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D'ALIZA MINETOS v. CITY UNIV. OF NEW YORK

February 10, 1995

FIOR D'ALIZA MINETOS, Plaintiff,
v.
CITY UNIVERSITY OF NEW YORK, HUNTER COLLEGE, AND PETER BASQUIN, RUTH DEFORD (KOTECHA), L. MICHAEL GRIFFEL, RUSSELL OBERLIN, AND JAMES S. HARRISON. Defendants.



The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY

 OPINION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

 This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e. Plaintiff, Fior D'Aliza Minetos, claims that defendants, Peter Basqin, Ruth DeFord (Kotecha), L. Michael Griffel, Russell Oberlin and James S. Harrison ("Music Professors") and the City University of New York ("CUNY")/Hunter College discriminated against her because she is hispanic, of Dominican Republic origin, she has an accent, and she is over forty years of age. Defendants have moved for summary judgment pursuant to Rule 56(e) of the Federal Rules of Civil Procedure. Because there are genuine issues of fact in dispute, this court declines to grant defendants' motion.

 SUMMARY OF THE FACTS

 At the same time, Hunter College had a budget crisis which necessitated a freeze on hiring, promotions, and discretionary movements. Because of these budget cuts, the Music Department was allotted funds for one secretary instead of the customary two. The Music Professors claim that the reason they discussed having Plaintiff transferred is because of the need to have one person in the Department capable of performing all duties of the head secretary. Defendants allege that Plaintiff would not have been able to fulfil all of these duties. They claim that she was impolite and curt to people who came to the Music Department. Moreover, she was frequently missing from the Department during business hours.

 In addition, the Music Department needed to choose a new head of the Department. The only person who was willing to be chair was Professor Harrison. This defendant had four conditions which he said needed to be met before he would become the chair: 1) a deputy chair to share the workload with him; 2) a private office for the chair; 3) a computer for the chair; and 4) a secretary who was courteous and helpful. Defendants claim that Plaintiff could not meet condition four.

 On October 8, 1990 defendant Basquin wrote to the Dean of the Division of Humanities and Arts and demanded that when Morris-Dillon retired, he wanted plaintiff transferred out of the Music Department. If this was not done, the memo stated, the Music Department staff might resign and no one would be chair of the Department. Apparently, the Dean did not effect a transfer and as of May 1, 1991 plaintiff remained as a secretary in the Music Department. The Dean did act later that month when plaintiff was told that she had been transferred to the Senate Office.

 Plaintiff received good job performance evaluations. On June 3, 1991, her performance was rated satisfactory by defendant Basquin. When plaintiff inquired as to why she was being removed from her job, she was told by defendants DeFord, Griffel, and Professor Merril that her communication skills were not good enough for the job. To replace Morris-Dillon, the Music Department brought in a African-American, Patricia Ancrum. Ancrum had provisional civil service status, unlike plaintiff who had full civil service status. On May 30, 1991 plaintiff alleges that defendant Basquin told her that she no longer had a job in the Department. After this incident, plaintiff needed medical treatment at Lennox Hill Hospital for heart palpitations. Plaintiff returned to the Music Department when she was released. The next week she began to look for her own reassignment. In June of 1991, plaintiff received a letter telling her to report to the Personnel Office for reassignment on June 24, 1991. Plaintiff went but she left because of ill health. Because plaintiff believed she was being discriminated against, she went to speak with Dean Hortas, defendant Basquin's immediate supervisor. Plaintiff told him that people had complained about her accent. She then went to Ray Carozza, Sylvia Miranda, the Director of Affirmative Action for CUNY, and Dr. Barry Carter, the Director of Affirmative Action at Hunter College. However, none of these individuals responded to her complaint of discrimination based on ethnicity and accent.

 On August 1, 1991 she filed a complaint with the Union and filed a written grievance against Hunter College. The same day Carozza proposed a formal charge to terminate her. Plaintiff was evaluated by a psychiatrist who concluded that she was in need of psychiatric attention and requested a three month medical leave of absence for her. Plaintiff received treatment from two physicians and participated in group therapy. Instead of being terminated, plaintiff was placed on medical leave.

 On November 12, 1991, plaintiff filed a charge of discrimination with the EEOC. Plaintiff states that she did not go to the State Division of Human Rights because the investigator assigned to her case by the EEOC told her it was unnecessary. Plaintiff, in that one sitting, tried to note in writing all of the relevant facts but was told by the interviewer that she could tell the investigator in greater detail all of her claims later. When plaintiff was assigned an investigator, she gave him a twelve page typed statement on January 29, 1992 which included allegations that her age played a role in the termination of her employment in the Music Department. Plaintiff was mailed her right to sue Letter on September 3, 1992. Plaintiff received her letter on September 6 (allowing three days for mailing under F.R.Civ.P. 6(e)). Plaintiff filed her complaint on December 7, 1992.

 Defendants have moved for summary judgment, pursuant to Rule 56 (b) of the F. R. Civ. P., on eight grounds: 1) Title VII claim untimely filed; 2) Title VII claim cannot be brought against any defendant not named in the charge; 3) plaintiff's age discrimination claim should be dismissed; 4) plaintiff cannot show that she was constructively discharged; 5) plaintiff's 42 U.S.C. § 1981 claim should be dismissed; 6) this court lacks subject matter jurisdiction over plaintiff's 42 U.S.C. §§ 1981 and 1983 claims; 7) plaintiff suffered no constitutional deprivation; and 8) there was no tortious interference with contractual relations. The motion is denied as to all but one ground because plaintiff's Title VII claim is timely and there are genuine issues of fact which plaintiff has raised concerning her claims of discrimination based on national origin, age, and constructive discharge.

 STANDARD FOR SUMMARY JUDGMENT AND DISCUSSION

 "When a motion for summary judgment is made, and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits, or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56 (e). A Title VII plaintiff cannot "defeat a motion for summary judgment by offering purely conclusory allegations of discrimination." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. den. 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985); McLee v. Chrysler Corp., No. 94-8014, 38 F.3d 67, 1994 U.S. App. Lexis 28376 (2d Cir. October 12, 1994) (Second Circuit reaffirmed the availability of summary judgment in discrimination cases); Johnson v. Frank, 828 F. Supp. 1143, 1147 (S.D.N.Y. 1993) (Motley, J.).

 While summary judgment is available in Title VII cases, the Second Circuit has recently clarified when summary judgment cannot be granted. In Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223-24 (2d Cir. 1994), the Court of Appeals stated:

 
Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among the employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination. Finally, the trial court's task at the summary judgment stage of litigation is carefully limited to ...

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