Plaintiff continued to work for defendant until January of 1993 when he resigned and took a higher paying job at Stanley Kaplan. Plaintiff told his co-workers at E&Y that he was leaving for a "better opportunity."
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 when there is "little or no evidence" to support the non-movant's case and there is no genuine issue for the trier of fact. Id. at 1223-24.
Federal courts are reluctant to grant summary judgment in constitutional claims or when the state of mind of one party may be at issue. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985). The Second Circuit stated that "when deciding whether [summary judgment] should be granted in a discrimination case, additional considerations should be taken into account. A trial court must be cautious about granting summary judgment to an employer when . . . its intent is at issue." Gallo, 22 F.3d at 1224. Further, as Judge Scheindlin recently stated while sitting by designation on the Second Circuit, courts must be "mindful that caution must be exercised in granting summary judgment where an employer's intent is genuinely in issue." Tomka v. Seiler Corporation, 66 F.3d 1295, 1309-10 (2d Cir. 1995).
In the case at bar, however, summary judgment is proper. A plaintiff's burden to defeat summary judgment is to produce de minimis evidence in opposition to the movant's claim that there are no triable factual issues. Goenaga v. March of Dimes Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). Thus, to defeat summary judgment in this case, plaintiff must produce a minimal amount of evidence to demonstrate that he has a triable discrimination claim. I find that plaintiff fails to meet this standard and accordingly, grant defendant's motion for summary judgment.
b. Plaintiff's Discrimination Claim.
To substantiate a claim for discrimination based on race, color or national origin under Title VII and Section 1981, a plaintiff must meet the requirements of the tripartite, burden-shifting McDonnell-Douglas test. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817, (1973), aff'd, Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), St. Mary's Honor Center v. Hicks, U.S. , 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2747 (1993). First, plaintiff must be able to establish a prima facie case of discrimination. St. Mary's Honor Center, 113 S. Ct. at 2747. Second, once plaintiff satisfies this requirement, the burden of proof shifts to defendants to articulate a "legitimate, non-discriminatory reason" for the employment action challenged by plaintiff. Id. Third, once defendant has given a legitimate, non-discriminatory reason for the challenged conduct, the burden shifts back to plaintiff to demonstrate by a preponderance of the evidence that defendant's legitimate reason is merely a pretext for discrimination. Id. at 2749. The burden of proving that defendant's conduct was discriminatory and improper remains with plaintiff throughout the litigation. Id.
The crux of plaintiff's claim in the case at bar is that defendant discriminated against plaintiff by failing to promote him to the SSDP position. To meet the first hurdle of the three-part McDonnell-Douglas test and shift the burden of proof to defendant, plaintiff must be able to satisfy four elements, that: (1) he belongs to a protected class; (2) he applied for a position for which he was qualified; (3) he was rejected despite his qualifications; and (4) the defendant continued to seek applications from other persons with the same qualifications. St. Mary's Honor Center, 113 S. Ct. at 2747. There is no dispute as to the first prong of this four prong requirement for a prima facie case; plaintiff is a member of a protected class. However, plaintiff cannot carry his burden of proof on the remaining three prongs.
Specifically, plaintiff cannot prove that he was qualified for the SSDP position, that he was rejected for the position despite his qualifications and that defendant, after refusing to hire plaintiff for the position, continued to accept applications from others with similar credentials. According to the job description and the advertisement for the SSDP position, candidates must have at least two years of supervisory experience to perform the job successfully. The ad states:
Senior Supervisory Database Programmer
You will be involved in a variety of major database projects. As project leader, you will help ensure the timely completion of projects, within budget. Requires 2 years experience in supervising and supporting projects, and 5 years computer industry experience, with a focus on Macintosh computers.