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February 19, 1982

John COLUCCI, Plaintiff,

The opinion of the court was delivered by: WEINFELD


Plaintiff, in the employ of the defendant, The New York Times Company (the "Times") since 1964 when he started as a messenger, commenced this action against it upon two separate claims: one, which he terms "reverse" sex discrimination, and two, retaliation following his filing of discrimination charges with the Equal Employment Opportunity Commission ("EEOC"). *fn1"

 By August 1978 plaintiff had been advanced through various groups to the position of statistical clerk, group 4, in the Media Services Department (Media Services Statistical Clerk). A vacancy was created for the advanced position of Media Services Project Assistant, group 7, upon the retirement on August 1, 1978 of Victor Monastero, plaintiff's immediate supervisor. The opening was posted by the defendant as a job title vacancy on September 21, 1978. Plaintiff did not apply for the position. At that time and for some time after it had been filled, he was a participant in a strike by his union, the Newspaper Guild against the Times. The Times appointed a female, Heather Borjes, to the position on October 31, 1978 with an effective date of November 20, 1978.

 The basic work of a statistical clerk, group 4, is to compile and post to regular and special reports, as assigned, figures reflecting cumulative and comparative media statistics. Included among other duties is measuring with an agate rule advertising lineage in the Times and in other advertising Media and posting the totals to specified reports.

 The basic work of a Media Services Project Assistant, group 7, is to coordinate the obtaining and compiling of statistical data for presentations by advertising space salesmen and other New York Times projects; compiling figures for reports on advertising lineage, readership, circulation comparison, rates, etc. for the Times and other media; to work with suppliers of standard market data from government and private sources, such as census information and releases from trade associations. This position calls for initiative and independent judgment. Those in group 4 work under the direction of the group 7 Media Services Project Assistant. Plaintiff himself described his job as strictly to measure the lineage with an agate rule, post the figures and some statistical typing. He described the group 7 job as a thinking job where one had to know what sources to use, involving judgment and choice among sources.

 I. The Charge of Discrimination *fn2"

 The allocation of burdens and order of presentation of proof here applied is that set forth in McDonnell Douglas Corp. v. Green *fn3" and recently affirmed in Texas Department of Community Affairs v. Burdine. *fn4" Essential elements of plaintiff's prima facie case are proof that he applied for and was qualified for the position in question. *fn5" At the outset, plaintiff's discrimination charge fails since after the posting of the notice he never applied for the position. The defendant, since the Newspaper Guild members were then on strike, not only simultaneously notified the union of the posting of the job vacancy but sent a copy of the notice to the union office. The plaintiff does not deny he was aware of the vacancy or that he did not apply. Rather, he seeks to excuse his failure to do so upon a claim that when he learned in June or July, 1978 that Monastero planned to retire, he made known to his supervisor that he wished to be considered for the position and that he was assured he would be considered. However, this informal oral request, made some two or three months in advance of the time the position was open, was no substitute for applying when in fact the position became available and notice thereof was posted. *fn6" But even if it may be accepted that plaintiff properly and timely applied, upon consideration of all the evidence and the demeanor of the witnesses, the Court finds that plaintiff has failed to show that he was qualified for the position; that he has failed to establish a prima facie case of discriminatory treatment by reason of his non-promotion to the position. Moreover, even were it assumed contrary to the foregoing that he had established a prima facie case permitting an inference of unlawful discrimination, the defendant has established by substantial evidence that the appointment of Ms. Borjes was based upon legitimate, non-discriminatory reasons and plaintiff has failed to show that defendant's action was in fact a pretext for discrimination or unworthy of credence.

 Plaintiff sought to bolster his case upon a defense set up in the defendant's answer which referred to a consent decree entered in this Court in a class action brought by women employees which required the Times to put into effect an affirmative action plan for women as of January 1, 1979. The plan contained a provision that all goals "shall be achieved through affirmative and non-discriminatory efforts."

 Upon the trial the defendant disavowed that it was relying upon this defense asserting it had been advanced by reason of plaintiff's statements of reliance upon the decree to support his claim of sex discrimination. In any event, while the defendant was not required to prove that the person hired for the position was more qualified than plaintiff, *fn7" the evidence establishes that the appointment of Ms. Borjes was based solely upon her background, education and experience which indicated she was eminently well qualified for the position and that her sex was not the factor that resulted in her appointment. Those who were called to make the decision for the appointment gave impressive testimony of plaintiff's inadequacies for that position and his shortcomings over a period of time in the group 4 position.

 The plaintiff's contention that he was qualified for the higher position because in his group 4 job he intermittently performed the duties of the group 7 position while working under or during the absence of Monastero, is not sustained by the evidence. To the contrary, the evidence supports a finding that it was Monastero who now and then would do group 4 work because plaintiff and others in that group had failed to carry out assigned responsibilities.

 II. The Charge of Retaliation *fn8"

 In this instance, too, the burdens and order of proof are those established by McDonnell Douglas *fn9" and Burdine. *fn10" In Grant v. Bethlehem Steel Corporation, *fn11" our Court of Appeals stated that to establish a retaliation claim the plaintiff must show:

first, protected participation or opposition under Title VII known by the alleged retaliator; second, an employment action or actions disadvantaging persons engaged in protected activities; and third, a causal connection between the first two elements, that is, a retaliatory motive playing a part in the adverse employment actions.

 Plaintiff's charge that he was denied the promotion because of sex discrimination was filed with the EEOC on January 16, 1979. On April 2, 1979 he filed with the EEOC a further charge of retaliation based upon the previous charge of discrimination. Here he contends that defendant engaged in a policy of harassment which included preparation of negative, disparaging and false written evaluations of his work performance, refusal of promotion to group 7 and other positions that opened subsequent to Ms. Borjes' appointment, and assignment of heavier work without providing additional assistance to him or paying him ...

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