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September 25, 1991


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 part.

The Parties

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.

Prior Proceedings

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 statutes.

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 27, 1991.

The Facts

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, 1988.

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 currently pending.

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 unfounded.

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 future.

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 occasions.

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 attorney.

During the hearing, which took place on August 17-20, 1987, the ALJ heard testimony from several witnesses, including Graulich. Graulich testified under oath that Chojar was incompetent in the performance of his duties, was a disruptive influence in the office, and could not work together with other employees in the EDP/MIS unit.

At the conclusion of the hearing, the ALJ found Chojar guilty of misconduct and incompetence pursuant to ยง 75 of the Civil Service Law and recommended that Chojar be terminated from ...

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