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SHAWKI IBRAHIM v. NEW YORK STATE DEPT. OF HEALTH

January 26, 1984

SHAWKI R. IBRAHIM, Plaintiff, against NEW YORK STATE DEPARTMENT OF HEALTH, OFFICE OF HEALTH SYSTEMS MANAGEMENT, NEW YORK STATE DEPARTMENT OF CIVIL SERVICE, NEW YORK STATE DEPARTMENT OF AUDIT AND CONTROL, NEW YORK STATE DIVISION OF HUMAN RIGHTS, PUBLIC EMPLOYEES FEDERATION UNION AFL-CIO, Defendants.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 This is an action for employment discrimination on the basis of age, race, and national origin in violation of 42 U.S.C. §§ 2000e-2(a) 3(a) ("Title VII") and 42 U.S.C. §§ 1981 & 1983. Plaintiff also asserts pendent state claims under N.Y. Executive Law § 296(1)(a) & (e) (McKinney 1982).In addition to injunctive relief, plaintiff seeks $175,000 as back pay, compensatory, and punitive damages as well as attorney's fees under 42 U.S.C. § 1988. The New York State Department of Health, Office of Health Systems Management, the New York State Department of Civil Service, the New York State Department of Audit and Control, and the New York State Division of Human Rights (the "State defendants") move for summary judgment. *fn1" Fed. R. Civ. P. 56. For the reasons developed below, the motion is granted in part and denied in part.

 FACTS

 Plaintiff, a 63 year old male citizen of the United States, is an ethnic Arab who was born in Egypt. Since 1979, defendants have failed to promote him to the position of Principal Health Care Fiscal Analyst ("PHCFA" or "fiscal analyst"), civil service grade 27, even though he successfully passed the appropriate New York State Civil Service examination and is on the Civil Service list for that position. In February, 1980, plaintiff filed an administrative complaint alleging that his failure to be selected for a PHCFA position was the result of discrimination. This was the first in a series of administrative complaints, all of which have been rejected.

 In March, 1983, plaintiff was advised that he was being reassigned from New York City to Albany, without promotion, due to job consolidations required by State budget deficits. Plaintiff alleges that he will lose his job if he refuses to relocate, and that the relocation is in retaliation for filing complaints of discrimination. After he was informed of his reassignment, plaintiff filed an administrative complaint on the additional ground of retaliation. That claim has not yet been fully adjudicated on the administrative level.

 In December, 1978, the Department of Civil Service ("Civil Service") certified a list of persons who had passed an open-competitive examination, making them eligible for PHCFA positions. *fn2" Of the persons listed, plaintiff and three others received a grade of 70%, the lowest passing score. Some of the passing applicants subsequently declined to be interviewed for the position by the defendant State Department of Health ("DOH"), Office of Health Systems Management ("OHSM"). Other applicants either retired or declined to be considered after interviews. In February, 1979, several of those applicants remaining on the list were appointed as PHCFA's, leaving only two candidates, the plaintiff and Mr. Joseph Culpo, for subsequent openings.

 The appointing DOH, OHSM officer, relying on New York State Civil Service Law § 61, exercised what he alleges to be his discretionary option not to select from a list of fewer than three candidates and to await the results of a new examination. *fn3" He chose instead to retain, on a provisional basis, two employees who were temporarily serving as PHCFA's, as well as a third person from within the bureau.

 Defendants assert that Mr. Gormley, the Director of the DOH Bureau of Residential Health Care Facility Reimbursement ("RHCFR"), retained the three employees because they were already functioning members of the bureau, and because their competence was not in question. Plaintiff and Mr. Culpo, on the other hand, were viewed as candidates of "unknown quality." Affidavit of William J. Gormley, at P7 (June 2, 1983).

 DISCUSSION

 1. 42 U.S.C. § 1981

 Plaintiff alleges that defendants' failure to promote him constitutes a violation of 42 U.S.C. § 1981, which provides, inter alia, that all persons within the United States shall enjoy the same rights and benefits of law as are "enjoyed by white citizens." Defendants argue that this bars discrimination based upon race, but does not address discrimination based upon national origin. Plaintiff concedes the distinction but characterizes the Arab ethnic group, of which he is a member, as a "race." I disagree.

 In a similar case of alleged employment discrimination, Budinsky v. Corning Glass Works, 425 F. Supp. 786 (W.D.Pa. 1977), the court dismissed a Slavic plaintiff's § 1981 claim of racial discrimination holding that "Title VII . . . provides a thorough remedy for victims of employment discrimination based on . . . national origin." Id. at 789. The court reasoned that:

 The terms "race" and "racial discrimination" may be of such doubtful sociological validity as to be scientifically meaningless, but these terms nonetheless are subject to a commonly-accepted, albeit sometimes vague, understanding. . . . On this admittedly unscientific basis, whites are plainly a "race" susceptible to "racial discrimination." Hispanic persons and Indians, like blacks, have been traditional victims of group discrimination, and, however inaccurately or stupidly, are frequently and even commonly subject to a "racial" identification as "non-whites.". . . .

 The same cannot be said with respect to persons of Slavic or Italian or Jewish origin. These groups are not so commonly identified as "races' nor so frequently subject to that "racial" discrimination ...


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