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January 25, 1997


The opinion of the court was delivered by: MCAVOY


 Plaintiff Sebastian Banks alleges that the defendants unlawfully discriminated against him on the basis of his race by refusing to hire him for employment in the Albany Fire Department, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. Banks also claims that Defendants violated his constitutional right of equal employment guaranteed by the Fifth and Fourteenth Amendments. In addition, Banks asserts that Defendants violated Article 23(a) of the New York State Corrections Law by denying him employment on the basis of his past criminal convictions.

 On June 5, 1993, Sebastian Banks, a black male and lifelong resident of Albany County, took an open competitive civil service examination for the position of firefighter for the City of Albany. Banks scored an 85 on the examination. A total of 154 candidates passed the June 5, 1993 examination. No candidate scored above 95; nineteen individuals received scores of 95; nineteen individuals received scores of 90; and thirty-eight individuals received scores of 85. The remaining seventy-eight candidates did not score high enough to be considered for employment.

 On November 24, 1993, the Albany Municipal Civil Service Commission ("Commission") established an "Eligible List" containing the names and scores of the 154 candidates who passed the June 5, 1993 examination. (Kitt Aff., Exh. 1). The Eligible List had an effective date of January 20, 1993 and expired January 20, 1994. From this Eligible List of candidates, P. Marsolais, Secretary of the Commission, certified 67 candidates as eligible for the position of firefighter on May 20, 1994. (Kitt Aff., Exh. 2). As required by New York State Civil Service Law §§ 50 & 57, the actual appointment of firefighters must be from this certified list.

 On May 24, 1994, four days after the certification of eligibles, Fire Chief James Larson appointed nine candidates to the position of firefighter. Six of the nine appointed candidates had a score of 90 on the June 5, 1993 exam. The remaining two appointed candidates had a score of 85. Although Banks was on the list of certified eligible candidates for the position of firefighter, and had scored an 85 on the exam, he was not chosen.

 In his deposition, Chief Larson stated that he appointed the two candidates with a score of 85 without reviewing the background of any other candidates who also scored an 85. (Larson Tr. at 61-62). Instead, Chief Larson stated that he had already decided he wanted the two candidates, Mr. Dagget and Mr. Rhatigan, based on his relationship with their families. (Larson Tr. at 61-65).

 Presently before the Court are Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment.


 A. Summary Judgment Standard

 Pursuant to Fed. R. Civ. P. 56(c), a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Furthermore, it is the substantive law that will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250.

 Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). However, the non-moving party must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).

 B. Title VII

 Initially, the Court notes that although summary judgment is no longer a disfavored process for the elimination of groundless claims, see Celotex, 477 U.S. at 322 (summary judgment favored to dispose of meritless claims), a district court should be wary of granting summary judgment in a. discrimination case because the device is generally inappropriate where, as is typical, an employer's state of mind is relevant. Gallo, 22 F.3d at 1224. This is not to say that summary judgment is wholly inappropriate; rather, as the Second Circuit has noted, "the summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. The purposes of summary judgment . . . apply no less to discrimination cases than to . . . other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985). Considering the relative ease of bringing a suit alleging discrimination and the difficulty and expense of defending against such a suit, courts correctly find summary judgment proper where allegations of discriminatory intent are merely conclusory.

 i. Prima facie case under Title VII

 Designed " 'to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees,' " Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971)), Title VII prohibits not only overt and intentional discrimination, but also discrimination resulting from practices that are facially neutral but have a "disparate impact" on a protected group. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977); Griggs, 401 U.S. at 431. Section 703(a) of Title VII defines "unlawful employment practice" in this way:

It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .

 42 U.S.C. § 2000e-2(a)(1).

 In the Second Circuit, Title VII cases are analyzed under the familiar framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Under the test articulated in McDonnell Douglas, a plaintiff

must demonstrate that: (i) he is a member of a protected class; (ii) he was qualified for the position; (iii) he was subjected to an adverse employment decision; and (iv) either the position remained open or he was ...

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