United States District Court, Eastern District of New York
August 7, 1991
GREGORY A. FRASER, PLAINTIFF,
THE STATE OF NEW YORK, SUNY AT STONY BROOK, DEFENDANT.
The opinion of the court was delivered by: Wexler, District Judge.
MEMORANDUM AND ORDER
In the above-referenced action, plaintiff Gregory Fraser
("plaintiff"), sues for an alleged discriminatory constructive
discharge and failure to rehire, pursuant to 42 U.S.C. § 2000e-2.
Plaintiff appears pro se. Named as defendant is the
New York State University at Stony Brook ("defendant" or "the
University"). Currently, defendant moves to dismiss the
complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. This Court having received numerous affidavits
and submissions from plaintiff which go beyond the scope of the
pleadings, defendant's motion will be treated as one for
summary judgment, pursuant to Rule 56 of the Federal Rules of
Civil Procedure. For the reasons set forth below, defendant's
motion is granted in part and denied in part.
On October 4, 1989, plaintiff was hired by defendant for an
entry-level position as a principal architecture drafting
technician at the Stony Brook University Hospital. On October
12, 1989, he commenced work. On December 21, 1989, after
approximately two months at the job, plaintiff submitted a
handwritten resignation. His decision to resign was prompted by
his dissatisfaction with the work environment, and with an
apparent clash with the allegedly "misdirected policies" of his
For several weeks prior to and for nearly three months after
his resignation, plaintiff applied for seven positions with the
defendant. The positions included: financial analyst intern,
programmer analyst, senior medical practice administrator,
senior programmer analyst, senior research support specialist,
research assistant and associate facilities program
coordinator. In each instance, plaintiff's search was
On March 30, 1990, plaintiff filed a discrimination charge
with the Equal Employment
Opportunity Commission ("EEOC") which alleged "[b]etween
December 6, 1989 and March 10, 1990, I was denied hire for
seven management positions for which I am qualified because of
my race/black in violation of Title VII of the Civil Rights Act
of 1964 as amended." The EEOC elected not to commence suit and
on December 10, 1990 granted plaintiff the right-to-sue-letter
he had requested. See 42 U.S.C. § 2000e-5(f)(1). On December
17, 1990, plaintiff commenced this action.
In count one of the complaint, plaintiff alleges that he was
"constructively discharged" by virtue of his supervisor's
actions, which he claims were racially motivated. He claims he
was discriminated against in violation of 42 U.S.C. § 1981,
42 U.S.C. § 2000e et seq., New York Executive Law § 296 and New
York Civil Rights Law § 46. In count two, plaintiff alleges he
was denied employment on the basis of his race in violation of
these same statutes and Federal Executive Order 11246.
Plaintiff sought: (1) appointment of counsel pursuant to
42 U.S.C. § 2000e-5(f)(1)*fn2 and (2) injunctive relief, damages,
costs and attorneys' fees. As noted above, the Court treats
defendant's motion to dismiss as one for summary judgment,
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
A motion for summary judgment may be granted only when "there
is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Donahue v.
Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.
1987). The burden rests on the moving party to clearly
establish the absence of a genuine issue as to any 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 "a court must resolve
all ambiguities and draw all reasonable inferences against the
moving party." Donahue, 834 F.2d at 57. Since the presence of
only a genuine and material issue of fact precludes the entry
of summary judgment, Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), the
summary judgment procedure allows a court to determine whether
a trial is necessary. Further, on a motion for summary
judgment, a court must be mindful that its role is not to try
issues of fact, but to determine whether there are issues to be
tried. Donahue, 834 F.2d at 58.
The plaintiff alleges in count one of the complaint that he
was constructively discharged by defendant on the basis of his
race in violation of his civil rights*fn3 and 42 U.S.C. § 2000e
et seq. In McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and again in Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct.
1089, 67 L.Ed.2d 207 (1981), the Supreme Court set forth the
framework by which claims of discrimination involving Title VII
must be adjudicated:
First the plaintiff has the burden of proving by
the preponderance of the evidence a prima facie
case of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the
burden shifts to the defendant "to articulate some
legitimate, non-discriminatory reason for the
employee's rejection." . . . Third, should the
defendant carry this burden, the plaintiff must
then have an opportunity to prove by a
preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.
Id. at 252-253, 101 S.Ct. at 1093 (citing McDonnell Douglas,
411 U.S. at 802, 93 S.Ct. at 1824.) The failure of either party
to meet its burden at any step of the analysis is dispositive
of the action. Meschino v. ITT Corp., 563 F. Supp. 1066, 1069
(S.D.N.Y. 1983). To establish a prima facie case of racial
discrimination, the plaintiff must present evidence that: 1) he
is in a protected racial group; 2) he was qualified for the
job; 3) he was discharged; and 4) the discharge occurred under
circumstances giving rise to an inference of discrimination.
Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2nd Cir. 1987)
(citing McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at
1824) (further citations omitted).
In the case at bar, the record shows that plaintiff is a
Black male of Hispanic origin, thus satisfying the first
requirement. Similarly, plaintiff's qualifications as a
principal architecture drafting technician are uncontested,
therefore it appears that the second requirement —
qualification — is likewise met. Since he submitted a
handwritten resignation, plaintiff's first claim hinges on the
allegation that his resignation was actually a constructive
discharge. If constructive discharge is established,
plaintiff's resignation, for the purpose of establishing a
prima facie case, would be viewed "as if the employer had
actually discharged the employee." Lopez, 831 F.2d at 1188
(citation omitted). However, to support a claim for
constructive discharge, the evidence must show that the
employer "`deliberately [made] an employee's working conditions
so intolerable that the employee [was] forced into an
involuntary resignation.'" Id. (citations omitted).
In the case at bar, the record does not contain a scintilla
of evidence supporting plaintiff's theory of constructive
discharge. Plaintiff submitted his own affidavit in support of
his claim contending that he was the subject of "misdirected
policies" and that defendant did not provide him with an
agreeable work environment. However, there was no evidence
submitted, beyond these conclusory statements, to support the
allegation of an intolerable work environment. Specifically,
there is no evidence that plaintiff was ever subjected to
racial epithets, hostile language, excessive criticism in day
to day operations or performance reviews, or the threat of
termination or other offensive conduct. In light of this, the
Court is guided by the Second Circuit's holding in Meiri v.
Dacon, 759 F.2d 989 (2d Cir.), cert. denied, 474 U.S. 829, 106
S.Ct. 91, 88 L.Ed.2d 74 (1985), which held that:
To allow a party to defeat a motion for summary
judgment by offering purely conclusory allegations
of discrimination, absent any concrete
particulars, would necessitate a trial in all
Title VII cases. Given the ease with which these
suits may be brought and the energy and expense
required to defend such actions, we believe the
trial judge properly granted summary judgment.
Id. at 998.
Since the evidence is insufficient to satisfy the third
prong, Lopez, 831 F.2d at 1188, and any failure is dispositive,
Meschino, 563 F. Supp. at 1069, this Court need not reach the
issue of an inference of discrimination. Accordingly, this
Court finds that the evidence presented is insufficient to
establish a prima facie case of discrimination, with respect to
count one, as a matter of law.
In count two, plaintiff alleges that defendant's decision not
to rehire him for any of the seven positions for which he
applied was the result of discrimination on the basis of race,
in violation of plaintiff's civil rights and Title VII,
see 42 U.S.C. § 1981; 42 U.S.C. § 2000e et seq. In support of
his allegations, plaintiff submits the following: the job
postings, his transcript and resume, defendant's hiring
statistics, and plaintiff's own affidavit claiming that he was
subsequently hired in a comparable position by another
employer. In response, defendant asserts, inter alia, that
plaintiff had not even completed the probationary period of his
original position, apparently precluding consideration of
plaintiff for other positions.
Similar to the first count, the standard for assessing this
claim is derived from McDonnell Douglas, 411 U.S. at 802, 93
S.Ct. at 1824. To establish a prima facie case of racial
discrimination, plaintiff must present evidence that: "(1) he
belongs to a racial minority; (2) that he applied and was
qualified for a job for which the employer was seeking
applicants; (3) that despite his qualifications, he was
rejected; and (4) that, after his rejection, the position
remained open and the employer continued to seek applicants
from persons of complainant's qualifications." Id.
Applying these standards to the case at bar, it is
uncontested that plaintiff can satisfy the first and fourth
prongs of the test; to wit, plaintiff is Black, he applied for
seven positions with defendant, and the positions remained open
and were eventually filled by White candidates. However, the
evidence submitted to prove the second and third prongs, i.e.,
that plaintiff was qualified for the positions, is dubious at
best and insufficient in some instances. Plaintiff submitted
his resume and transcript, a copy of the job postings, and his
own conclusory affidavit that he must be qualified because he
was subsequently employed in a comparable position in the
private sector. In opposition, defendant offers an affidavit
from defendant's recruitment manager which reflects that
plaintiff was not qualified for any of the positions for which
he applied. Moreover, it is uncontested that all of the
positions for which plaintiff applied were outside the field of
discipline in which plaintiff was employed.
Notwithstanding the paucity of the evidence, this Court does
not conclude that plaintiff has failed to establish a prima
facie case. As the Second Circuit pointed out in Patrick v.
LeFevre, 745 F.2d 153, 160 (1984), the fact that plaintiff is
pro se "is yet another fact militating against the granting of
summary judgment. This Court has long evinced a sensitivity
toward the plight of the uncounselled [plaintiff] attempting to
navigate the technically-laden road to the courthouse." Id.
Cognizant that "the burden of establishing a prima facie case
is not an onerous one," Burdine, 450 U.S. at 253, 101 S.Ct. at
1094, this Court is likewise bound by the holding in Owens v.
New York City Housing Authority, 934 F.2d 405, 409 (2d Cir.
1991). In Owens, the court concluded that "McDonnell Douglas
requires only a minimal showing of qualification to establish a
prima facie claim. [Plaintiff] only needs to demonstrate that
[he] `possesses the basic skills necessary for performance of
[the] job.'" Id. (further citations omitted).
Considering the evidence of plaintiff's background and
educational training in light of the qualifications set forth
in the job postings, it is readily apparent that the plaintiff
is not qualified for six of the seven positions for which he
applied. Specifically, most of the positions, including those
of programmer analyst, senior medical practice administrator,
senior research support specialist, research assistant and
associate facilities program coordinator, required specific
educational degrees which plaintiff, the recipient of dual
Bachelors Degree of Architecture and a Bachelor of Science in
Management, did not possess.*fn4 The sixth position, senior
programmer analyst, required minimum qualifications of at least
one year of experience as an IBM mainframe systems programmer
which plaintiff did not satisfy. Only with regard to the
financial analyst intern position is there a material question
as to whether plaintiff is qualified. Accordingly, this Court
cannot conclude that plaintiff has failed to allege a prima
As set forth above, the burden shifts to the defendant in the
second phase of a discrimination analysis "to articulate some
legitimate, non-discriminatory reason
for the employee's rejection." McDonnell Douglas, 411 U.S. at
802, 93 S.Ct. at 1824. As the Supreme Court stated in Burdine,
"the employer need only produce admissible evidence which would
allow the trier of fact rationally to conclude that the
employment decision had not been motivated by discriminatory
animus." 450 U.S. at 257, 101 S.Ct. at 1096; see also, Knight
v. Nassau County Civil Serv. Comm'n, 649 F.2d 157, 161 (2d
Cir.), cert. denied, 454 U.S. 818, 102 S.Ct. 97, 70 L.Ed.2d 87
(1981). Furthermore, as the Second Circuit noted in Meiri, "the
inference of discrimination is far more powerful in employee
discharge cases than it is in the context of failures to hire
or to promote." 759 F.2d at 997.
In this case, defendant puts forth the evidence that
plaintiff resigned his original position after only two months,
which was well before the conclusion of the probationary
period. Plaintiff, on the other hand, would have this Court
overlook the fact that he resigned prior to the completion of
his probationary period. Specifically, plaintiff argues: "All
of the applications . . . did not require that the job
applicant work in his then current position . . . prior to
being hired to any of the advanced managerial positions. . . .
[H]iring for these positions is not a function of length of
service with the State, but rather a function of educational
and work experience in the field of discipline." Within the
bounds of this case, the Court does not agree. It would be
utterly without reason to expect employers making hiring
decisions to ignore clearly relevant factors such as prior job
history. As the Supreme Court stated in Burdine:
The statute was not intended to "diminish
traditional management prerogatives." [citing
Steelworkers v. Weber, 443 U.S. 193, 207, 99 S.Ct.
2721, 2729, 61 L.Ed.2d 480 (1979)]. It does not
require the employer to restructure his employment
practices to maximize the number of minorities and
women hired . . . Rather, the employer has
discretion to choose among equally qualified
candidates, provided the decision is not based upon
450 U.S. at 259, 101 S.Ct. at 1096-1097 (citation omitted). The
fact that plaintiff resigned after a mere ten weeks, absent a
finding of constructive discharge, is clearly a
non-discriminatory indicator of his inability to operate in
defendant's work environment. As a result, in light of all the
circumstances, this Court holds that this explanation of the
motivation behind the employment decision is sufficient to meet
defendant's burden. However, the analysis does not end there.
At this stage, the Court must review the evidence to evaluate
whether the reasons offered by defendant could be a pretext for
racial discrimination. As the Second Circuit stated recently in
Taggart v. Time, Inc., 924 F.2d 43, 46 (1991), "[t]he inference
of discrimination may be shown by direct evidence, statistical
evidence, or circumstantial evidence . . . all of which is
aimed at persuading the trier of fact directly that the more
likely reason for plaintiff not being hired was because of his
[race] and that the employer's profferred reason was pretextual
and not worthy of belief." Id. (citations omitted).
In the case at bar, plaintiff sets forth statistics showing
a wide disparity in racial hirings at the managerial level by
the University, which he alleges "supports his contention of
historical employment discrimination which affected plaintiff's
own applications for managerial employment." Notwithstanding
that the University casts serious doubt about the accuracy of
the statistics, defendant chose not to adduce countervailing
evidence. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
996, 108 S.Ct. 2777, 2789, 101 L.Ed.2d 827 (1987).
Although this Court is cautioned by the Supreme Court's
observation that "such general determinations, while helpful,
may not be in and of themselves controlling as to an
individualized hiring decision, particularly in the presence of
an otherwise justifiable reason for refusing to rehire,"
McDonnell Douglas, 411 U.S. at 805 n. 19, 93 S.Ct. at 1826 n.
19 (citations omitted), the credibility of the statistics is an
issue for the jury to determine. Accordingly,
there is sufficient evidence, under the circumstances, to
withstand a motion for summary judgment on this count.
For the reasons stated above, this Court finds that plaintiff
is unable to prove a prima facie case of constructive
discharge. With regard to the allegation of racially motivated
failure to rehire, the plaintiff has put forth sufficient
evidence with respect to the financial analyst intern position
to overcome defendant's motion for summary judgment.
Accordingly, defendant's motion for summary judgment, pursuant
to Rule 56 of the Federal Rules of Civil Procedure, is hereby
granted as to count one and denied as to count two.
Furthermore, in his complaint, plaintiff alleges violations of
New York Executive Law § 296 and New York Civil Rights Law §
46. In evaluating whether to hear these state claims, this
Court holds that considerations of judicial economy, comity and
fairness to litigants compel a dismissal of the state claims.
See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130,
16 L.Ed.2d 218 (1966). Accordingly, those claims are hereby