The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge:
Plaintiff Realdalist A. Fahie, proceeding pro se, brings this
action pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2, 2000e-3 (1982) for injunctive and
compensatory relief. He alleges that he was denied employment
by defendant New York City Department of Corrections (the
"Department") in retaliation for his filing of a discrimination
complaint against a prior employer, the Federal Bureau of
Prisons. The Department moves pursuant to Fed.R.Civ.P. 56 for
summary judgment dismissing the complaint.
Fahie successfully completed the Civil Service Exam for the
probationary position of correction officer for the Department
in February 1983. As such, he was placed on a rank-ordered
list of "eligibles" for that position. Fahie was then
interviewed by an investigator with the Department's Applicant
Investigation Unit ("AIU").
Fahie claims that he informed the AIU investigator of his
pending discrimination complaint against his most recent
employer, the Federal Bureau of Prisons. No record of that
disclosure appears in the background folder maintained by AIU.
See Alan Vengersky Affid. ¶ 7, Exh. C. The AIU investigator
completed an investigation summary and evaluated Fahie as a
"very doubtful" appointment in light of the unflattering
information in his military records and his "marginal"
performance in a similar position for the Federal Bureau of
Prisons. The AIU investigator's team leader thus recommended
that Fahie not be appointed. Vengersky Affid. ¶ 7, Exhs. C, D.
Pursuant to New York Civil Service Law § 61 and Rule 4.7.4 of
the Rules and Regulations of the City Personnel Director, the
Personnel Division at the Department considered Fahie and two
other eligibles for appointment for three successive vacancies.
Another eligible was selected for appointment to each vacancy.
In accordance with the Civil Service Law, Fahie's name was then
removed from the eligibles list and he was notified that he had
not been selected for appointment.
The Department claims that Fahie's military and work history
"clearly indicated" that Fahie was not suited for the position
of correction officer. Significantly, the Commanding Officer
to whom Fahie had been assigned during his service in the
United States Navy had recommended discharge "by reason of
unsuitability" due to Fahie's "[i]mmature personality with
violent traits, persecution complex and inability to conform
to military life." Vengersky Affid. ¶ 5, Exh. A. The Commanding
Officer further stated that Fahie was an "administrative and
disciplinary burden" and that his violent behavior "render him
useless for further naval service." Vengersky Affid. ¶ 5, Exh.
A. In addition, the Federal Bureau of Prisons advised AIU that
Fahie had been discharged from his position as correction
officer during his probationary period due to continued
"marginal work performance." Vengersky Affid. ¶ 6, Exh. B.
Fahie then filed a complaint with the New York City
Commission on Human Rights, which determined that there was no
probable cause to believe that the Department had engaged in
any discriminatory behavior. The Justice Department issued a
"right to sue" letter pursuant to 42 U.S.C. § 2000e-5(f)(1)
(1982) on April 6, 1989 and this action was instituted shortly
The Supreme Court has set forth a three-step analysis of
factual issues in Title VII claims. Plaintiff bears the
initial burden of establishing a prima facie case of
discrimination. Sorlucco v. New York City Police Dep't,
888 F.2d 4, 7 (2d Cir. 1989) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d
668 (1973)). If the
plaintiff establishes a prima facie case, the burden shifts to
the defendant to state a legitimate reason for the
termination. Id. If a legitimate reason for the discharge is
articulated, the burden shifts back to the plaintiff to show
that the defendant's stated reason for the discharge is
pretextual. Id. It is well established that the order of proof
in a retaliation case follows that three-step analysis. Grant
v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980).
To make out a prima facie case of retaliation under § 704(a)
of Title VII, 42 U.S.C. § 2000e-3(a),*fn1 Fahie must show that
he engaged in an activity protected under Title VII, that his
activity was known by the alleged retaliator, that an adverse
employment action disadvantaging him occurred, and that a
causal connection exists between his participation in the
protected activity and the adverse employment action. Grant v.
Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980). Title
VII is violated if "`a retaliatory motive play[ed] a part in
the adverse employment actions.'" Davis v. State University of
New York, 802 F.2d 638, 642 (2d Cir. 1986) (quoting Grant v.
Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980)).
Fahie's filing of a complaint with the EEOC no doubt is the
type of protected activity contemplated by the statute. It is
disputed, however, whether the Department knew of Fahie's
filing of a claim against the Federal Bureau of Prisons, his
prior employer. For the purposes of this motion I must accept
Fahie's contention that he disclosed that information to the
There is no indication from the record before me, however,
that links Fahie's complaint against his former employer to
his non-appointment by the Department. Although the Second
Circuit has held that proof of a causal connection may be
established indirectly by a showing that the protected
activity was followed closely by alleged discriminatory
treatment, Davis v. State University of New York, 802 F.2d 638,
642 (2d Cir. 1986), Fahie fails to provide any evidence of such
a causal link here. Indeed it strains common sense to accept as
predestined a retaliatory act by a state department due to the
filing of a complaint against its federal counterpart. Fahie's
bare allegation that he advised the Department that he had
filed a race discrimination complaint against his former
employer and that he subsequently was not appointed to the
position of correction officer with the Department does not
establish the requisite "but for" causation. Failing to show a
nexus between the two, there cannot be the "retaliation" which
the plaintiff alleges.
Nor is it decreed under the New York State Civil Service Law
that simply passing the civil service test obligates the
Department to appoint Fahie to a position. The appointing
authority retains the discretion to select any one of the top
three candidates on the list. § 61. In addition to a
candidate's scores on examination, prior experience and
performance is highly relevant when considering a candidate for
a civil service position. Cassidy v. Municipal Civil Service
Commission, 37 N.Y.2d 526, 337 N.E.2d 752, 375 N.Y.S.2d 300
(1975). The Department thus properly considered Fahie's
military record ...