The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
The Amended Complaint herein was filed on August 22, 2003 (Dkt. #6). In it, plaintiffs, Sylvester Smith ("Smith" or "plaintiff Smith") and Demetrius Newman ("Newman" or "plaintiff Newman"), allege that defendants Niagara Frontier Transportation Authority ("NFTA"), William Flanagan ("Flanagan") and Cornell Baines ("Baines"), discriminated against them on the basis of race and sex, conspired to commit such discrimination, interfered with their contractual employment relations based on race and engaged in racial and sexual harassment against them in violation of both state and federal laws.*fn2 During the time period relevant to the Amended Complaint, plaintiffs, African American males, were custodial workers, employed by the NFTA at the Buffalo Niagara International Airport, defendant Flanagan (Caucasian male) was the Air Terminal Superintendent and defendant Baines (African American male) was the Assistant Air Terminal Supervisor. Baines has filed a cross-claim against NFTA, while Flanagan and NFTA have filed a cross-claim against Baines.
On January 20, 2006, defendants Flanagan and NFTA filed a joint motion for summary judgment seeking dismissal of plaintiffs' Amended Complaint in its entirety (Dkt. #20). On that same date, defendant Baines also filed a motion for summary judgment (Dkt. #24) seeking the same relief. While two separate motions have been filed*fn3, much of the supporting documentation has been submitted jointly by all defendants. All the necessary papers, responses and replies have been filed and the matter, having been presented in oral argument on June 16, 2006, is now before this Court for decision.
As stated above, plaintiffs are African American males and were custodial workers for the NFTA at the airport, working the night shift during time period relevant to the Amended Complaint herein. Both plaintiffs were Union members of Local 1949 of the Intn'l. Longshoreman's Assoc. - the Union. By way of seniority, Smith also held the title of "Custodial Group Leader". Baines was Assistant Airport Terminal Supervisor*fn4 . Flanagan, as Air Terminal Superintendent, was the supervisor of plaintiffs and Baines. Further, it is undisputed that plaintiffs were aware of their options for filing grievances with the union and were also familiar with the NFTA's internal complaint procedures, both having availed themselves of such procedures in the past.
Most of the allegations in plaintiffs' Amended Complaint aver improper behavior by defendant Baines, with acquiescence or a lack of appropriate action from Flanagan and/or the NFTA. Some relate discrete incidents between only plaintiff Smith and Baines, while others detail incidents between only plaintiff Newman and Baines. Some allege behavior of Baines with respect to plaintiffs collectively, a few of which are alleged to have been witnessed by others. Defendants have denied most of the allegations.
Plaintiff Smith's Claims as They Relate to Discrimination Based on race
Paragraphs 14 through 22 of the Amended Complaint describe an alleged incident between Smith and Baines occurring on or about March 2, 2000, after Smith's shift had ended wherein plaintiffs claim Baines threatened Smith physically and made derogatory remarks about both Caucasians and African Americans related to what had happened at a custodial staff meeting earlier in the day. Baines denies the incident and admits only that a custodial staff meeting had occurred earlier that day regarding a proposed change in the break schedules for that shift. It is not disputed that Smith reported the incident to both the NFTA Transit Police and the Affirmative Action office. The gravamen of the complaint in both reports was that Baines had threatened Smith for not taking his side in a disagreement with the other workers. While it mentioned that the terms "white trash" and "nigger" had been used, it did not per se complain about that. The focus of the complaint was clearly the physical threats. The NFTA conducted an investigation wherein Baines denied the allegations and, as there were admittedly no other witnesses to the event, the matter was closed with Baines being re-instructed as to his role as supervisor.
Smith's other allegations involving his racial discrimination claims aver that Baines "continuously", "regularly", "repeatedly" or "on numerous occasions" referred to African Americans as "niggers", referred to himself as "the house nigger" and spoke about slavery times. It is also alleged that Baines told Smith that Smith would never be promoted because he was "the kind of nigger who teaches the other niggers to read". On one occasion at the grill in the airport while on break, Baines allegedly stated, in front of both plaintiffs and another witness (Brian Morrow), "I will fire you niggers %%% ". Smith has admitted that he, himself, has used the term "nigger" at work but could not recall the specific context in which it was used and assuredly stated that he would never use it in a derogatory fashion.
It is further alleged that Baines told Smith that he would not get promoted to Assistant Air Terminal Supervisor when he applied for the position on several occasions. Specifically, in the fall of 2001, when a Caucasian female was hired instead of Smith, Baines told Smith that he told his "black ass" that they were going to hire a white female because, as Flanagan told him, they already had, as Assistant Air Terminal Supervisors, "a black male, a white male, and a towel-head Eddie Sahlah (sp?) whatever he is" and Flanagan "wants someone for the position of white female". Other than admitting that Nancy Kearns had been hired as Assistant Air Terminal Supervisor in October 2001, defendants deny the alleged motivation behind the hiring of Kearns or that the conversations or comments occurred as plaintiffs have averred.
Plaintiff Newman's Claims as They Relate to Discrimination Based on Race
Newman, too, alleges that Baines regularly referred to African Americans as "niggers" and that Baines often threatened to fire Newman's "black ass". The Amended Complaint also avers to one instance when Newman was called "black and lazy" which was allegedly said by another NFTA employee (Nancy Kearns).
In response to defendants' motions herein, Newman recounts several comments made by Baines wherein Baines purportedly said, in Newman's presence, that he hated "niggers", that "being a nigger is a mother", that if he had a chance he would be a white man, that he was "the white man's nigger, he wants me to get rid of you all" and "you know why they hired me, to fire all the niggers". Plaintiffs provided an affidavit from Newman's brother*fn5 corroborating some of these statements.
Also in response to defendants' motions and not averred to in the Amended Complaint, Newman recounts several occasions wherein he was denied promotion to a Facility Maintenance Department position, alleging that he was not given any reason why he was not promoted and that a person of lesser seniority who had once been caught sleeping during a shift was hired in his stead. Defendants provided evidence of Newman's lack of required experience for the position and poor performance on the qualifying test and in the interview.
Plaintiff Smith's Claims as They Relate to Discrimination Based on Sex
The Court notes that this Second cause of action is a hostile work environment based on sex claim and necessarily against defendant NFTA only. To that end, in late summer of 2001, Baines gave Smith a lewd photograph which depicted an elderly woman positioned to have sex with a male whose face cannot be seen. Handwritten next to the woman was the name "Sylvester" (Smith) and next to the man was the name "Bill" (Flanagan). Several months later, in November of 2001, Smith filed an internal NFTA complaint regarding this incident. Baines admitted that he wrote the names on the photograph and gave it to Smith*fn6, stating that it was intended as a joke because Smith was often complaining how Flanagan was always "screwing him" and that he and Smith often shared "off color" jokes with one another. Baines was ...