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August 1, 1997

THOMAS DAVIDSON, Plaintiff, against TIME INC., a corporation, KENNETH CARSON and THOMAS LARKIN, Defendants.

The opinion of the court was delivered by: GERSHON

 GERSHON, United States District Judge:

 Plaintiff Thomas Davidson filed this action in March 1994, alleging race discrimination on the part of defendants Time Inc. ("Time"), Kenneth Carson, and Thomas Larkin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, and the New York Human Rights Law, N.Y. Exec. Law §§ 290 et seq. Defendants now move for summary judgment, arguing that no reasonable jury could conclude that Davidson was fired on account of his race. For the reasons set forth below, defendants' motion is granted.


 Unless otherwise noted, the following facts are undisputed:

 Davidson's Performance

 Davidson worked for defendant Time, Inc. ("Time") from February 1982 to November 1992, when he was dismissed. Davidson began at Time as chief dispatcher in the Mail and Traffic Department. In 1988, he became the manager of Distribution Services, under the supervision of Robert Varisco.

 In March 1990, after hearing complaints about the timeliness and reliability of Distribution Services, Time's Vice President of Administrative Services, Rosemarie Di Sapio, assigned responsibility for Distribution Services to Director of Operations, Thomas Larkin. Larkin immediately authorized an outside vendor of mailroom services, Pitney Bowes Management Services ("Pitney Bowes"), to perform an analysis of Time's distribution operations. In June 1990, Pitney Bowes issued a report identifying a number of deficiencies in Distribution Services, including a lack of established performance standards, duplication of effort, over-staffing, and high absenteeism. Soon thereafter, Varisco was relieved of any responsibility for Distribution Services, and plaintiff began reporting directly to Larkin.

 In late 1990, Larkin recommended that defendant Kenneth Carson be put in charge of Distribution Services. Carson became responsible for Distribution Services in January 1991, and plaintiff began reporting to Carson. Carson, in turn, reported to Larkin.

 According to Carson, Davidson's performance was unsatisfactory from the start. It is undisputed that Davidson resisted a number of changes proposed by Carson. It is also undisputed that Davidson failed to meet deadlines established by Carson for such tasks as submitting a proposal for establishing an in-house fulfillment center; making a recommendation regarding a pneumatic mail delivery tube; submitting a plan to ensure coverage of the mailroom telephone; evaluating the Reading Mail area; submitting a plan for newspaper deliveries; rewriting job descriptions; and developing an individualized training program for staff members.

 Davidson does not deny that he resisted Carson's suggestions and that he missed a number of deadlines. Instead, he proffers explanations for his behavior. For instance, he maintains that Carson's proposals sometimes failed to take into consideration Time's contract with the Newspaper Guild. He also attempts to justify his failure to timely complete tasks by detailing the problems he confronted with respect to each assignment.

 On November 16, 1992, Carson met with Davidson and terminated his employment. Carson's decision was approved by Larkin and Di Sapio.

 Carson, Larkin and Di Sapio are white, as is Davidson.

 The Newspaper Guild

 Davidson's position is that he was dismissed, not because of any problems with his performance, but because Time was under a great deal of pressure to hire minorities in supervisory positions. In support of this position, Davidson cites complaints by members of the Newspaper Guild ("the Guild") regarding Time's hiring practices in Distribution Services. Although Time's employees are not required to join the Guild, a collective bargaining agreement ("CBA") between the Guild and Time governs conditions of employment at Time for employees who do not have supervisory authority. Managers are not Guild members, and the CBA does not apply to management positions such as the one held by plaintiff.

 In April and May of 1990, in meetings between Time and the Guild, Guild members complained that a white assistant manager was being trained to fill a management position. Guild members argued that minorities in the department should be trained for the position, rather than having whites hired from outside the company. They noted that, the previous year, they had objected when another white candidate was hired from outside the company to fill a management position.

 In spite of these complaints, Time selected a white applicant for the position in question. Soon thereafter, in two June 1990 meetings, Guild members again expressed their dissatisfaction over the failure over the failure of Time to promote minority employees to management positions in the department. Shortly thereafter, the Guild filed a formal grievance with respect to this issue. *fn1"

 Replacing Davidson

 The Killackey Offer

 In an affidavit submitted with the summary judgment motion, Carson states that, after Davidson's termination, he and Larkin offered Davidson's position to Distribution Department Head Bill Killackey, who is white. Similarly, in a reply affidavit, Larkin asserts that he "agrees[s] with Mr. Carson's recollection" that they offered Davidson's position to Killackey. At their depositions, neither Carson nor Larkin had indicated that they had offered Killackey the job. *fn2" In Larkin's reply affidavit, he states that he remembered the offer to Killackey two or three months after his deposition. Carson also submitted a reply affidavit, in which he states that he did not mention the Killackey offer at his deposition because plaintiff's questions did not elicit that information. *fn3"

 The Brown Offer and the Withdrawal of the Grievance

 After Davidson was dismissed, Time's Human Resources Department was notified of the job opening. Carol Ducas, a director of staffing and development in that department, retained Milo Research, an executive search firm, to help identify minority applicants. Ducas explained that she retained Milo because she knew that ordinary channels -- such as referrals, Time's internal job listing, and unsolicited resume files -- would not generate a slate of qualified minority candidates. Ducas interviewed five minority applicants and one white applicant for the position. Carson then interviewed two of the minority applicants, as well as the one white applicant, who had been screened by Ducas. Lance Brown, a black male, was hired.

 In July 1993, several months after Brown was hired to replace Davidson, the Guild withdrew the grievance that it had filed over the hiring of whites for management positions in the mailroom. Guild Chairperson Key Martin testified at his deposition that the grievance was withdrawn because a minority (Brown) was hired. Martin also stated that the Guild's decision ...

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