evaluations which were generally consistent with her prior evaluations as a senior power analyst. Since 1995, her evaluations-- which De Graffenried continues to oversee-- have improved, as plaintiff has gradually taken on additional responsibilities.
The statistics presented by plaintiff-- Power Authority's EEO-4 forms-- lack probative value. Power Authority's EEO-4 form from 1995 apparently consolidates information regarding Power Authority employees throughout New York State for the year 1995, and, apparently, indicates that 45 of the 1,053 employees who were categorized as "professionals" were African-Americans; two of the 171 professionals earning $ 70,000 or more in annual salary were African-American; and, five of 215 "officials/administrators" were African-American. (EEO-4 report dated Dec. 15, 1995, at 2.) Plaintiff asserts that these three figures and "similar data" from 1993 and 1994 demonstrate Power Authority's "preference for not promoting black employees." (Pl. Mem. at 12.)
Plaintiff has not proffered any information to explain or provide context for the EEO-4 reports, and has adduced no evidence which would permit rational evaluation of the raw figures in the reports. Nor does plaintiff attempt in her present motion papers to discuss the significance of the figures, either generally or as applied to her situation in particular. Thus, the statistics do not create a material dispute of fact. See Hudson v. International Business Machines Corp., 620 F.2d 351, 355 (2d Cir. 1980) (statistics showing racial composition of employer's workforce could not "standing alone" show that employer discriminated against plaintiff because of his race), cert. denied, 449 U.S. 1066, 66 L. Ed. 2d 611, 101 S. Ct. 794 (1980); Robinson v. Metro-North Commuter R.R. Co., 1998 U.S. Dist. LEXIS 373, 1998 WL 17742 at *9 (generalized statistical evidence cannot itself refute, for summary judgment purposes, an employer's nondiscriminatory explanation for an adverse employment action). Accord Villanueva v. Wellesley College, 930 F.2d 124, 131 (1st Cir. 1991) (raw statistics showing percentage of minorities hired by plaintiff over eight year period were "inadequate absent some further indication of their relevance" to show employer had discriminatory motive), cert. denied, 502 U.S. 861, 116 L. Ed. 2d 143, 112 S. Ct. 181 (1991).
In sum, there is no evidence from which a factfinder could infer that Power Authority discriminated against plaintiff because of her race. Cf. Grady v. Affiliated Central, Inc., 130 F.3d at 561 (affirming grant of summary judgment on age discrimination claim where record was "bereft" of discriminatory evidence and where plaintiff's conclusions as to discrimination were "purely speculative"); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (conclusory allegations of discrimination insufficient to avoid summary judgment), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985); Shabat v. Blue Cross Blue Shield of Rochester Area, 925 F. Supp. 977, 988 (W.D.N.Y. 1996) (employee's disagreement with adverse employment action did not create material dispute of fact as to whether action was the result of discrimination; employee was required to proffer some evidence of discrimination beyond his own subjective beliefs), aff'd sub nom. Shabat v. Billotti, 108 F.3d 1370 (2d Cir. 1997).
It should be noted that the individuals whom plaintiff accuses of demoting her for discriminatory reasons are the same individuals who had promoted her less than two years earlier. Cf. Grady, 130 F.3d at 560 (on summary judgment motion, fact that the person who made the decision to fire plaintiff was the same person who made the decision to hire her was a factor "strongly suggesting that invidious discrimination was unlikely").
Plaintiff's main argument against summary judgment for Power Authority is that a jury could find at trial that Power Authority lied about the reason for her demotion and could infer discriminatory intent from this finding alone. (Pl. Mem. at 8-9, "if a rational jury accepted the Plaintiff's version of the facts, then it might conclude that the Defendant had created false charges as a pretext for firing the Plaintiff, thus precluding summary judgment.") It is true that in a given case a finding of discriminatory intent may be grounded in disbelief of an employer's proffered reason for discharge, especially if accompanied by a suspicion of mendacity. See Henry v. Daytop Village, Inc., 42 F.3d 89, 96 (2d Cir. 1994). But, for a rational jury to find discriminatory intent, there must be evidence which points to discrimination. See Fisher v. Vassar College, 114 F.3d 1332, 1338 (2d Cir. 1997) ("the sufficiency of the finding of pretext to support a finding of discrimination depends on the circumstances of the case"), cert. denied, U.S. , 139 L. Ed. 2d 752, 118 S. Ct. 851 (1998). In this case, there is no such evidence.
Plaintiff claims that De Graffenried's August 1994 evaluation was retaliation for her filing of discrimination charges with the EEOC in April of 1994. The August 1994 evaluation was plaintiff's first evaluation after her demotion and after the filing of charges with the EEOC.
A retaliation claim under Title VII is subject to the three step test of McDonnell Douglas. To make out a prima facie case of retaliation which satisfies the first step of McDonnell Douglas, a plaintiff must show participation in a protected activity known to the defendant, an adverse employment action, and a causal connection between the protected activity and the adverse employment action. Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). An adverse employment action is one which affects the terms, privileges, duration, or conditions of employment. Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996). A defendant may prevail on a summary judgment motion by showing that there is an absence of evidence to support the plaintiff's retaliation claim. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996).
Even if construed as a negative evaluation, De Graffenried's August 1994 evaluation of plaintiff does not itself constitute an adverse employment action, and plaintiff does not contend otherwise. Cf. Johnson v. Frank, 828 F. Supp. 1143, 1153 (S.D.N.Y. 1993) (mid-year performance evaluation giving plaintiff an "unacceptable" rating did not constitute an adverse employment action because it did not affect the terms, privileges, duration or condition of the plaintiff's employment).
Instead, plaintiff makes two arguments in support of her claim of retaliation. First, plaintiff asserts that she was denied a mid-year salary increase because "no overall rating was provided" by De Graffenried on the August 1994 evaluation. (Pl. 56.1 Stat. P 39; see also Pl. Mem. at 15, "in August 1994, the Plaintiff did not receive an overall evaluation at all"; cf. Amended Compl PP 11-12.) Plaintiff proffers no evidence that she was eligible for a pay increase in August of 1994, or that she would have been eligible but for De Graffenried's evaluation. More to the point, plaintiff's claim is not that she was denied a merit increase but that she was denied a merit increase because De Graffenried failed to give her an overall rating. This assertion is plainly inaccurate. De Graffenried has affirmed that in completing the final page of plaintiff's August 1994 evaluation, he mistakenly placed a checkmark in the wrong row, thus leaving the overall rating row blank; the misplaced mark appears on the line immediately above the line for "meets expectations" in the overall rating row. (De Graffenried Aff. P 7; Def. Ex. 15, Form 5C.) In her written rebuttal to De Graffenried's evaluation, plaintiff made no mention of the De Graffenried's alleged failure to provide an overall rating. No rational factfinder could conclude that De Graffenried withheld an overall rating; the only rational inference is that the overall rating was "meets expectations."
Second, plaintiff argues that De Graffenried's August 1994 evaluation is "sufficient to damage the Plaintiff's career" at Power Authority. (Pl. Mem. at 15.) Plaintiff proffers no evidence to support this argument. Moreover, the evidence in the record does not support plaintiff's contention. Since 1994, plaintiff's evaluations (which De Graffenried continues to oversee) have steadily improved, and plaintiff has assumed greater job responsibilities. While plaintiff argues that the August 1994 evaluation and (apparently) subsequent evaluations were "intended to stop the Plaintiff's advancement" (Pl. Mem. at 15), plaintiff does not point to a single opportunity or benefit that has been denied to her since she filed her EEOC complaint. Similarly, the contention in plaintiff's memorandum of law that "the Defendants assigned the Plaintiff non-technical, substantially clerical assignments, making it impossible for the Plaintiff to progress" (Pl. Mem. at 15) lacks any evidentiary citation or support.
In sum, there is no evidence on which a jury could find for the plaintiff on the retaliation claim, and summary judgment is warranted. Cf. Van Zant, 80 F.3d at 714 (affirming grant of summary judgment where plaintiff's retaliation claim was supported only by conclusory allegations).
The § 1983 Claim
Defendants are also entitled to summary judgment on plaintiff's claim under 42 U.S.C. § 1983. This claim alleges the same facts as the Title VII claim, and plaintiff does not dispute that her § 1983 claim can survive summary judgment only if her Title VII claim does as well. Accordingly, defendants' motion for summary judgment as to the § 1983 claim is granted. See generally Annis v. County of Westchester, 36 F.3d 251, 1998 WL 49317 at *6 (2d Cir. 1998) (applying McDonnell Douglas framework to § 1983 claim based on sex discrimination in employment).
In view of the foregoing, I need not reach the motion of Hiney, Pellegrino, and De Graffenried to dismiss them from the complaint for reasons that do not apply to Power Authority.
For the reasons discussed above, defendants' motion for summary judgment is granted.
Dated: New York, New York
March 17, 1998
MIRIAM GOLDMAN CEDARBAUM
United States District Judge