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June 15, 1981

Obatala OMBU, Plaintiff,

The opinion of the court was delivered by: WEINFELD

Plaintiff, Obatala Ombu, a black male, brings this action against his former employer, Children's Television Workshop ("CTW"), alleging discrimination in his discharge and in various conditions and terms of employment because of his race and sex in violation of Title VII of the Civil Rights Act of 1964. *fn1" Defendant now moves for summary judgment. Plaintiff responded to this motion with a factually detailed memorandum of law but with no affidavit. Since plaintiff is proceeding pro se, however, the Court will treat the factual statements in this memorandum as if they were properly alleged in affidavit form. *fn2" As the following discussion demonstrates, plaintiff's memorandum raises material, factual disputes on several issues; on the other hand, as to other issues, no material factual disputes exist and defendant is entitled to judgment in its favor. Accordingly, summary judgment is granted in part and denied in part.

In July 1978, plaintiff was employed at CTW as a full-time Research Assistant with its Sesame Street television program. Because the work at Sesame Street permitted flexible hours, plaintiff was allowed to condense a full-time, five-day, 35-hour work week into a four-day week with full-time pay from September 1978 until May 1979 to enable him to attend classes toward his Ph.D. *fn3" Plaintiff was the only employee at CTW who was accorded this privilege. In May 1979, as a result of budget cuts, defendant decided to eliminate one of two Research Assistant positions at Sesame Street. However, at the same time, defendant was launching a new project, the publication of a science magazine called "3-2-1 Contact," which required a Research Assistant. Plaintiff thus was transferred from Sesame Street to the science magazine. In September 1979, plaintiff announced his purpose to work other than a normal work week during the fall semester because of his "continued efforts to enhance (his) future role in higher education," *fn4" however, the schedule he proposed amounted to only 32 hours per week instead of the normal 35 hours, and included time off during normal business hours on three separate days.

 Defendant explained to plaintiff that, because a major portion of the duties of the science magazine position included team-testing children during school hours, his proposed schedule was incompatible with his new job requirements. Initial conciliation efforts on the part of defendant were rebuffed by plaintiff. Shortly thereafter, as a result of a new opening at the Sesame Street Research Department, defendant offered plaintiff his old job on the same terms and conditions he had previously enjoyed, including the opportunity to pursue the flexible work schedule he sought. Defendant explained, however, that if plaintiff chose to stay at the science magazine he would be permitted only a limited number of hours off per week during normal working hours. Plaintiff refused both of these options, and in defiance of the direct instructions of his superiors, commenced to follow the schedule he had unilaterally devised while retaining his science magazine job. Defendant attempted once again to reach a compromise with plaintiff, but plaintiff persisted in his position. As a result he was officially terminated from his job in October 1979. Plaintiff now challenges this dismissal, as well as various other aspects of his employment with CTW, as discriminatory.

 In essence, plaintiff's claims are of disparate treatment, and thus must be analyzed under the three-step approach outlined in McDonnell Douglas Corp. v. Green. *fn5" Plaintiff also claims that his discharge was in retaliation for his having filed a charge of discrimination with the EEOC in June 1979, in violation of 42 U.S.C. ยง 2000e-3. The order and allocation of proof in a retaliation suit is generally the same as in a discrimination suit under Title VII. *fn6"


 To establish that his discharge was due to racial or sexual discrimination, plaintiff must show, among other things, that he satisfied normal work requirements. *fn7" Plaintiff has submitted evidence that the quality of the work he performed was generally satisfactory. Although some criticisms of his performance are noted, plaintiff need not show perfect or even average performance but only that his performance was of sufficient quality to merit continued employment. *fn8" Nevertheless, defendant contends that plaintiff's insubordination in unilaterally adopting his proposed 32-hour work week, contrary to the instructions of his superiors, is a sufficient, nondiscriminatory reason for his discharge. *fn9" Plaintiff attempts to rebut this valid basis for his discharge (1) by arguing that Guy Minard of CTW's Personnel Department said to him that CTW did not have a policy against a permanent employee working a 32-hour week and that permanent employee status was based on at least a 32-hour work week, (2) by noting that Jane Clarke, the Assistant Director of the science magazine's Research Department, plaintiff's immediate supervisor, and a white woman, was permitted at times to work a three- and four-day week, and (3) by making the broadside charge that CTW had only ten percent minority employees and no other black males working in a research division.

 Defendant, however, successfully refutes the alleged discriminatory significance of each of these claims. First, Minard denies that he ever authorized plaintiff to work less than the normal 35-hour work week and states that the 32-hour work week requirement concerns only eligibility for full-time benefits. Moreover, even if it were assumed that Minard did give such authorization, plaintiff never claims and defendant and Minard deny that Minard was plaintiff's supervisor; plaintiff's supervisors indisputedly denied plaintiff such authorization. Second, Clarke's shortened work week was part of the employment arrangement to secure her services and to effect an orderly transition from her then place of employment, Washington, D.C., by affording her the opportunity to wind up her affairs there before entering into defendant's employ on a regular, full-time basis; it had no relationship to the pursuit of any educational endeavor. Finally, any inference of a pattern of discrimination that might be inferred from CTW having only ten percent minority employees, an inference of dubious probative value since a comparison to individuals possessing the necessary job qualifications is not made, *fn10" is largely undercut by the fact that plaintiff's replacement after his discharge was also a black male. *fn11" Accordingly, there are no material factual disputes to overcome defendant's showing that plaintiff's termination was for legitimate business reasons and was not motivated by racial or sexual discrimination. These same business reasons preclude a finding that plaintiff's filing of a charge with the EEOC was a substantial factor in, let alone a "but-for cause" of, his discharge. *fn12" Summary judgment therefore must be granted as to this issue.


 Plaintiff also challenges his transfer from Sesame Street to the science magazine in May 1979. At that time, plaintiff and Jane Shapiro, a white female, were the two Research Assistants for CTW's Sesame Street program. Plaintiff and Shapiro were notified that for financial reasons, one of their positions would be terminated but that this person could continue with CTW by transferring to the science magazine's Research Department at the same salary level. Management, seeking to keep both plaintiff and Shapiro working at CTW, discussed the matter with both of them. Shapiro, who had one week's less seniority than plaintiff, indicated that she was not interested in the transfer because she preferred television to print media and the younger children of the Sesame Street audience to the older readership of the science magazine. She stated that she might leave CTW if transferred. Plaintiff, on the other hand, while expressing a desire to stay at Sesame Street, indicated that he had extensive experience with "print media" and that he was interested in learning more about the new science magazine. On the basis of these factors, CTW management decided that plaintiff should be transferred, which defendant asserts was a legitimate business decision. Plaintiff at that time did not object to the transfer.

 Although there is some dispute over the "voluntariness" of plaintiff's transfer, *fn13" the basic facts recited above are not disputed. Rather, plaintiff now contends that he should have been retained at Sesame Street because he had one-week's seniority over Shapiro and his requirement of time off during regular business hours to attend to his outside classroom commitments was incompatible with the rigid business hours that the science magazine job demanded. Defendant affirms the legitimacy of its business judgment and urges that, in any event, plaintiff is precluded from now contesting his transfer since, four months after the move, he declined an offer to transfer back to the Sesame Street Research Department.

 For the purposes of this motion, plaintiff will be assumed to possess a cognizable interest under Title VII in avoiding the transfer. *fn14" Defendant itself admits that plaintiff's transfer delayed any promotion that might have come his way from his work on Sesame Street. Nevertheless, defendant has articulated a sufficient justification for transferring plaintiff. Given the experiences and expressed interests of plaintiff and Shapiro, defendant was entitled as a matter of business judgment to select plaintiff to be transferred despite his slight edge in seniority and his outside classroom requirements. Furthermore, plaintiff's subsequent rejection of the offer to return to Sesame Street effectively waives his right to contest the initial transfer. *fn15" Summary judgment is granted on this issue.


 While one of plaintiff's claims, as already noted, is that he should not have been transferred to the science magazine, he alleges that he was discriminatorily denied a promotion within the science magazine from his position as a Research Assistant to the post of Assistant Director of Research. The latter position was instead given to Clarke. Apart from a claim of plaintiff's lack of qualification for the promotion, defendant asserts that plaintiff never applied for the promotion and that a prima facie case of a Title VII violation for failure to promote is not established unless plaintiff shows he sought a promotion. *fn16" Plaintiff, however, contends that under CTW policy, formal applications for promotions were not required. He alleges that, when he was hired, Lewis Bernstein, then Director of Research, told him that CTW promoted people automatically based on the quality of their job performance and the extent of their outside academic initiatives. Plaintiff thus claims that in light of this conversation and the promotion practice it implies, formal applications for promotions were unnecessary. Plaintiff thus raises ...

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