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DIXIT v. CITY OF NEW YORK DEP'T OF GEN. SERVS.

July 2, 1997

SURAJ DIXIT, Plaintiff, against THE CITY OF NEW YORK DEPARTMENT OF GENERAL SERVICES, Defendant.


The opinion of the court was delivered by: FRANCIS

 JAMES C. FRANCIS IV

 UNITED STATES MAGISTRATE JUDGE

 The plaintiff, Suraj Dixit, brings this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Mr. Dixit contends that the City of New York Department of General Services ("DGS") discriminated against him on the basis of his race, national origin, and religion by denying him opportunities for advancement and promotion. Mr. Dixit further claims that DGS fired him in retaliation for complaints he made concerning this discriminatory treatment. Pursuant to 28 U.S.C. § 636(c), the parties have consented to referral of this case to me for all purposes including final disposition.

 DGS now moves for summary judgment dismissing the plaintiff's claims of discriminatory treatment on the ground that they were never raised in Mr. Dixit's administrative complaint filed with the United States Equal Employment Opportunity Commission ("EEOC"). In the alternative, DGS argues that any discriminatory treatment claims arising prior to April 1, 1992 are time-barred. Finally, DGS seeks summary judgment on the plaintiff's retaliation claim on the ground that Mr. Dixit cannot establish a prima facie case. For the reasons set forth below, the defendant's motion is granted in part and denied in part.

 Background

 Mr. Dixit is an Asian Indian and an adherent of the Hindu Brahmin religion. Affidavit of Suraj Dixit dated April 30, 1997 ("Dixit Aff."), P 9. In December 1985, he began work as a construction manager with DGS. Declaration of Paul Aronson dated March 14, 1997 ("Aronson Decl."), Exh. A. He was appointed program director of the Jails Task Force, a unit responsible for coordinating design and construction of prisons for the New York City Department of Correction ("DOC"). Aronson Decl., Exh. B at 48-51; Exh. H. Initially, his supervisor was Rudolph Rinaldi, Deputy Commissioner of DGS. Aronson Decl., Exh. B at 50-51, 79-80. It is apparently undisputed that for some period of time the plaintiff performed well in his position and received numerous commendations and positive performance evaluations. Dixit Aff., Exh. A - P.

 However, this situation began to change in 1990 when Arthur Symes was appointed Assistant Commissioner at DGS and became Mr. Dixit's supervisor. According to the defendant, Mr. Dixit began having difficulty communicating with officials at DOC. Aronson Decl., Exh. B at 89-92, 101-04; Exh. C. Further problems arose when Mr. Symes assigned Winston Sealey to be a project engineer in the Jails Task Force despite the plaintiff's belief that Mr. Sealey was unqualified. Aronson Decl., Exh. B at 104-06, 113-14, 118-21; Exh. D, E. After Mr. Symes became his supervisor, Mr. Dixit's performance evaluations declined dramatically. Dixit Aff., Exh. Q, R.

 Mr. Dixit attributes the change in attitude toward him to his strict adherence to City contracting requirements. Dixit Aff., PP 8-9. He contends that he was criticized because of his race, national origin, and religion when he refused to violate contract protocols. For example, he alleges that Mr. Symes told him, "Your behavior is very white, you're not cooperating." Dixit Aff., P 9. Furthermore, the plaintiff asserts that Deputy Commissioner Rinaldi told him in 1987 that he would not be considered for a promotion because he was not white and did not speak English clearly. Dixit Aff., P 21(a). Similarly, when Mr. Dixit approached Deputy Commissioner Rinaldi in 1989 about a promotion, he was allegedly told, "Get real, you're not going anywhere in City government, you're not white, you have an accent, and you're a male chauvinist pig, every Indian is a male chauvinist pig." Dixit Aff., P 21(b). The plaintiff also avers that when he recommended another employee for promotion in late 1991 and early 1992, Mr. Symes responded that he would not consider the candidate because she was an Indian woman. Dixit Aff., P 21(c). Finally, Mr. Dixit states that another deputy commissioner suggested that he might be uncooperative because of his religion since Brahmin consider themselves superior. Dixit Aff., P 21(d).

 On January 27, 1993, the plaintiff filed an administrative complaint with the EEOC. On the portion of the complaint form asking for "cause of discrimination," Mr. Dixit checked the boxes for religion, national origin, and age. For "dates of discrimination," he identified July 16, 1992, the date of his termination as both the earliest and latest date of discrimination. He described the substance of his charges as follows:

 
I have worked for the above referenced Respondent [DGS] since 1985. I am Director of Jails Task Force.
 
I am age 52, Asian Indian, of Hindu Boahim [sic] Religion.
 
On July 16, I was terminated by Respondent official.
 
I believe this action was in retaliation for my complaining to the Personnel Department of the constant harassment, age, national origin and religious discrimination by Respondent's officials, in violation of section 704(a) of Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967, as amended.

 Aronson Decl., Exh. N.

 On June 30, 1993, DGS submitted to the EEOC a position statement responding to Mr. Dixit's charges. DGS denied that the plaintiff was terminated in retaliation for any complaints and alleged that he had in fact never informed Mr. Savage of any discriminatory treatment. Rather, according to DGS, Mr. Dixit had been terminated for cause, including his lack of cooperation and failure to respond to DOC staff. Aronson Decl., Exh. O, PP 4, 5.

 On the basis of its investigation, the EEOC issued a determination on September 9, 1994. The EEOC noted that:

 
Charging Party alleged that he was discriminated against because of his national origin, Indian, age, fifty-two (52) religion, Hindu Brahma, and in retaliation for having allegedly opposed harassment by his immediate supervisor . . . in that he was discharged on or about July 16, 1992.

 Aronson Decl., Exh. P.

 The EEOC then made the following ...


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