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Smith v. American Express Co.

decided: August 4, 1988.

ROY SMITH, PLAINTIFF-APPELLANT,
v.
AMERICAN EXPRESS COMPANY, JAMES D. ROBINSON III, PRESIDENT, KENNETH LOSCHIN, COMPTROLLER, RICK BURNS, MANAGER, ACCOUNTING DEPARTMENT, GEORGE PROTOPSALTIS, SUPERVISOR, ACCOUNTING DEPARTMENT, RECONCILIATION UNIT, AMILDA MANZO, SUPERVISOR, GENERAL LEDGER UNIT, MARIA LARINGAGA, MANAGER OF BUDGETING, AND MELANIE FARLEY, PERSONNEL REPRESENTATIVE, DEFENDANTS-APPELLEES



Appeal from a grant of summary judgment, Kram, J. (S.D.N.Y.), dismissing claim of employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Affirmed.

Lumbard, Oakes, and Miner, Circuit Judges.

Author: Lumbard

LUMBARD, Circuit Judge:

Roy Smith appeals from an order of the Southern District, Kram, J., August 13, 1987, which granted American Express Travel Related Services Company, Inc.'s motion for summary judgment and dismissed Smith's action for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. We agree with Judge Kram that Smith failed to sustain his burden of proving by a preponderance of the evidence that the legitimate business reason given by American Express for denying his promotion was not its true reason, but was a "pretext for . . . discrimination." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Accordingly, we affirm.

I.

Roy Smith, a black male, has been employed by American Express since April 1968. He is a high-school graduate and has completed college-level courses in Accounting I and II.

From 1968 to 1979, Smith worked in the Credit Card Divison of American Express's Eastern Region Operations Center ("EROC") as an Accounting Clerk II. Apparently, during the years 1972-79, Smith was transferred a number of times within the Credit Card Division, which he contends impeded his career progress. In September of 1979, he was transferred to the Accounting Department and promoted to the position of Accounting Clerk I.

American Express customarily "posts" job openings in the various departments to allow in-house employees an opportunity to apply. On January 13, 1982, American Express posted a job-vacancy notice for the position of Accountant II. Smith applied for this position and at the bottom of his application his supervisor indicated that Smith's last two performance ratings had been "superior." American Express declined to promote Smith to the Accountant II position. In his affidavit, Smith stated "upon knowledge, information and belief another white candidate with less seniority and experience within the company was selected for the position." Smith offered no evidence regarding the identity or qualifications of the successful candidate.

On June 17, 1982, American Express announced a job opening for the position of Financial Analyst in the Budget Department. The job posting set forth the following minimum requirements:

1) Knowledge of accounting and financial analysis, principles and techniques, and budgetary and forecasting procedures.

2) Strong statistical analysis skills to prepare and analyze financial data.

3) Good interpersonal skills and written communication skills to interface with [American Express] management.

Smith was one of seven applicants for the position. His application revealed no experience or technical skill in budgetary and forecasting procedures, nor were Smith's courses in accounting listed in that section of the application which requested such information.

The successful applicant was Marie Fiorillo, a white female, who was in the process of obtaining her accounting degree at a local college. Her application listed a number of relevant courses she had completed and indicated that while employed in the Accounting Department her special assignments included work in budget and forecast preparation. More important, on her most recent performance appraisal Fiorillo had received an overall performance rating of 50, while Smith had received a 40. According to American Express, performance ratings, ...


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