Lintas had no written equal employment opportunity or affirmative action policy, nor a written policy regarding how to file a complaint of discrimination within the company. Lintas' stated policy was to promote from within and place an employee in another department or a sister company when an employee may be terminated because of a decrease in the volume of work and to rehire former employees.
Mendoza sought other employment by registering with two New York and one New Jersey headhunters, by responding to newspaper advertising and by other inquiries as to possible availabilities and was employed on a short-term basis and primarily on a free-lance basis in the years 1989, 1990, and 1991. As established in the jury trial, he was hired early in 1990 for part-time work by John Grogan, former Lintas employee who had formed a company MGI which was negotiating with Interpublic. When Grogan learned of Mendoza's discrimination claim, he discontinued employing Mendoza. This termination was the subject of the Special Verdict of the jury in favor of Lintas.
Chynsky in his testimony was terse, believable, and professional. Shalette, testifying by deposition, was occasionally contradictory and confusing and revealed a somewhat impatient personality. He exhibited no bias, however, and in the main and on essential issues was also credible. Mendoza, perhaps understandably, was unable to accept that the Lintas employment decisions were based on good faith evaluation and consistently from 1985 viewed his employer's actions as influenced by Mendoza's national origin. Other than this cast of mind, his testimony also was credible.
Conclusions of Law
Mendoza Did Not Establish a Title VII Violation
To establish a prima facie case of discrimination, a plaintiff must establish that he belongs to a protected class; that he applied for and was qualified for a promotion for which the employer was seeking applications; that despite his qualifications he was rejected; and that after his rejection the job remained open and the employer continued to seek applicants having plaintiff's qualifications. Fisher v. Vassar College, 66 F.3d 379, 391 (2d Cir. 1995).
To establish a prima facie case of retaliation, a plaintiff must prove that he was engaged in a protected activity of which his employer was aware; that he suffered some disadvantageous employment action; and that there was a causal connection between the protected activity and the adverse employment decision. Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 64 (2d Cir. 1992). Where the adverse employment decision is an alleged failure to promote the plaintiff, he must also show that he was qualified for the position for which he sought promotion. Lambert v. Genesee Hosp., 10 F.3d 46, 57 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 339, 114 S. Ct. 1612 (1994).
As found above, Mendoza has not established a prima facie case of either discrimination or retaliation. Mendoza has admitted that he is aware of no basis for his discrimination claim and his failure to achieve promotion to Art Director was the result of a good faith determination that he was not qualified. Finally, there was no causal connection between the employment action of which Mendoza complains and the alleged protected activity: his failure to receive a promotion, to get raises and ultimately to retain his job had nothing to do with his prior discrimination complaint. Indeed, Shalette was not even aware of Mendoza's first discrimination complaint at the time when Shalette made unfavorable determinations concerning him.
In addition, his Title VII claims fail because Lintas has come forward with legitimate, non-discriratory/non-retaliatory reasons for its employment actions. Promotion to Art Director was not automatic; Mendoza's supervisors believed that he lacked the creative ability to be effective in that position. They believed that other Assistant Art Directors were more deserving of promotions and raises. See Shtino v. Aponte, 1995 U.S. Dist. LEXIS 9292, *21, 1995 WL 396581 at *7 (July 6, 1995 S.D.N.Y) ("In putting forth legitimate non-discriminatory reasons for not promoting plaintiff, defendants need not prove or even assert that those above plaintiff had greater objective qualifications.") they also believed that when a reduction in force was necessary, Mendoza's loss would be less harmful to the company than the loss of more talented employees.
To refute Lintas' showing of legitimate reasons for its actions, Mendoza had to prove, 1) that the purported reasons were merely pretextual, and 2) that Lintas intentionally discriminated or retaliated against him. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2754 (1993). Mendoza has not met that burden.
Submit judgment on notice.
It is so ordered.
New York, N.Y.
February 5, 1996
ROBERT W. SWEET
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