the incidents were not related. For instance, while responsibility for the 1991 and 1992 decisions rested with the same two individuals, each of the four prior determinations were made by different individuals acting independently. (Ressy Aff. P9(a)-(f)); cf. Scott v. Federal Reserve Bank of New York, 704 F. Supp. 441, 450 (S.D.N.Y. 1989) (refusing to apply continuing violation exception in part because decision to discharge made by four individuals in one division, while decisions regarding other claims made by management of another division). Moreover, these six determinations were of differing natures, varying from the alleged misappropriation of an idea for a television program to denials of training opportunities to denials of promotions.
"Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Drayton, 654 F. Supp. at 567 (quoting Delaware State College v. Ricks, 449 U.S. 250, 257, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980)). Likewise, "past incidents of failure to promote do not constitute a continuing violation." Blesedell, 708 F. Supp. at 1415; accord, Samuel v. Merrill Lynch Pierce Fenner & Smith, 771 F. Supp. 47, 49 (S.D.N.Y. 1991). Therefore, Plaintiff cannot claim an exemption from the statutory limitations period on the unsupported allegation that the promotion denials constitute a series of related discriminatory acts. Cf. Blesedell, 708 F. Supp. at 1415-16 (refusing to find continuing violation where no evidence of relationship among denials of promotions other than that incidents involved same employee).
However, Plaintiff also contends that the various supervisors who made the allegedly discriminatory promotion decisions "represented and implemented the sole managerial and personnel policy of the corporate Defendants." (Pl.'s Mem. Opp. Mot. Summ. J. at 10). According to the complaint, this policy consisted of establishing and maintaining "separate lines of seniority for African American and other employees . . . limiting the employment and promotional opportunities of African American employees because of race or color." ( Compl. at 7 P 19).
Where there has been a continuous pattern and policy of discrimination in employment practices, the limitations period will be measured from the date of the last discriminatory act in furtherance thereof. Gomes v. Avco Corp., 964 F.2d 1330, 1333 (2d Cir. 1992) (quoting Miller, 755 F.2d at 25). District courts in this Circuit are split over whether a plaintiff must show that her employer maintained a class-wide policy of discrimination, or merely engaged in a continuous and ongoing pattern of discrimination against the plaintiff individually. Compare Bradley v. Consolidated Edison Co. of New York, Inc., 657 F. Supp. 197, 204 (S.D.N.Y. 1987), with Cosgrove v. Sears, Roebuck and Company, No. 81 CIV 3482, 1990 WL 106797, at *6 (S.D.N.Y. July 27, 1990). Plaintiff alleges that she was the victim of discriminatory practices, but she sets forth no factual evidence from which it may be inferred that Defendants continuously discriminated against her individually because she is an African American. Nor does Plaintiff present any evidence whatsoever that Defendants engaged in class-wide discrimination against other African American employees similarly situated. As a result, under either theory, Plaintiff has not established a continuing violation, and the 300 day statute of limitations applies. Summary judgment in favor of Defendants is therefore appropriate with regard to the five incidents alleged to have occurred prior to December 27, 1991.
3. Three-Part Inquiry for Title VII Claims
Plaintiff's only remaining claim is that in September 1992, she was discriminated against when Defendants hired a Caucasian male as Assignment Editor (Newswriter) instead of Plaintiff. Initially, the complaining plaintiff has the burden of demonstrating a prima facie case of racial discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Once a prima facie case has been made, the employer must present some legitimate, non-discriminatory reason for its decision. Id. Should the employer succeed in this showing, the complaining plaintiff must demonstrate that the employer "intentionally discriminated against him" on the basis of race. St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2749 (1993) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54 n.6, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981)). The plaintiff may satisfy this burden by showing intentional discrimination by the employer, or by discrediting the employer's proffered reason for its decision in conjunction with sufficient facts establishing the elements of the prima facie case. Id.
To establish a prima facie case of discrimination under Title VII, a complaining plaintiff may make the following four-part showing: (1) that she belongs to a protected class; (2) that she was qualified and applied for a job for which the employer was seeking candidates; (3) that the employer denied her the position despite her qualifications; and (4) that after this denial, the employer continued to solicit applicants for the position who had comparable qualifications to the plaintiff. McDonnell Douglas Corp., 411 U.S. at 802. These four elements will not apply identically to all factual scenarios, and therefore represent only a flexible guideline for how a plaintiff may chose to establish a prima facie case. Id. at 802 n.13; Burdine, 450 U.S. at 253-54 n.6. The ultimate burden of demonstrating intentional discrimination rests at all times with the complaining plaintiff, though. Hicks, 113 S. Ct. at 2749; Burdine, 450 U.S. at 253.
Plaintiff has established a prima facie case of racial discrimination. Plaintiff belongs to a protected class. In addition, plaintiff appears at least minimally qualified for the Assignment Editor (Newswriter) position, having a degree in journalism and a certificate in video technology, as well as having had over ten years of experience in Defendants' employ at the time of the alleged incident. Despite Plaintiff's qualifications, Defendants denied her the position, instead giving it to a Caucasian male.
The only general element of the prima facie case that is in dispute is whether Plaintiff actually applied for the Assignment Editor (Newswriter) position in 1992. Defendants expressly state that they do not dispute the fact that Plaintiff formally applied for the position in November 1991. (Def.'s Reply Mem. Supp. Mot. Summ. J. at 8). Nor do they dispute the fact that Plaintiff orally expressed her interest in such a position several times thereafter to the individual responsible for hiring for that position. (Id.) During August 1992, Plaintiff noticed that the position of Newswriter had been posted in Defendants' Job Listing. In a memorandum date November 6, 1992, Plaintiff reiterated her interest in this position, but by then the position had already been filled. Defendants allege that Plaintiff never formally applied for the position when the opening was posted in 1992,
and therefore has failed to prove an "essential element" of her prima facie case. (Def.'s Reply Mem. Supp. Summ. J. at 9).
Contrary to Defendants' argument, the McDonnell Douglas elements constitute only a flexible guideline, and no element is "essential." See McDonnell Douglas, 411 U.S. at 802 n.13; Dister v. Continental Group, Inc., 859 F.2d 1108, 1112 (2d Cir. 1988); 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) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978)). Moreover, it may be that Defendants did not generally require formal applications where candidates had already directly expressed strong interest in certain positions, or they might have made exceptions for such candidates in the past. Either in conjunction with the preceding notions or independently, if Plaintiff had been led to believe that she would be informed of and/or considered for any such job openings based upon her formal 1991 application and subsequent reiterations of her interest, then Defendants might have led Plaintiff to refrain from formally applying when the position became available in 1992. Thus, Plaintiff has raised the factual issue of whether she made a sufficient application for the position.
To satisfy its production burden and rebut the plaintiff's prima facie case, an employer need only offer a legitimate, non-discriminatory reason for why the plaintiff was rejected or another individual was preferred, but the employer need not convince the court that its decision was actually motivated by that reason. Burdine, 248 U.S. at 254; Meiri, 759 F.2d at 996. The employer need only create a genuine issue of fact pertaining to whether it discriminated against the plaintiff. Burdine, 248 U.S. at 254-55, 257. However, the proffered reason must be clear and fairly specific. Id. at 258; Meiri, 759 F.2d at 997.
According to Defendants, the individual hired to fill the Newswriter position had worked for CBS for fourteen years in various positions, including Producer, Editor, Newswriter, and Assignment Editor. On the other hand, Plaintiff's qualifications at the time included her journalism degree and video technology certificate, the fact that she received positive evaluations each of the four times that she took Defendants' "Writer's Test" (Lloyd Aff. P 8), and her twelve years of employment with Defendants. Thus, the individual hired actually had more years of experience in the industry (approximately 15 years) than did Plaintiff (approximately 12 years), including experience at the particular job being offered.
It would not be illogical for Defendants to have concluded that, despite having only worked for Defendants part-time for approximately one year, the other candidate possessed superior qualifications for the Newswriter position than Plaintiff.
Thus, Defendants have offered a legitimate, non-discriminatory reason as to why Plaintiff was rejected and/or another candidate was preferred for the Newswriter position, and in so doing have discharged their production burden. See Miller v. Swissre Holding, Inc., 771 F. Supp. 56, 59 (S.D.N.Y. 1991) (finding superior qualifications of Caucasian candidate legitimate business reason for employment decision warranting judgment for employer on relevant claims).
Because Plaintiff retains the burden of persuasion, she must provide evidence from which a trier of fact could reasonably infer that Defendants engaged in racial discrimination against her. See Hicks, 113 S. Ct. at 249; Sorlucco v. New York City Police Dep't, 888 F.2d 4, 7 (2d Cir. 1989); Donaldson v. Merrill Lynch & Co., 794 F. Supp. 498, 505 (S.D.N.Y. 1992). A plaintiff may satisfy this burden by either demonstrating that the employer likely possessed a discriminatory motive, or by discrediting the employer's proffered reason. Burdine, 248 U.S. at 256.
Plaintiff has offered no facts which might give rise to an inference of either intentional racial discrimination or an inference that Defendants' stated reason for the hiring of another candidate instead of Plaintiff is merely a pretext masking intentional racial discrimination. Thus, Plaintiff's evidence raises no inference of racial discrimination and casts no doubt upon Defendants' stated reason for making their hiring decision. Therefore, summary judgment in favor of Defendants on the September 1992 hiring determination is warranted.
For the foregoing reasons, Defendants' motion for summary judgment on Plaintiff's Title VII claims is hereby granted.
DATED: New York, New York
March 30, 1995
KEVIN THOMAS DUFFY, U.S.D.J.