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MILLER v. SWISSRE HOLDING

July 18, 1991

ARTHUR MILLER, PLAINTIFF,
v.
SWISSRE HOLDING, INC., DEFENDANT.



The opinion of the court was delivered by: Conboy, District Judge:

ORDER

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.

Plaintiff seeks a declaratory judgment that the defendant unlawfully discriminated against him; an injunction reinstating him with full seniority and to a level consistent with probable merit, raises and promotions; an award of back pay and related employment benefits plus interest; an award of actual damages of $100,000.; an award of punitive damages of $500,000; an award of costs and attorney's fees; and any further relief deemed just by the Court.

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.

Discrimination Claim

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 claims.

Retaliation Claim

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. 479-481.

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 ...


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