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August 3, 1992


The opinion of the court was delivered by: MICHAEL H. DOLINGER




 Pro se plaintiff Joseph Rivera filed this suit on October 1, 1990, seeking damages or back pay and injunctive relief against his former employer, National Westminster Bank. Suing under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5, plaintiff claims that the Bank denied him a promotion and then terminated him because he is Hispanic.

 Following the completion of pre-trial proceedings, the parties stipulated to a trial before me pursuant to 28 U.S.C. § 636(c). Plaintiff further agreed to waive any claim of entitlement to a jury trial, thus mooting any possible issue as to the retroactive effect of the jury-trial provision of the Civil Rights Act of 1991. 42 U.S.C.A. § 1981a(C) (West Supp. 1992).

 On July 9, 1992, the court conducted a bench trial limited to the issue of liability. *fn1" The following constitute my findings of fact and conclusions of law.

 The Nature of Plaintiff's Claims

 Plaintiff asserts two claims in this action. First, he asserts that in 1984 he was denied a promotion to a position as a bank officer because of his Hispanic origin. According to plaintiff, he did not subsequently pursue the matter, either because he had been falsely informed that he required a college degree for such a promotion *fn2" or because he perceived that discriminatory animus by his supervisors made such an application futile.

 Second, Mr. Rivera claims that his termination by the Bank on October 29, 1987 was also based on impermissible animus towards him because he is Hispanic. Although he admits that he was officially fired for repeated lateness and concedes that he was late to work on a number of occasions, he insists that he had a valid medical excuse and that a co-worker -- a Ms. Nancy Fischer -- had at least as bad a record for tardiness and yet she was not only retained, but promoted to a bank officer position.

 In explanation for the difference in treatment, plaintiff argues that Bank Vice-President William Mulligan, the officer responsible for firing him, and Ms. Patricia Kearns -- plaintiff's immediate supervisor -- were both Irish-American and favored Ms. Fischer, who he claims was part Irish-American.

 The Facts

 Plaintiff was hired to work in the Trading Department of the National Bank of North America ("NBNA") on May 23, 1977. He served as an Assistant Trader in that department, performing clerical services to assist the Trader, a Mr. Pedro Nieves.

 NBNA was subsequently acquired by defendant National Westminster Bank ("Nat West"). In 1980, Mr. William Mulligan reorganized a portion of the Treasury Department of Nat West and consolidated a set of related service units in a so-called Investment Services Department. Although Mr. Mulligan maintained ultimate responsibility for this department, it was directly supervised at the time by Mr. Steven Laxman. In the absence of Mr. Laxman, supervision was apparently handled by Pedro Nieves.

 Mr. Mulligan recruited six or seven persons, including plaintiff, to join the department. These individuals served as retail sales representatives. Their responsibilities were essentially ministerial. At the start of their work day they were required to determine the then-current rates for various Nat West investment products and to input that data into a computer. During the course of the day they took orders for these products, and recorded those transactions on so-called "tickets" before the conclusion of the work day. All of these retail sales representatives received similar training and were thus in a position to perform each other's functions.

 At some time in 1986, Nat West acquired certain branches from Bankers Trust Company. As a result, several individuals who had been officers at Bankers Trust joined the Investment Services Department of Nat West. Of particular relevance, Ms. Patricia Kearns, who was one of the officers from Bankers Trust, became the supervisor of the unit. Ms. Kearns, who retained her status as an officer, had performed investment advisory services at Bankers Trust and continued to do so at Nat West. Thus her responsibilities were of a different order from the routine, non-discretionary functions performed by plaintiff and his fellow retail sales representatives.

 Each employee of the Department was given an annual evaluation, which was prepared by the supervisor and approved by Mr. Mulligan. The evaluation reflected both verbal comments and numerical ratings in a number of different job performance categories, as well as an overall numerical rating. All numerical ratings were on a scale of 1 to 5. According to Mr. Mulligan, a rating of 1 was given only to a "superstar"; a rating of 2 reflected an above-average employee; a 3 denoted an individual who performed his work consistently but without any specially noticeable extra effort or results; a 4 indicated someone who needed to improve his performance; and a 5 reflected a clearly unsatisfactory performance, which generally meant that the employee could not continue at the Bank. At the time of the annual evaluations, the employee was given a copy and had the opportunity to comment upon the ratings as well as to record his or her career goals and plans for advancement within the Bank.

 The earliest evaluation of plaintiff that is found in the record is for the period ending July 1983. It gave plaintiff a final performance rating of 3.35 and noted among the objectives for plaintiff to meet, "increasing knowledge of Treasury products and procedures." (Deft's Exh. I.) Plaintiff's supervisor commented that plaintiff "has a positive attitude toward his responsibilities. He has demonstrated improvement in a number of areas and is aware of those areas which require more work." (Id.) Mr. Rivera wrote in response that he considered his evaluation to be fair. (Id.)

 This third criticism of plaintiff apparently resulted from a series of incidents in which plaintiff had engaged in actions upsetting to his co-workers. Indeed, this problem had previously been mentioned in a memorandum to him from Mr. Laxman, who noted a recent "complaint from a female member of my staff accusing you of rude and insulting behavior." (Deft's Exh. V.) Mr. Laxman noted in the memorandum that he had previously spoken to plaintiff about his "behavior," and then warned plaintiff that if his "performance [in dealing with his co-workers] does not improve or if there are any further incidents of this nature, you will be terminated from the Bank." (Id.)

 Plaintiff offered a response to his 1984 evaluation in which he conceded its fairness except as to his ability to get along with other staff. As to this matter, plaintiff wrote that "I feel I have come a long way in resolving conflicts with the personnel of my department." (Deft's Exh. J.) He also noted, in a section of the evaluation form labelled "Note employee career interests and comments," that he intended "to expand my knowledge of the Treasury products" offered by the Bank and ultimately to become a bank officer. (Id.)

 Plaintiff sought quickly to realize his ambition. Thus he approached Mr. Mulligan shortly after receiving the 1984 evaluation, and well before he had had time to increase his knowledge of the Bank's investment offerings, and requested that he be considered for promotion to bank officer. According to Mr. Mulligan, a bank officer within the Investment Services Department would have been required to advise clients as to investment decisions, and thus would have been expected to have obtained various certifications -- known as Series 52 (for municipal investments) and Series 7 (for other investment vehicles) -- prior to being considered for such a promotion. He also testified that, as a general matter, he would have expected promotions to be given only to those employees consistently earning performance ratings of 1 or 2.

 In any event, in response to plaintiff's inquiries, Mr. Mulligan advised him that he needed to obtain specialized training in the details of all investment products, including the so-called series 52 and series 7 certification programs. *fn3" Plaintiff subsequently did pursue one course given by the New York Investment Forum that could have led to a series 52 certification *fn4" (see Deft's Exh. M. at 6), but he never sought series 7 certification and he never again sought promotion, ...

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