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October 25, 1994


The opinion of the court was delivered by: SHIRLEY WOHL KRAM


 In this employment discrimination action, defendants the City of New York (the "City"), Herman L. Jenkins as City Personnel Director of the Department of Personnel of the City of New York (the "DOP"), Rudolph J. Rinaldi as Commissioner of the Department of Buildings of the City of New York (the "DOB"), Betsy Gotbaum as Commissioner of the Department of Parks and Recreation of the City of New York (the "DOPR") and Bernard H. Jackson as Chair of the New York City Civil Service Commission (the "Civil Service Commission") move for summary judgment, pursuant to Federal Rule of Civil Procedure 56(b). For the reasons set forth below, defendants' motion is granted in part and denied in part.


 I. Employment as Apprentice Inspector (Construction)

 In June 1984, plaintiff Willie Claud Brown ("Brown") applied for the position of apprentice inspector (construction) with the DOB, submitting to the DOP an application and a personal history form. In the personal history form, Brown disclosed that he had a previous criminal conviction, for which he had received a certificate of relief from disabilities. *fn2" Brown revealed further that he had been previously employed by Joseph Vitullo ("Vitullo") and explained that his employment had ceased due to a change in staff. *fn3" Brown also submitted a letter from the New York City Transit Authority ("Transit Authority") confirming his past employment there. *fn4"

 On July 24, 1984, Brown was appointed to the position of apprentice inspector (construction) at the DOB. Upon appointment, Brown was assigned to the Building - Enforcement Special Team squad (the "B.E.S.T. Squad"), located in Brooklyn, New York. When Brown commenced employment, he was the only male African-American apprentice inspector in the B.E.S.T. Squad.

 As a routine matter, Brown was soon reassigned to the DOB's Manhattan Borough office. While participating in a training seminar in the Manhattan office, Brown alleges that director of training Frank Gallo ("Gallo") harassed him because of his race. Specifically, Brown alleges that Gallo treated him in a condescending fashion during class and publicly humiliated him. Gallo also gave Brown a poor performance evaluation even though Brown received high scores on all examinations administered in the training program.

 As a result of this harassment, Brown requested and was soon granted reassignment back to the B.E.S.T. Squad in Brooklyn. Beginning in the latter part of 1984, Brown alleges that he was asked to perform more menial and burdensome tasks than similarly situated employees at the B.E.S.T. Squad. In addition, Brown's work was scrutinized more closely than that of his co-workers. Brown was often prevented from performing his duties and then falsely accused of failing to do his job.

 On or about six months after commencing work with the DOB, Brown suffered several incidents of physical harassment, including being struck in the face and back and kicked in an injured leg. Brown alleges that he was also verbally harassed a number of occasions. As a result of these incidents, on January 25, 1985, Brown filed a complaint with his supervisor, Chief Robert Van Alphen ("Van Alphen"). Brown alleges that, instead of addressing these incidents, Van Alphen instigated or tacitly encouraged the on-going harassment.

 In January 1985, Van Alphen initiated sexual harassment and insubordination charges against Brown before the Inspector General ("IG") of the DOB. After an investigation, the charges were found to be unsubstantiated.

 Subsequently, in February 1985, Brown filed a complaint with the IG alleging that he was the subject of hostility and discrimination in the workplace. On December 5, 1985, the IG found Brown's charges to be unsubstantiated. Specifically, the IG concluded:

There is no doubt that most of these incidents happened but not in the context of Mr. Willie Brown's perception. These incidents were blown out of proportion on both sides of the continuum. Mr. Brown, Mr. Van Alphen, Mr. [William] Hobson and Mr. [Victor] Taranto exhibited poor judgment in dealing with these matters. During the interviews with the Chief, Asst. Chief and Supervisor of the Best Squad, I got the distinct impression that Management stood still and the problems increased to the point of a powder keg . . . . The only tangible fact that rises above all the aforementioned heresay [sic] finger-pointing is that a severe personality conflict exists between the Management of the Best Squad with Mr. Willie Brown.

 See Report of the IG, dated December 5, 1985, annexed to the Cotsirilos Aff. as Exh. "K," at 2.

 In January 1985, Brown requested a transfer from the B.E.S.T. Squad, but Van Alphen refused to grant the request. Accordingly, Brown made a second transfer request to Executive Chief Inspector Eugene Slattery. In addition, on June 25, 1985, Brown wrote a follow-up letter to the IG to expedite his request.

 II. The Performance Evaluations

 In the interim, on June 12, 1985, Brown received a performance evaluation giving him an overall "unsatisfactory" rating at the B.E.S.T. Squad (the "June 12th Evaluation"). *fn5" As a justification for the unsatisfactory rating, Brown's supervisor, Victor Taranto, ("Taranto") indicated that "Mr. Brown appears to have an inferiority complex or some such malady. He seems to be insecure in some way and acts defensive or almost resentfully rebellious at times." See Department of Buildings - Employee Evaluation Form, annexed to the Cotsirilos Aff. as Exh. "G." The June 12th Evaluation did indicate, however, that Brown (1) had a fair familiarity with materials; (2) kept current with codes and ordinances; (3) assisted the inspector with research; (4) accurately transcribed technical information; (5) participated in classroom training; and (6) performed required assignments. Id. The June 12th Evaluation concluded that "perhaps some form of counselling would be beneficial . . . . A change of location to another borough might help." Id.

 That same day, Gallo wrote a memorandum to Chief Van Alphen indicating that:

Apprentice Inspector Willie Brown's Attitude in Classes is argumentative and disruptive. He does not grasp the point made in the lesson and always goes off on a tangent. I do not believe he would be able to carry out the duties of a Construction Inspector with this type of attitude.

 See Departmental Memorandum from Gallo to Van Alphen of 6/12/85, annexed to the Cotsirilos Aff. as Exh. "G."

 Twelve days later, on June 24, 1985, Brown received a second evaluation, signed by Taranto and Van Alphen, in which his performance again was rated as "unsatisfactory" and it was recommended that he be terminated from employment (the "June 24th Evaluation"). Specifically, the Evaluation indicated that Brown

has been warned about his lateness a number of times in the past. 2. Mr. Brown has on a number of occassions [sic] taken sick leave and has not notified this office in the required time period as per Department regulations. 3. A number of times he has refused to obey a direct order from a person or persons of supervisory status. 4. On a number of occassions [sic] Mr. Brown was to meet an Inspector in the field and has called the office stating that he could not find the inspector. Mr. Brown, going to the wrong location has most often been the cause of this situation. 5. He does hinder the Inspector in the course of his inspection by asking questions of the inspector while talking to people at job site.

 See Department of Buildings - Employee Evaluation Form, annexed to the Cotsirilos Aff. as Exh. "H." Unlike the June 12th Evaluation, the June 24th Evaluation did not give Brown credit for familiarity with materials, keeping current with codes and ordinances, assisting inspectors with research, accurately transcribing technical information, participating in classroom training or performing required assignments. Rather, the June 24th Evaluation indicated that (1) Brown's reports were "very poor;" (2) he required additional supervisory instruction; and (3) he accepted tasks and assignments with resentment. Id. The June 24th Evaluation was forwarded to the DOB's Personnel Office, but no further action was taken to terminate plaintiff's employment.

 Brown submitted a written statement protesting each of his evaluations to the DOP and the IG. He received no response, however, nor was he provided with a hearing or any other forum in which to challenge the negative work evaluations.

 III. Application for Employment as Inspector (Construction)

 On July 8, 1985, Brown was transferred to the DOB's Bronx Borough Office. That month, Brown applied to the DOP for a permanent position as inspector (construction), for which he had taken and passed Civil Service Examination Number 4047 ("Examination No. 4047"). Nevertheless, the DOP marked him "not qualified" for the position. The defendants contend that the DOP marked Brown "not qualified" because he did not meet the experience and education requirements set forth in the Notice of Examination for Examination No. 4047. Brown contends, however, that he satisfied both the education and experience requirements and that he was deemed not qualified because the DOP investigator was influenced by the June 24th Evaluation. Specifically, Brown contends that, prior to 1985, he held a bachelor of science degree in architectural technology from the New York Institute of Technology ("NYIT"), which satisfied the education requirement. In addition, Brown maintains that he had done substantial work in, among other things, plastering at the Banana Kelly Community Improvement Association ("Banana Kelly"), which satisfied the experience requirement. *fn6"

 IV. Employment as a Provisional Assistant Architect

 Thereafter, on August 23, 1985, Brown resigned from his position at the Bronx DOB office to accept an appointment as a provisional assistant architect in the competitive service with the DOPR, subject to investigation for a permanent position. As part of this investigation, Brown filled out an application and personal history questionnaire, omitting that he had been employed by the Transit Authority and that he had been terminated by Vitullo. Brown's superiors at the DOPR submitted letters of recommendation on his behalf.

 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. Memorandum from Assistant Personnel Director to Personnel Director of 4/30/86, annexed to the Rosenbaum Dec. as Exh. "L." The defendants contend that the DOP's determination was based on its (1) background investigation, which disclosed plaintiff's conviction record and his prior unsatisfactory private and public employment; and (2) conclusion that plaintiff had falsified or omitted material facts in his employment application. Brown contends, however, that the DOP's reasons for terminating his employment are inaccurate and pretextual. Specifically, Brown contends that he (1) had repeatedly disclosed his conviction record, and had done so on his DOPR application for the assistant architect position; (2) did not exhibit habitually poor work performance in his prior public and private jobs; and (3) ...

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