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December 29, 1995

ADEYEMO A. JIMOH, Plaintiff, against ERNST & YOUNG, Defendants.

The opinion of the court was delivered by: BAER

 HAROLD BAER, JR., United States District Judge.

 Plaintiff filed a race, color and national origin discrimination claim against his former employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Plaintiff claims that throughout the fourteen month period of his employment, defendant discriminated against him by failing to promote him to a newly created position and by treating him differently from other employees similarly situated. Plaintiff further claims that, on the basis of defendant's actions, defendant constructively terminated him.

 II. Background

 Plaintiff Adeyemo Jimoh ("Jimoh") is an African-American male. Defendant Ernst & Young ("E&Y") is a partnership of certified public accountants who perform various tax and consulting services for clients throughout the United States.

 E&Y hired plaintiff on November 18, 1991 as a Programmer in the Computer Systems Support Group in the General Counsel's Office at defendant's New York headquarters. Jimoh reported directly to Robert Kinnin, the Systems Support Manager, who in turn reported to Paul Gussenhoven, Director of Systems and Administration. When Jimoh joined E&Y, he was one of two Programmers at his level reporting to Kinnin. In this position, Jimoh was responsible for programming the Database Applications for the General Counsel's Office.

 In July of 1992 Gussenhoven announced that he was leaving E&Y and that Kinnin would be assuming his job. In addition, Kinnin was to assume a leadership role in developing a strategic plan for the Systems Support Group. Based on this change, Kinnin decided to restructure the department; he eliminated his previous position and created a new position called Senior Supervisory Database Programmer ("SSDP"). The person hired for the SSDP position was to oversee the day-to-day programming operations of the department. After discussing his plans for the SSDP position with the Director of Human Resources, Kinnin had E&Y place an advertisement in Mac Week, a trade publication, inviting applications for the position. The advertisement listed the qualifications necessary for the position and stated, in relevant part, that the position "requires 2 years experience in supervising and supporting projects, and 5 years computer industry experience . . . ." Fewer than 20 persons applied for the SSDP position and a Junior Programmer position which was listed in the same advertisement.

 After an initial screening process, Kinnin interviewed a number of applicants who had the necessary credentials for the position. Kinnin asked Jimoh to analyze samples of the applicants' programming code. Jimoh's only contact with the applicants was through his analysis of their programming code; Jimoh never met with or interviewed any of the applicants.

 Plaintiff claims that he approached Kinnin to inquire about applying for the advertised position. Plaintiff further claims that Kinnin informed him that Kinnin and Gussenhoven would discuss with plaintiff the possibility of promoting him to the SSDP position; a discussion which neither Kinnin nor Gussenhoven recall. However, in his affidavit, Kinnin attests that even if Jimoh had approached him regarding the SSDP position, he would not have considered Jimoh for the position because Jimoh lacked the required two or more years of supervisory experience. E&Y did not hire anyone to assume the SSDP position and subsequently curtailed its search.

 In September of 1992 plaintiff received a favorable job evaluation and a 5% salary increase. E&Y rated plaintiff's performance as "good." However, in November of 1992, Kinnin issued a disciplinary warning to plaintiff based on his late arrivals at work, extra-long lunch breaks and numerous discrepancies between E&Y's electronic log in/out system for employees and plaintiff's time sheets. Each of these instances is documented by E&Y records. Subsequently, plaintiff searched the General Counsel's computer files for documentary evidence to support a claim of discrimination against E&Y.

 Plaintiff claims that E&Y denied him car service home one night, denied his requests to attend two professional seminars on company time and at company expense, and denied his request that E&Y purchase a particular computer program. Plaintiff asserts that defendant's conduct was discriminatory and, as such, resulted in his constructive termination.

 III. Discussion

 a. The Standard for Summary Judgment.

 Pursuant to Rule 56(e) of the Federal Rules of Civil Procedure summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The burden of proving that summary judgment is an appropriate remedy falls on the moving party and any ambiguity must be resolved in favor of the non-movant. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223 (2d Cir. 1994). Summary judgment is appropriate ...

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