The opinion of the court was delivered by: Sweet, District Judge.
Defendant Judith Levitt ("Levitt" or the "Department") has
moved pursuant to Rule 12(c), Fed.R.Civ.P. for judgment on the
pleadings, or in the alternative, under Rule 56, Fed.R.Civ.P.
for summary judgment dismissing plaintiff Om Chojar's
("Chojar") employment discrimination action. For the reasons
set forth below, the motion is granted in part and denied in
Levitt is the Personnel Director of the Department of
Personnel (the "Department") of the City of New York (the
"City") and is an employer within the meaning of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq. ("Title VII").
Chojar was employed as a computer programmer analyst in the
Electronic Data Processing Unit ("EDP") of the Department,
pursuant to a civil service list appointment. EDP was later
combined with another Department unit, to form the Management
Information Systems ("EDP/MIS"). Judith Meyer ("Meyer") was the
supervisor of EDP/MIS.
On May 18, 1990, Chojar filed his complaint in this action
pursuant to Title VII, and the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et seq. ("ADEA"), alleging that the
Department failed to employ him, failed to promote him,
terminated his employment, subjected him to harassment and
recurring losses, and that such actions were discriminatory
because they were based on Chojar's race, color, gender,
religion, national origin and age.
The filing of the complaint follows a Determination and Order
After Investigation of September 30, 1988 by the New York State
Division of Human Rights ("SDHR") of no probable cause. On
December 8, 1988, following SDHR's findings, Chojar requested
the Equal Employment Opportunity Commission ("EEOC") to review
SDHR's finding of no probable cause. EEOC notified Chojar by
Determination of February 7, 1990 that it had reviewed the
determination of SDHR, and concluded that the evidence obtained
during the investigation had not established violations of the
On March 19, 1991, the Department filed the instant motions.
After a series of adjournments to the return date of the
motion, the motion was considered fully submitted as of June
Chojar is a male of Indian national origin. On November 16,
1981, Chojar was appointed pursuant to a civil service list to
the Department. He was assigned to the EDP unit, later known as
EDP/MIS, where he remained until his termination in February,
The general responsibilities of a computer programmer analyst
include writing computer programs, interpreting computer
specifications, and the maintenance of computer programs. Meyer
was the unit supervisor of EDP/MIS, and Edward Graulich
("Graulich") was Chojar's immediate supervisor.
During his employment at EDP/MIS, Chojar received three
evaluations. For the probationary period 1981-1982 Chojar
received a performance rating of satisfactory. For the period
1983-1984, Graulich rated Chojar's overall performance as
"good." For the period 1985-1986, Chojar received an overall
performance rating of unsatisfactory. Meyer, rather than
Graulich, conducted the 1985-1986 evaluation. Meyer noted on
the evaluation form that Chojar required additional
supervision, worked at a slow pace, was not very productive at
the programmer analyst level, and had difficulty in working
with other programmers, making it difficult to assign him to
projects which required him to work with the rest of the staff.
The evaluation further noted:
There have been a few disagreements between
members of the staff and [Chojar]. It was
difficult to determine which party was wrong, but
it has made it difficult assigning [Chojar] to
where he must work with the rest of the staff.
Chojar has appealed this 1985-1986 evaluation to the
Performance Rating Board (the "Board") pursuant to New York
Civil Service Law (the "Civil Service Law") Rules and
Regulations § 35.6(b)(2) (McKinney's 1983). That appeal is
In January 1987, Chojar was involved in a series of incidents
with other EDP/MIS employees in which Chojar called upon
Graulich to investigate his complaints of loud conversations
carried on by co-workers. In memoranda of January 13 and
January 20, 1987, Graulich noted these requests and stated his
conclusion that he observed Chojar's complaints to be
On February 24, 1987, Meyer, in a memorandum to Lee Burkholtz
("Burkholtz"), the deputy director of the Department, inquired
about the procedures to be followed in order to terminate
Chojar for incompetence.
On March 18, 1987, Meyer requested Chojar to attend a
conference to discuss his work productivity. Chojar responded
that he was too busy. When Chojar was asked to attend a
rescheduled conference on the same date with Meyer and Fred
D'Alo ("D'Alo"), project manager at EDP/MIS, Chojar attended
the conference, but refused to discuss the work productivity
issue without Graulich's presence.
On April 9, 1987, Chojar was involved in a verbal dispute
with co-worker Regina Rabinar ("Rabinar"). That same day
co-workers Ahmed Nouri ("Nouri") and Feradoon Majidi ("Majidi")
approached Chojar at his desk. A physical confrontation between
Chojar and Nouri and Majidi ensued. Chojar reported the
incident to the Inspector General's Office of the Department
("IG"), and at the advice of the IG, Chojar reported the
incident to the police, and eventually sought criminal
summonses against Nouri and Majidi.
On April 9, 1987 and again on April 14, 1987, Meyer asked
Chojar to move to another work location. Chojar requested that
the order be put in writing. On April 21, 1987 Meyer requested
in writing that Chojar move to another work location.
On April 22, 1987 a criminal court mediator conducted a
hearing on the April 9 incident, and advised the three parties
to the incident to avoid confrontations with each other in the
On April 24, 1987, Chojar was served with a notice of
Involuntary Leave of Absence and Medical Examination pursuant
to § 72 of the Civil Service Law and was put on involuntary
leave of absence. In addition, Chojar was ordered to attend a
psychiatric examination, also pursuant to § 72, on two
Chojar did not attend either of the scheduled psychiatric
examinations on his attorney's advice that he not submit to
examination without his attorney present.
On June 3, 1987, the charges against Chojar were amended to
include additional specifications of misconduct due to Chojar's
failure to attend the examinations. In the letter accompanying
the amended charges, Levitt informed Chojar that he was being
suspended without pay as of that date and that an informal
conference would be scheduled for June 11, 1987.
Following the conference, Chojar received a letter of July 2,
1987 informing him that he was recommenced for dismissal from
his position with the Department.
Pursuant to §§ 72 and 75 of the Civil Service Law, a due
process hearing before an Administrative Law Judge ("ALJ")
employed by the New York City Office of Administrative Trials
and Hearings was scheduled. By pretrial order of August 17,
1987, ALJ Raymond Kramer ("Kramer") recommended dismissal of
the charges relating to Chojar's failure to appear at the two
scheduled psychiatric examinations. The ALJ based his ruling on
the grounds that Chojar should have been advised of his right
to tape the psychiatric examination for consultation with his
At the conclusion of the hearing, the ALJ found Chojar guilty
of misconduct and incompetence pursuant to § 75 of the Civil
Service Law and recommended that Chojar be terminated from ...