United States District Court, Southern District of New York
September 25, 1991
OM CHOJAR, PLAINTIFF,
JUDITH LEVITT, CITY PERSONNEL DIRECTOR, DEFENDANT.
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
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 § 75 of the Civil
Service Law and recommended that Chojar be terminated from his
position and dismissed from the civil service.
By letter of February 22, 1988, the Department informed
Chojar that it was adopting the findings and recommendation of
the ALJ in their entirety. The Department stated that it was
dismissing the § 72 proceedings but that it found Chojar guilty
of misconduct and incompetence pursuant to § 75 of the Civil
Service Law and therefore directed that Chojar be terminated
from his position and dismissed from the civil service
On or about the date of Chojar's termination, of the other 25
persons employed in EDP/MIS, 10 were black, 12 were female, and
eight different national origins were represented.
The Department did not fill the position from which Chojar
Following his termination, Chojar filed a complaint with the
SDHR, in which he authorized the SDHR to accept the complaint
on behalf of the EEOC. In the SDHR complaint, Chojar charged
that beginning in 1986, the Department violated the Executive
Law of New York States and Title VII by discriminating against
him on the basis of race, color, sex, national origin and by
discharging him in retaliation for his reporting the alleged
April 9, 1987 assault to the IG and for serving criminal
summonses upon his co-workers.
In a Determination and Order After Investigation of September
30, 1988, SDHR made a finding of no probable cause.
On December 8, 1988, Chojar asked the EEOC to review SDHR's
determination of no probable cause. In a Determination of
February 7, 1990, the EEOC notified Chojar of its finding that
the evidence obtained during the investigation had not
established violations of the statutes, and notified Chojar of
his right to sue within 90 days of his receipt of the
By Notice of Personnel Director Action of May 20, 1988,
Chojar was notified that he had been found "not qualified" for
appointment from an eligible list for DOP Exam No. 4027.
On May 18, 1990, Chojar filed the instant complaint, in which
he alleges, in addition to the claims of discriminatory
termination and retaliatory discharge alleged in the SDHR and
EEOC complaints, the Department's failure to employ him, its
failure to promote him, continuous harassment and recurring
losses. Chojar in the instant complaint further alleges that
the Department's conduct was discriminatory with respect to his
race, color, gender, religion, national origin, and age.
I. The Summary Judgment Standard
Rule 12(c), Fed.R.Civ.P., provides:
If, on a motion for judgment on the pleadings,
matters outside the pleadings are presented to and
not excluded by the court, the motion should be
treated as one for summary judgment and disposed
of as provided in Rule 56. . . .
The materials submitted in addition to the pleadings thus
require treating the instant motion as one for summary
judgment. Under Rule 56, a motion for summary judgment shall be
granted when the moving party demonstrates as a matter of law
that he is entitled to that remedy because there are no genuine
issues of material fact present in the action. H.L. Hayden Co.
v. Siemens Medical Systems, Inc., 879 F.2d 1005, 1011 (2d Cir.
1989). The moving party, however, has the burden of
demonstrating the absence of any genuine issue as to all the
material facts, and the nonmoving party is entitled to all
favorable inferences that may be drawn from the evidence. Quinn
v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444-45 (2d
On a motion for summary judgment, then, the plaintiff must
show a dispute about the "facts that might affect the outcome
of the suit under governing law . . ." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986), motion denied, 480 U.S. 903, 107 S.Ct.
1343, 94 L.Ed.2d 515 (1987). In addition, the dispute about the
facts must also be genuine, i.e., "a fair minded jury could
return a verdict for the plaintiff on the evidence presented."
Id. 477 U.S. at 252, 106 S.Ct. at 2512.
In the context of a Title VII action, a plaintiff opposing a
summary judgment motion carries a burden similar to his burden
at trial: he must first establish a prima facie case of
employment discrimination; the burden then shifts to the
employer to rebut the presumption established by the prima
facie case by articulating a legitimate, non-discriminatory
reason. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.
1817, 1824, 36 L.Ed.2d 668 (1973); Meiri v. Dacon,
759 F.2d 989, 996 (2d Cir. 1985). Once the employer articulates the
legitimate non-discriminatory reasons for the employment
action, the employee has the burden to demonstrate that the
stated reasons were merely pretextual. Burdine, 450 U.S. at
256-57, 101 S.Ct. at 1095-96.
The Court of Appeals for the Second Circuit has recognized
that summary judgment is appropriate in some employment
discrimination cases, even though intent is an element of such
case. Meiri, 759 F.2d at 998. In order to oppose successfully a
summary judgment motion, the employee opposing the motion must
set forth facts, which, if proved at trial, could establish
that the employer's non-discriminatory reasons were pretextual.
Id. Moreover, conclusory allegations of discrimination are
insufficient to satisfy the requirements of Rule 56(e). Id.
Chojar claims that the Department discriminated against him
by its failure to hire him, failure to promote him, continuous
harassment, recurring loss, discriminatory termination, and
retaliatory discharge. Chojar alleges that the Department's
conduct was discriminatory with respect to his race, color,
gender, religion, national origin, and age. As a threshold
issue, however, the court must consider whether it has subject
matter jurisdiction over all the claims.
II. The Court Lacks Subject Matter Jurisdiction over the
Claims of Age and Religious Discrimination
Filing a charge with the EEOC is a jurisdictional
prerequisite to a private civil action under Title VII.
42 U.S.C. § 2000e-5(e); McDonnell Douglas, 411 U.S. at 798, 93
S.Ct. at 1822. Judicial relief cannot be sought for claims not
listed in the original EEOC charge unless they are "reasonably
related" to the charge. Stewart v. United States Immigration &
Naturalization Serv., 762 F.2d 193, 197-98 (2d Cir. 1985).
In the instant case, Chojar's charge of discrimination filed
with SDHR and EEOC checked the boxes designated "sex," "race,"
"color," and "national origin" to indicate the type of
discrimination alleged. In his specification of the particulars
of his claim, he alleged that he was employed by the Department
since 1981 as a computer programmer analyst, and that his work
performance was satisfactory. He charged that since 1986, the
director of his unit wanted to take his civil service title
away. He alleged further that she connived with her friends to
harass him, and that an assault on him occurred on April 24,
1987, which he reported to the IG and to the police. Chojar
further alleged that because of his actions, retaliation
followed, causing him to be put on involuntary leave on April
24, 1987, which became a suspension without pay as of June 7,
1987. He alleged that he was accused of incompetence and
misconduct, and he was ordered to seek a psychiatric
evaluation. As a result of this action, Chojar alleged, a
recommendation for his termination was made. Chojar further
alleged that his alleged attackers and harassers, all white,
had not been subjected to similar treatment. The SDHR complaint
concluded by stating, "I charge the above named respondent with
unlawfully discriminating against me by denying me equal terms,
conditions and privileges of employment and terminating me
because of my
race and color, sex, national origin, and in retaliation, in
violation of the Human Rights Law of the State of New York."
A. Religious Discrimination
Courts have held that the proper scope of any private lawsuit
resulting from an EEOC charge encompasses not only the claims
presented in the charge, but also those that reasonably could
be expected to grow out of the charge. Smith v. American
President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978).
Moreover, courts generally do not hold Title VII plaintiffs to
rigorous requirements of specificity in naming the form of
discrimination allegedly suffered. Drummer v. DCI Contracting
Corp., 772 F. Supp. 821, 825 (as amended) (S.D.N.Y. 1991)
(citations omitted). Nonetheless, where, as here, the alleged
retaliatory termination based on race and national origin form
the gravamen of Chojar's EEOC charge, Chojar has not alleged
facts sufficient to put the EEOC on notice of his religious
discrimination claim so as to "trigger the investigatory and
conciliatory procedures of the EEOC," the exercise of which
underlies the requirement that plaintiffs exhaust their EEOC
remedies before pursuing a judicial remedy for a Title VII
claim. Miller v. Smith, 584 F. Supp. 149, 154 (D.D.C. 1984).
Courts in this Circuit have found a lack of subject matter
jurisdiction of added claims where such additional claims could
not reasonably be expected to grow out of the original charges
before the EEOC. In Waterman v. New York Telephone Co., 36 FEP
Cases 41, 1984 WL 1482 (S.D.N.Y. 1984), the plaintiff checked
the box designated "sex" in her SDHR and EEOC charges, and
subsequently brought a Title VII action alleging both sex and
race discrimination. The court held that it lacked subject
matter jurisdiction over the race discrimination claim because
plaintiff had not exhausted her administrative remedies with
respect to the race claim. See also Drummer, 772 F. Supp. at 826
(under "relation back" standard applied to untimely amendments
to a complaint, claim of religious discrimination does not
"relate back" to sex discrimination charge filed before EEOC).
Therefore, as the court lacks subject matter jurisdiction with
respect to the religious discrimination claim, the motion for
summary judgment dismissing this claim is granted.
B. Age Discrimination
ADEA provides that:
No civil action may be commenced by an individual
under this section until 60 days after a charge
alleging unlawful discrimination has been filed
with the Equal Employment Opportunity Commission .
29 U.S.C. § 626(d). The Court of Appeals for the Second Circuit
has interpreted this provision to require plaintiff who wishes
to bring a discrimination claim under ADEA first to file
charges with the EEOC, or in the case of a New York plaintiff,
with SDHR. Promisel v. First American Artificial Flowers,
943 F.2d 251, 256 (2d Cir. 1991). It is undisputed that Chojar did
not file an age discrimination claim with the EEOC or the SDHR.
Nor for the reasons set forth above, can such claim be said to
"reasonably relate" to the claims charged in those complaints.
Therefore, the court lack subject matter jurisdiction of the
age discrimination claim.
III. Chojar Has Failed to Establish a Prima Facie Case with
Respect to the Failure to Hire and Failure to Promote
A. Failure to Hire
In support of his failure to hire claim, Chojar stated at his
deposition that he was the subject of discrimination in hiring
because "I am no longer working for them, and they are supposed
to keep me on work; that is what it means." Chojar Deposition
at 75. It is undisputed that the Department at one time
In McDonnell Douglas, the Supreme Court held that a plaintiff
alleging discrimination in hiring could establish a prima facie
case by showing:
(i) that he belongs to a racial minority; (ii)
that he applied and was qualified for a job for
which the employer was seeking applicants; (iii)
that, despite his qualifications, he was rejected;
and (iv) that, after his rejection, the position
open and the employer continued to seek applicants
from persons of complainant qualifications.
411 U.S. at 802, 93 S.Ct. at 1824. As stated above, it is
undisputed that Chojar was hired by the Department and was
employed there from 1981 until 1988. Therefore, he cannot
allege his rejection, the third element required to establish
a prima facie case. Such failure to establish a prima facie
case with respect to the failure to hire claim requires summary
judgment dismissing this claim.
B. Failure to Promote
The test for determining whether plaintiff has established a
prima facie case of failure to promote for discriminatory
reasons is the same as the McDonnell Douglas test for failure
to hire: the plaintiff must belong to a protected class; be
rejected for a position for which he has applied and was
qualified; and the position must remain open while the employer
continued to seek applicants from persons of the plaintiff's
qualifications. Hudson v. Int'l Business Machines Corp.,
620 F.2d 351, 354 (2d Cir. 1980).
Chojar testified at his deposition that he applied at least
two times for the promotional position of computer associate
between 1985 and 1987. A letter of June 27, 1986 written by
Chojar to the Board, submitted by Chojar as Exhibit 4 to his
opposing papers, also alludes to two occasions on which he
sought promotion. However, Chojar has adduced no documentary
evidence of either the alleged application or the alleged
rejections that would establish that the alleged incidents ever
took place. Therefore, summary judgment dismissing the failure
to promote claim is granted, Chojar having failed to set forth
a prima facie case for failure to promote. See Gatling v.
Atlantic Richfield Co., 577 F.2d 185, 188 (2d Cir. 1978)
(plaintiff's reliance on allegations in complaint and
statements in affidavit insufficient to preclude grant of
summary judgment motion in discrimination case).
IV. Continuous Harassment and Recurring Losses
By way of continuous harassment and recurring losses, Chojar
alleges that he was not restored to the pay roll during the
period when he was suspended pending the outcome of the ALJ
hearing, that the Department withheld back pay from him, that
he was wrongfully denied City jobs after his termination by the
Department, and that he was wrongfully deprived of his pension
A. Suspension Without Pay/Deprivation of Back Pay and
To the extent that Chojar alleges that he was treated
differently from other employees because of his race, color,
gender and national origin with regard to his alleged
suspension without pay and alleged right to receive back pay
and pension benefits, these claims "reasonably relate" to the
charges of discrimination and retaliatory discharge brought
before the EEOC, and therefore the court has subject matter
Section 75(3) of the Civil Service Law provides that
"[p]ending the hearing and determination of charges of
incompetency or misconduct, the officer or employee against
whom such charges have been preferred may be suspended without
pay for a period not exceeding thirty days." Civil Service Law
§ 75(3) (McKinney's 1991). Courts have interpreted this section
to mean that even if the employee is ultimately found guilty of
the charges against him and dismissed, he will nonetheless be
entitled to full pay for any period of suspension in excess of
30 days. Baker v. Cawley, 459 F. Supp. 1301 (S.D.N.Y. 1978)
(applying § 75 of Civil Service Law).
Chojar received his notice of suspension on June 3, 1987. The
date of the ALJ hearing pursuant to § 75 of the Civil Service
Law was August 17, 18 and 20, 1987. By report and
recommendation dated September 30, 1987 the ALJ recommended
Chojar's dismissal. Chojar was notified of his dismissal by
letter of February 22, 1988. The Department has submitted no
evidence as to the relevant period for these alleged
entitlements, whether Chojar received
such benefits, or, alternatively, that he was not entitled to
any additional payments. Therefore, the Department has failed
to carry its burden, and a material issue of fact exists
relating to the entitlement and/or receipt of the claimed
payments, precluding summary judgment on these claims.
B. Wrongful Denial of Other City Jobs
Section 50(4)(e) of the Civil Service Law states:
Disqualification of applicants or eligibles. The
state civil service department and municipal
commissions may refuse to examine an applicant, or
after examination to certify an eligible who has
been dismissed from a permanent position in the
public service upon stated written charges of
incompetency or misconduct, after an opportunity
to answer such charges in writing, or who has
resigned from, or whose service has otherwise been
terminated in, a permanent or temporary position
in the public service, where it is found after
appropriate investigation or inquiry that such
resignation or termination resulted from his
incompetency or misconduct.
It is undisputed that Chojar was terminated after a hearing at
which it was concluded that he was guilty of incompetence and
misconduct. Therefore, summary judgment dismissing this claim
must be granted.
V. Discriminatory Termination
To establish a prima facie case of termination based on
discrimination, a plaintiff must show:
(i) that he belonged to a protected class, (ii)
that his job performance was unsatisfactory; (iii)
that he was discharged and (iv) that, after [he]
was discharged, the position remained open and the
employer continued to seek applicants from
person's of complainant's qualifications.
Meiri, 759 F.2d at 995. While the failure to replace a
terminated employee is not fatal to a plaintiff's prima facie
case, the absence of a replacement for the terminated employee
substantially weakens the plaintiff's prima facie case. Id.
(evidence that plaintiff never replaced may weaken, but
certainly does not eliminate, inference of discrimination).
Instead of making a showing of this fourth element, however,
a plaintiff can also satisfy the elements of a prima facie case
by showing that the same acts would not have occurred had the
employee been of a different class. Wade v. New York Telephone
Co., 500 F. Supp. 1170, 1176 (S.D.N.Y. 1980). Chojar alleges in
his complaint that the white co-workers with whom the disputes
occurred were not subject to disciplinary action. However, in a
discriminatory termination claim, the relevant question rather
is whether, for example, whites who were the subject of a
disciplinary proceeding resulting in a recommendation of
termination were not dismissed as a result of such
recommendation. Chojar makes no such showing. Therefore, as
Chojar has failed to satisfy the elements of a prima facie case
of discriminatory termination, his discriminatory discharge
claim must be dismissed as a matter of law.
Assuming arguendo, however, that the evidence submitted by
Chojar is sufficient to constitute a prima facie showing of
discriminatory discharge, the burden shifts to the employer to
"articulate some legitimate, non discriminatory reason for the
employee's rejection . . ." McDonnell Douglas, 411 U.S. at 802,
93 S.Ct. at 1824. The employer's burden in this phase is
satisfied if he "simply explains what he has done or produces
evidence of legitimate non-discriminatory reasons." Board of
Trustees v. Sweeney, 439 U.S. 24, 25 & n. 2, 99 S.Ct. 295, 296
& n. 2, 58 L.Ed.2d 216 (1978). Placing this burden on the
employer serves a dual purpose: first, it permits the employer
to rebut the inference of discrimination that arises from proof
of the prima facie case; second, the burden of production
frames the factual issue with sufficient clarity to afford the
employee a full and fair opportunity to demonstrate pretext.
Meiri, 759 F.2d at 996.
Here, the Department has produced evidence of testimony at
the hearing, as well as of the ALJ's findings as a result of
such hearing, that Chojar was difficult to work with and that
he had difficulty performing tasks in the expected time. For
example, 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. While Chojar makes allegations
of Meyer's bias, no where does he show, let alone allege, that
Graulich's testimony was in any way lacking in credibility. The
Department has therefore established a legitimate,
non-discriminatory reason for Chojar's discharge.
When the employer has established a legitimate
non-discriminatory reason for the employee's discharge, the
burden shifts to the employee to prove the existence of factual
issues demonstrating the stated reasons were merely a pretext.
Burdine, 450 U.S. at 256-57, 101 S.Ct. at 1095-96; Meiri, 759
F.2d at 997. Where, as here, Chojar has failed to point to any
evidence suggesting that other employees who were considered
incompetent, insubordinate or to have difficulty in getting
along with co-workers were treated differently, Chojar has
failed to carry his burden, and summary judgment is required as
a matter of law. See Meiri, 759 F.2d at 997 (inability to get
along with co-workers constitutes a legitimate,
non-discriminatory reason for an employment decision where
plaintiff offers no evidence that employer's treatment of her
differed from that accorded other employees or that employer
departed from its general policies in discharging her).
In sum, absent any evidence that the Department treated
differently other employers against whom a termination
recommendation was received after a § 75 hearing, Chojar's
allegations at best amount to nothing more than discharge
without adequate cause. Even assuming the establishment of
facts supporting discharge without adequate cause, such facts
do not raise an issue of impermissible discrimination required
under Title VII. Wade, 500 F. Supp. at 1176. Therefore, for the
reasons set forth above, the summary judgment motion requesting
dismissal of the termination claim is granted.
VI. Retaliatory Discharge
In order to establish a prima facie case of retaliation, a
plaintiff must allege (1) that he has engaged in protected
activities and that defendant knew of these activities; (2)
that plaintiff suffered some disadvantageous employment action;
and (3) that there is a causal connection between the first two
elements such that a retaliatory motive played a part in the
adverse employment action. See Choudhury v. Polytechnic
Institute of New York, 735 F.2d 38, 44 (2d Cir. 1984).
Applying the above standards about burden of proof and
summary judgment to Chojar's retaliatory termination claim
requires the same result as with the termination claim, for
reasons similar to those set forth above. In support of his
contention that the disciplinary hearing, and its outcome,
arose in retaliation for his filing a complaint about the
alleged assault on Chojar by fellow employees with the IG and
the Police, Chojar cites the temporal proximity of Chojar's
filing of the IG complaint, April 9, 1987, to his being served
with charges and specifications pursuant to § 72 of the New
York Civil Service Law on April 24, 1987 and his placement on
involuntary leave of absence as of that date.
Assuming that Chojar has set forth evidence sufficient to
constitute a prima facie case of retaliatory discharge, the
Department sets forth several facts supporting its position
that it had a legitimate, non-discriminatory ground for the
actions alleged to constitute retaliation. First, as set forth
in the Department's statement of material facts pursuant to
Local Rule 3(g) — and Chojar does not dispute this statement
— it was the IG's investigation of the April 9 incident which
ultimately resulted in the serving of Chojar with charges and
specifications. Thus, the Department did not cause the
allegedly retaliatory action; rather, it was Chojar who
initiated the action by bringing his complaint to the IG.
Moreover, even assuming the Department indirectly caused the
issue of charges
and specifications, a letter of Meyer to Burkholtz of February
24, 1987 inquiring about the procedures to be followed in order
to terminate Chojar for incompetence demonstrates that the
Department was considering termination well before the April 9,
1987 incident. Finally, the ALJ's Report and Recommendation
submitted by the Department in support of the instant motion as
Exhibit U states that the April 7 incident was not among the
charges that were the subject of the hearing. ALJ Report and
Recommendation n. 5. The Department therefore has adduced
evidence showing that Chojar's filing of the IG complaint was
not the cause of his termination therefore carrying its burden.
Chojar may satisfy his ultimate burden "either by directly
persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence."
Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. Chojar has failed
to set forth any evidence contradicting the testimony and
documents of Graulich and others and showing that his
performance in the period immediately leading up to his
involuntary suspension was adequate. Chojar, moreover, cannot
refute the presumption established by the Department that the
discharge occurred for a legitimate, nondiscriminatory reason
by merely pointing to the inference of causality resulting from
the sequence in time of the events in the face of such
evidence. Meiri, 759 F.2d at 998 (conclusory allegations of
discrimination insufficient to satisfy requirements of Rule
56(e)). Chojar's failure to carry his burden therefore requires
summary judgment dismissing his retaliation claim.
For the reasons set forth above, the Department's motion is
granted in part and denied in part. The claims based on age and
religious discrimination are dismissed, as are the failure to
hire, failure to promote, discriminatory termination and
retaliatory discharge claims. The existence of material issues
of fact preclude summary judgment of the claims for continuous
harassment and recurring loss based on Chojar's alleged
suspension without pay, deprivation of back pay, and
entitlement to pension benefits.
It is so ordered.
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