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February 5, 1996

ROBERTO E. MENDOZA, Plaintiff, against SSC&B LINTAS, NEW YORK, Defendant.

The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 The plaintiff Roberto Mendoza ("Mendoza") in an action against his former employer, defendant SSC&B, New York ("Lintas"), alleged tortious interference with contract and discriminatory conduct arising out of a denial of promotion and his discharge as retaliation for complaints filed by Mendoza with the New York State Division of Human Rights ("SDHR"). The action was tried before a court and jury, and upon all the prior proceedings, the evidence submitted, and findings and conclusions set forth below, judgment will be entered dismissing the complaint.

 Prior Proceedings

 On January 28, 1985, Mendoza filed a charge of discrimination with the SDHR alleging that he had been discriminated against on the basis of his national original because he had not been promoted while non-Hispanic trainees who had been subsequently hired, had been promoted. Lintas opposed the charge. On September 30, 1987, the SDHR found no probable cause. The Equal Employment Opportunity Commission ("EEOC") upheld this finding. Mendoza took no further action.

 On May 18, 1988, Mendoza filed a second charge against Lintas again alleging discrimination and retaliation in failing to promote. The EEOC issued a Determination and Right to Sue letter on November 15, 1991. Mendoza filed his complaint in this action on January 29, 1992, asserting claims against Lintas under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981 ("§ 1981"), and for defamation and intentional interference with contract. Lintas moved to dismiss the § 1981 and defamation claims pursuant to Rule 12(b)(6), Fed. R. Civ. P., which motion with respect to the § 1981 claims was converted to one for summary judgment. In an opinion issued August 11, 1992, the motion was granted as to the § 1981 and libel claims. Mendoza v. Lintas, 799 F. Supp. 1502 (S.D.N.Y. 1992).

 Discovery proceeded, and Lintas moved for summary judgment dismissing Counts I and IV of the complaint. By opinion of April 5, 1995, the claims of failure to promote which were the subject of his first SDHR proceeding were dismissed as time-barred.

 From November 6 to November 8 trial was had before the court and jury on the remaining claims of tortious interference with contract and retaliatory discharge. On November 8, the jury in a Special Verdict, determined that Lintas had not tortiously interfered with Mendoza's relationship with the firm that had hired him part-time after his discharge from Lintas. Final argument on the improper discharge claim was held on December 6, 1995.

 The Facts

 Mendoza was born in Mexico and is a naturalized citizen of the United States. He had nine years experience in graphic arts in both California and New York and had received numerous scholarships and awards for creative work before being hired by Lintas. He has had a lifelong interest in the visual arts and is also a poet and photographer. He is a sensitive and sincere person who has become convinced that his career reverses are attributable to his national origin.

 Mendoza was hired as a Paste-up Assistant by Lintas, a New York advertising agency, in February 1984 and worked in the bullpen, a common area with other Past-up Assistants. As such he assisted various account groups in the production of ads by performing mechanical tasks, such as mounting story boards, typesetting and layout work.

 According to Mendoza, at the time he was hired by Lintas he was informed that he was over-qualified for the entry level position of Paste-up Assistant, that he would be promoted to the position of Assistant Art Director within a year, and that promotions to Assistant Art Director were made on a first-hired first-promoted basis. Until the promotion on January 25, 1985 of Kenneth Evans, a Caucasian, who was hired after Mendoza, promotions to Assistant Art Director were made solely on a first-hired, first-promoted basis. On January 28, 1985, Mendoza filed his first discrimination complaint with the SDHR.

 In a conversation with Mariann Miller on March 27, which was the subject of a contemporaneous memo, Mendoza was told of his promotion to Assistant Art Director, that prior to that time the only budgeted opening was the one for another group for which Kenneth Evans "style of book was decided as appropriate." He was also told his rate of progress would determine future promotions and that there was no automatic promotion to Art Director or particular time-frame for advancement. Mendoza stated he did not wish to be considered as a "token addition" to the group.

 In April 1985, the promotion to Assistant Art Director was formalized and Mendoza was assigned to the account group headed by Robert Conlon ("Conlon") who in turn reported to Executive Creative Director Michael Shalette ("Shalette"). An Assistant Art Director at Lintas assisted senior members of the creative team. The primary function of the job involved largely mechanical work (similar to the work in the bullpen) to transform the ideas of others into a presentable form of advertising. The position was also a training ground and testing area for the next position of Art Director. Assistant Art Directors were also given the opportunity to perform more creative work as well and aggressively sought out such opportunities. The position of Assistant Art Director was not a permanent one at Lintas and did not automatically lead to a promotion. During the time Mendoza was an Assistant Art Director at least twelve Assistant Art Directors left Lintas without becoming Art Directors. The decision to promote an Assistant Art Director to Art Director was based primarily on creative ability, developing imaginative advertising concepts and translating them into effective advertising. The decision to promote was made by Frank DeVito ("DeVito"), Director of Creative Services, based upon recommendations by the group creative directors. The elements and evaluation of creativity were necessarily highly subjective.

 Ira Chynsky ("Chynsky"), Director of Creative Services Administration and Frank Ryder ("Ryder"), Personnel Director, were aware of Mendoza's initial discrimination complaint and were in a position to make decisions and recommendations regarding Mendoza's salary, promotion, and termination.

 From April 1985, and continuing for the next three years, Mendoza's work was performed in a satisfactory manner. Although he requested to have a copywriter assigned to work with him, no such assignment was made. Prior to promotion to Art Director at Lintas, an Assistant Art Director would customarily have regular experience working as an Art Director in a team with a copywriter in addition to performing his assistant duties. While Mendoza was never teamed with a copywriter during his employment by Lintas, during the period from late 1987 through early 1988 Mendoza had the most frequent opportunities of his career to work with copywriters on a project basis.

 In November 1985, Chynsky had a brief conversation with Mendoza in which he stated that the events of the past would not be repeated. Mendoza testified that at the time he understood the comment to mean that no further promotion would be granted, but he took no action based on ...

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