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. . . ."
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.
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
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
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
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
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
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.