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March 19, 1998


The opinion of the court was delivered by: HECKMAN


 This matter was referred to the undersigned by Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendant has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, it is recommended that defendant's motion be granted.


 The undisputed facts are as follows. On October 14, 1971, plaintiff was appointed to a full-time permanent position as a laborer at the State University of New York at Buffalo ("SUNY Buffalo"). He was promoted several times, and eventually attained the position of Electrician, grade SG-12, a Civil Service position, which he held until his discharge on July 6, 1993 (see Item 12, Fletcher Aff.).

 Throughout the course of his employment at SUNY Buffalo, plaintiff received generally positive job-performance evaluations (see id., Ex. B). However, he also received no less than ten Notices of Discipline, and was counseled no less than 14 times, for tardiness and attendance problems (id., Exs. C, D). During a 4 1/2-year period between May, 1988 and November, 1992, plaintiff received eight Notices of Discipline involving 66 instances of tardiness and totaling nearly 18 hours of work time (id.).

 The final Notice of Discipline was issued to plaintiff on November 4, 1992. The matter proceeded to arbitration under the collective bargaining agreement between New York State and the Civil Service Employees Association ("CSEA"), of which plaintiff was a member. On January 6, 1993, a negotiated settlement was reached in lieu of formal determination by an arbitrator. The settlement agreement was signed by plaintiff and Mark Jurenovich, his CSEA representative, and by SUNY Personnel Associate Barbara Christy (Item 12, Ex. F). According to the terms of the settlement, plaintiff agreed to serve a disciplinary probation period of 26 weeks during which he was required "to perform his duties satisfactorily, and . . . comply with University and [New York State] Time and Attendance Regulations," under penalty of termination from service (id.; see also Ex. E).

 Between January 8 and June 23, 1993, plaintiff took approximately 16 days off and was late for work on three occasions (Item 12, Ex. G). Most of the time was charged to sick leave, and was supported by documentation. However, at least 1 1/2 days were considered to be "unauthorized absence" (id.). As a result, on June 28, 1993, plaintiff was notified that he had not satisfactorily completed the probationary period, and that his employment would be terminated as of the close of business on July 6, 1993 (id.).

 On November 14, 1994, plaintiff filed an "Amended Complaint" with the New York State Division of Human Rights ("NYSDHR") in which he claimed that his July 6, 1993 termination was in retaliation for having previously filed discrimination charges against SUNY Buffalo (Item 12, Ex. H). In the previous charges, dated March 18, 1992, and February 16, 1993, plaintiff claimed that he was denied training opportunities that were given to similarly situated white employees, and that he was disciplined more harshly than white employees with similar or worse attendance records (id.).

 On March 14, 1995, the NYSDHR issued a "Determination and Order After Investigation," stating as follows:

Investigation did not reveal sufficient evidence to support a belief that the complainant was denied equal terms, conditions, and privileges of employment because of his race or color. Investigation revealed that complainant was terminated because of attendance problems, which he had been warned about previously. The evidence indicates that a white employee was disciplined, placed on probation, and terminated around the same time as complainant, for similar reasons. The record shows respondent employed, and continued to employ, another black electrician. The evidence does not indicate complainant was denied training because of his race or color. The evidence does not support a belief that complainant was treated differently or terminated, because of his color.

 (Item 12, Ex. I).

 On October 30, 1995, plaintiff filed a complaint in this court seeking back pay, compensatory and punitive damages, and attorney's fees under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), the Equal Pay Act of 1963 (29 U.S.C. § 206(d)), 42 U.S.C. §§ 1981 and 1981a, New York Executive Law § 296, and New York Labor Law § 194. *fn1" Plaintiff alleges that he was denied training opportunities and equal pay, and that he was disciplined and eventually terminated from his job, because of his race and in retaliation for his complaints about discriminatory treatment. He also claims that defendant made fraudulent representations about job security (Item 1).

 Defendant now moves for summary judgment on the following grounds:

1. Plaintiff has failed to demonstrate a prima facie case of discriminatory termination;
2. Plaintiff has failed to demonstrate a prima facie case of discrimination concerning training;
3. Plaintiff has failed to demonstrate a prima facie case of retaliation; and,
4. Plaintiff's remaining claims are barred by the Eleventh Amendment, and otherwise fail to state valid claims for relief.

 Each of these grounds is discussed in turn below.


 1. Summary Judgment.

 Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).

 Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Bryant v. Maffucci. supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). In order to avoid summary judgment, the nonmoving party is under the obligation "to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991). "Entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware, Inc. v. AnnTaylor, Inc., supra, 933 F.2d at 167. Stated slightly differently, "when no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994).

 Though caution must be exercised in granting summary judgment where motive is genuinely in issue, summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact. McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Gallo, supra; Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 19 (2d Cir. 1995); Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994). As explained by the Second Circuit in Gallo :

The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution. . . . It must be kept in mind that only by reference to the substantive ...

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