Hill v. Frontier Communications, Inc.

Filing 40

DECISION AND ORDER: Defendant's Motion for Summary Judgment 34 is GRANTED, and Plaintiff's Amended Complaint 12 is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 3/10/2018. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________________
DOUGLAS HILL,
Plaintiff,
15-CV-6212-FPG
v.

DECISION AND ORDER

FRONTIER TELEPHONE OF ROCHESTER, INC.,
Defendant.
______________________________________________
INTRODUCTION
Plaintiff Douglas Hill commenced this action alleging racial discrimination in violation of
Title VII of the Civil Rights Act, 42 U.S.C. §2000e, et seq. (“Title VII”), on the basis that his
employer, Frontier Telephone of Rochester, Inc., subjected him to a racially hostile work
environment. ECF Nos. 1, 12.
Currently pending before the Court is Defendant’s Motion for Summary Judgment. ECF
No. 34. 1 Having considered the moving papers, the record evidence, and the applicable law, the
Court grants Defendant’s Motion for Summary Judgment and dismisses the Complaint in its
entirety.

1

In connection with Defendant’s motion, it submits an Attorney Declaration with supporting Exhibits A
through E (ECF Nos. 34-1 through 34-7); Declaration of Tracy Owen with supporting Exhibits A through
K (ECF Nos. 34-8 through 34-19); a Rule 56 Statement of Material Facts (ECF No. 34-20); and a
Memorandum in Support of Summary Judgment (ECF No. 34-21).

In opposition, Plaintiff submits an Attorney Declaration (ECF No. 38-13); Response to Defendant’s
Statement of Material Facts and Memorandum of Law in Opposition to Summary Judgment (ECF No. 38);
and supporting Exhibits 1 through 12 (ECF Nos. 38-1 through 38-12). Plaintiff also submits what is
captioned as “Plaintiff’s Separate Statement of Material Facts in Opposition to Defendant’s Motion for
Summary Judgment (ECF No. 38 at 7-14) in addition to his Response to Defendant’s Rule 56 Statement
(ECF No. 38 at 4-6). Although the Court has reviewed this submission, it notes that the submission does
not comport with the Local Rules of Civil Procedure, which require “correspondingly numbered
paragraphs, and, if necessary, additional paragraphs containing a short and concise statement of additional
material facts as to which it is contended there exists a genuine issue to be tried.” Loc. R. Civ. P. 56(a)(2).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The following material facts, drawn from the parties’ Rule 56 Statements and evidentiary
submissions, are undisputed unless otherwise noted and are viewed in the light most favorable to
Plaintiff, the non-moving party.
I.

Overview
Frontier hired Plaintiff, an African-American male, in 1998 as a temporary employee.

Plaintiff later applied for and/or was promoted into a regular position and continued to work for
Frontier for over 15 years.
Frontier has policies that prohibit discrimination and harassment based on an individual’s
race or other protected categories, and prohibit retaliation against individuals who engage in
protected activity. These policies include: Diversity Policy, Equal Opportunity Policy, NonDiscrimination Policy, Code of Business Ethics, and Human Resources Policy Manual. Frontier
also has a broader “Open Door Policy,” which provides a process for employees to raise concerns
to higher levels of management to resolve work-related problems fairly, like if an employee feels
that established policies or practices have been violated or have not been consistently applied.
Plaintiff signed and acknowledged receipt of Frontier’s Code of Conduct on January 26,
1998. During the course of his employment, Plaintiff received training on compliance with
Frontier’s non-discrimination and harassment policies, which included information as to how to
make discrimination or harassment reports.
On or about May 6, 2014, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging that he had been verbally harassed
because of his race in violation of Title VII. In response, Frontier submitted a Position Statement

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to the EEOC, dated August 4, 2014, with attachments, denying liability and requesting that the
EEOC issue a no cause finding regarding Plaintiff’s Charge of Discrimination.
On January 13, 2015, the EEOC issued a Dismissal and Notice of Right to Sue letter, stating
that it could not conclude that the information obtained established a statutory violation and that
Plaintiff had 90 days to file a lawsuit.
Plaintiff commenced this action on April 13, 2015. ECF No. 1. Plaintiff’s Amended
Complaint alleges that Frontier discriminated against him in violation of Title VII based on his
race by subjecting him to a racially hostile work environment after he returned from a leave of
absence on April 22, 2013. ECF No. 12.
II.

2013-2014 Incidents
Plaintiff alleges that during the summer of 2013, he worked on an assignment with a co-

worker named Terry to install equipment in the field, during which Terry used the term “niggerrig.” Def. Att’y Decl., Ex. B (“Pl. Dep.”) at 90-91 & Ex. C.
In connection with his Worker’s Compensation hearing, Plaintiff testified that Terry:
apologized profusely . . . . He explained to me that he grew up with
that saying, and I heard it before. I mean I heard it that people say
that. I know what it means, it means when guys go to the
neighborhood in the hood they see something wired up and they call
it that. So he said when he grew up that’s all he heard, and it was a
genuine slip.
Def. Att’y Decl., Ex. E (“Pl. WC Tr.”) at 84-85. Plaintiff, in his sworn affidavit, states that he was
“very upset, shocked, hurt, and also offended” by the remark. Pl. Ex. I, ¶ 11. Plaintiff also testified
that this was the only incident of alleged verbal harassment by Terry and that Terry never made a
statement like this one to him again. Pl. Dep. 42-43.

3

Plaintiff complained of a second incident involving the phrase “nigger-rig.” Plaintiff
testified that he initiated conversation with another co-worker, Kevin B., in which he related to
Kevin B. the remark Terry made:
[W]e had to go out and work the next day, and it was still bothering
me a little bit. And I said, you know, “Terry, you know, used the
word N-er-rig.” Now, I said “N-er-rig.” I didn’t say “nigger-rig.”
And he said, “N-er?” And I said, “You know, the N word. Rig at the
end of it.” Then he . . . kept repeating it. “What, nigger-rig?” I said
“Yo, man. I don’t want to hear that.”
Pl. Dep. 44-45.
The following day, Plaintiff wore “a nice Adidas outfit,” which prompted Kevin B. to ask
him: “Are you a drug dealer? Are you a pimp? Are you a basketball player?” Pl. Dep. 46-47; Pl.
WC Tr. 81-83. Plaintiff complained to his supervisor Don Moscaret about Kevin B.’s comments.
Human Resources Manager Tracy Owen held a meeting with Plaintiff, Kevin B., Moscaret,
and Plaintiff’s union representative to address the complaint. According to Plaintiff, he told
Moscaret that he wanted a meeting and that he would not work with Kevin B. again. Although he
did not have to work with Kevin B. after that, Plaintiff testified that “[w]e had to all four be there
to work on this project.” Pl. Dep. 47. Plaintiff testified separately that, “I requested not to work
with him . . . . So we had a meeting with Human Resources and everybody else you know, and
then it was instructed that he can’t joke no more . . . . And that’s how they resolved it, where we
don’t work together.” Pl. WC. Tr. 83.
On January 7, 2014, Plaintiff stopped into Frontier’s Genesee office during his lunch
break. 2 As he entered the building, another co-worker named Don M. said, “Here come [sic] the
janitor.” Pl. Dep. 49-50. At some point thereafter, Don M. and approximately four other coworkers were in the break room when Don M. used the phrase “nigger, please,” during a story. Id.
2

Plaintiff was not assigned to this office, but was ordering lunch nearby. Pl. Dep. 49-50.
4

Plaintiff stated that he felt that Don M. was “calling [him] the N-word.” Pl. WC Tr. 78. Don M.
called Plaintiff later that day and told him, “Doug, I didn’t know that you took it like that.” Id.
Plaintiff testified that Don M. “tried to apologize” and “didn’t think it would hurt me or didn’t
think it was that bad.” Id. at 79.
Plaintiff reported the incident to supervisor Moscaret who immediately called Technical
Supervisor Dionne Staples to inform her of the situation. That afternoon, Staples spoke with the
three co-workers involved to discuss the incident and gather information. Staples forwarded this
information to Owen in Human Resources to continue the investigation.
On or about January 23, 2014, Plaintiff went on a leave of absence through April of 2014.
Owen continued the investigation by interviewing Plaintiff by telephone and speaking with Don
M. and three other employees in person. After concluding its investigation, Frontier determined
that Don M. used racial terminology in violation of Frontier’s employee conduct standards and its
diversity policies including the Code of Conduct. Don M. was disciplined with a three-day unpaid
suspension and received a written warning that similar conduct may subject him to further
disciplinary action up to and including termination. He also had to complete courses in diversity
and workplace civility. There were no further incidents involving Don M.
III.

2012 Incidents
Plaintiff’s Amended Complaint also refers to incidents in 2012 involving a co-worker

named Ron R. In the Spring of 2012, Plaintiff filed an Ethics Point Complaint with Frontier
regarding Ron R.’s conduct. Ron R. allegedly blocked Plaintiff’s car in the parking lot on multiple
occasions, told Plaintiff that he was worthless, needed more training, and that “a monkey could do
[his] job.” Pl. Dep. 27-28; Pl. WC Tr. 14-15. Plaintiff filed a complaint with the “Ethics Point
Hotline” in October of 2012, to report a hostile work environment based on Ron R.’s conduct.

5

Plaintiff met with various Human Resources representatives and his union representative,
and at the end of the meeting they agreed that Human Resources would conduct a civility/diversity
training course on professionalism that “everyone had to take,” which occurred approximately one
year later. Pl. Dep. 29-30. Owen testified that the civility training for all technicians in the
Operations Department was held in February or March of 2014, in response to the Genesee Street
incident earlier that year. Owen Decl., Ex. A (“Owen Dep.”) at 82-83.
Plaintiff took a leave of absence from October of 2012 through April of 2013. When
Plaintiff returned from leave, Ron R. commented: “Nice to see you back, Doug,” and “good day,
isn’t it?” According to Plaintiff, Ron R. was “trying to get under his skin,” and to “set [him] off.”
Pl. Dep. 56-59. Although Plaintiff was supposed to be re-assigned to a new location, he states that
he still had routine contact with Ron. R. Id.
Plaintiff indicates that it was after his return to work in April of 2013 that he “began to
experience the racial discrimination and hostile work environment that formed the basis of the
instant complaint.” ECF No. 38 at 8, ¶ 8.
DISCUSSION
I.

Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment “shall be rendered

forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986); see Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986). Regarding materiality, “[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” Anderson, 477

6

U.S. at 248. More importantly, “summary judgment will not lie if the dispute about a material fact
is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
Thus, the Court’s function in deciding a summary judgment motion is not “to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Id. at 249. When a properly supported summary judgment motion is made, the adverse
party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 250.
As the Second Circuit observed in Duse v. Int’l Business Machines Corp., 252 F.3d 151,
158 (2d Cir. 2001), “[i]n assessing the record to determine whether there is a genuine issue as to
any material fact, the court is required to resolve all ambiguities and draw all factual inferences in
favor of the party against whom summary judgment is sought.” 252 F.3d 151, 158 (citing e.g.,
Anderson, 477 U.S. at 255). However, “[i]f the undisputed facts reveal that there is an absence of
sufficient proof as to one essential element of the claim, any factual disputes with respect to other
elements of the claim become immaterial and do not suffice to defeat a motion for summary
judgment.” Duse, 252 F.3d at 158 (citing e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Burke v. Jacoby, 981 F.2d 1372, 1379 (2d Cir. 1992), cert. denied, 508 U.S. 909 (1993);
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986) (the existence of a factual issue will
not suffice to defeat a motion for summary judgment where that issue is not material to the ground
of the motion), cert. denied, 480 U.S. 932 (1987)).
II.

Title VII
Title VII makes it an “unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

7

§ 2000e-2. Plaintiff’s racial discrimination claim is premised upon a hostile work environment
theory. 3 To prevail on such a theory, Plaintiff must show: (1) that the harassment was sufficiently
severe or pervasive to alter the conditions of his employment and create an abusive working
environment, and (2) that there is a specific basis for imputing the conduct creating the hostile
work environment to the employer. Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013).
“[A] 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. This standard has both objective and
subjective components: the conduct complained of must be severe or pervasive enough that a
reasonable person would find it hostile or abusive, and the victim must subjectively perceive the
work environment to be abusive.” Littlejohn v. City of N.Y., 795 F.3d 297, 320-21 (2d Cir. 2015).
A plaintiff must also produce evidence that the hostility occurred because of his protected
characteristic. Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014).
In determining whether an environment is “hostile” or “abusive,” courts may consider “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 . . . . [but] no single factor is required.” Howley v. Town of Stratford,
217 F.3d 141, 154 (2d Cir. 2000) (internal quotation marks and citation omitted). “Usually, a single
isolated instance of harassment will not suffice to establish a hostile work environment unless it
was extraordinarily severe.” Id. at 153. Furthermore, “consideration of the entire scope of a hostile
work environment claim, including behavior alleged outside the statutory time period, is

3

Although Plaintiff has briefed the law pertaining to intentional discrimination, see Pl. Mem. 19-22, he did
not raise any such claim in his EEOC complaint, and his Amended Complaint does not specifically allege
disparate treatment or disparate impact discrimination based upon his race. Pl. Exs. 7, 12.
8

permissible for the purposes of assessing liability, so long as an act contributing to that hostile
environment takes place within the statutory time period.” Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 105 (2002).
III.

Analysis
Defendant argues that summary judgment is appropriate because Plaintiff cannot establish

the requisite elements of a Title VII claim to proceed to trial. Def. Mem. 12-29. It also contends
that Plaintiff’s claims arising from incidents occurring before 2013 are time-barred. Id. at 19.
A.

Allegations after Spring of 2013
1.

Severe or Pervasive

Plaintiff relies on the following instances of verbal harassment to support his hostile work
environment claim: (1) Terry’s use of the phrase “nigger-rig,” (2) Kevin B.’s repeating of the
phrase “nigger-rig” and referring to Plaintiff as a “pimp” and “drug dealer,” and (3) Don M.’s use
of the phrase “nigger please” and calling Plaintiff a janitor. 4
“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 instead of sporadic racial
slurs, there must be a steady barrage of opprobrious racial comments[.]” Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997) (internal quotations, citation, and alteration omitted). This inquiry
depends on the quantity, frequency, and severity of those slurs, considered cumulatively. Id.
Assuming that the subjective element of the hostile work environment claim has been
satisfied, see Goldschmidt v. N.Y.S. Aff. Housing Corp., 380 F. Supp. 2d 303, 312 (S.D.N.Y. 2005)
(court assumes “at the outset . . . that the subjective element of the hostile work environment claim
has been satisfied, that is, plaintiff perceived his work environment to be hostile and abusive”),

4

The Court also considers the allegations relating to Ron R. dating back to 2012 in examining whether
Plaintiff has established an objectively hostile working environment.
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Plaintiff must demonstrate that the conduct was so severe or pervasive as to alter his employment
conditions. During Plaintiff’s 15-year career with Frontier, he complained of four instances of
racial epithets and/or racially charged jokes by his co-workers between 2012 and 2014, including
use of the word “nigger” on two occasions. Viewing the evidence in Plaintiff’s favor reveals
conduct that is abhorrent and insensitive—but not conduct that is actionable under Title VII.
In Holt v. Roadway Package Sys., Inc., 506 F. Supp. 2d 194, 204 (W.D.N.Y. 2007)
(Larimer, J.), this Court found, in considering the totality of the plaintiff’s five-year tenure at his
place of employment, that the terms “boy,” “porch monkey,” and “nigger-rigged” allegedly used
on separate and isolated occasions by his fellow workers, “while unquestionably crude and
offensive, comprise stray remarks which do not rise to the level of a hostile work environment[.]”
Id. Likewise, in Hannon v. Wilson Greatbatch, Ltd., No. 00-CV-0203, 2002 WL 1012971, at *34 (W.D.N.Y. Apr. 24, 2002) (Elfvin, J.), this Court found that multiple uses of the word “nigger”
were not sufficiently severe and pervasive to alter the conditions of plaintiff’s work environment.
Id. (citing Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997) (“[The] mere utterance
of an epithet which engenders offensive feelings in an employee does not sufficiently affect the
conditions of employment to implicate Title VII. For racist comments, slurs, and jokes to constitute
a hostile work environment, there must be more than a few isolated instances of racial enmity,
meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial
comment.”)).
Courts elsewhere within this Circuit have reached similar conclusions. See Pagan v. N.Y.S.
Div. of Parole, 98 Civ. 5840, 2003 WL 22723013, at *6 (S.D.N.Y. Nov. 18, 2003) (four racial
remarks within one year did not create a hostile work environment); Dorrilus v. St. Rose’s Home,
234 F. Supp. 2d 326, 335 (S.D.N.Y. 2002) (employee calling plaintiff “El Negro” four times within

10

one month did not create a hostile work environment); Stembridge v. City of N.Y., 88 F. Supp. 2d
276, 286 (S.D.N.Y. 2000) (seven racial comments over three years did not create a hostile work
environment even when plaintiff’s supervisor called him an “uppity nigger” and “boy”); Turner v.
Nat’l R.R. Passenger Corp., 181 F. Supp. 2d 122, 132 (N.D.N.Y. 2002) (repeated use of “nigger”
by employees in connection with O.J. Simpson trial did not create hostile work environment);
Brown v. Middaugh, 41 F. Supp. 2d 172, 187-88 (N.D.N.Y. 1999) (history of references to plaintiff
as a “nigger,” “lazy nigger,” “piece of shit nigger,” and “good for nothing nigger,” while
“despicable, odious and offensive” were not “sufficiently severe or pervasive such that plaintiff’s
hostile work environment claim can survive summary judgment”); Bolden v. N.Y. Hous. Auth., No.
96 Civ. 2835, 1997 WL 666236, at *2 (S.D.N.Y. Oct. 27, 1997) (“five racial references over a
period of six weeks” by the defendant—including at least one use of the word “niggers”—was
insufficient to sustain a hostile work environment claim under Title VII).
Plaintiff further acknowledges that the comments were made in the context of jokes
(regarding Plaintiff’s apparel) or were careless remarks (“n-er rig”). Pl. Dep. 47-48; Pl. WC Tr.
83-85. Without more, Plaintiff’s claim fails as a matter of law. Petrosino v. Bell Atl., 385 F.3d
210, 223 (2d Cir. 2004) (“Simple teasing, offhand comments, or isolated incidents of offensive
conduct (unless extremely serious) will not support a claim of discriminatory harassment.”)
(internal citation omitted).
It is problematic for Plaintiff that his opposition to Defendant’s motion lacks evidence
sufficient to raise a triable issue of fact and does not cite case law to support his position that his
co-workers’ use of racial slurs on multiple occasions was severe or pervasive. Pl. Mem. 22-24.
Rather, he states in conclusory fashion that “[i]n this case, he alleges several incidents; not merely
one. But the severity prong is satisfied, as it happens, so that even if it were one incident

11

complained of, Plaintiff would have satisfied this first prong of the “[hostile work environment
test].” Id. at 23. Presumably Plaintiff hinges his severity argument on the particular epithet used in
this case. While it is true that courts have recognized that the use of the word “nigger” standing
alone may establish a hostile work environment where a supervisor directs it toward a subordinate,
this is not such a case. Cf. Cruz v. Coach Stores, Inc., 202 F.3d 560, 571 (2d Cir. 2000) (quoting
Rogers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)) (“[N]o 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
subordinates.”), superseded on other grounds by N.Y.C. Local L. No. 85. Accordingly, the two
isolated comments made by different co-workers at separate times during the course of two years
do not satisfy the objective proof requirement of a hostile work environment claim.
Assuming, arguendo, the harassment was sufficiently severe or pervasive to alter
Plaintiff’s employment conditions and create an abusive working environment, he must still show
that there is a specific basis for imputing the conduct creating the hostile work environment to the
employer. Summa, 708 F.3d at 124. As explained below, Plaintiff’s proffer in this regard is
insufficient to withstand summary judgment.
2.

Imputed Liability

“Under Title VII, individuals may not be held personally liable.” Philip v. Gtech Corp.,
No. 14 Civ. 9261, 2016 WL 3959729, at *12 (S.D.N.Y. July 20, 2016) (citing Tomka v. Seiler
Corp., 66 F.3d 1295, 1313-14 (2d Cir. 1995)). Plaintiff brings this Title VII hostile work
environment claim against his employer, Frontier. For such claims to proceed, Plaintiff “must
show that a specific basis exists for imputing the conduct that created the hostile environment to
the employer.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997).

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Where, as here, a “coworker harasses the plaintiff,” an employer can be “directly liable for
[that] employee’s unlawful harassment if the employer was negligent with respect to the offensive
behavior.” Id. at 2441. “When harassment is perpetrated by the plaintiff’s coworkers, an employer
will be liable if the plaintiff demonstrates that ‘the employer either provided no reasonable avenue
for complaint or knew of the harassment but did nothing about it.’” Rojas v. Roman Catholic
Diocese of Rochester, 660 F.3d 98, 107 (2d Cir. 2011) (quoting Perry, 115 F.3d at 149); accord
Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009).
First, it is undisputed that Frontier has policies prohibiting harassment and providing
avenues for complaints. Owen Decl., Exs. B-E. Plaintiff acknowledged receiving and signing the
Code of Conduct. Id., Ex. E. Frontier also trained Plaintiff as to where and how to make internal
reports of discrimination, and he was a union member during his approximately 15 years of
employment. Pl. Dep. 34-36, 105-06. Finally, Plaintiff previously availed himself of the complaint
process in October of 2012 when he reported Ron R.’s conduct to the Ethics Point Hotline. Pl.
Dep. 30-31; Pl. WC Tr. 72-73. He therefore raises no triable issue of fact as to whether Defendant
provided a reasonable avenue for complaint. See, e.g., Russell v. N.Y. Univ., No. 15-CV-2185,
2017 WL 3049534, at *28 (S.D.N.Y. July 17, 2017) (“[Plaintiff] does not contend that [Defendant]
failed to provide a reasonable avenue for complaint, nor could she. The record unequivocally
shows that [Defendant] had a robust anti-discrimination and anti-harassment policy, which
included a detailed complaint procedure with at least five different outlets to which an employee
could make a complaint. Moreover, there is no dispute that [Plaintiff] in fact filed a series of formal
complaints with OEO, thereby taking advantage of at least one of the avenues of complaint that
[Defendant] provided.”); see also, e.g., Notaro v. Fossil Indus., Inc., 820 F. Supp. 2d 452, 459
(E.D.N.Y. 2011) (finding no issue of fact as to whether there was a reasonable avenue of complaint

13

where plaintiffs acknowledged receipt of employee handbook containing policy and procedure for
sexual harassment complaint). Thus, Plaintiff must show that Defendant knew of the harassment
and failed to act.
To that end, Plaintiff argues that he “proffered several instances in which he sought the
help and intervention of Defendant to stamp out the racial discrimination he was experiencing,
only to have inadequate protection or intervention from Defendant.” Pl. Mem. 23.
“Despite offering a reasonable avenue of complaint to plaintiff, employer defendants can
still be held liable if plaintiff can show that they knew, or in the exercise of reasonable care should
have known, about the harassment yet failed to take appropriate remedial action.” Duch, 588 F.3d
at 763. “This standard requires a plaintiff to show that (1) someone had actual or constructive
knowledge of the harassment, (2) the knowledge of this individual can be imputed to the employer,
and (3) the employer’s response, in light of that knowledge, was unreasonable.” Id.
After Terry’s use of the term “nigger-rig” in July of 2013, Plaintiff confronted Terry
directly who immediately apologized for using a term he had heard growing up. 5 The following
day, Plaintiff relayed the conversation and offending term to Kevin B., who in turn repeated the
term multiple times in Plaintiff’s presence. Plaintiff reported Kevin B.’s remarks to supervisor
Moscaret and requested that he no longer have to work with Kevin B. Pl. WC Tr. 82-83. Frontier’s
Human Resources Department investigated Plaintiff’s complaints, and there was a meeting
between Plaintiff and Kevin B. to address those issues. Owen Dep. 35-43. According to Plaintiff,
Frontier instructed Kevin B. not to tell any more jokes, and they would not work together again.
There were no further incidents involving Kevin B. Pl. Dep. 47-48; Pl. WC Tr. 83-85.

5

Plaintiff testified that Terry was a “good guy” and that they could continue to work together. Pl. Dep. 4243; Pl. WC Tr. 85. Similarly, Owen indicated that Plaintiff “initially did not want to use Terry’s name
because he didn’t want him to get in trouble, and then he was upset because Kevin repeated it.” Owen Dep.
36. He therefore does not and cannot assert that Defendant’s response to Terry’s remark was unreasonable.
14

As to Don M.’s January 7, 2014 comments, Plaintiff reported the incident immediately to
supervisor Moscaret who in turn notified Staples. Staples communicated with three witnesses (two
involved in the conversation and one who was standing nearby within earshot) and with Don M.
to investigate the incident. Staples then contacted Human Resources to continue the investigation.
Owen Decl., Ex. H (“Staples WC Tr.”) at 15-16; Pl. Ex. 6.
On February 19, 2014, while Plaintiff was on his second leave of absence, Frontier
determined that Don M. violated its Code of Conduct and suspended him without pay for three
days and issued a written warning. Additionally, Don M. was to complete an online diversity
course and a classroom course in workplace civility. Owen Decl., Ex. I. He was advised that if he
failed to meet the expectations regarding his conduct he would be subject to further disciplinary
action “up to and including termination.” Id.
Around the same time, John Mitchell, a Sales and Service Technician, e-mailed Staples
requesting a meeting to address his concern over Don M.’s remarks: “we need to know what is
expected of us when confronted with the use of the ‘N’ word in our presence.” Pl. Ex. 4.
As a result, “[Frontier] decided that it would make sense that we should make sure that
everybody understands what a hostile work environment is, and what it is to be civil to each other
and, therefore, we had training and sent everybody to do it.” Owen Dep. 83. According to Owen,
that training took place in February or March of 2014. Id.
The facts here, viewed in Plaintiff’s favor, do not suggest that Frontier failed to take
appropriate remedial action in response to the aforementioned incidents. See Hsueh v. N.Y.S. Dep’t
of Fin. Servs., No. 15 CIV. 3401, 2017 WL 3671179, at *7 (S.D.N.Y. Aug. 24, 2017) (action taken
by defendant was “appropriately remedial and prompt,” where offending coworker was placed on
administrative leave and there was a thorough investigation into plaintiff’s complaint); see also,

15

e.g., Andrus v. Corning, Inc., No. 14-CV-6667, 2016 WL 5372467, at *7 (W.D.N.Y. Sept. 26,
2016), appeal dismissed, No. 16-3659, 2017 WL 5127330 (2d Cir. May 30, 2017) (liability not
imputed where defendant company “provided several avenues for complaint and conducted a
prompt investigation, which culminated in the termination of [offending co-worker’s] employment
approximately two weeks after Plaintiff’s complaint”). Plaintiff’s belief that the sanctions against
Kevin B. were not harsh enough, see Pl. Mem. at 18, also does not create an issue of fact sufficient
to overcome summary judgment. See Chenette v. Kenneth Cole Prods., Inc., No. 05-CV-4849,
2008 WL 3176088, at *11 (S.D.N.Y. Aug. 6, 2008) (rejecting argument that defendant’s response
was inadequate merely because it took no punitive action); Hudson v. Fischer, No. 06-CV-1534,
2008 WL 5110974, at *7 (N.D.N.Y. Dec. 2, 2008) (“A victim of . . . harassment is entitled to a
remedy reasonably calculated to end the harassment, but the victim is not entitled to choose her
remedy and then argue that the employer’s response is unreasonable because she does not get what
she wants.”).
In sum, Plaintiff does not raise an issue of fact as to whether liability should be imputed to
Frontier.
B.

Allegations before Spring of 2013

Defendant also argues that Plaintiff’s Amended Complaint contains time-barred
allegations relating to Ron. R.’s conduct in 2012. Def. Mem. 19. Plaintiff does not dispute that
those incidents did not occur within 300 days of Plaintiff’s filing of his EEOC charge on May 6,
2014. Pl. Dep. 107; Pl. WC Tr. 10-21, 38-64; see 42 U.S.C. § 2000e–5(e)(1) (claims of
discrimination must be filed with the EEOC within 300 days of the alleged discriminatory act);
see also Hassan v. City of Ithaca, N.Y., No. 10-CV-06125, 2012 WL 1190649, at *3 (W.D.N.Y.
Apr. 9, 2012). Moreover, Plaintiff does not address or refute Defendant’s timeliness argument.

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ECF No. 38 at 14-24. Plaintiff therefore appears to concede that the allegations are untimely.
Cristofaro v. Lake Shore Cent. Sch. Dist., No. 06-CV-0487, 2011 WL 635263, at *8 (W.D.N.Y.
Feb. 11, 2011), aff’d, 473 F. App’x 28 (2d Cir. 2012) (“Plaintiff did not respond to this argument,
and therefore appears to concede that the allegations are untimely.”).
For all the reasons stated, Plaintiff raises no genuine issue of material fact for trial with
respect to his claim that Frontier subjected him to a racially hostile work environment.
Accordingly, Defendant’s Motion for Summary Judgment is GRANTED, and Plaintiff’s Amended
Complaint asserting racial discrimination under Title VII is DISMISSED.
CONCLUSION
Defendant’s Motion for Summary Judgment (ECF No. 34) is GRANTED, and Plaintiff’s
Amended Complaint (ECF No. 12) is DISMISSED WITH PREJUDICE. The Clerk of the Court
is directed to enter judgment and close this case.

IT IS SO ORDERED.
Dated: March 10, 2018
Rochester, New York

___________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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