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TOLIVER v. SULLIVAN DIAGNOSTIC TREATMENT CTR.

February 1, 1993

TOMMIE L. TOLIVER, Plaintiff,
v.
SULLIVAN DIAGNOSTIC TREATMENT CENTER (SDTC), Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Tommie L. Toliver ("Toliver") has sued the Sullivan Diagnostic Treatment Center ("SDTC") under Title VII of the Civil Rights Act of 1964 as amended, 42 USC § 2000-e, on grounds of discriminatory dismissal of Toliver and failure to hire him as a counselling supervisor because of race. He earlier sought relief from the New York State Division of Human Rights and the federal Equal Employment Opportunity Commission but received adverse determinations from the state agency on August 30, 1988 and the EEOC on August 12, 1989, as well as on an earlier complaint to the State Division filed December 1, 1987.

 After completion of discovery conducted by both parties, SDTC has moved for summary judgment dismissing the complaint. For the reasons which follow, I grant the motion. I direct, however, that entry of judgment be stayed for 45 days to permit Toliver (who is representing himself), to move for reconsideration if there are grounds for doing so, and I make certain further directions to SDTC counsel as set forth in note 1 to part IV below.

 II

 The background facts are undisputed. Toliver, who is black, was employed as a night residential counsellor. Some time in early 1987, he applied for a position as Program Supervisor, but that job was filled by a white applicant with prior supervisory and administrative experience with the same client population.

 For a time beginning in April 1987 Toliver was permitted to leave work early two days a week to hold down another job. On May 18, 1987 he was told, however, that it would be necessary for him to work full time to continue with SDTC Toliver asked to be permitted to use sick leave time to compensate for leaving early, but this request was denied.

 Toliver called in sick on May 24, May 31, June 4, and June 7, 1987. Between June 8 and 13, discussions occurred between Toliver and his supervisor at SDTC, involving among other things a demand by the supervisor for doctor's notes with respect to Toliver's past and future illnesses. Toliver called in sick on June 14 and did not furnish a doctor's note. Toliver's affidavit in connection with the present motion does not specify the nature of any illnesses involved on any of the occasions mentioned, nor does it offer any corroboration of his sicknesses.

 Toliver was terminated on June 15, 1987 and later applied for another supervisory position for which he was not selected.

 Toliver points to a chart secured through discovery, labelled as Exhibit 34, showing 24 hirings including one other Black, one Hispanic and one Asian counsellor during the period from 1984 to October 1989 as indicating a pattern of discrimination. No information about the ethnic mix of the community in which SDTC operates or of its applicants has been provided. The New York State Division of Human Rights decision in connection with Toliver's initial December 1, 1987 complaint found no unlawful discriminatory practice:

 "A review of the staffing pattern did not reveal a pattern of discrimination based on race and color."

 III

 SDTC has established reasonable nondiscriminatory grounds for selecting a supervisor other than Toliver at the time of his initial application for such a position, for dismissing Toliver and, since his conduct was unsatisfactory during his initial period of ...


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