The opinion of the court was delivered by: Platt, Chief Judge.
Defendant moves for partial summary judgment pursuant to
Federal Rule Civil Procedure 56. Defendant maintains that in
light of the recent Supreme Court decision Patterson v. McLean
Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132
(1989), plaintiff's claims asserted under 42 U.S.C. § 1981 are
not actionable and defendant is entitled to judgment dismissing
plaintiff's § 1981 claims as a matter of law.
Plaintiff was employed by defendant as a senior tool engineer
from October 1, 1979 to May 13, 1985.
In June, 1980 plaintiff suffered a work related injury to his
left elbow which was exaccerbated by working at a drafting
table. On June 30, 1980, plaintiff requested a
transfer/promotion. This request was denied.
From October, 1981 until August, 1983 plaintiff assisted
defendant's Chief Tool Engineer, James Parrish. Although he
retained the title of Senior Tool Engineer, plaintiff
functioned as a supervisor and less than 15% of his time was
spent at the drafting table.
In August, 1983, defendant's newly appointed manager Charles
Hartung reorganized defendant's Manufacturing and Engineering
Department. As part of the reorganization, plaintiff was
reassigned from the Tool Engineering Section where he was
performing supervisory duties to the Methods Engineering
Section where he was assigned to the drafting table. Plaintiff
did not suffer any change in labor grade, loss of compensation,
benefits, seniority or privileges.
Plaintiff expressed dissatisfaction with the reassignment and
requested to be reassigned to his previous position in the Tool
Engineering Section. After approximately two weeks, plaintiff
was reassigned to the Tool Engineering Section as a Senior Tool
Engineer; however, plaintiff no longer served in a supervisory
position and was required to work at a drafting table
approximately 85% of the time.
In November, 1983 and again in October, 1984, plaintiff
requested a transfer to Senior Mechanical Buyer. These requests
were also denied.
In January, 1984, plaintiff requested a transfer to Senior
Mechanical Engineer. Plaintiff, later, withdrew his application
when he learned that there was no such job opportunity.
In March, 1985, plaintiff filed written charges of
discriminatory employment practices by defendant with the New
York State Division of Human Rights and the Equal Employment
Opportunity Commission ("E.E.O.C."). Plaintiff alleged that
defendant discriminated against him on the basis of his
Hispanic national origin. Plaintiff took time off from work to
file these charges.
Following this filing, plaintiff received a formal written
disciplinary notice for poor attendance.
In April, 1985, plaintiff filed a second charge with the
E.E.O.C. again alleging defendant discriminated against him on
the basis of his national origin.
This second charge was later amended on Friday, May 10, 1985.
Plaintiff was given four hours without pay to file this
amendment; he was told to be at work by 12:45 p.m. Plaintiff
was unable to complete his business at the E.E.O.C. office and
return to work by 12:45 p.m. and thus, called work to explain
that he would not ...