The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
Plaintiff Mavis Budd ("Budd"), a former part-time college
assistant, brings this action against the City University of
New York, Baruch College ("Baruch") for employment
discrimination based on her being a black of Jamaican ancestry,
and against District Council 37 ("the Union") for breach of the
duty of fair representation. Plaintiff sues to recover under
42 U.S.C. § 2000e Title VII, 42 U.S.C. § 1981, and
42 U.S.C. § 1983. In the prayer for relief, plaintiff
requests that the Court: 1) grant her compensatory and punitive
relief in the amount of $600,000; 2) reinstate her to her
previous position with back pay; 3) enjoin Baruch from
continuing its alleged discriminatory promotional practices;
and 4) order the Union to render effective representation to
all of its members.
Defendants move for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure. Fed.R.Civ.P. 56.
The plaintiff has not submitted a 3(g) statement in
accordance with Civil Rule 3(g) of the District Court, which
The papers opposing a motion for summary judgment
shall include a separate, short and concise
statement of the material facts as to which it is
contended that there exists a genuine issue to be
Accordingly, the Court has endeavored to determine from the
plaintiff's answering papers whether evidence has been offered
to rebut any of the material facts stated by defendants.
Summary judgment is appropriate if the evidence offered
demonstrates that "there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter
of law." Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). The burden rests on the moving
party to demonstrate the absence of a genuine issue of material
fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct.
1598, 1608, 26 L.Ed.2d 142 (1970), and the court must view the
facts in the light most favorable to the non-moving party's
favor. Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985), cert.
denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).
The Supreme Court has set forth a three-step analysis of
Title VII claims. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207
(1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05,
93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973); Sorlucco v. New
York City Police Dept., 888 F.2d 4, 7 (2d Cir. 1989). The
initial burden is on plaintiff to establish a prima facie case
of unlawful discrimination. If that burden is satisfied, the
burden shifts to Baruch to articulate some legitimate,
non-discriminatory reasons for not renewing plaintiff's
contract. If Baruch carries this burden, plaintiff has the
ultimate burden of proving by a preponderance of the evidence
that Baruch's stated reasons are merely pretextual.
A. Discrimination In Promotion
First, Title VII prohibits employers from discriminating
"against any individual with respect to . . .
conditions, or privileges of employment, because
of such individual's . . . race . . . or national
origin." 42 U.S.C. § 2000e-2(a)(1).
Plaintiff alleges in her complaint that Baruch discriminatorily
denied her a promotion. Plaintiff alleges that she was told
when she was hired that she had to take a typing test before
she could be promoted to a full-time employee, but that white
part-time College Assistants were appointed to full-time
personnel employees "without taking a typing test." Complaint,
¶¶ 6, 7, 8. Baruch controverts plaintiff's allegation by
stating that when she was hired, her job application shows she
lacked typing experience or skills and that she has admitted to
still possessing less typing skills than required. Baruch also
points out that plaintiff has failed to identify any of the
white College Assistants who were allegedly promoted in her
place. Defendant Baruch's Memorandum of Law In Support of
Motion for Summary Judgment, December 13, 1989, at 17-18.
Baruch also shows that the two white College Assistants were
not promoted but resigned. Affidavit of Helena W. McIntosh,
November 27, 1989, at 5.
To establish prima facie her alleged case of discriminatory
denial of promotion, plaintiff must show that: (1) she belongs
to a protected class; (2) she applied for a position for which
the employer was seeking applicants; (3) despite her
qualifications, she was rejected; and (4) the position remained
open or was later filled by a white. Sweeney v. Research
Foundation at State University of New York, 711 F.2d 1179, 1185
(2d Cir. 1983). The record shows that 1) although plaintiff
belongs to a protected class, she has failed to produce any
evidence 2) that she ever formally applied for a promotion, 3)
that she was qualified for the position, LaBeach v. Nestle Co.,
Inc., 658 F. Supp. 676, 683 (S.D.N.Y. 1987), or 4) that white
part-time College Assistants were appointed as full-time
provisional employees without taking a typing test.
Accordingly, defendants' motion for summary judgment is granted
as to the alleged discrimination in promotion.
B. Discrimination In Compensation
It is unlawful for an employer "to discriminate
against any individual with respect to his
compensation, . . . because of such individual's
race . . . or national ...