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PHILIPPEAUX v. COUNTY OF NASSAU

April 10, 1996

EDDY JEAN PHILIPPEAUX, Plaintiff, against THE COUNTY OF NASSAU and THE NASSAU COUNTY CIVIL SERVICE COMMISSION, Defendants.


The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 In the instant action, plaintiff Eddy Jean Philippeaux, proceeding pro se, brings suit against defendants Nassau County and the Nassau County Civil Service Commission asserting causes of action under 42 U.S.C. §§ 1981, 1983 and 1985, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and also under New York law. The plaintiff alleges, inter alia, that the defendants wrongfully rejected his applications for employment with the Nassau County Civil Service Commission because of his race and national origin. He further alleges that the defendants, as part of a conspiracy to deny him employment, falsified his test results and failed to credit him for the training he received in the military. With respect to these employment discrimination claims, the plaintiff alleges that the defendants have pretextually asserted that he lacked the requisite resident status to be eligible for a civil service position.

 In addition to his employment discrimination claims, the plaintiff also alleges that the defendants violated his procedural due process rights under the Fourteenth Amendment by failing to afford him a hearing to establish his residency before disqualifying him on this basis. He also asserts pendent claims under sections 50(4) and 85 of the New York Civil Service Law.

 Pending before the Court are three separate motions. First, the defendants move for summary judgment dismissing plaintiff's employment discrimination claims. Second, the plaintiff cross-moves for summary judgment in his favor. Finally, the plaintiff moves for a preliminary injunction enjoining the defendants from filling a civil service position that was the subject of the parties' settlement negotiations with another candidate during the pendency of this action, or alternatively, to have himself placed in said position in the interim. The plaintiff has not requested a hearing in support of his application for a preliminary injunction, and instead relies upon the documentary evidence that he has submitted. See Statement of Material Facts in Support of Plaintiff's Motion for Summary Judgment and Preliminary Injunction P 16 (Docket # 107). In addition, neither of the defendants have requested a hearing to present evidence in opposition to the plaintiff's application for preliminary injunctive relief.

 FACTUAL BACKGROUND

 Plaintiff is a black male of Haitian descent who is a citizen of the United States, having served in the armed forces during the Vietnam War. See Am. Compl. PP 2-3. During 1991, plaintiff, who has a high school education, applied for several positions of employment with the Nassau County Civil Service Commission, located in Mineola, New York. See id. P 4. Specifically, plaintiff applied for the following six positions: (1) Veterans' Counselor II (Examination 60-008); (2) Mosquito Control Inspector Trainee (Examination 67-654); (3) Storekeeper I (Examination 65-247); (4) Automotive Parts Storekeeper (Examination 65-935); (5) Automotive Parts Storekeeper, Supervisor (Examination 68-853); and (6) Assistant to Medical Supply Supervisor (Examination 63-057). See id. PP 6-10; Defs.' Statement of Material Facts PP 12-14, 18. As part of the application process, plaintiff was required to take qualifying examinations for each of the positions that he applied for.

 Plaintiff did not take Examination 60-008 for the position of Veterans' Counselor II. According to the plaintiff, he did not sit for this examination because the defendant Nassau County Civil Service Commission refused to process his application to take this test. See Am. Compl. P 29. The defendants, in turn, contend that he was not permitted to sit for this examination because he did not meet the minimum requirements for this position of possessing a bachelor's degree and the necessary experience. See Defs.' Statement of Material Facts P 12.

 In addition, plaintiff did not show up to take Examination 67-654 for the position of Mosquito Control Inspector Trainee. See id. P 13.

 Plaintiff took the civil service examinations for each of the remaining four positions. Plaintiff subsequently was informed that he had failed to achieve a passing score of 70 on each of the examinations other than that for the position of Assistant to Medical Supply Supervisor (Examination 63-057). See id. PP 14, 18. According to the plaintiff, his receipt of failing scores on the examinations in question was attributable to the defendants' intentionally incorrect scoring of these examinations because of his race and ancestry, see Am. Compl. P 18, and their failure to adjust his score upwardly, for the same discriminatory reasons, to take into account his eleven years of experience in the armed forces. See id. P 19. According to the plaintiff, such upward adjustment to reflect his status as a veteran with relevant experience is required pursuant to section 85 of the New York Civil Service Law. See id. P 20.

 The plaintiff did, however, receive a passing score on Examination 63-057 for the position of Assistant to Medical Supply Supervisor. See Defs.' Statement of Material Facts P 18. The plaintiff asserts that he was discriminatorily disqualified for this position on the pretext that he failed to meet the relevant residency requirements. See Am. Compl. PP 11, 23. According to the plaintiff, such discrimination can be inferred through the underrepresentation of minorities in Nassau County Civil Service jobs. See id. P 24.

 
No person shall be disqualified [for failure to meet any of the established requirements for admission to the examination or for appointment to the position for which he applies] unless he has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.

 N.Y. Civ. Serv. Law § 50(4) (McKinney 1983 & Supp. 1996); see id. § 50(4)(a) (McKinney 1983).

 The plaintiff contends that since 1989, he has been a resident of Nassau County, residing at his sister's home at 220 Anchor Way, Uniondale, New York. The Nassau County Civil Service Commission initially disagreed with this conclusion and disqualified the plaintiff, in 1991, from eligibility for this position. Upon a subsequent investigation conducted in March 1995, the defendants changed their position and now concede that plaintiff has been a resident of Nassau County since 1989. See Defs.' Statement of Material Facts P 20; Defs.' Notice of Motion, Ex. Q P 4.

 On April 4, 1995, an eligible list for Examination 63-057, with respect to the position of Assistant to Medical Supply Supervisor, was established and plaintiff's name appeared third on the list. See Defs.' Statement of Material Facts P 21; Pl.'s Notice of Motion, Ex. J. This list contained four names. See Pl.'s Notice of Motion, Ex. J. Pursuant to section 61(1) of the New York Civil Service Law, the appointing authority has the discretion of selecting "one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment . . . ." N.Y. Civ. Serv. Law § 61(1) (McKinney 1983).

 On April 19, 1995, this list was forwarded to the appropriate appointing authority, in this case, the Nassau County Medical Center, and on April 24, 1995, a letter was sent to the plaintiff to determine whether he was willing to interview for the position. See Defs.' Statement of Material Facts PP 22-23.

 On May 9, 1995, plaintiff interviewed for the position of Assistant to Medical Supply Supervisor. See id. P 24. Plaintiff, however, was not offered this position. Instead, this position was offered to Philip Hytower, whose name appeared fourth on the list. See Pl.'s Notice of Motion, Ex. J; Olchin Aff., Mem. from David C. Pappalardo, Director of Human Resources, to Jack Olchin, Esq., dated June 16, 1995 (Docket # 104).

 PLAINTIFF'S THEORIES OF THE CASE

 Second, plaintiff alleges that the defendants intentionally discriminated against him because of his race and national origin in failing to certify his eligibility for the civil service positions for which he applied. According to the plaintiff, the defendants' acts of discrimination manifested themselves in their intentional misscoring of his examinations, their failure to process his application for the position of Veterans' Counselor II, and their pretextual invocation of the Nassau County residency requirement as the basis to disqualify him for the position of Assistant to Medical Supply Supervisor. In support of his contention that the defendants' conduct gives rise to an inference of discrimination, the plaintiff asserts that minorities are underrepresented in Nassau County Civil Service jobs, see Am. Compl. P 24, and further alleges that the positions for which he was rejected were subsequently granted to white applicants who were less qualified than him. See id. P 28.

 DISCUSSION

 I. Standard Governing Motion for Summary Judgment

 Under the law of the Second Circuit, a district court must weigh the following considerations in evaluating whether to grant a motion for summary judgment with respect to a particular claim:

 
First, summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Second, the burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. In considering that, third, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Fourth, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper. . . . Finally, the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding, it does not extend to issue-resolution.

 Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal case citations omitted). In evaluating the above considerations, a court must be mindful of whether the purported factual dispute is material, because "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

 II. Defendants' Motion for summary Judgment

 The defendants move for summary judgment on the grounds that: (1) the plaintiff's claims under Title VII of the Civil Rights Act of 1964, as amended [Title VII], are time-barred, and (2) the plaintiff fails to establish a prima facie case of discrimination, because he either was not qualified for the positions for which he applied, or was never rejected for such positions. The Court observes that the defendants' application is properly regarded as seeking partial summary judgment, as the defendants do not set forth any contentions concerning the viability of the plaintiff's procedural due process claim under 42 U.S.C. § 1983, his conspiracy claim under 42 U.S.C. § 1985(3), and his pendent claims under the New York Civil Service Law.

 A. Alleged Failure to Bring Suit within Prescribed Time Period

 The defendants contend that the plaintiff's Title VII claims are barred because this action was not commenced within the applicable ninety-day period running from receipt of the right-to-sue letter. Specifically, the defendants assert that, as a matter of law, the plaintiff constructively received his right-to-sue letter on November 8, 1992, and that the plaintiff's failure to commence this action within 90 days thereof renders his Title VII claims untimely. The plaintiff, in turn, contends that he promptly commenced this action within the statutorily prescribed period by filing a complaint seeking in forma pauperis relief, on February 1, ...


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