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June 5, 1998

FREDDY QUIROS, Plaintiff, against CIBA-GEIGY CORPORATION, Defendant.

John E. Sprizzo, United States District Judge.

The opinion of the court was delivered by: SPRIZZO



 Plaintiff Freddy Quiros ("Quiros"), an employee of defendant Ciba-Geigy Corporation ("Ciba-Geigy"), brings the instant action alleging violations of the due process clause of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and New York Executive Law § 296 in connection with his employment. *fn1" Pursuant to Fed. R. Civ. P. 56, Ciba-Geigy moves for summary judgment. For the reasons set forth below, Ciba-Geigy's motion is granted.


 Quiros, an accounts receivable adjuster, has been employed by Ciba-Geigy in various positions since 1985. *fn2" See Defendant's Memorandum of Law in Support of Motion for Summary Judgment dated July 15, 1996 (Def.'s Mem."), at 4. Quiros claims he was denied promotions and paid less than similarly-situated employees because he is Hispanic and Costa Rican. See Amended Complaint dated September 21, 1995 ("Am. Compl."), PP 11-12, 14. Quiros also claims that he and other minority employees have been discriminated against with respect to wages and wage increases. See Plaintiff's Memorandum of Law in Opposition to Defendants [sic] Motion for Summary Judgment dated December 13, 1996 ("Pl.'s Mem."), at 6-7.

 Ciba-Geigy moves for summary judgment, arguing inter alia, that Quiros's due process claim is barred because there is no state action, see Def.'s Mem. at 31-32; that all but one of Quiros's Title VII claims are time-barred, see id. at 14; and that Quiros has failed to establish a prima facie case of disparate treatment and/or pay. Id. at 15-26.

 In response to this motion, Quiros offers relevant payroll records from Ciba-Geigy which he claims establish a trend that Quiros and other minority employees have received disparate pay compared to similarly-situated non-minority employees. See Pl.'s Mem. at 6-7. Specifically, Quiros claims that while Caucasian employees received an average wage increase of 7.36% per raise, minority employees only received an average increase of 2.76% per raise. See Plaintiff's Supplemental Memorandum of Law in Opposition to Defendants [sic] Motion for Summary Judgment dated April 14, 1997 ("Pl.'s Supp. Mem."), at 3-6. Further, Quiros argues that he was mocked and scorned by fellow employees due to his Spanish accent whereas a non-minority co-worker from Switzerland was not subject to such abuse. See id. at 12-13.


 I. Failure to Promote

 To establish a prima facie case of discrimination, a plaintiff bears the burden of establishing that:


(i) he is a member of a protected class; (ii) he was qualified for the position; (iii) he was subjected to an adverse employment decision; and (iv) either the position remained open or he was replaced by someone not a member of his class.

 de la Cruz v. N.Y.C. Human Resources Admin. Dept. of Social Serv., 82 F.3d 16, 20 (2d Cir. 1996) (citing McDonnell Douglas Corp. v Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)). If plaintiff comes forward with evidence establishing an inference of discrimination, see Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1239 (2d Cir. 1995), the burden of production shifts onto the defendant employer to offer a legitimate, non-discriminatory reason for failing to promote plaintiff employee. See McDonnell Douglas, 411 U.S. at 802. However, the burden of persuasion remains with the plaintiff, who must prove by a preponderance of the evidence that the legitimate reason offered by the defendant to explain its conduct is, in fact, a pretext for discrimination. See de la Cruz, 82 F.3d at 20 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993)).

 During the course of litigation, Quiros identified seven promotions that he claims were denied him and given to others for discriminatory reasons. *fn3" However, despite being given the opportunity to supplement his pleadings, Quiros has identified only two of the employees promoted to the positions he sought. *fn4" Thus, Quiros has failed to establish the fourth element of the McDonnell Douglas test with respect to all but two promotions. *fn5"

 Furthermore, Quiros identifies one of these remaining two promotions, to the position of Supervisor - Adjustment Unit, as having occurred in 1990. See supra n. 3. Since Quiros filed his claim with the New York State Division of Human Rights ("NYSDHR") on February 10, 1993, more than 300 days after he was denied this promotion in 1990, this claim is time-barred. See 42 U.S.C. § 2000e-5(e)(1); see also Butts v. New York City Dept. of Hous. Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (citations omitted). Moreover, Quiros has offered no reason why the Court should equitably toll the limitations period with respect to his claims. See Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985); Ryan v. N.Y. State Thruway Authority, 889 F. Supp. 70, 78 (N.D.N.Y. 1995); Meckes v. Reynolds Metals Co., 604 F. Supp. 598, 605-606 (N.D. Ala. 1985) (citations omitted). No conduct of Ciba-Geigy is alleged to have delayed the filing of his claim with the NYSDHR. See Ryan, 889 F. Supp. at 78. Therefore, there is no basis for equitable tolling and the only remaining claim is the denial of promotion to Accountant in 1994.

 With respect to this promotion, Quiros has failed to offer any evidence that he was qualified for the position of Accountant in the first place, or that the employee who received the promotion, Janet Wiseltier, was no more qualified or less qualified than he is. Thus, Quiros has not established a prima facie case of discrimination under McDonnell Douglas, and this claim must also be dismissed.

 In any event, no rational jury could find that Quiros was not promoted because of discrimination. Ciba-Geigy has supplied sworn affidavits establishing that since 1988 Quiros was told repeatedly that he lacked communication skills and that his supervisor recommended that he take a class in communication skills, which Quiros failed to take. See Quiros Dep. at 88-89, 271, 341-45. In the face of these affidavits, Quiros has come forward with no evidence supporting an inference that these affidavits are false or that these comments were merely a pretext. See Hassan v. Auburn Univ., 833 F. Supp. 866 (M.D. Ala. 1993), aff'd, 15 F.3d 1097 (11th Cir. 1994). He merely argues only that he received very good performance evaluations overall during the course of his employment, see Plaintiff's Affidavit in Opposition to Defendant's Motion for Summary Judgment dated December 13, 1996 ("Pl.'s Aff."), Exh. B, *fn6" and makes conclusory allegations that he has been discriminated against because of his race and national origin. See Pl.'s Supp. Mem. at 2, 3, 8, 13-14. While the level of proof a plaintiff must present to establish a prima facie case of discrimination is low, it is not non-existent. See de la Cruz, 82 F.3d at 20 (citations omitted). Therefore, because Quiros has failed to offer any evidence that he had the basic skills necessary to perform the job of Accountant, see id., or that defendant's reason for failing to promote him is pretextual, this claim must be dismissed.

 II. Disparate Pay

 Quiros has presented the Court with Ciba-Geigy's payroll records from the relevant employment periods in question to support his claim that he and other minority employees have received disparate wages and wage increases compared to similarly-situated non-minority employees. See Pl.'s Mem. at 6-7. Although Quiros claims that these payroll records establish a discriminatory trend in that Caucasian employees received an average wage increase of 7.36% per raise, while minority employees only received an average increase of 2.76% per raise, the records before the Court do not support his claim. Indeed, they refute it.

 Quiros has based his calculations and arguments on a comparison of his own payroll records with the records for twenty-one of his co-workers. See Pl.'s Aff., Exh. D. However, Quiros, an accounts receivable adjustor at pay grade 8 during the relevant time period, mistakenly includes in his calculations non-similarly situated employees, including credit administrators (Richard Gee, pay grade 438; Kathleen Gleason, pay grade 438), the unit head of the credit department (Leonore Kenny, pay grade 9), the managers of credit information systems (Robert Miazga, pay grade 551; James Lenahan, pay grade 479), an accountant (Janet Wiseltier after April 1994, pay grade 275) and the export credit manager (Maxine Shepard, pay grade 55). See Wolper v. McGraw Hill, 1997 U.S. Dist. LEXIS 6695, 1997 WL 252032, at *4 (S.D.N.Y. May 13, 1997) (citations omitted). Furthermore, of the eight similarly situated (grades 7 and/or 8) non-minority co-workers that Quiros has identified as discriminatorily being paid more than him, see Quiros's Dep. at 362-63 (accounts receivable analyst Michaelina Affrunti), id. at 366 (credit and collections clerk Patricia Dobler), id. at 388 (accounts receivable analyst Anne Marie Giampiccolo), id. at 391-92 (senior accounting clerk Janet Wiseltier), id. at 409 (customer service representative/credit and collections clerk Jo-Ann Monteleon), id. at 414 (accounts receivable adjustor Devika Naraine), id. at 422-23 (credit and collections clerk Martin O'Connor), id. at 438 (accounts receivable analyst Patricia O'Grady), the payroll records show that plaintiff was paid the same or higher wages than all except one co-worker, Devika Naraine, who was paid $ 1.00 more per hour than plaintiff during the relevant period and who is also a minority. See Pl.'s Aff. Exh. D; see also Def.'s Mem. at 8.

 Plaintiff's statistical evidence of discriminatory wage increases is equally flawed. See Pl.'s Supp. Mem. at 4-6. First, Quiros incorporates into his calculations non-similarly situated employees that were never in his pay grade (Leonore Kenny, pay grade 9) or that have since been promoted out of his pay grade (Janet Wiseltier, pay grade 275). See id. at 5-6. Ciba-Geigy's payroll records clearly establish that Jo-Ann Monteleon, the only non-minority employee who, like Quiros, was raised from pay grade 8 to 51, in fact received the exact same overall increase in pay as did Quiros (39.58%) over a practically identical time period (1989-1995). See Pl.'s Aff. Exh. D. Other non-minority employees that were raised from pay grade 6 or 7 to grade 51 received smaller wage increases ranging from 3.8% (Patricia O'Grady) to 15% (Ann Marie Giampiccolo). See id. Only one non-minority employee, Katherine Messina, received a 62.5% pay increase over the course of seven years (1988-1995), thus resulting in a salary and pay grade identical to what Quiros was receiving in 1995. Id. Furthermore, when broken down on a year by year basis, there simply is no pattern of material disparity as to percentage raises received by similarly situated minority and non-minority employees. See Appendix A.

 Second, with respect to wage increases enjoyed by other minority employees, Quiros has not interpreted the payroll records upon which he relies with any rational consistency. Compare Pl.'s Exh. D (Payroll data for Gertrude Bowling -- 12.03% wage increase from pay grade 7 to 8 in 1991) with Pl.'s Supp. Mem. at 6 (1.2% average increase per raise); and Pl.'s Exh. D. (Payroll data for Margaret Reeder -- 5.54% raise in pay grade 6 from 1991 to 1994) with Pl.'s Supp. Mem. at 6 (2.7% average increase per raise); and Pl.'s Exh. D (Payroll data for Gloria Sanders -- 18.9% wage increase in pay grade 7 from 1989 to 1994) with Pl.'s Supp. Mem. at 6 (3.7% average increase per raise). Moreover, Quiros bases his argument upon a pool of only four minority employees compared to eleven non-minority employees. This statistical presentation is insufficient to withstand defendant's well-supported and well-documented motion for summary judgment. Cf. Zenni v. Hard Rock Cafe Int'l., Inc., 903 F. Supp. 644, 654 (S.D.N.Y. 1995) (statistical evidence of employer's general hiring practices is insufficient to prove particular case of discrimination), and the pool is too small to reliably establish a discriminatory trend. See Loughran v. Manhattan Life Ins. Co., 1987 WL 10385 (S.D.N.Y. Apr. 24, 1987), aff'd mem., 838 F.2d 1203 (2d Cir. 1987); Avillan v. Digital Equip. Corp., 1994 U.S. Dist. LEXIS 6849, 1994 WL 225458 (S.D.N.Y. May 26, 1994).

 III. Hostile Environment

 Quiros asserts he was subject to ridicule from his co-workers because of his Spanish accent while a Swiss co-worker was not. However, the only ridiculing statement that Quiros identifies is that of Frank Moricco, then director of credit accounts receivables, who asked other employees if they could understand what Quiros was saying. *fn7" See Pl.'s Supp. Mem. at 12-13; Quiros Dep. at 97-98. Quiros also claims that sometimes he was called "Pancho." Quiros Dep. at 97.

 To prevail on a hostile environment claim, Quiros must show:


1) that [his] workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his] work environment and 2) that a specific basis exists for imputing conduct that created the hostile environment to the employer.

 Briones v. Runyon, 101 F.3d 287, 291 (2d Cir. 1996) (citation omitted). Although afforded ample opportunity to supplement his papers, Quiros offers only conclusory statements of alleged discrimination and has failed to identify when, where and/or how often he was either called "Pancho" by Moricco, or how often Moricco asked other employees if they understood him. *fn8" See Pl.'s Mem. at 2 ("Mr. Quiros was subjected to ridicule, scorn and humiliation from defendant because of his Spanish accent."), 7-8 ("Mr. Moricco's action created an environment that caused plaintiff to be subjected to discriminatory ridicule and scorn . . . [and] to feel humiliated and ostracized."); Pl.'s Supp. Mem. at 13 (same). Having failed to present the Court with any evidence that his workplace was permeated with severe or pervasive discriminatory intimidation, Quiros's hostile environment claims must be dismissed.

 Finally, plaintiff's due process claims must be dismissed since he has failed to allege any state action. See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994). The only remaining claim to be decided is the alleged violation of New York Executive Law § 296. Because all federal claims have been dismissed and no diversity exists, the Court declines to exercise jurisdiction over this claim. See United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Therefore, the remaining state law claim is dismissed.


 For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk of Court is directed to enter judgment for defendant and dismiss the action with prejudice.


 Dated: New York, New York

 June 5, 1998

 John E. Sprizzo

 United States District Judge

 Appendix A 1992 Caucasian Salary*** Increase % Effective Date Employees* Wiseltier** $ 505 4/18/92 Libertino 597 5.7% 4/25/92 O'Connor 537 6.3% 5/18/92 580 8.0% 7/18/92 Giampiccolo 500 5.3% 7/4/92 Affrunti**** 9.5***** 11/30/92 Kenny 694 6.4% 5/3/92 Guglich 8.5***** 6.3% 10/12/91 9.25***** 8.8% 8/1/92 O'Grady 501 5.3% 4/11/92 Messina 600 6.4% 5/23/92 Monteleon No Raise in 1992 Philpin 501 5.3% 12/28/91 * Since Dobler was terminated 9/20/91 and Gee is an exempt employee, they have not been included in this chart. ** Wiseltier was hired as a full-time employee on 4/18/92. *** Salaries listed are weekly unless otherwise noted. **** Affrunti was hired on 11/30/92. ***** Hourly rate.


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