The opinion of the court was delivered by: Conboy, District Judge:
Plaintiff Arthur Miller brings this action pursuant to
42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., claiming that the defendant SwissRe
Holding, Inc. ["SwissRe"] failed to promote him due to his race
and discharged him in retaliation for filing a charge of
discrimination with the Equal Employment Opportunity Commission
["EEOC"]. SwissRe denies any discriminatory or retaliatory
conduct on its part, and contends that its personnel actions
were the result of legitimate, non-discriminatory business
decisions, and that plaintiff was not terminated but rather
resigned or abandoned his position.
Defendant seeks a declaratory judgment that it did not
discriminate, and an award of costs and attorney's fees. We
granted partial summary judgment to SwissRe on February 26,
1990, 731 F. Supp. 129.
The case was tried before the Court without a jury. This
opinion shall constitute the Court's findings of fact and
conclusions of law in the matter.
Plaintiff, who is black, began his employment with SwissRe as
a computer aide in its production control department in June,
1982. Tr. 27.*fn1 Ken Jacobson was the head of production
control when Miller was hired. Tr. 28. Maryanne Bastiero was
also hired in 1982 and assigned to the production control
department. Tr. 38. Nina Ogrodnick was hired as a technical
coordinator in the department in the spring of 1984. Tr. 409.
Jacobson resigned in February, 1985. Tr. 32. The supervisor's
position was not filled until October, 1985. Tr. 37, 39, 58.
When Jacobson resigned, SwissRe "decided to look at the people
that were currently on staff to bring them along as supervisors
in the production control area, and [it] looked at two people,
Nina Ogrodnick and Maryanne Bastiero." Tr. 412. Ogrodnick was
considered because she had supervisory experience with her
previous employer and "very strong skill sets of the MVS-JCL
knowledge base [to which the department had recently
converted]." Tr. 412. Bastiero was considered because "she had
a good knowledge of all the application and processing flow of
the organization." Tr. 413. Miller was not considered because
he "was still in the process of learning a lot of the
applications," and he had no supervisory experience.
Id. Jacobson's duties were divided between Ogrodnick and
Bastiero, for purposes of evaluating both. Tr. 414-15. In May,
1985 Bastiero came to Vincent Perito who was overall supervisor
of the machine services department, which included production
control, and his deputy Joseph Porco, who was overseeing
Ogrodnick and Bastiero, and said that she should be given
Jacobson's position because of her experience. When she was
told that management was not yet ready to make its decision,
she resigned. Tr. 414. Because only Ogrodnick remained as a
candidate, Perito and Porco prepared a formal qualifications
notice, or "Job Alert" for internal posting and external
dissemination, and went to SwissRe's Human Resources Department
to find additional candidates. Tr. 416-17. The Job Alert listed
the position requirements as follows: three to five years
experience as a supervisor or manager; three years of data
processing experience in an operational unit, and a two-year
computer science degree or equivalent college degree. DX K*fn2
Seven to ten outside candidates were produced as a result of
the dissemination of the Job Alert. Tr. 419. Ultimately,
Ogrodnick was selected and appointed to the position. Tr. 420.
During this period of search, Miller was promoted twice, to the
position of computer aide-senior in April, 1985 and to the
position of production coordinator in September, 1985.
Miller testified that he was not interested in the position
until Bastiero left in May, 1985, Tr. 183-184; that he knew of
the vacancy, Tr. 52; that he had open door access to Perito,
Tr. 182, and daily meetings with Porco, Tr. 41; that he knew of
the job alert procedure utilized by SwissRe to fill vacant
positions, Tr. 50; and that between Bastiero's departure in
May, 1985 and the selection of Ogrodnick in October, 1985 he
never told Perito, Porco or the personnel department that he
wanted to be considered for the position of supervisor, Tr.
184-85. Miller also conceded that he lacked the three to five
years of supervisory experience necessary to qualify for the
position. Tr. 187-88.
We find as an ultimate fact that Miller never applied for the
position, and furthermore, that he lacked the supervisory
experience that was an essential requirement for the position.
We additionally find absolutely no evidence whatever that
SwissRe discriminated against him based upon race. Furthermore,
we find that Ogrodnick had superior qualifications for the
position and received the position because of legitimate
business reasons of SwissRe. Accordingly, plaintiff has failed
to establish, under both section 1981 and Title VII, his claim
that he was denied promotion based upon illegal racial
discrimination, and judgment is given to SwissRe on these
Fourteen months after Ogrodnick was given the promotion,
Miller told Porco on December 8, 1986 that he required surgery
for a detached retina, and would need to take a disability
leave as of December 16. Tr. 96, 515-21; DX T. Miller went to
the SwissRe medical office and filled out medical forms which
were sent by the company nurse to his personal physician, Dr.
Unterricht. Tr. 97; DX L. On Miller's final day before going on
medical leave, Porco handed him a note that warned him that his
career at SwissRe was in jeopardy because of a truculent
attitude toward Ogrodnick, a reduction in job productivity, and
lateness, and that immediate improvement was essential. Tr.
99-100; DX I. Miller underwent eye surgery on December 17, 1986
and his doctor predicted that he would be able to return to
work on February 2, 1987. PX 7.*fn3
On February 2, 1987 Miller called Perito, advising that his
eye was not yet well enough to resume his duties, and that he
would remain on leave at least until his next doctor's visit in
mid-February. Tr. 104-105; 478. Perito informed Miller that he
should not return to work until he was 100% fully healed. Tr.
479; 434. When Miller visited Dr. Unterricht on February 10,
the doctor told him that there was still blood in his
surgically repaired eye. Tr. 126; 127; 204; 207.
Miller telephoned Perito a second time in mid-February, again
to report on his medical progress. Perito again told Miller not
to return until his eye was fully healed. Tr. 479-80. Perito
never warned Miller that he needed to submit a supplemental
disability form as a requisite to extending his leave. Tr.
Miller did receive in the mail, PX 9, 10, a supplemental
disability form and letter that warned him that "[failure to
submit this form may cause a problem with your disability
benefits]". However, Miller's ...