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