On a motion for summary judgment under Rule 56 the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id. at 248, 106 S. Ct. at 2510.
To defeat a motion for summary judgment the party opposing it "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Although discrimination cases typically involve a plaintiff's allegation of the defendant's discriminatory intent, that alone does not immunize the case from summary judgment if the allegations are conclusory and the defendant's motion is supported by an evidentiary record. "The salutary purposes of summary judgment . . . apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985).
The Title VII Claim
Title VII of the Civil Rights Act provides in pertinent part: "It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire . . . or otherwise to discriminate against any individual . . . because of such individual's . . . national origin." 28 U.S.C. § 2000e-2 (1994).
To support his claim of discrimination, plaintiff must establish factual issues sufficient to make out a prima facie case of a violation of Title VII. The standards for the burden and order of proof in cases of discrimination arising under Title VII were set out by the Supreme Court in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981), quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973).
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination; if he succeeds, the burden of proof then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Should the defendant carry this burden, the plaintiff must then "be afforded a fair opportunity to show that the [defendant's] stated reason for [plaintiff's] rejection was in fact pretext." McDonnell Douglas Corp., 411 U.S. at 804, 93 S. Ct. at 1825. The burden of persuasion at all times remains with the plaintiff. See Burdine, 450 U.S. at 253, 101 S. Ct. at 1093.
Plaintiff has made no showing that he was not selected because of his national origin. Instead, plaintiff merely defends his employment record and attacks the qualifications of Mr. Kwok, who did receive the promotion, and Mr. Concepcion, one of his supervisors. Plaintiff claims that Mr. Kwok, who was appointed instead of him, "could bearly [sic] speak English at the time." In his papers plaintiff derides Mr. Concepcion, his supervisor and also a Puerto Rican national, as "a complete incompetent." In a letter to Magistrate Judge Gold on September 23, 1996, plaintiff says that it is his opinion that "Mr. Concepcion is not even a legitimate employee with the dept. That he is held in his supervisory position solely for the purpose of breaking my case." Plaintiff submits no affidavits and no documentation to support his allegations.
Plaintiff makes the further, unsubstantiated claim that defendant's affidavits and supporting documentation have been falsified. He complains that many affidavits were unsigned or submitted by fax, which he says "seems to indicate that these people had second thoughts about signing a false/manufactured statement." This is incorrect. Defendant submitted to the court the affidavits of 24 employees of the Tax Department, all of which were signed. None of the employees' statements supports plaintiff's claim of discrimination based on his national origin. On this record plaintiff has failed to make out a prima facie case under Title VII.
Even assuming that plaintiff could establish a prima facie case, defendant has articulated legitimate nondiscriminatory reasons for not appointing him. According to the probationary reports and evaluation forms, plaintiff was a less satisfactory candidate than Mr. Kwok. Unlike Mr. Kwok, plaintiff was repeatedly rated in the "Needs Some Improvement" and "Needs Improvement" categories.
The record also reflects a tendency in plaintiff towards irrational and inappropriate behavior that would make him unqualified for a supervisory position. His supervisor Diego Concepcion said in his affidavit that plaintiff's "behavior was often irrational and combative . . . One time he actually threatened me, and used dirty language."
Plaintiff has not set forth any facts which could serve to draw into question defendant's articulation of a nondiscriminatory reason for his rejection. He certainly has not shown that the reason given is pretextual.
Defendant has proffered evidence that other Puerto Rican employees have been promoted to equal or higher positions than that sought by plaintiff, including Mercedes Cintron (Tax Compliance Agent III), Sandra Velez (Tax Compliance Agent II), and Diego Concepcion (Tax Compliance Agent II), and that other employees of Latino heritage are routinely employed and promoted by defendant, including Jose M. Gonzalez (Tax Compliance Manager I), Antonio Baez (Tax Compliance Agent I), and Carmen M. Rodriguez (unspecified). Each of these witnesses has provided an affidavit. None of them supports plaintiff's allegations of discrimination.
Plaintiff has failed to put before this court any facts from which a jury could infer that plaintiff's national origin was anything other than a neutral factor in the decision not to promote him. Defendant's motion for summary judgment is granted.
Dated: Brooklyn, New York
December 18, 1997
Eugene H. Nickerson, U.S.D.J.
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