agents told DeSantis that Sciarrino had pulled them off Visa collections to work on recoveries and special projects. Kohn Affidavit, Exhibit F, at 2. Saving only plaintiff's unsupported, self-serving claims to the contrary, all available evidence indicates that plaintiff's job performance was unsatisfactory. Moreover, as defendants point out, an integral part of plaintiff's own argument is that he was not qualified for the job in the Collections Department.
Plaintiff's theory that Porter reassigned him to the Collections Department without the necessary background and experience in order to create a pretext for his dismissal and. that this plot was racially motivated requires that the Court take the McDonnell Douglas test a step further. Plaintiff has failed to meet his burden on the fourth prong of the McDonnell Douglas test. His discharge did not take place under circumstances giving rise to an inference of racial discrimination. Plaintiff was discharged in the wake of a costly mistake by the department he was running, shortly after he had been transferred due to poor performance in his prior position. His work deficiencies had been brought to Porter's attention by plaintiff's supervisor, an Italian-American. There is no evidence before the Court that Porter was prejudiced against Italian-Americans. Porter had promoted plaintiff in the past and Kohn, not Porter, actually determined that plaintiff should be terminated. Porter simply approved Kohn's understandable recommendation.
In the face of overwhelming evidence that he performed poorly in his job as Manager of the Internal Audit Department and was at least partially responsible for gross errors in the Collections Department, plaintiff offers only his insistence that he has been unfairly blamed for serious problems in the Collections Department by a white supervisor or supervisors, and his belief that the African-American President, motivated by racial animus, seized upon these circumstances to fire a man whom he had previously protected and promoted. Considering the evidence before the Court, if there arises an inference of racial discrimination, the Court is unable to identify it.
B. Legitimate Explanation
As the McDonnell Douglas analysis continues, if indeed it should, plaintiff's claims fare no better. Defendants have clearly met their burden of advancing a legitimate, nondiscriminatory explanation for plaintiff's discharge. They have submitted several detailed affidavits, along with contemporaneous memoranda, to support their contention that plaintiff was asked to resign because of poor performance.
C. Proof of Pretext
Plaintiff has offered no credible evidence whatsoever to suggest that the reasons given for his discharge are pretextual and that he was asked to leave because he is an Italian-American. The evidence he offers to suggest that Porter was prejudiced against Italians consists of his assertions that 1) Porter went out to lunch with African-American employees when they retired, but not white employees; 2) Porter transferred the Internal Audit Department to the South Bronx, requiring plaintiff to take a dangerous train ride; 3) Porter told him he could transfer jobs if the job in the Collections Department did not work out; 4) African-Americans were offered transfers to other departments when they were not succeeding; and 5) all of the white employees in the Collections Department were fired between 1980 and February 1990.
Porter explained that he takes no employees out to lunch, but goes to retirement lunches when asked, and there is absolutely no reason to discredit this explanation. Porter Affidavit, at 9. Plaintiff's complaint about the transfer to the South Bronx does not warrant discussion. As for the promise Porter allegedly made when plaintiff was transferred to the Collections Department, Porter has stated that he made no such promise. Porter Affidavit, at 5. Even if he did, it is understandable that he would nevertheless agree to ask plaintiff to resign in light of the severe problems that plagued the Collections Department under plaintiff's watch. With respect to plaintiff's assertion that similarly situated African-American employees were granted transfers, the record contains evidence that one African-American employee, David Luckey, who preceded plaintiff in the Collections Department, was transferred to another position. However, plaintiff provides absolutely no evidence concerning the circumstances of that transfer, and does not provide evidence of any special consideration given to other African-American employees. As for his claim that all the white employees of the Collections Department were fired, he presents no evidence to support that assertion.
Porter once promoted plaintiff and subsequently transferred him to a position in the Collections Department even after his performance was sharply criticized by his superior and even after the Supervisory Committee indicated its willingness to fire him. Plaintiff's contention that Porter was prejudiced against him borders on the absurd. Even if there were a shred of evidence to suggest that Porter were prejudiced, it was Kohn, a Caucasian, who determined that plaintiff should be asked to resign. There is simply no competent evidence to suggest that plaintiff was asked to resign because he is an Italian-American.
III. Summary Judgment in a Title VII Case
In Meiri v. Dacon, the Second Circuit warned that "summary judgment is ordinarily inappropriate in employment discrimination cases, "where an individual's intent and state of mind are implicated." 759 F.2d 989, 998 (2d Cir. 1985), cert. denied, 106 S. Ct. 91 (1985). The court went on to say, however, that the "mere incantation of intent or state of mind" cannot be used as a "talisman to defeat an otherwise valid motion [for summary judgment]" and that purely conclusory allegations of discrimination, standing alone, are insufficient to defeat such a motion. Id.
In response to defendants' summary judgment motion, plaintiff has presented nothing but conclusory allegations that Mr. Porter discriminated against him. All of the evidence in the records indicates that plaintiff was asked to resign due to poor work performance. Summary judgment is granted in favor of the defendants.
Dated: Brooklyn, New York
August 7, 1995
RAYMOND J. DEARIE
United States District Judge
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