Item 51, Exh. A), the investigator concluded that Baines referred to plaintiff in racial terms and encouraged staff to band together against the "white boy," that Baines referred to plaintiff as "Pasterat" in a memo and on the facility answering machine, and that Baines interrupted an investigative interview of plaintiff regarding the allegations against Baines, invading plaintiff's personal space in an attempt to upset plaintiff. Id. As a result of this investigation, Baines was fined $2,000.00 by the NYSOCFS.
Plaintiff filed a Workers' Compensation claim alleging that he suffered a work-related psychiatric stress disorder as the result of Baines' harassment. Afer a hearing, the judge found "overwhelming evidence that the Claimant was subjected to harassment and offensive conduct from his supervisor that goes far beyond the usual give and take of the workplace or lawful personnel practice or job evaluation." Item 51, Exh. B.*fn1
In an affidavit in response to the motions to dismiss, plaintiff reiterated his complaints about Baines. Plaintiff states that Baines referred to him in racially derogatory terms, to plaintiff himself and to others. Item 63, ¶¶ 3, 28; Exh. C., pp. 5-8. Plaintiff also states that Baines intentionally misplaced documents on nine occasions between March 1996 and August 1997 to increase plaintiff's work load. Item 63, ¶ 18; Exh. C, pp. 8-10. Plaintiff further states that Baines changed the locks on the door to plaintiff's office and file cabinets without notice. Plaintiff alleges that Baines told plaintiff's co-workers that plaintiff had made disparaging remarks about the co-workers' family members. Item 63, ¶¶ 19-20. Baines also told plaintiff's co-workers that plaintiff's complaints regarding Baines' harassment could lead to the closing of the ERC and loss of employment. Id., ¶ 22. Plaintiff states that Baines attempted to harass and intimidate him when Baines entered a meeting in January 1998, and came within an inch of plaintiff. Item 63, ¶ 29.
In his affidavit, plaintiff states that he began to suffer insomnia, mood swings, and depression. Item 63, ¶ 34. In February 1997, plaintiff sought counseling. His doctor attributed plaintiff's mental state to plaintiff's workplace harassment, and prescribed an anti-depressant medication. Id., ¶¶ 35-38. Plaintiff took two leaves of absence, from April 24, 1997 through May 20, 1997 and September 19, 1997 through January 24, 1998. He returned on January 25, 1998, but then left again on January 28, 1998. Id., ¶¶ 39-40. Plaintiff's employment was officially terminated on February 12, 1999 as a result of a medical leave of absence of one year. Id., ¶ 41; Item 41, ¶ 2.
Plaintiff, a Salary Grade 12 Civil Service employee, states that he was offered a temporary part-time Grade 9 position with NYOCFS in Rochester, but declined the position. Item 63, ¶¶ 47-48. Plaintiff states that he could not relocate to Rochester for family reasons and did not want to work with Baines, who had been transferred to the Rochester facility. Id., ¶¶ 49-52. Plaintiff states that at least two positions in Erie County were available after 1999, but that he was neither interviewed nor hired for those positions. Id., ¶ 76.
In a declaration filed March 25, 2005, Bonnie Delmarsh, associate personnel administrator with NYSOCFS, stated that plaintiff's employment was terminated in February 1999 due to an absence of one year based on a medical disability. Item 41, ¶ 2. Plaintiff applied for Workers' Compensation benefits and was granted such benefits. Id. Pursuant to New York Civil Service Law § 71, plaintiff was examined by the New York State Department of Civil Service's Employee Health Services and was found to be fit to return to work. Accordingly, in June 2000, plaintiff's name was placed on a preferred list for employment as a YDA. Id. From June 2000 to January 2002, no full-time YDA positions were filled in Buffalo. In a later declaration, Ms. Delmarsh stated that plaintiff was offered a permanent full-time Grade 12 position as a YDA III at the Industry School in Rush, New York, near Rochester in October 2000. Plaintiff did not appear for an interview, effectively declining the position. Thereafter, his name was removed from the preferred list for positions in Monroe County. Item 59, ¶ 5. Plaintiff also declined a permanent full-time Grade 9 YDA II position at the Great Valley Residential Center in Cattaraugus County in October 2000, id., ¶ 9, and a permanent full-time YDA III position in Cattaraugus County in June 2001. Item 41, ¶ 4, Exh. B. Defendant Baines was not employed at the Industry School at the time plaintiff was offered a position at that facility, but was redeployed from Buffalo to a facility in Oatka, New York, in May 2003. Item 59, ¶ 7. Additionally, Ms. Delmarsh stated that upon the closing of a Buffalo facility in 1993, many Buffalo employees have commuted to Rochester facilities, including the Industry School. Id., ¶ 8. Finally, had plaintiff been working in Buffalo in 2002 when one of the two remaining NYSOCFS facilities was closed, it would have resulted in plaintiff's redeployment either to Rochester or Salamanca in Cattaraugus County based on his seniority date. Id.; Item 41, ¶ 6.
1. Baines' Motion for Summary Judgment
In support of his motion for summary judgment, Baines argues that plaintiff has failed to show that he was the victim of a pervasive campaign of racial harassment. Baines states that plaintiff alleges only five incidents of harassment occurring over a five-year period and, even if accepted as true, these isolated incidents do not establish the pervasive race-based harassment required by Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Baines also argues that plaintiff has failed to show ...