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November 8, 2000


The opinion of the court was delivered by: Conner, Senior District Judge.


Plaintiff Ian Berkowitz, a Caucasian Jewish male, brings this action against the County of Orange, the Orange County Human Rights Commission ("OCHRC"), ex-Commissioners Hubert Lee, Angela Colonna and Carol Chichester, and present Commissioners Mary Simmons, Graham Skea, Fran Turi and Christopher Sherwood (collectively, the "Commissioners" or "Commissioner defendants"), alleging racial/religious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the New York State Human Rights Law, N.Y. EXEC. LAW § 290 et seq. ("NYHRL").*fn1 The OCHRC and the Commissioner defendants bring this motion for summary judgment pursuant to FED. R. CIV. P. 56 dismissing all of plaintiff's remaining claims.

Plaintiff alleges that the Commissioners engaged in illegal reverse discrimination when they terminated him from his position as Executive Director ("ED") of the OCHRC. Specifically, plaintiff claims that the Commissioners: (1) desired to fill his position with a minority person before, during and after his hiring; (2) hired him nonetheless and ostensibly gave him positive performance reviews while secretly questioning his ability to fulfill his duties; (3) falsely claimed that he was terminated for violating his duties and as a result of his position's reduced workload; (4) in actuality terminated him because of his race and religion; and (5) actively sought to replace him with an African-American woman after his termination.

For the reasons that follow, defendants' motion for summary judgment is granted.


Plaintiff claims that Charlotte Johnson, an African-American female and Acting Commissioner at the time he was interviewed (Skea Dep. at 7-8; Chichester Dep. at 13), was among the other applicants. (Berkowitz Dep. at 66-67.) He states that Johnson was present for at least one of his first two interview meetings and asked him at least one question, though he does not recall its substance. (Id. at 11-12.) Plaintiff also claims that in Winter 1997, ex-Commissioners Richard Rivera*fn4 and Angela Colonna told him that Johnson wanted the position, but that the other Commissioners would not let her submit a resume. (Id. at 76.) Commissioner Graham Skea and ex-Commissioner Carol Chichester contend that Johnson was not a candidate, (Skea Dep. at 8; Chichester Dep. at 13), but the Commissioners did discuss, both during the hiring process and after plaintiff was hired, whether a person of color and/or a bilingual individual would be better suited for the position. (Chichester Dep. at 39-40; Colonna Dep. at 28-31.)

In early June 1997, plaintiff was informed that he was seriously being considered for the position, but that there was "conflict" among the Commissioners delaying the decision. (Berkowitz Dep. at 13-14.) Plaintiff claims that this "conflict" involved "heated discussions about whether or not a minority should be hired to fill the position of executive director," and that both Rivera and Colonna told him this. (Id. at 74-75.) He also claims Colonna told him that, even though he was the most qualified applicant, some Commissioners still wanted to hire a minority person, and that "[Colonna] said she had to verbally tell the Commission that that was reverse discrimination and she would not stand for it." (Id. at 75.) Colonna does recall discussion on the minority hiring issue, and did voice objection to some of Skea's comments (Colonna Dep. at 31-33), but states that "[desiring to hire a minority] wasn't the reason behind . . . [plaintiff's] termination." (Id. at 31.) Moreover, Colonna states that there were no discussions about hiring Johnson as ED prior to plaintiff's hiring. (Id. at 37.)

The Commissioners contend that their "conflict" was over whether to hire a new ED at all. Chichester testifies that based on the Barrett litigation*fn5 and questions about the actual workload the ED would handle, she did not think the OCHRC needed a new ED at that time. (Chichester Dep. at 10.) Moreover, she "absolutely [did] not" think plaintiff was the best qualified applicant for the position, and voiced her concerns to other Commissioners, but to no avail. (Id. at 29.) The workload issue was a matter of ongoing concern for the Commissioners at the hiring stage and throughout plaintiff's tenure as ED (see Skea Dep. at 25, 29-35; Chichester Dep. at 10-12; Colonna Dep. at 7-9; Turi Dep. at 17), and it played a major role in their decision to terminate him. (See Monroe Affm., Ex. E; Lee Dep. at 11.) Plaintiff's job offer was made in letter dated June 23, 1997 (Monroe Affm., Ex. B), he first reported to work July 7, 1997 (Berkowitz Dep. at 16-17), and Johnson resigned soon after plaintiff was hired. (Id. at 76.)

Plaintiff received a printed job description which led him to understand that his job would entail "conducting investigations . . . mediating complaints . . . putting on presentations on cultural diversity, cultural awareness, sensitivity training . . . doing outreach, managing the office and pretty much anything that fell within those different areas." (Id. at 17-18.) He states that he rarely had much contact with the other Commissioners and received no direction regarding his job duties, even at the monthly Commissioners' meetings. (Id. at 19-25.) Several Commissioners testify that they had little contact with plaintiff and few chances to observe him at work. (See Skea Dep. at 17-18; Chichester Dep. at 24; Sherwood Dep. at 33; Turi Dep. at 7.)

Plaintiff claims that nonetheless, during his first six months as ED, his work day was quite busy: "[I]f I wasn't investigating I was doing interviews; if I wasn't doing interviews I was putting together a diversity workshop. I mean there was always something to do." (Id. at 30-31; Sproule Affm., Ex. B.) Plaintiff gave one sensitivity training presentation to Emergency 911 system operators, attended one prejudice reduction training workshop and attended one investigators' training workshop in his first three months. (Id. at 22-24.) He can not recall how many complaints were filed in his office during this time. (Id. at 22.)

Plaintiff states that "the evaluations which the [sensitivity training] participants filled out, had all positive comments about my presentation." (Sproule Affm., Ex. B.) The Commissioners contend that the attendees were dissatisfied with plaintiff's performance. Skea notes that plaintiff "apparently tried to condense a day's — day and a half's training into a three-hour program . . . the participants were very unhappy with the method of presentation." (Skea Dep. at 12.) Chichester states that plaintiff's alteration of the training method was "ill advised" and that the seminar "did not go over too well." (Chichester Dep. at 26.) In addition, the Commissioners claim that they were growing increasingly more uncomfortable with plaintiff's general communication style. Skea testifies that "[plaintiff's] statements came off . . . in an abrasive . . . loud manner." (Skea Dep. at 20; see also Chichester Dep. at 24-25; Colonna Dep. at 14.)

Plaintiff states that although his job description remained unchanged after his first three months, his actual duties consisted of little more than performing investigations. (Berkowitz. Dep. at 26-27.) Plaintiff also claims that one of the ex-Commissioners Lee, Chichester or Colonna "specifically told" him no longer to perform either presentations or community outreach by this point. (Id. at 27.) Colonna remembers discussing outreach programs with plaintiff, but does not recall why they were not implemented. (Colonna Dep. at 13.) Plaintiff also states that in October 1997, he was invited to participate in a panel discussion on discrimination in his capacity as ED, but that Colonna told him the Commissioners would rather have Mary Simmons, an African-American female Commissioner, participate instead of him. (Berkowitz Dep. at 79-81.) He claims that no explanation was provided for the replacement. (Id. at 81.) Colonna does not mention or corroborate this conversation anywhere in her deposition testimony.

Plaintiff notes that soon after his hiring, Rivera told him he would receive "periodic evaluations approximately every three months" regarding his job performance (id. at 33-34), but he did not receive his first formal evaluation until January 6, 1998. (Monroe Affm., Ex. C.) On this evaluation, plaintiff received an overall score of twenty-nine points out of a possible forty-five, for an average "4.5" score out of a possible "9." (Id.) He received a "5" (out of 9) for "Job Knowledge," a "6" for both "Quality" and "Quantity" of work, and a "5" for "Work Habits." (Id.) His lowest mark, a "3," was for "Communication Skills," and contained the written remarks: "Ian would benefit from additional training in oral delivery & should minimize body language (waving arms & hands) during presentations. When speaking to potential clients, words like `buddy' should not be used." (Id.) Plaintiff also received a "4" for "Interpersonal Relationships," with the written remarks: "Suggest use of an evaluation tool for all public presentations as feedback will be the best indicator of communication skills." (Id.)

Finally, in the "Comments" column, the remarks state: "Ian's strengths are his organizational skills, positive attitude and level of motivation. It would be advantageous to the position if a softer approach were made while communicating to the diverse population calling & coming into the human rights office." (Id.) Chichester testifies that she wrote all the remarks based on information provided to her from Colonna. (Chichester Dep. at 21, 24; see also Colonna Dep. at 14.) She states that in her opinion, plaintiff's monthly reports were "very well organized." (Chichester Dep. at 22.) Moreover, she notes that his "attitude" and "motivation level" were positive attributes that a good ED would want to have. (Id. at 22-23.) She suggested the "softer approach" because she felt plaintiff's perceived aggressive or abrasive mannerisms would not endear him to potential complainants coming into his office. (Id. at 23-24.)

Dissatisfied with his scores, plaintiff claims that he confronted Chichester about his evaluation and that she told him the evaluation was good because no one receives scores of 9 or 10. (Berkowitz Dep. at 35.) Chichester's testimony does not mention this conversation. Plaintiff then submitted a memorandum in response to his evaluation dated January 13, 1998. (Sproule Affm., Ex. B.) In it, he expressed dissatisfaction with "[hav]ing not received any type of feedback from the members of the Commission or clients about the manner in which I communicate," explained his hand gestures as involuntary, and defended his professional conduct when dealing with clients. (Id.) Plaintiff's memorandum apparently did not produce the desired effect, for he received a reply memorandum from Chichester dated March 17, 1998, ignoring his comments and noting an incident where plaintiff violated the OCHRC's directives and policy regarding investigations. (Sproule Affm., Ex. C.)

In late September 1997, Orange County attorney Rick Golden entered into a Memorandum of Understanding ("MOU") with the OCHRC whereby all complaints would be forwarded to the New York State Human Rights Commission ("NYSHRC"). (Chichester Dep. at 25; Colonna Dep. at 15.) The Commissioners viewed this MOU as signaling a decreased workload for the ED position, which lessened the need for its existence in their minds. (Skea Dep. at 25; Chichester Dep. at 34.) Plaintiff contends that the MOU did not lessen the number of cases he handled, but rather categorized them differently as NYSHRC complaints. (Berkowitz Dep. at 39-40.) The Commissioners felt that plaintiff was "nearly argumentative" with Golden over the MOU (Chichester Dep. at 25), and Colonna states that she had to publicly reprimand him when he would not relent. (Colonna Dep. at 15.) The Commissioners were concerned that plaintiff would not adhere to the limitation on his investigatory powers (id. at 15-16), which he admittedly did not. (Berkowitz Dep. at 47.)

Plaintiff explains that the incident noted in the March 17 memo concerned a female public school bus driver claiming wrongful termination. (Id. at 43-44.) Plaintiff contacted the Regional Director of the New York State Division of Human Rights, who instructed him to contact the bus company and determine why the woman had been fired. (Id. at 44.) Plaintiff claims that he told the Regional Director such action would overstep his powers based on the MOU, but that the Director assured him he was within his boundaries because Plaintiff's actions would only amount to an "inquiry" instead of an "investigation." (Id. at 46-47.) Although unsure whether he could act or not, plaintiff testifies that "in my professional mind-set I was not investigating" (id. at 47), and that he made a "business decision," contacted the bus company, resolved the problem, and returned the woman to work. (Id. at 44-45.)

Plaintiff states that he immediately informed Chichester of the situation, who instructed him to recount the events to the full Commission at the following meeting, which he claims he did. (Id. at 45-46.) Plaintiff further claims that although the incident occurred sometime in October 1997, it was never mentioned to him, and only surfaced in the Commissioners' March 2, 1998 memorandum. (Id. at 46.) However, Colonna testifies that she confronted plaintiff about the incident at a Fall 1997 monthly meeting. (Colonna Dep. at 15-16.) Chichester adds that plaintiff "almost [apologized] for having done something that he was asked not to do (i.e., investigate). But he thought it was handled well." (Chichester Dep. at 34.) ...

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