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ALI v. BANK OF NEW YORK

July 24, 1996

HAFFESE ALI, Plaintiff, against THE BANK OF NEW YORK, Defendant.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff Haffese Ali, who appears pro se, is a former employee of the defendant The Bank of New York (the "Bank"). Ali alleges that the Bank discriminated against him on the basis of his race, color, and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq., and the New York Human Rights Law. The defendant moves to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6) or in the alternative pursuant to Fed. R. Civ. P. 56. For the reasons that follow, the defendant's motion is granted.

  I.

 The plaintiff was born and raised in Berbice, Guyana, located in South America. (Ali Dep. at 83; Def.'s 3(g) P 1.) Ali attended elementary and secondary school in Guyana, and graduated from high school in 1965. (Ali Dep. at 84; Def.'s 3(g) P 2.) Ali never obtained a college decree. (Ali Dep. at 207.) In March 1969, Ali left Guyana for the United States. (Ali Dep. at 84; Def.'s 3(g) P 4.) Upon his arrival in the United States, Ali held several positions with various companies, most of which involved packing and shipping boxes. (Ali Dep. at 88, 95-99; Def.'s 3(g) PP 5-7, 10-12.) From November 1971 to November 1973, Ali served in the United States Army. (Ali Dep. 15-17, 99; Def.'s 3(g) P 13-14.)

 In 1978, Irving Trust Bank ("Irving Trust") hired Ali as a computer operator at an annual salary of $ 13,156. (Def.'s 3(g) at 18, 23-24; Parker Aff. P 4.) Ali's duties as a computer operator included operating the computer system, running computer jobs, typing in commands, replying to commands, and mounting tapes. (Ali Dep. at 113.) Ali's supervisor was Robert Drescher. (Ali Dep. at 112-13; Def.'s 3(g) P 26.)

 In 1979, at the beginning of Ali's second year of employment at Irving Trust, Ali was promoted to the position of senior operator. (Ali Dep. at 116, 119; Def.'s 3(g) P 29.) As senior operator, Ali received four salary increases, raising his salary to $ 22,126. (Ali Dep. at 123; Def.'s 3(g) P 30, 32, 34, 35; Parker Aff. P 5-8.)

 In October 1982, Drescher wrote a memorandum to the Irving Trust Personnel Department recommending Ali for a promotion to the position of master terminal operator (MTO). (Ali Dep. at 125; Def.'s 3(g) P 36; Def.'s Exh. 12.) Ali was promoted to this position in November 1982, and his salary was increased to $ 25,355 per year. (Ali Dep. at 124; Def.'s 3(g) P 37-38; Parker Aff. P 9.) As an MTO, Ali continued to report to Drescher, and his job duties included monitoring the on-line system, dealing with system users, and acting as a troubleshooter for any on-line problems. (Ali Dep. at 126; Def.'s 3(g) P 44.)

 Ali alleges that when he was promoted to his position as an MTO, he had sought a promotion to a technician support position. (Ali Dep. at 75-77; Def.'s 3(g) P 39; Parker Aff. P 10.) There is no evidence, however, that Ali ever submitted an application for this position. (Ali Dep. at 126; Def.'s 3(g) P 40.) Ali has not filed a charge of discrimination with the EEOC, the New York State Division on Human Rights, or the New York City Commission on Human Rights against Irving Trust alleging that he was unlawfully denied the technician support position. (Ali Dep. at 73, 77-78; Def.'s 3(g) P 41.)

 As of June 1, 1984, Ali's annual salary was increased to $ 31,215. (Ali Dep. 128; Def.'s 3(g) P 45; Parker Aff. P 10.) In November 1984, Ali was promoted to the position of lead operator, and his salary was increased to $ 34,444 per year. (Ali Dep. 128-30; Def.'s 3(g) P 47-48; Parker Aff. P 10.) Ali's duties as lead operator included overall responsibility for the operating systems and recognizing and reporting problems that occurred during his shift. (Ali Dep. 129; Def.'s 3(g) P 50.) Ali also completed IBM service request forms and "turn over" reports that documented any problems involving the computer systems. (Ali Dep. 129; Def.'s 3(g) P 50.) Between 1984 and 1987, Ali received annual salary increases, raising his salary from $ 34,444 in 1984 to $ 40,424 in 1987. (Ali Dep. 131; Def.'s 3(g) P 51; Parker Aff. P 12.)

 In September 1987, Ali became a DOS technician and worked the night shift. (Ali Dep. at 136, 138, 140, 208; Def.'s 3(g) P 53.) Dennis McGuire supervised Ali in this new position. (Ali Dep. at 137.) In March 1988, Ali received a raise to $ 43,414 per year. (Ali Dep. at 137; Def.'s 3(g) P 55; Parker Aff. P 13.)

 In 1988, the Bank acquired control of Irving Bank Corporation, the parent company of Irving Trust Company. (Def.'s 3(g) P 56; Petrock Aff. P 4.) Prior to the takeover, Irving Trust instituted a severance plan, which included payments for Irving Trust employees whose job duties were materially diminished during the two-year period following the takeover. (Def.'s 3(g) P 96.)

 After the takeover, Ali remained in his position as DOS technician. (Def.'s 3(g) P 57.) In 1989, Ali asked John Petrock, the manager of the DOS department, to transfer him to the Network Control department. (Ali Dep. at 144, 153; Def.'s 3(g) P 62; Petrock Aff. P 8.) Network Control is part of the Bank's telecommunications center. (Ali Dep. at 153-55; Def.'s 3(g) P 63; Petrock Aff. P 8.) Ali alleges that Henry Rodriguez, a light-skinned Hispanic, was transferred to the Network Control position Ali desired. (Ali Dep. at 152, 155, 167; Def.'s 3(g) P 64.) Ali stated in his deposition that he "[doesn't] know the name of the title in that department" or the qualifications for the position he claims he was seeking. (Ali Dep. at 169-70, 215-16.) There is no evidence that Rodriguez applied for or received a position in Network Control in 1989. (Def.'s 3(g) P 65; Parker Aff. P 15.) Rather, in 1989 Rodriguez was transferred from the MVS tape pool area to the VAX area of the DOS and Digital Production Group, another group in the DOS sector of the Computer Services Division. (Parker Aff. P 16.) In this position Rodriguez received an annual salary of $ 31,434, substantially less than what Ali was earning. (Drescher Aff. P 10.) The Bank claims that there was only one vacancy in the Network Control department in 1989, and that that job required a college degree, which Ali does not have. (Parker Aff. P 18-19.) The Bank hired Tien Dinh to this position. Dinh had a B.S. from Niagara University and an M.B.A. in computer information systems from Pace University, as well as eight years of experience in computer programming. (Parker Aff. P 20.)

 In 1989, the Bank installed high-speed MVS software that was designed to eliminate lengthy computer processing delays. (Def.'s 3(g) P 75; Petrock Aff. P 7.) Petrock determined that Ali's position as a DOS technician might be eliminated because the new system was much more efficient. (Ali Dep. at 143; Def.'s 3(g) at P 76; Petrock Aff. P 7.) In May 1989, ...


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