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QUIROS v. CIBA-GEIGY CORP.

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

MEMORANDUM OPINION AND ORDER

SPRIZZO, D.J.:

 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.

 BACKGROUND

 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.

 DISCUSSION

 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 ...


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