Brown's claim against the DOPR by virtue of that EEOC charge. See Wright v. United Airlines, Inc., 1993 U.S. App. LEXIS 16274, at *2 (9th Cir. July 1, 1993) (holding that plaintiff could not litigate in federal court those charges that he voluntarily withdrew from investigation by the EEOC).
An analysis of Brown's remaining EEOC charges, however, leads the Court to conclude that Brown is not procedurally barred from bringing his claim against the DOPR. Although the two EEOC charges fail to name the DOPR as a defendant, the charges clearly implicate the DOPR in the allegedly discriminatory conduct.
As a general rule, a party not named in an EEOC charge may not be named in the subsequent civil suit. Drummer v. DCI Contracting Corp., 772 F. Supp. 821, 828 (S.D.N.Y. 1991) (citing Giuntoli v. Garvin Guybutler Corp., 726 F. Supp. 494, 497 (S.D.N.Y. 1989)). The purpose of the rule is to "notify the charged party of the alleged violation and to bring him before the EEOC, thereby permitting 'effectuation of the Act's primary goal, the securing of voluntary compliance with the law.'" Koster v. Chase Manhattan Bank, 554 F. Supp. at 288-89 (quoting Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969)). Where there is substantial identity between a party named in an EEOC charge and the defendant sought to be sued had notice of the EEOC proceeding, however, the defendant need not have been named in the EEOC charge to be properly before the Court. See Women In City Gov't United v. City of New York, 515 F. Supp. 295, 299 (S.D.N.Y. 1981) (quoting Vulcan Soc'y v. Fire Dep't of White Plains, 82 F.R.D. 379, 389 (S.D.N.Y. 1979)).
In the case at hand, the DOPR had adequate notice of the charges against it by virtue of the SDHR/EEOC charge originally brought against it, as well as the fact that it was named in the allegations of the SDHR/EEOC complaints brought against the DOB, the DOP and the City. In addition, the Court finds that there exists a substantial identity between the defendants named in the SDHR/EEOC charges and the DOPR. See Davis v. Buffalo Psychiatric Ctr., 613 F. Supp. 462, 466 (W.D.N.Y. 1985) (finding sufficient identity of interest between a community mental health center and state agencies such that failure to name state agencies in EEOC charge did not bar Title VII action). Accordingly, the Court finds that the claim against the DOPR is not procedurally barred.
III. Defendants' Motion for Summary Judgment
A. Standard for Summary Judgment
Under Rule 56(c) of the Federal Rules of Civil Procedure, a motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). The nonmoving party then must meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322.
The Court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The Court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for the party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), however, and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative. Id. at 249-50; Knight v. United States Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987).
To defeat a defendant's properly supported motion for summary judgment in a race discrimination case, a plaintiff must establish a material issue of fact "as to whether (1) the employer's asserted reason for discharge is false or unworthy or belief and (2) more likely than not the employee's [race] was the real reason for the discharge." Woroski v. Nashua Corp., 31 F.3d 105, 108-09 (2d Cir. 1994) (emphasis in original). Where the material fact at issue is an employer's intent, however, summary judgment should be used sparingly. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d at 1224; Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). "Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Gallo v. Prudential Residential Servs., Ltd., 22 F.3d at 1224.
B. The McDonnell Douglas Standard
In order to establish a prima facie case of discrimination based on race, a plaintiff must satisfy the standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) ("McDonnell Douglas").14 Under this standard, the plaintiff must establish that (1) he belongs to a protected class; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) he was rejected despite his qualifications; and (4) after this rejection, the position was filled by someone outside the protected class or the employer continued to seek applications for the position. Id. at 802; see also Patterson v. McLean Credit Union, 491 U.S. at 186-87 (1989). The burden of establishing a prima facie case "is not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
Once the plaintiff establishes a prima facie case, an inference of employment discrimination arises, id. at 254 (1981); see also Patterson v. McLean Credit Union, 491 U.S. at 187, and the burden shifts to the defendants to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected for legitimate, nondiscriminatory reasons. McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Texas Community Affairs v. Burdine, 450 U.S. at 254. In order for defendants to satisfy their burden, it is sufficient if their evidence raises a genuine issue of fact as to whether they discriminated against the plaintiff. Texas Community Affairs v. Burdine, 450 U.S. at 254-55. "To accomplish this, the defendant[s] must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant[s]." Id. at 255.
If defendants are able to rebut the presumption of discrimination, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the reasons set forth by the defendants are merely pretextual and not the true reasons for plaintiff's disqualification and termination. McDonnell Douglas Corp. v. Green, 411 U.S. at 804; see also Patterson v. McLean Credit Union, 491 U.S. at 187; Texas Community Affairs v. Burdine, 450 U.S. at 256. The mere fact that a defendant proffers a false reason for a challenged employment action, however, does not necessarily establish liability. DeMarco v. Holy Cross High School, 4 F.3d 166, 170 (2d Cir. 1993). "The Title VII plaintiff at all times bears the 'ultimate burden of persuasion'" that the defendants' actions were motivated by improper discriminatory intent. St. Mary's Honor Ctr. v. Hicks, U.S. , 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993).
1. Plaintiff's Prima Facie Case15
The Court finds that plaintiff has satisfied the four-part test for a prima facie case as outlined in McDonnell Douglas. First, as an African-American, plaintiff is a member of a protected class. Second, with respect to Brown's claim arising out of Examination No. 4047, there is an issue of fact whether Brown satisfied the education and experience requirements, thereby rendering him qualified for the position of inspector (construction). In addition, with respect to Brown's claim arising out of his termination from the position of provisional assistant architect, in its decision dated March 7, 1990, the Civil Service Commission found Brown qualified for the provisional assistant architect position at the DOPR. Accordingly, the Court finds that Brown has satisfied the second requirement for establishing a prima facie case.
Third, it is undisputed that Brown was deemed "not qualified" for the position of inspector (construction) and that he was terminated from his position as a provisional assistant architect. Finally, the defendants continued to seek applicants to fill the positions of inspector (construction) and provisional assistant architect after Brown was disqualified from these positions. The fact that provisional appointments were eventually eliminated by the creation of an eligible list "is of little relevance and should not sound a death knell" to Brown's claim against the DOPR. Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985). Accordingly, the Court finds that plaintiff has established a prima facie case of discrimination.
2. Defendants' Legitimate, Nondiscriminatory Reasons
Under the McDonnell Douglas analysis, once the plaintiff establishes a prima facie case of employment discrimination, the burden then falls on the defendants to produce evidence that the plaintiff was disqualified for a legitimate, nondiscriminatory reason. Id.; see also McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Texas Community Affairs v. Burdine, 450 U.S. at 254.
a. Disqualification From Position as Inspector (Construction)
By notice dated October 9, 1985, the DOP deemed Brown "not qualified" for the position of inspector (construction) under Examination No. 4047. According to the defendants, the DOP made this determination on the grounds that plaintiff did not meet the experience and education requirements of the position as set forth in the Notice of Examination for Examination No. 4047.
Specifically, defendants claim that Brown failed to satisfy the requirement that he have a minimum of three years of full-time experience working at a construction trade and a minimum of two years of formal training or education in an acceptable construction program with an emphasis on construction in a college, technical school or trade school. According to defendants, Brown had only one year and five months of qualifying experience and they could not verify his bachelor of science degree from NYIT. Based on this evidence, the Court concludes that defendants have set forth a legitimate, nondiscriminatory reason for Brown's disqualification.
b. Termination From Position as Provisional Assistant Architect
By notice dated April 30, 1986, the DOP indicated its determination to disqualify Brown from provisional employment as an assistant architect, effective May 16, 1986. The defendants contend that the DOP's determination was based on (1) Brown's prior conviction; (2) his previous unsatisfactory private and public employment, including but not limited to the June 24th Evaluation; and (3) its conclusion that plaintiff had falsified or omitted material facts in his employment application.
With respect to the June 24th Evaluation, defendants contend that the DOP's reliance on it was made in good faith and that there is no evidence that the DOP knew that the DOB's report was false. Thus, according to defendants, even if Brown's DOB supervisors were motivated by racial animus in creating the negative Evaluation, the DOP did not have a discriminatory motive in disqualifying Brown from provisional employment. The Court finds this argument unpersuasive.
"Title VII is violated when an employing organization uses discriminatory evaluations of an employee which were prepared by its own supervisory personnel, unless its procedures have given the employee a reasonable opportunity to inspect and correct these evaluations." Stoller v. Marsh, 682 F.2d at 976 ("Stoller "). In the present case, the Court finds that an issue of fact exists as to whether (1) Brown's DOB supervisors drafted the June 24th Evaluation out of racial animus;
and (2) Brown had the opportunity to examine and correct his file prior to his termination from provisional appointment.
Assuming the June 24th Evaluation was false and Brown was not given an opportunity to examine and correct his file prior to his termination, however, the Court finds that, under the reasoning in Stoller, the DOP's reliance on the June 24th Evaluation is not a legitimate, nondiscriminatory reason protecting it from Title VII liability.
Defendants attempt to distinguish Stoller on the grounds that, unlike the present case, Stoller involved the same employing organization in all of the discriminatory acts. Contrary to defendants' characterization, however, the Court finds that, as the DOB, the DOP and the DOPR are all departments of the City of New York, defendants in fact constitute the same employing organization. The DOP is the centralized department of personnel management charged with investigating applicants for positions in the civil service, reviewing their qualifications and revoking or rescinding any certification or appointment by reason of the disqualification of the applicant under the provisions of the civil service law. See New York, N.Y., Admin. Code and Charter § 813(6) (1994). In addition, the DOP is directed to keep records regarding candidates for appointment to the civil service. Id., § 813(9). Thus, as the DOP is charged with maintaining records on employees of the DOB and the DOPR, the Court concludes that the reasoning in Stoller applies equally well to the case at bar. Accordingly, the fact that the DOP and the DOPR are separate departments from the DOB does not shield defendants from liability under Title VII.
Defendants contend further that the June 24th Evaluation was not the sole reason for its decision to terminate Brown. In fact, in response to the DOP's letter of inquiry, Vitullo, Brown's previous employer, indicated that Brown had been terminated because "he would not take direction from my head draftsman, who was younger than him. I received complaints from the other employees concerning his attitude toward them. I fired him to keep peace in the office." Letter from Vitullo to the DOP of 7/2/85, annexed to the Rosenbaum Dec. as Exh. "J." The DOP investigation also revealed that he was terminated from his position as a Transit Authority railroad clerk. Brown had failed to list his dismissals from either Vitullo or the Transit Authority on his employment application.
Plaintiff also responded "No" to the question "were you ever discharged or asked to resign from any employment." See Personal History Questionnaire, annexed to the Rosenbaum Dec. as Exh. "N."
The Court finds that this evidence gives rise to a legitimate, nondiscriminatory reason for terminating Brown. Thus, even if the June 24th Evaluation was false and Brown was not given an opportunity to correct it, the DOP's proffered basis for terminating Brown rebuts the presumption of discrimination.
3. Brown's Pretextual Evidence
Once the defendants produce a legitimate, nondiscriminatory reason for their actions, the burden of proof shifts back to the plaintiff to prove by a preponderance of the evidence that the proffered reasons are merely pretextual and that he has been victim of intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. at 856; see also St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. at 2747-48. The Court finds that Brown has presented evidence from which a reasonable jury could conclude that the defendants' stated reasons for disqualifying him from employment as an inspector (construction) and terminating him from employment as a provisional assistant architect are pretextual.
a. Disqualification from Position as Inspector (Construction)
Brown argues that defendants' proffered reasons for disqualifying him from employment as an inspector (construction), namely that he did not meet the education and experience requirements for the position, are pretextual. Rather, he contends that the investigator was unduly influenced by the June 24th Evaluation.
Specifically, Brown contends that his bachelor of science degree from NYIT and his prior experience working for the Banana Kelly organization satisfied the requirements for the position of inspector (construction). While defendants claim that the DOP investigator was unable to verify Brown's bachelor of science degree, Brown contends that defendant's argument is disingenuous in light of his attempts to notify the DOP about his degree. With respect to the experience requirement, Brown argues that the DOP gave no credence to the letter from Foster and Colon confirming that he had done plastering and other work at Banana Kelly since 1981.
In light of these contentions, the Court finds that an issue of fact exists as to whether the DOP's proffered reasons for disqualifying Brown from employment as an inspector (construction) are pretextual. As a reasonable jury could conclude that the DOP investigator relied on the June 24th Evaluation in determining that Brown lacked moral character, defendants' motion for summary judgment is denied.
b. Termination from Position as Provisional Assistant Architect
Brown next contends that the defendants' stated reasons for the decision to terminate him from employment as a provisional assistant architect are pretextual. In support of this contention, plaintiff relies on the March 7, 1990 Civil Service Commission decision deeming Brown qualified for the position of provisional assistant architect at the DOPR and ordering Brown reinstated.
Specifically, the Civil Service Commission found that Brown's termination from the Transit Authority was a product of his prior conviction and that the certificate of relief from disabilities granted him a presumption of rehabilitation. The Civil Service Commission found further that Brown's termination from employment with Vitullo "was not the result of either incompetence or misconduct." See Decision, dated March 7, 1990, annexed to the Cotsirilos Aff. as Exh. "V," at 4. The Commission concluded that "the record before us does not establish that [Brown's] work history is that of an individual who demonstrates habitually poor performance. Accordingly, we conclude that [Brown's] prior public and private employment history was not unsatisfactory." Id. at 5.
The Court finds that the Civil Service Commission's decision creates an issue of fact as to whether the DOP's reasons for terminating Brown are pretextual. Specifically, the Court concludes that a reasonable jury could find that the DOP unduly relied on the June 24th Evaluation without providing him with an opportunity to examine his file and correct it. Accordingly, defendant's motion for summary judgment is denied.
For the reasons set forth above, defendants' motion for summary judgment with respect to Brown's claims against the DOB and his claim for retaliation against all of the defendants is granted. Defendants' motion for summary judgment with respect to the remaining defendants is denied. The parties are directed to complete any remaining discovery and to appear for a pretrial conference on Wednesday, November 23, 1994, at 10:30 a.m.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
October 25, 1994