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September 28, 1999


The opinion of the court was delivered by: Larimer, Chief Judge.


Plaintiffs in these three actions have all filed complaints against defendant Hillside Children's Center, Inc. ("Hillside"), alleging that Hillside has discriminated against them in their employment with Hillside on account of their race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The same lawyer represents all three of the plaintiffs. Hillside has moved in all three actions for summary judgment. Because these cases involve many of the same facts and legal issues, for purposes of these motions and this Decision and Order I am consolidating these cases pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, which permits consolidation "of any or all the matters in issue" in "actions involving a common question of law or fact. . . ."


I. Jerry Hines, Jr.

Plaintiff Jerry Hines, Jr., a black male, began his employment with Hillside in December 1984 as a sociotherapist. He voluntarily resigned from Hillside in November 1986, but was rehired by Hillside in June 1987. Hines was fired four years later in May 1991, and it is that termination that is the subject of this lawsuit.

In October 1988, Hines had been promoted to supervisor of Hillside's Alexander Street Group Home ("Alexander"), which is a home for emotionally disturbed youths. At some point in 1990, Patti Bullen, a white female, was hired by Hillside as a part-time social worker at Alexander. It is clear that Hines and Bullen did not get along very well together, and they had a number of disagreements over various matters. Bullen was eventually transferred to a different facility in April 1991.

At the same time, Hines's supervisor, Curt Diesenberg, told plaintiff that he was being given forty-five days in which to improve his performance in certain areas. Diesenberg gave plaintiff a document outlining his areas of concern, which included plaintiff's understanding of Hillside's "philosophy of treatment," his supervisory duties, communications skills, etc. Diesenberg also set forth his expectations concerning Hines's improvement in those areas, as well as his methods of evaluating Hines's achievements. At the end of the forty-five days, Hines's performance was to be reevaluated, and a decision would be made whether to have him remain as a supervisor, to demote him, or to terminate him. Affidavit of Curt Diesenberg (Docket Item 18) ("Diesenberg Aff. 18")*fn1, Ex. A. Plaintiff denies that his work performance was deficient in any way, but he admits that Diesenberg told him that he needed to improve.

In early May 1991, Diesenberg instructed Hines to prepare a letter placing a staff member, Chris Schunk, on probation because of a prior incident involving Schunk. On May 10, Hines and Diesenberg met and discussed the letter that Hines had drawn up. Diesenberg was dissatisfied with the letter, and the two of them disagreed about what the contents of the letter should include. Hines refused to sign a letter containing the changes that Diesenberg wanted made.*fn2 Diesenberg then asked Hines to put down in writing his reasons for refusing to sign, and Hines wrote, "I feel that the probation letter that I written [sic] clearly states the infractions and the procedures thereof." Diesenberg Aff. 18 Ex. C. Diesenberg then signed his own version of the letter.

On May 20, 1991, Hines filed a grievance with Hillside's Grievance Committee. His grievance letter made no mention of race or discrimination, but simply disputed some of the contents of Hines's termination letter, and alleged certain procedural defects relating to Hillside's personnel policies. The Grievance Committee held a hearing on July 16, 1991, with plaintiff present, and on July 21, the Committee issued a decision upholding plaintiff's termination. The Committee informed plaintiff by letter that "in choosing not to comply with Curt's directive to change the probationary statement you clearly put your employment status in jeopardy." Affidavit of Todd R. Shinaman (Docket Item 15) ("Shinaman Aff. 15") Ex. D.

On November 4, 1991, plaintiff filed a charge with the New York State Division of Human Rights ("DHR") and the Equal Employment Opportunity Commission ("EEOC"), alleging that he had been discriminated against on account of his race. Several years later, at plaintiff's request, the DHR dismissed his complaint for administrative convenience on February 28, 1996, and the EEOC issued plaintiff a right-to-sue letter on January 29, 1996.

Plaintiff commenced this action on April 26, 1996. The complaint contains two causes of action for race discrimination under Title VII, and two claims for race and color discrimination under the New York Human Rights Law, N.Y.Exec.L. § 296.*fn3 Plaintiff seeks, inter alia, front and back pay, compensatory damages, and punitive damages.

II. Ellis Leach

Plaintiff Ellis Leach, a black male, was hired by Hillside in 1986 as a sociotherapist. In September 1990, Diesenberg promoted Leach to assistant supervisor at Alexander.*fn4 Leach alleges that after Hines was terminated, Leach told Diesenberg and others at Hillside that he thought Hines had been treated unfairly.

Hines's termination created a vacancy for the position of supervisor at Alexander. Leach expressed interest in the position, and Diesenberg interviewed him for it.*fn5 Diesenberg also interviewed Karen Dell, who at the time was employed as a supervisor at another group home. Diesenberg chose Dell for the position.

On June 19, 1992, Leach filed a charge with the EEOC and DHR alleging that Hillside had discriminated against him on account of his race and color, and in retaliation for having opposed alleged discrimination against Hines and for testifying on Hines's behalf in his EEOC proceeding. Leach alleged that he had twice been denied promotion to supervisor, and that he had received an unfavorable evaluation on May 10, 1992, after he had testified for Hines.

In October 1992 — while Leach's administrative proceedings were pending — the supervisor position again became available. This time, Diesenberg hired Leach for the position, where he remained for over four years, until May 1997, when he voluntarily resigned from Hillside.

The EEOC issued Leach a right-to-sue letter in November 1997 on the charge filed in 1992. Plaintiff filed the complaint in this action on January 30, 1998.

The complaint on its face sets forth seven causes of action, although as with Hines's complaint, the differences between some of them are not readily apparent. Counts I and II allege discrimination on the basis of Leach's race and color, respectively, in violation of Title VII. Count III sets forth a Title VII retaliation claim. Count IV (which is mislabeled Count VI) alleges race discrimination in violation of 42 U.S.C. § 1981. Counts V and VI assert race and color discrimination claims under the HRL, parallel to Counts I and II. Count VII (which is also mislabeled Count VI) alleges race discrimination in violation of the HRL. The only difference between Count VII and Count V is that the latter states that Hillside is bound by the "provisions" of the HRL, whereas Count VII states that Hillside is bound by the "conditions" of the HRL. Complaint ¶¶ 41, 53. Plaintiff seeks essentially the same type of relief as that sought by Hines.

III. Melanie E. Burton and Keith Webb

Plaintiffs Melanie E. Burton, a black female, and Keith Webb, a black male, are coplaintiffs in the third of these actions. Burton began working for Hillside in 1989 as a temporary recreation therapist. She became an assistant supervisor at the Arnett Group Home ("Arnett") in April 1994. Webb was hired as a sociotherapist in 1987, and held various positions before becoming an assistant supervisor at the Bausch Group Home in 1993.

In late 1994, the supervisor position at Arnett became vacant. Burton and Webb each applied for the position. It was Diesenberg's responsibility to select a candidate to fill the position. He used a "team" hiring process to assist him.*fn6 This involved using teams of Hillside employees to interview candidates, with each team member then scoring each candidate on each question. A panel of team members then voted on the candidates; any candidates deemed unacceptable based on the voting results were then dropped from consideration; the remaining candidates were ranked from best to worst; and those results were then compared to the team score results. Four minority and four nonminority candidates were interviewed for the position.

Burton and Webb both filed requests for administrative review of the decision to hire Wiggs. Hillside delayed Wiggs's appointment until such review was completed. The administrative review committee, which consisted of three African-American and two nonminority Hillside employees, issued a determination on March 28, 1995 that the process used to select a supervisor was fair, that the decision to hire Wiggs was appropriate, and that the "decision was not based on issues of race or gender and that there [wa]s no indication of discrimination." Affidavit of Curt Diesenberg (Docket Item 14) Ex. B.

Burton filed a charge with the DHR on February 15, 1995, alleging that she had been denied the promotion to supervisor at Arnett on account of her race, color and sex. On March 11, 1997, the DHR issued a finding of no probable cause, and dismissed the complaint.*fn7 The EEOC issued a right-to-sue letter on April 23, 1997.

Webb filed a charge with the DHR on April 17, 1995, alleging that he had been denied the promotion on account of his race and color. That charge was dismissed for lack of probable cause on March 11, 1997, and Webb obtained his right-to-sue letter on April 23, 1997.

Plaintiffs filed the complaint in this action on July 18, 1997. Counts I and II allege that both plaintiffs have been discriminated against, on account of their race and color respectively, in violation of Title VII. Count III asserts a sex discrimination claim on behalf of Burton. Count IV sets forth a race discrimination claim by both plaintiffs under § 1981. Counts V, VI and VII assert HRL claims for race, color and sex discrimination, parallel to Counts I, II and III. Plaintiffs seek relief similar to that sought by Hines and Leach.


I. Legal ...

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