discriminatory act and is therefore plainly time-barred.
The plaintiff also alleges that in 1989 he was discriminatorily denied a transfer or promotion to a Network Control position. Because the plaintiff has failed to establish a prima case of discrimination based on this alleged promotion denial, the plaintiff's state and federal discrimination claims based on this denial must also be dismissed.
In the absence of any direct evidence of discrimination, a plaintiff in an employment discrimination case has the burden of proving a prima facie case of discrimination under the McDonnell Douglas test. St. Mary's Honor Ctr., 113 S. Ct. at 2746-47; Cronin, 46 F.3d at 203. A prima facie case of employment discrimination based on the failure to promote consists of the following four elements: (1) the plaintiff is a member of a protected class; (2) he applied for a position for which he was qualified; (3) he did not receive the position he sought; and (4) the person selected for the position was not a member of the protected class. McDonnell Douglas, 411 U.S. at 802; Chambers, 43 F.3d at 37. The defendant argues that the plaintiff has not established a prima facie case because he has not proffered evidence that he applied for or was qualified for a position he was denied.
In this case, there is no direct evidence of discrimination, and the plaintiff has not established a prima facie case of discrimination under the McDonnell Douglas test. Ali claims that in 1989 he sought a position in Network Control but that another individual, a light-skinned Hispanic named Rodriguez, received the job instead. However, the record reveals that there was only one open position in Network Control at this time, and that Rodriguez neither applied for nor received this position. Instead, in 1989 Rodriguez was transferred to the VAX area of the DOS department, where he received an annual salary of $ 31,434, or more than $ 12,000 less than what Ali was earning at the time. The only position open in 1989 was for a lead telecommunications programmer, and Ali has failed to present any evidence to the contrary. The qualifications for this position included a college degree, preferably in either computer science, mathematics or electrical engineering. Ali does not possess a college degree of any kind. The person actually hired for this position had an M.B.A. degree in computer systems. Accordingly, because the plaintiff has failed to proffer any evidence that he sought and was denied a position for which he was qualified, he has failed to establish a prima facie case of employment discrimination based on the failure to promote. See, e.g., de la Cruz v. New York City Human Resources Admin. Dep't of Social Servs., 884 F. Supp. 112, 116 (S.D.N.Y. 1995) (Motley, J.) (granting defendants' summary judgment motion because plaintiff presented no evidence that he was qualified for the position he sought).
For the reasons stated above, the defendant's motion for summary judgment dismissing this action is GRANTED. The Clerk of the Court is directed to enter judgment dismissing the complaint and closing this case.
John G. Koeltl
United States District Court Judge
Dated: New York, New York
July 24, 1996