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October 15, 1990


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 states:

  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).

I. Title VII Claims

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

Title VII provides:

  It is unlawful for an employer "to discriminate
  against any individual with respect to his
  compensation, . . . because of such individual's
  race . . . or national ...

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