the so-called series 52 and series 7 certifications, which attest to the individual's training and expertise with regard to municipal and other investment vehicles, respectively.
In 1984, plaintiff had no such training or expertise. Indeed, one of the principal criticisms found in all of plaintiff's performance appraisals up to the time of his termination was his need -- and evident failure -- to acquire greater familiarity with the Bank's investment products. This criticism, which plaintiff never contested, is further borne out by the fact that plaintiff, although he enrolled in a series 52 course given by the New York Investment Forum, never took the series 52 examination. (See Deft's Exh. M. at 6.) Moreover, he never undertook any effort to obtain training and certification with regard to non-municipal investments products. This evidence is sufficient to justify the conclusion that plaintiff was not promoted because he lacked the skills that would have been required of him as a bank officer.
Under these circumstances, plaintiff obviously has not shown that he was qualified for the position to which he was denied promotion. Accordingly, he has failed to establish a prima facie case, and the promotion claim must be dismissed.
3. The Termination Claim
Plaintiff was terminated on October 29, 1987, ostensibly because of his persistent tardiness. Defendant also notes that he had an intermittent history of abusive conduct towards co-workers, which apparently contributed to the decision to fire him.
Plaintiff's claim is premised on his twin contentions that the tardiness records compiled by his immediate supervisor, Patricia Kearns, exaggerated the number of days on which he arrived late at work and that defendant discriminated against him by terminating him even though one of his co-workers -- Ms. Fischer -- had a comparable record of late appearances and was not only not fired, but promoted to a bank officer position.
To establish a prima facie case of discrimination with respect to his termination, plaintiff must show (1) that he was a member of a protected group; (2) that he was qualified for the job he was performing; (3) that he was discharged; and (4) that the discharge occurred in circumstances from which one may infer a discriminatory motive. See, e.g., Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2d Cir. 1983). Plaintiff has not made such a showing.
With respect to plaintiff's record of absences, I credit Ms. Kearns' testimony that her contemporaneously compiled lists of late appearances by all employees working under her supervision are accurate. The log pertaining to plaintiff reflects that from July 29, 1987 until October 14, 1987, he was late twenty-one times. (Deft's Exhs. O & O-1.) Moreover, after being warned on October 15, 1987 by Mr. Mulligan that no further lateness would be tolerated, plaintiff was late three more times within the next two weeks (see Deft's Exh. BB), for a total of 24 occasions on which he was late within a three-month period. This record far exceeds the tardiness of any of plaintiff's co-workers. Indeed, the only other employee late more than once during this period was Ms. Fischer, who was late seven times in the same time period. (Deft's Exh. R; see Deft's Exhs. P, Q, S.)
As Mr. Mulligan testified, the Bank had a legitimate concern with these employees' ability to appear for work at 8:30 A.M., the scheduled starting time, because the branch offices started calling in by that time to learn from the retail sales representatives the market rates for the Bank's various investment products. The genuineness of Mr. Mulligan's concern about this matter is underscored by his having advised Ms. Kearns, apparently in July 1987, that employees in her unit were not arriving on time, thus preventing the branch offices from promptly obtaining necessary information. It was apparently in response to this stated concern that Ms. Kearns began keeping track of all late appearances by her subordinates.
In view of the disparity between the lateness record of plaintiff and that of all of his co-workers, including Ms. Fischer, and in view, as well, of the perceived importance of on-time arrival by the retail service representatives, Mr. Rivera's discharge after a prior and very clear warning is not itself suggestive of any discriminatory motivation by Mr. Mulligan.
Plaintiff claims that this discharge was suspect not only because Ms. Fischer was more leniently treated, but also because his latenesses were attributable to heart palpitations, a condition for which he was seeking medical treatment. Neither argument is persuasive.
As noted, Ms. Fischer was late far less frequently than Mr. Rivera, and in any event she was placed on probation for her actions, a step that -- according to Ms. Kearns -- led to the elimination of the problem. Moreover, although she was promoted to bank officer status, this was not done by Mr. Mulligan but by another supervisor at a time when Ms. Fischer worked in another department, prior to her assignment to the Investor Services desk. In any event, plaintiff fails to demonstrate that any leniency to Ms. Fischer evidences a discriminatory animus toward him.
As for plaintiff's medical excuse, I find his testimony not to be credible. Indeed, Mr. Mulligan credibly testified that neither on October 15, when he gave plaintiff a final warning, nor on October 29, when plaintiff was terminated, did he indicate that his physical condition prevented him from arriving on time. (See also Deft's Exhs. Z & BB.) Plaintiff also offered no corrobative evidence at trial to suggest that his frequent latenesses were attributable to anything other than an indisposition to arriving as early as he was required by the Bank.
In considering whether the circumstances of plaintiff's termination permit an inference of discrimination, it also bears emphasis that, besides his consistent tardiness, plaintiff's performance was deficient in other respects in the last year. Of particular concern, he had had a very serious run-in with his supervisor, Ms. Kearns, in May 1987, in which he had acted abusively towards her, and a similar encounter with a co-worker the same day. These incidents -- the details of which were recounted at trial by Ms. Kearns in testimony that I credit -- were sufficiently serious to lead Mr. Mulligan to place plaintiff on formal probation with a warning that any repetition within a fifteen-month period would lead to plaintiff's termination.
In addition, plaintiff's performance, reflected in his September 1987 evaluation, had become seriously deficient in a number of areas. (Deft's Exh. M.) As noted, his overall performance was rated "somewhat less than satisfactory" -- that is, he was given a numerical rating of 4. (Id.). In addition, he received "somewhat less than satisfactory" ratings in four of seven categories and an "unacceptable rating" -- that is, a rating of 5 -- in one other category. (Id.)
Under all of these circumstances, I conclude that plaintiff has not met his burden to establish, as part of his prima facie case, that his termination occurred in circumstances permitting an inference that his discharge was, in whole or in part, motivated by discriminatory animus. Moreover, even if we were to assume, for the sake of argument, that he met that initial burden, for the reasons already noted I would conclude that the Bank has proffered a non-discriminatory reason for discharging plaintiff -- his consistent tardiness -- and that plaintiff has failed to establish either that this stated reason was pretextual or that discriminatory animus was a motivating factor in his termination.
In sum, plaintiff has failed to establish any basis for his claim that his discharge violated the terms of Title VII.
For the reasons stated, plaintiff's complaint shall be dismissed. The Clerk is to enter judgment accordingly.
DATED: New York, New York
August 3, 1992
MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE