IGE v. COMMAND SECURITY CORPORATION

Full title: OYEBANJI IGE, Plaintiff, v. COMMAND SECURITY CORPORATION and PATRICIA…

Court: United States District Court, E.D. New York

Date published: Mar 12, 2002

99-CV-6916 (ILG) (E.D.N.Y. Mar. 12, 2002)

Opinion

99-CV-6916 (ILG)

March 12, 2002

MEMORANDUM AND ORDER

GLASSER, United States District Judge.

SUMMARY

Plaintiff Oyebanji Ige ("Ige"), pro se, is a former employee of defendant Command Security Corporation ("Command Security").¹ Following his termination, Ige commenced this action against Command Security and his former supervisor, Patricia Davis ("Davis"), alleging discrimination based on his national origin in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., ("Title VII") and 42 U.S.C. § 1981. Plaintiff also raises common law claims for negligent retention and supervision. Command Security now moves for summary judgment. For the reasons that follow, the motion is granted. Davis has failed to respond to the complaint against her, but the Court finds, in any event, that the claims against her are meritless. Accordingly, the action is dismissed in its entirety.

1 Although Ige is currently pro se, he was initially represented by counsel when he filed his complaint and throughout discovery.

BACKGROUND

The relevant facts, viewed in the light most favorable to plaintiff (as this Court must do on a motion for summary judgment by the defendant see Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987)), are as follows.² Ige is an immigrant to the United States from Nigeria who was employed by Command Security for less than one year before his termination. (See Ige Dep. at 26, 45, 99-105, attached to Def's Mem. of Law as Ex. A.) Command Security is a locally operated private security agency and often has entry-level positions available for employees with little or no work experience. (See Affidavit of Former Director of Operations David Andriolas ("Andriolas Aft") ¶ 2, attached to Def's Mem. of Law as Ex. C.) Command Security is an ethically diverse company, with only 1% of its New York office consisting of white Americans, and 20% and 75% consisting of Hispanics and black employees, respectively. (Id. ¶ 5.) Ige worked with at least four other Nigerians during his employment with Command Security. (See Ige Dep. at 42; P1. Mem. in Opp'n at 4.)

2 Command Security has filed a Statement of Undisputed Facts pursuant to Local Civil Rule 56.1. Ige however has not filed a counter statement pursuant to the local rule. Although generally, a court must deem those statements in a Local Civil Rule 56.1 statement to be admitted when the party opposing a motion for summary judgment fails to file a counter statement of disputed material facts see Local Civil Rule 56.1(c), being mindful of Ige's pro se status in opposing summary judgment, this Court will construe the facts in his memorandum in opposition and deposition testimony to constitute his counter statement. See, e.g., Clark v. Simoneschi, No. 93-CV-5173, 1995 WL 62722, at 6 n. 2 (E.D.N.Y. Feb. 8, 1995) (construing pro se plaintiffs brief and affidavit filed in opposition to summary judgment motion as counter statement pursuant to former Local Civil Rule 3(g), currently Local Civil Rule 56.1.).

When Ige was hired in April of 1997, he received a list of "Command Security Corporation's Rules and Regulations for Security Officers." (See Ige Dep. at 54-55; Rules, attached to Ige Dep. as Ex. B.) Pursuant to Command Security rules:

[d]isrespectful and insubordinate behavior toward a client, supervisor, or member of management will not be tolerated. This type of behavior will result in immediate dismissal. Failure to follow orders of any Command Security or member of Command's management can result in immediate dismissal.

(See Ige Dep. 56-57; Rules ¶ 4.) The Rules also paraphrase part of Command Security's antidiscrimination policy, which prohibits racial, ethnic, sexual or otherwise demeaning comments. (See Rules ¶ 19.) Ige had signed the bottom of the Rules, acknowledging that he had read and understood them. (Id. at 2.)

"Discriminatory" Comments

On Ige's first day of work, his supervisor, George Pascual, asked Ige if he knew how to swim. (See Ige Dep. at 47.) At the time, Ige thought nothing much about this question, until a coworker later said to him that "if he couldn't swim with the big fish, he better get out of the pool." (Id. at 65-66.) After this second comment, Ige stated that he came to believe that the swimming metaphor meant "[t]hat if you can't work with us, you better go. If you can't walk with us or come play with us, you better go. . . . If you cannot have patience for your application,³ that's what, you better go." (Id. at 68.) Although these comments made Ige uncomfortable, he admitted that he did not know if they were meant to be discriminatory. (Id. at 69.)

3 Apparently, Ige had tried to apply for a state security guard license through Command Security's office, but was told (by the same woman who made the swimming comment) that he would have to wait for it. (See Ige Dep. at 67-69.)

On another occasion, when Ige went to the office to collect his paycheck, a nonsupervisor coworker said to him, "[h]ow do you know you've got a black ass." (Id. at 71.) Another one of Ige's coworkers then said to Ige once outside the office, "African man, didn't you hear what she said?" and "You didn't hear what that bitch said to you." (Id.) Ige never reported any of these comments to management. (Id. at 81-83.)

Denial of Training and Security Guard License

Command Security requires employees to take a "16 hour exam." (Id. at 84.) The exam is an annual state requirement for employees to obtain and renew their security guard licenses, and is required for employees who have completed 16 hours of on-the-job training. (Id. at 84-85.) According to Command Security's then Director of Operations, Andriolas, the company erroneously assumed that Ige held a valid state license during the time of his employ. (See Andriolas Aff. ¶ 8.) Although the company was mistaken about Ige's licensing status, whether he had a license or not had no bearing on job assignments, promotions, pay, or any other benefit of employment with Command Security. (Id. ¶ 6.) Ige concedes that his failure to receive his license while employed at Command Security did not hinder his opportunities with the company, affect his discharge or bar his ability to find another job. (See Ige Dep. at 85.) Since his termination, Ige has completed his requirements and has received his security guard license. (Id. at 76.) According to Andriolas, other Command Security employees of Nigerian origin have regularly trained for and received their state licenses. (See Andriolas ¶ 7.)

Allegations Regarding Supervisor Davis

Ige only met account supervisor Davis on two occasions while he was employed at the company. (See Ige Dep. at 197.) The first time was in November 1997 when Davis was looking to fill a one day assignment at an off-track betting facility. (Id. at 94.) Davis allegedly told Ige that he could not have the assignment because she needed someone taller than Ige, who is 5' 6". (Id. at 86.) According to Ige, the minimum height requirement for security guard jobs is 5' 6". Ige concedes that if he had been even one inch shorter than he was, it would "make sense" that he would be passed over for this assignment. (Id. at 93-94.) Ige admitted that he did not know whether Davis denied him the assignment because he is Nigerian, but assumes that she either did not like him personally, or discriminated against him because of his height. (Id.)

Ige encountered Davis on only one other occasion in March of 1998. (Id. at 99.) This time, Ige was working at a customer's site when Davis called the desk at which Ige was working. (Id.) According to Ige, he answered the phone and stated, "Good Morning, Command Security. May I help you please." (Id. at 99-100.) Davis, who was on the other end of the phone, responded, "Mr. Command, don't you have a name, Mr. Command Security?" (Id. at 100.) Ige put the phone down and, after about five minutes, Davis called again. (Id.) Again, Ige answered the phone in the same way, without stating his name. Davis then identified herself as the site manager and told Ige to see her in her office tomorrow morning. (Id. at 101.)

Ige met with Davis the next morning. Davis gave Ige a written warning for the way he answered the phone, and asked Ige to first read the paper and then sign it. (Id. at 105; Written Warning, attached to Ige Dep. as Ex. G.) Ige refused to sign the paper because he felt it was accusing him of things he did not do. (See Ige Dep. at 107.) Davis then called in the operations manager who said to Ige that if he did not sign the paper, he would be fired.⁴ (Id. at 105-06.) Ige then said, "I'm fired. I'm not going to sign it," and walked out the door.⁵ (Id. at 106.) Ige was terminated immediately on March 24, 1998. (Id. at 115; Compl. ¶ 12.) According to Andriolas, a "warning letter" provided to employees is the first step in the company's "progressive discipline policy," and Ige's written warning would not have affected his pay or other conditions of his employment. (See Andriolas Aff. ¶ 9.) In addition, Ige's signature on the warning letter would not have conceded any improper conduct but would merely have acknowledged receipt of the document. (Id. ¶ 10.)

4 According to Command Security, no one at the company holds a position with the title "operations manager." (See Def's Mem. of Law at 15 n. 6.) Ige testified at his deposition that he did not know the "operations manager's" name. (See Ige Dep. at 108.) Command Security's Director of Operations at the time was David Andriolas. (See Andriolas Aff. ¶ 1.)

5 At his deposition, Ige testified that, just prior to his meeting with Davis, he heard her say to dispatchers and other employees: "Mr. Security is here now. He's going to kick my ass. Mr. Command Security is here now. I'm going to kick his ass." (See Ige Dep. at 103.) He later testified, however, that neither Davis nor the operations manager used any profanity during the meeting. (Id. at 112-13.) In fact, Ige stated that the operations manager was polite and treated him with respect. (Id. at 112.) Whether or not Davis made these comments, at most, they are unprofessional, but do not rise to the level of actionable discrimination. See, e.g., Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 263 (E.D.N.Y. 1999) ("[Defendant] may have harassed, insulted and criticized [plaintiff], but Title VII does not make employers liable for being mean or petty. . . .").

Administrative Proceedings

Following his termination, Ige filed various administrative complaints. Ige first claimed to the Labor Standards Division that Command Security owed him an amount less than $11 for work he allegedly had done without being paid. (Id. at 148-51.) Apparently, this complaint was dismissed. (See Def.'s Local Rule 56.1 Statement ¶ 39.) Ige then complained to the Secretary of State that Command Security had allowed him to work without first obtaining a state license for him. (See Ige Dep. at 168.) Indeed, the Department of State found that Command Security allowed Ige to work without a license, and assessed a small administrative fine against the company. (Id. at 176.) However, Ige himself was never adversely affected by the company's oversight in not ensuring that he was licensed with the state before working for the company. (Id. at 169.) Also, Ige knew that he could have obtained a license without the company's help, which he did immediately after his termination. (Id. at 172.) Ige testified that other Nigerian employees of the company received their state licenses, and, in fact, he was the only one he knew who did not receive his license while working for the company. (Id. at 180.)

Ige also filed a complaint with the Unemployment Insurance Division, challenging Command Security's assertion that he had been discharged for misconduct. (Id. at 151-52.) Initially, Ige's claims for benefits and for state-sponsored vocational training were denied. (Id. at 152-53; Denial of vocational training, attached to Ige Dep. as Ex. J.) At his request, Ige received a full hearing on the merits of his unemployment claim before an administrative law judge ("ALJ"). (See Ige Dep. at 156.) In a written opinion, the ALJ again denied Ige benefits finding, "It is significant that the claimant was not going to be discharged but only given a warning notice for refusing to give his name on the phone as requested by his account manager. . . . Therefore, I find that the claimant's actions rise to the level of misconduct under the Law and he is disqualified from receiving benefits." (ALJ Dec., attached to Ige Dep. as Ex. K.) Ige never asserted at the administrative hearing or in his subsequent appeal (which ultimately resulted in an affirmance of the ALJ's decision) that discrimination was the "real" reason for his discharge. (See Ige Dep. at 165-66, 187.)

On May 27, 1998, Ige filed a complaint with the New York City Human Rights Division ("NYCHRD") and the Equal Employment Opportunity Commission ("EEOC"), alleging that he was subjected to "disparate treatment" by Command Security and Davis based on his national origin. (See NYCHRD Compl., attached to Ige Dep. as Ex. R.) The specific acts of alleged discrimination included denying him training and a state license, a fair hourly wage, and referrals to available job assignments; falsely charging him with misconduct; and recommending his termination. (Id.) The EEOC issued Ige a right-to-sue letter dated July 28, 1999. (See Right-to-Sue Letter, attached to Ige Dep. as Ex. T.)

Federal Court Proceedings

Ige, through counsel, filed his federal complaint on October 27, 1999. In addition to raising disparate treatment claims based on national origin discrimination in violation of Title VII and Section 1981, he alleged for the first time that he was also discriminated against based on color and/or race.⁶ (See Compl. ¶ 11.) He also for the first time appears to raise a hostile work environment claim based on general allegations of abusive treatment and profanity (id. ¶¶ 17-18), and that Davis specifically "initiated a campaign of harassment and intimidation" against him, which included refusing to train him, using ethnic slurs and abusing him publicly, and imposing unjustified disciplinary sanctions on him (id. ¶¶ 28-29). In addition, Ige argues that Command Security was negligent in retaining and supervising Davis. (Id. ¶ 31.)

6 Ige claims that Davis "manifested clear ethnic and racial hostility toward" him, and that she maintained a "vindictive and racist temperament." (See Compl. ¶¶ 34, 36.)

Command Security now moves for summary judgment, arguing that Ige's Title VII complaint is untimely and that his claims are unexhausted and meritless. In opposition to the motion, Ige elaborates on many of the allegations in his complaint, and also provides the names of four Nigerian employees who Ige claims were also discriminated against.⁷

7 Ige's memorandum in opposition is replete with allegations that are inconsistent with his prior testimony and unsubstantiated by the record. For example, in his memorandum in opposition, Ige claims that the four Nigerian employees were denied job training and that the company failed to implement its (unspecified) policies equally over these employees. (See Pl. Mem. in Opp'n at 4.) However, at his deposition, he admitted that no other Nigerian employees were denied training or a state license. (See Ige Dep. at 180.) He also now states that he "even reported [the alleged discrimination] to management but I found them unapproachable." (See Pl. Mem. in Opp'n at 6.) However, earlier at his deposition, he testified that he never reported any alleged discrimination to anyone in management. (See Ige Dep. at 81.) Ige's new and unsupported assertions will not create material issues of fact. The Second Circuit has ruled: "A party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony." Trans-Orient Marine Corp. v. Star Trading Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991). Furthermore, Ige contends in his memorandum that the four other Nigerian employees were subjected to public humiliation, and that they ultimately left Command Security either out of frustration or because they were "unstable with the company." (See Pl. Mem. in Opp'n at 4-5.) Ige does not provide any details of the alleged humiliation, nor does he provide affidavits to support his assertions. Although now proceeding pro se, Ige was notified that he must oppose a motion for summary judgment with affidavits, based on an affiant's personal knowledge, pursuant to Fed.R.Civ.P. 56(e). Having failed to submit any affidavits (including his own) to substantiate these allegations, and finding no support in the record that a material fact issue exists in this regard, the Court is driven to conclude that there is no material issue of fact as to whether these other Nigerian employees were humiliated or whether they left the company because they were being discriminated against.

The Court notes that, in light of Ige's pro se status, Command Security sent Ige a letter advising him of his obligations in opposing the motion for summary judgment pursuant to Fed.R.Civ.P. 56. Thus, Ige has been adequately notified pursuant to the requirements set forth in Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999).

DISCUSSION

I. Motion for Summary Judgment

Summary judgment is proper "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997). In determining whether the movant has met this burden, the court must resolve all ambiguities and draw all permissible factual inferences in favor of the party opposing the motion.Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987) (citingUnited States v. Diebold, Inc. 369 U.S. 654, 6S5 (1962)). Although courts should be particularly cautious about granting summary judgment in employment discrimination cases when intent is at issue, see Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994);Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp.2d 414, 425 (S.D.N.Y. 1998) "summary judgment may be appropriate even in the fact-intensive context of discrimination cases," Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). Thus, to defeat a motion for summary judgment, "a plaintiff must provide more than conclusory allegations of discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 119 (2d Cir. 1997).

II. Title VII Claims: Time-Bar

Defendant Command Security first argues that the complaint should be dismissed as time-barred because Ige filed it on October 27, 1999, which was 91 days after he allegedly received his EEOC right-to-sue letter on July 28, 1999. After a claimant obtains a right-to-sue letter from the EEOC, his Title VII suit must be commenced not more than 90 days thereafter. See 42 U.S.C. § 2000e-5(e) and (f); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994). Command Security has counted 91 days from the date the right-to-sue letter was signed by the EEOC based on Ige's own statement that he received his right-to-sue letter on that date.⁸ (See Ige Dep. at 190.) However, there is no indication that Ige went to the EEOC office to pick up his letter on the same day it was signed, and it is unlikely that, even if the EEOC mailed the letter to Ige on July 28th, Ige would have received it that same day. If Ige received his right-to-sue letter even one day after July 28th, his federal complaint would be timely. Because issues of fact remain regarding when Ige received his right-to-sue letter, the Court declines to dismiss the complaint as time-barred.⁹

8 At his deposition, Ige was handed a copy of his right-to-sue letter and asked the following question:
Q: The date on here is July 28, 1999. Is that the date you received it?
A: Yes, please.
(See Ige Dep. at 190.)

9 Although never addressed by defendant, Ige also brings his complaint pursuant to 42 U.S.C. § 1981 which does not require that administrative remedies be exhausted before bringing suit in federal court. See Patterson v. McLean Credit Union, 491 U.S. 164, 181 (1981). Accordingly, even if the Title VII claims were dismissed as untimely, the Section 1981 claims would still be properly before the Court.

III. Unexhausted Title VII Claims: Race/Color and Hostile Work Environment

Command Security argues that Ige's Title VII claims based on color and/or race discrimination and hostile work environment are not properly before this Court because Ige failed to exhaust them in his NYCHRD charge, and they are not "reasonably related" to the claims raised in that charge. (See Def's Mem. of Law at 17 n. 7, 22.)

Exhaustion of remedies is a precondition to raising a Title VII claim in federal court. See, e.g., Francis v. City of N.Y., 235 F.3d 763, 768 (2d Cir. 2000); Holtz v. Rockefeller Co., 258 F.3d 62, 82 n. 5 (2d Cir. 2001). This exhaustion requirement is "designed to give the administrative agency the opportunity to investigate, mediate, and take remedial action. . . ." Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999) (internal quotation marks and citation omitted). Nonetheless, "claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are "reasonably related' to those that were filed with the agency." Id; accord Holtz, 258 F.3d at 83. The only claim that Ige raised in both his federal complaint and in his NYCHRD charge is his disparate treatment claim based on national origin discrimination. Thus, before addressing Ige's color/race and hostile work environment claims, the Court must determine whether these claims are "reasonably related" to the claim raised in his NYCHRD charge.

The Second Circuit has recognized three types of situations in which claims not alleged in an administrative charge are "reasonably related" to the allegations in the charge such that it would "be unfair to civil rights plaintiffs to bar such claims in a civil action." Butts v. City of N Y, Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1402 (2d Cir. 1993). The first situation is where the conduct complained of "would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. The second situation is where a claim alleges retaliation against the employee for filing an EEOC charge. Id. The third situation is where a claim alleges "further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id.

Of these three circumstances, only the first has relevance.¹⁰ This first situation, which essentially involves "an allowance of loose pleading," id., does not encompass claims alleging discrimination on a basis entirely different from that involved in the EEOC charge. Richards v. N YC. Police Dep't, No. 97-CV-0179, 1999 WL 33288, at 7 (S.D.N.Y. Jan. 25, 1999); Peterson v. Ins. Co. of N. Am., 884 F. Supp. 107, 109 (S.D.N.Y. 1995) ("[C]ourts will not permit a claim that is based on a wholly different type of discrimination to be brought if it was not initially asserted in the EEOC charge."). Plaintiffs alleged claim for discrimination based on national origin is wholly different from a claim of race discrimination. Mathura v. Council for Human Servs. Home Care Servs., Inc., No. 95-CV-4191, 1996 WL 157496, at 2 (S.D.N Y April 2, 1996) (a claim of national origin discrimination is "wholly different" than a claim of race discrimination), aff'd, 107 F.3d 3 (2d Cir. 1997);accord Cordero v. Heyman, 97-CV-0435, 1998 WL 730558, at 5 (S.D.N.Y. Oct. 19, 1998) (same); Navarte v. Chase Manhattan Bank, N.A., 969 F. Supp. 10, 12-13 (S.D.N.Y. 1997) (same). Nothing in plaintiffs complaint filed with the NYCHRD suggests that defendant discriminated against him on account of his race; that charge does not even mention plaintiffs race. In fact, in plaintiffs federal complaint, he specifically states that he filed a complaint with the EEOC alleging discrimination based only upon national origin. (See Compl. ¶ 7.) Under these circumstances, one cannot say that the scope of the EEOC investigation would reasonably grow into an inquiry concerning race discrimination. The two claims are therefore not reasonably related and the Title VII color and/or race claim is dismissed.

10 The other two situations are inapplicable because: (1) plaintiff filed his charge with the NYCHRD after he was terminated, and there could thus be no retaliation against him for filing it; and (2) the complaint fails to allege any further incidents of discrimination carried out in precisely the same manner as those alleged in the NYCHRD charge.

The same must be said for Ige's apparent hostile work environment claim regardless of whether the claim is based on race or national origin discrimination. Ige's NYCHRD charge alleges only that the "Corporation subjected complainant to disparate treatment, including . . . denying him training, denying him an application for a license . . ., denying him an hourly wage . . . and failing to refer him to available job assignments" (see NYCHRD Charge ¶ 5), and that "Davies [sic] subjected complainant to disparate treatment, including . . . failing to refer him to available job assignments, falsely charging him with misconduct and recommending the termination of his employment," (id. ¶ 6). Strikingly absent from the charge are any allegations of a hostile work environment. Moreover, the alleged incidents in his NYCHRD charge are notably distinct from the hostile work environment allegations in his federal complaint wherein he complains of "abusive treatment," "profane language," "ridicule and insult[s]," and that Davis initiated a "campaign of harassment and intimidation" against him including, inter alia, ethnic slurs and public humiliation. (See Compl. ¶¶ 17-18, 28-29.) An investigation into the underlying incidents of plaintiffs disparate treatment claim would not lead an investigator to inquire about a claim of hostile work environment.¹¹ Other courts have similarly found. See e.g., Findlay v. Reynolds Metals Co., Inc., 82 F. Supp.2d 27, 34 (N.D.N.Y. 2000) (investigation into disparate treatment claim would not have grown out of EEOC investigation of hostile work environment charge because incidents underlying each claim were distinct); Ghose v. Century 21, Inc., 108 F. Supp.2d 373, 376 (S.D.N.Y. 2000) (hostile work environment and retaliation claims not reasonably related to claims of racial and national origin discrimination); Szarka v. Reynolds Metals Co., Inc., F. Supp. 2d 115, 124 (N.D.N.Y. 1998) (hostile work environment claim did not reasonably grow out of claim of sex and age discrimination); Eaton v. Am. Media Operations, Inc., No. 96-CV-6158, 1997 WL 7670, at 2 (S.D.N.Y. Jan. 9, 1997) ("claim of sexual harassment is not itself reasonably related to [a] claim of sex . . . discrimination such that plaintiff should be entitled to pursue it."); Koster v. Chase Manhattan Bank, 554 F. Supp. 285, 287 n. 5 (S.D.N.Y. 1983) ("an EEOC investigation into charges of sex discrimination in areas such as pay, promotion, and conditions of employment could not reasonably be expected to uncover incidents of sexual harassment"). Because Ige's disparate treatment and hostile work environment claims "rely on different facts and embody different legal theories," an investigation into the former could not reasonably be expected to grow into an investigation of the latter.Porter v. Texaco, Inc., 985 F. Supp. 380, 384 (S.D.N.Y. 1997). Accordingly, Ige's Title VII hostile work environment claim must be dismissed as unexhausted.

11 Even though Ige also alleges that Davis's "campaign of harassment" included her failure to train him and her imposition of disciplinary sanctions (Id. ¶¶ 28-29), an investigation into these alleged actions as part of a disparate treatment claim would not lead an investigator to inquire into an entirely different claim for hostile work environment. Significantly, there is no indication in the record, except for Ige's bald assertion, that Davis had anything at all to do with Command Security's alleged failure to provide Ige with training.

IV. Exhausted Title VII Claim: Disparate Treatment

In order to survive a summary judgment motion on a disparate treatment claim, a plaintiff initially must establish a prima facie case of discrimination. A prima facie case is established by showing that plaintiff was subjected to an adverse employment action, under circumstances giving rise to an inference of prohibited discrimination.See e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);Fitzgerald v. Henderson, 251 F.3d 34S, 356 (2d Cir. 2001); Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997). Although plaintiffs burden in this regard is not an "onerous" one, Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981), plaintiff here has failed to show that the actions taken by his employer give rise to an inference of discrimination.

Ige argues that he was treated differently from other non Nigerian employees because he was denied training and a state security guard license; denied one job assignment due to his height; unfairly warned for his telephone etiquette; and finally discharged for alleged insubordination. None of the circumstances surrounding these incidents gives rise to an inference of discrimination based on plaintiffs national origin. Ige admits that he was not prejudiced by his employer's failure to train and provide a license for him, either while employed at Command Security or in seeking other employment. (See Ige Dep. at 85.) The fact that other Nigerian employees received the exact benefit of which Ige claims he was denied cuts directly against any inference that Ige was denied training and his license based on his national origin. Moreover, as noted infra at note 7, Ige's bald assertion that four other Nigerian employees were denied training and licensing will not defeat summary judgment because he provides no evidentiary support whatsoever for this assertion see Schwapp v. Town of Avon, 118 F.3d 106, 119 (2d Cir. 1997) (conclusory allegations without more will not defeat a motion for summary judgment), and he directly contradicts his earlier deposition testimony in which he stated that he was the only employee to be denied training and a license (id. at 180).¹² Nor does plaintiff show that other non Nigerian employees similarly situated were treated differently. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (inference of discrimination may be established by showing that others not in plaintiffs protected class were treated differently); Belgrave v. City of N.Y., No. 95-CV-1507, 1999 WL 692034, at 4 ((E.D.N.Y. Aug. 31, 1999) (same).

12 Although Ige also claims that these four Nigerian employees left the company out of "frustration," or instability, he fails to allege the underlying bases for these resignations, and simply asks the Court to assume that it was because they were discriminated against based on their national origin. Without providing any details about these other employees, the Court will not assume that their resignations had anything to do with their being subjected to discriminatory treatment while they were employed with the company. There is simply no basis in the record for doing so.

Also, there are no facts alleged to link Davis's refusal to offer Ige one job assignment to national origin discrimination. Ige does not allege that Davis ever mentioned his national origin or spoke to him in a derogatory or inappropriate manner when she declined to extend the job to him. Indeed, Ige concedes that he did not get the job either because Davis did not like him or because he was too short. (See Ige Dep. at 93-94.) Either way, there is no basis for inferring that Ige's Nigerian origin had anything to do with Davis's decision.

There is also no evidence to support an inference that Ige's "warning letter" for his telephone manners was meant to discriminate against him on the basis of national origin. It is uncontested that Davis had met Ige on only one occasion prior to the telephone incident, and there is no indication to suggest that she even knew who Ige was when speaking to him on the phone. Ige does not state at his deposition or anywhere in his papers that he ever identified himself to Davis during their two brief telephone conversations, and it is thus implausible that she singled him out for reprimand based on his national origin. There is also no dispute that the warning letter would not have resulted in Ige's termination had he signed it.

Ige's termination was also justified based on Command Security's policy which allows it to discharge an employee for insubordination. Had Ige signed the warning, he would not have been terminated. Having refused to sign the warning, the company was completely justified in terminating Ige based on its stated policy which Ige had read and signed. Command Security's reason for terminating Ige was more than legitimate, and Ige has presented no evidence to suggest otherwise. See Burdine, 450 U.S. at 254.

V. 42 U.S.C. § 1981 Claims

Ige also invokes 42 U.S.C. § 1981 in raising his discrimination claims. Section 1981 prohibits discrimination based on race in the making and enforcement of contracts. See Johnson v. Rv. Express Agency, Inc., 421 U.S. 454, 4S9 (1975); 42 U.S.C. § 1981(a). It is well settled that Section 1981 does not prohibit discrimination on the basis of national origin. See St. Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987); Sanghvi v. Frendel, No. 96-C V-S 133, 1999 WL 14708, at 1 (E.D.N.Y. Jan. 6, 1999); Adames v. Mitsubishi Bank, Ltd., 751 F. Supp. 1548, 1559 (E.D.N.Y. 1990). Therefore, plaintiffs Section 1981 claim based on national origin discrimination must be rejected. However, Section 1981 does provide redress for discrimination based on race, and, as noted supra at n. 9, does not require that plaintiffs first exhaust administrative remedies. See Patterson, 491 U.S. at 181. Even assuming however that Ige's complaint states a claim of disparate treatment based on race discrimination, the claim must be dismissed for the same reasons the Court rejects plaintiffs Title VII claim. See Martin v. Citibank, N.A., 762 F.2d 212, 216-17 (2d Cir. 1985) (standard for liability in disparate treatment claim under Title VII and Section 1981 is the same); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (same standard applied under Title VII and Section 1981).

Similarly, Ige's hostile work environment claim must be rejected because Ige cannot show that his "workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his] work environment." Van Zant v. K.L.M. Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (quotation marks and citation omitted); accord Whidbee, 223 F.3d at 69; Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). A "few isolated incidents of racial enmity," Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986), or a "mere utterance of an . . . epithet which engenders offensive feelings in an employee" is insufficient to establish a hostile work environment, Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citation omitted).

Ige relates only two comments which involve any reference to Ige's race. Those comments, including one made by a dispatcher allegedly making reference to plaintiffs "black ass," and another by a coworker who once referred to him as "African man," do not even remotely amount to an actionable claim for hostile work environment. See Snell, 782 F.2d at 1103; Winkfield v. City of N.Y., No. 97-CV-2183, 1999 WL 1191544, at 3 (S.D.N.Y. Dec. 15, 1999) (finding insufficient claim of hostile work environment where of the several incidents cited by plaintiff, "only two appear[ed] to have any racial overtones"). In any event, Ige testified that he never reported these incidents to his employer. (See Ige Dep. at 81-83.) The two unrelated swimming comments also do not amount to actionable harassment as there is not a shred of evidence to suggest that they were meant to discriminate against Ige on account of his race.Murray-Dahnir v. Loews Corp., No. 99-CV-9057, 1999 WL 639699, at 4 (S.D.N.Y. Aug. 23, 1999) (holding that non racial forms of hostility cannot support a hostile work environment claim). Although Ige makes other general allegations of being subjected to ridicule and verbal harassment, these allegations are conclusory and unsubstantiated by this record. Therefore, the Court finds as a matter of law that no genuine issue of material fact exists as to Ige's hostile work environment claim.

VI. Claims as to Patricia Davis

Patricia Davis, the individual named defendant in the complaint, has not appeared in this action, and, according to Command Security, she no longer worked for the company at the time the action was filed. (See Mem. of Law at 14.) The Court nonetheless dismisses the claims against her as wholly baseless. First, it is well settled that there is no individual liability under Title VII. See Weeks v. N.Y.S. Div. of Parole, 273 F.3d 76, 81 n. 1 (2d Cir. 2001); Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) (abrogated on other grounds byBurlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)).

Although a plaintiff may maintain an action against an individual under Section 1981, a plaintiff must demonstrate "some affirmative link to causally connect the actor with the discriminatory action," Whidbee, 223 F.3d at 75 (quoting Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 983 (10th Cir. 1991)), and that the actor's behavior was racially motivated,Callahan v. Consol. Edison Co. N.Y., Inc., No. 00-CV-6542, 2002 WL 244604, at 3 (S.D.N.Y. Feb. 20, 2002). As discussed above, Ige has failed to show that the two actions taken by Davis, including her refusal to assign him to one particular job because of his height, and her issuance of a warning letter concerning his telephone protocol, were in any way racially motivated. See supra at 16-17. Accordingly, the Section 1981 claims against Davis are rejected.

VII. Negligent Supervision and Retention Claims

Under New York Law, to prevail on a negligent supervision or retention claim, plaintiff must show that the employer knew or should have known of the employee's propensity for the conduct that caused the injury.Guveiyian v. Keefe, No. 97-CV-5210, 1998 WL 273015, at 3-4 (E.D.N.Y. Jan. 12, 1998); Brannon v. Tarlov, 986 F. Supp. 146, 150 (E.D.N.Y. 1997); Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791, 793 (2d Dep't 1997). Here, there is no dispute that Ige never complained to his employer about any allegedly discriminatory conduct and there is no reason why Command Security should have known about any alleged discrimination. Accordingly, summary judgment must be granted on Ige's state law claims.

CONCLUSION

For the foregoing reasons, the motion for summary judgment is granted and the claims are dismissed in their entirety.¹³

13 Command Security also moves to strike plaintiffs sur-reply brief Because the Court has granted the motion for summary judgment, the motion to strike is denied as moot.

So Ordered.