The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge:
Julio Valentin, plaintiff pro se, brought this action for discrimination in employment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, alleging that defendant failed to promote him because of his national origin. Defendant moves for summary judgment dismissing the complaint.
Plaintiff, a tax compliance agent with the New York State Department of Taxation and Finance, was hired on May 30, 1985. Plaintiff is Puerto Rican. After passing the New York Civil Service promotional examination, he was promoted on July 13, 1989 to the position of Tax Compliance Agent I, salary grade 14, and became permanent in that position on April 18, 1990.
Plaintiff also passed the promotional examination for Tax Compliance Agent II, salary grade 15, receiving a score of 77 and ranking 95 out of 137. A Civil Service eligible list was established on June 12, 1989. While six people, including plaintiff, were determined to be list eligible, three declined the appointment and two were temporarily unavailable. Plaintiff was then the only candidate on the list.
Plaintiff was interviewed for the position, and his employment records were reviewed. On plaintiff's probationary report for the period ending September 13, 1989 plaintiff's supervisor, Karen Cousin, rated him "Meets Expectations" in the relationships, personal work characteristics and attendance categories, and "Needs Improvement" in the management of work assignments, quality of work, productivity, problem solving and communications categories. The supervisor, commenting on the quality of plaintiff's work, noted: "Mr Valentin must familiarize himself with office policy and procedure. Field work should be more thorough in as far as obtaining pertinent info." Plaintiff's overall assessment for that period was "Needs Improvement."
On plaintiff's evaluation form for the period from July 14, 1989 to July 13, 1990 the supervisor, Diego Concepcion, commented: "Agent doesn't give immediate attention to hi-value or aged assessments. His behavior at times is strange, agent comes on indifferent and makes odd statements, i.e.: 'He'll shoot all individuals who are in supervisory positions, if he isn't chosen as a supervisor.'"
Plaintiff's records also included a disciplinary memorandum dated April 19, 1988 that placed plaintiff on unauthorized leave without pay instead of the tardy point system "because of your established pattern of morning attendance problems."
Plaintiff was not selected for promotion to the position of Tax Compliance Agent II. The position was then offered to Sandra Velez, also a Puerto Rican employee. After Ms. Velez declined the appointment, another employee who was not on the eligible list, Koon W. Kwok, was provisionally appointed to the position on April 12, 1990. Mr. Kwok had been rated "Highly Effective" on his evaluation form for the period from July 20, 1989 to July 20, 1990. His supervisor, Mary McGivney, commented: "He is an asset to the squad." On his probationary reports for the periods ending September 25, 1989, January 9, 1990, and March 27, 1990, Mr. Kwok's overall ratings were "Exceeds Expectations."
Plaintiff filed an employment discrimination complaint with the State Division of Human Rights on April 12, 1990, alleging that he had been discriminated against on the basis of his national origin. The State Division of Human Rights determined that he was not selected for reasons other than his national origin, and dismissed the complaint on June 15, 1994. The State Division's order found that defendant had legitimate reasons for not selecting the plaintiff, namely, his unsatisfactory work record.
On June 21, 1994 plaintiff filed a grievance letter with the U.S. Equal Employment Opportunity Commissioner (EEOC). The EEOC affirmed the State Division of Human Rights' decision on ...