The other occasion was a winter day, when Ms. James allegedly asked Plaintiff Morales why persons of Hispanic descent underdress their children in the winter (Tr. at 127). Before this Court on December 15, 1994, Plaintiff Morales testified that because the remark about the children upset her, she complained to Ms. Irby-Wynter, Ms. James's supervisor (Tr. at 305-06). Ms. Irby-Wynter spoke to Ms. James about the remark, and the latter apologized to Plaintiff Morales (Tr. at 306). Later in her testimony, however, Plaintiff Morales admitted confusion about whether she had ever complained to Ms. Irby-Wynter about Ms. James's remark about the children or whether Ms. James had ever apologized to her (Tr. at 330-31). In any event the supervisor, Ms. Irby-Wynter, counseled Ms. James about the impropriety of her remarks (Tr. at 843-46). After this counseling, Ms. James made efforts to improve her conduct and no further problems occurred (Tr. at 863). In addition to counseling Ms. James, Ms. Irby-Wynter instituted an office-wide policy prohibiting remarks and jokes of a discriminatory nature (Tr. at 849).
Conclusions of Law
Plaintiffs have failed to demonstrate that the Division discriminated against them because of their Hispanic national origin.
To meet the initial burden of proof in a Title VII action Plaintiffs must demonstrate that (1) they were in a protected group; (2) they were qualified for a job but were rejected; (3) after their rejection, the position was given to a person of lesser qualifications or remained open; and (4) if the latter, the employer continued to seek applicants from persons with plaintiffs' qualifications. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985).
Plaintiffs are members of a protected group: Plaintiffs are of Hispanic or Latino national origin, and of Puerto Rican descent. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987).
Plaintiffs have failed to meet the second prong for the establishment of a prima facie case. Plaintiffs challenged the Division's hiring process for the Regional Director position of the Brooklyn office and the OSHI supervisory position. However these positions were filled by selecting from a pool of applicants and plaintiffs have not shown that they were rejected "'under circumstances which give rise to an inference of unlawful discrimination.'" Aguirre-Molina v. New York State Div. of Alcoholism and Alcohol Abuse, 675 F. Supp. 53, 58 (N.D.N.Y. 1987) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981)). Moreover, neither Plaintiff was the most qualified candidate for the promotion sought. Plaintiff Morales applied for the position of Regional Director of the Brooklyn office. But there was no evidence that she had ever been promoted at any place of employment, or that she had any supervisory experience. The position went to a highly-qualified applicant, Mr. Ortiz, who is also Hispanic, and who had more than five years of supervisory experience. As to Plaintiff Nunez, given his employment history and personality, the Division had every legitimate reason to select Mr. Windham for the OSHI supervisory position over Plaintiff Nunez. Each plaintiff has therefore failed to meet their burden with respect to their claim of failure to promote.
Plaintiffs also have failed to demonstrate a claim for retaliation. Plaintiffs allege that they were denied promotions in 1993 in retaliation for their filing complaints with the EEOC in October 1992. But an employer's knowledge of the filing of a prior complaint of discrimination, without more, is insufficient to prove a retaliatory motive. See Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994). Despite Plaintiffs' claims, there is no evidence of pretext concerning the promotions of Mr. Windham and Mr. Ortiz. The Division employed a reasonable interview process in selecting them over Plaintiffs and other candidates.
The Division's practice of having employees with fluency in Spanish use that skill on the job is not discriminatory, especially since non-Hispanics use their Spanish-speaking skills on the job also. See Cota v. Tucson Police Dept., 783 F. Supp. 458, 473-74 (D. Ariz. 1992). To establish that this practice constitutes a pattern and practice of disparate treatment, the Plaintiffs must have shown
systematic disparate treatment--that is, that intentional racial discrimination is the standard operating procedure of the defendant, not merely that there have been isolated, sporadic acts of disparate treatment.
Lopez v. Metropolitan Life Insurance Co., 930 F.2d 157, 160 (2d Cir.), cert. denied, 502 U.S. 880, 116 L. Ed. 2d 185, 112 S. Ct. 228 (1991). Plaintiffs presented inadequate statistical evidence and no expert analysis. Plaintiffs, however, failed to show even isolated acts of disparate treatment, no less a pattern. The Division, on the other hand, besides employing Hispanics in high-ranking positions--such as the Commissioner and the Affirmative Action Officer--offered proof that the percentage of its Hispanic employees was greater than that of any other state agency, except for the eight-member Governor's Task Force on Hispanic Affairs (Tr. at 972-74, 976-77; DX G & T).
Plaintiffs have also failed to demonstrate a hostile work environment. In order to obtain relief under Title VII for a hostile work environment, Plaintiffs must show more than an episodic pattern of antipathy based on national origin. See Lopez v. S.B. Thomas, Inc., 831 F.2d at 1189. Plaintiff Morales's hostile work environment claims resulting from the alleged remarks of Ms. James, (see supra at 12-13), do not rise to the level required to establish a cause of action. SeeMentor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405-06, 91 L. Ed. 2d 49 (1986). Isolated remarks, offensive to the listener, do not a case make. Cf. Polley v. Federal Reserve Bank of New York, 1994 U.S. Dist. LEXIS 11813, 1994 WL 465923 at *6 (S.D.N.Y. 1994) (No. 92 Civ. 7114).
Rather than presenting a hostile environment, the Division must be particularly sensitive to the rights and concerns of its employees just as it is to the rights of its complainants. As Defendant points out in its post-trial submission:
The mission of the Division is to afford an avenue of redress for persons claiming discrimination.