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August 8, 2001


The opinion of the court was delivered by: Leisure, District Judge:


Plaintiff, Leonard A. Vernon, brings this action alleging unlawful employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq (2001) ("Title VII") and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a),(d) (2001) ("ADEA"). Defendant, The Port Authority of New York and New Jersey, moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant's motion is granted in part and denied in part.


Leonard A. Vernon ("Vernon"), a citizen of the United States, is a black male over 40 years old who was born in Belize. See Plaintiffs Rule 56.1 Statement [hereinafter "Pl.'s 56.1 S."] at 1. He received a B.A. in Civil Engineering in 1977 and a M.S. in Environmental Engineering in 1980. See id. In January 1984, The Port Authority of New York and New Jersey ("Port Authority") hired Vernon to be a Principal Administrative Assistant, a Level B-92 position, with the Civil and Environmental Unit of the Engineering Department. Z Plaintiffs Complaint [hereinafter "Pl.'s Compl."] at 2. In January 1985, Vernon was promoted to Staff Services Engineer, a Level B-93 position. See Pl.'s 56.1 S. at 1. Throughout his career at Port Authority, Vernon has been recognized favorably for his work. For example, he received an individual bonus in 1985 for high quality performance, was nominated for the 1986 Black Achievers in Industry Program, honored by the Director of the World Trade Department in 1990 for contributing to the Department's capital projects objective, and has consistently received high ratings in his performance evaluations for the last ten years. See Pl.'s Compl. at 3, Deposition of Frederick A. Meyers, sworn to on July 5, 2000 [hereinafter "Meyers July Dep."] at 30.

In September 1989, Heidi Rosenberg, a white engineer in the Environmental Engineering Unit, was promoted to Senior Engineer, a Level B-94 position.*fn1 See Defendant's Rule 56.1 Statement [hereinafter "Def.'s 56.1 S."] at ¶ 4. Vernon was not promoted despite the fact that Marvin Krishner, Chief Environmental Engineer of the unit and Vernon's immediate supervisor, wrote in a 1987 memorandum that Rosenberg and Vernon were both "performing at `Senior Levels'." See Defendant's Answer [hereinafter "Def.'s Answer" at ¶ 10. In December 1992, Rosenberg informed her supervisor that she had received an employment offer in another department, and to induce her to stay in the Environmental Engineering Unit, she was promoted to Supervising Environmental Engineer, a Level B-95 position. See Def.'s 56.1 S. at ¶ 5, Deposition of Frederick A. Meyers, sworn to on Oct. 13, 2000 (hereinafter "Meyers Oct. Dep.") at 14-15.

In March 1993, Rosenberg resigned from Port Authority, and Port Authority advertised her position internally as well as externally. See Pl.'s 56.1 S. at 2. Vernon applied for the B-95 position but was notified in May that he had not been selected for the position. A white, 65-year old temporary employee, who had been working for Port Authority for one year, filled the vacancy. See Def.'s 56.1 S. at ¶ 7. In March and August of 1994, Vernon complained to the Assistant Chief Engineer for Design and the Executive Director of Port Authority about alleged ongoing discriminatory practices at Port Authority. See id. at 3. In September 1994, Frederick Meyers, Manager of Port Authority's Equal Employment Office ("EEO"), started an investigation into Vernon's allegations of discrimination. See id.

In January 1995, four months after the start of Meyers's investigation, Vernon received his annual Performance Planning and Review ("PPR"), and discovered that although he had received the same overall rating as previous years and the maximum merit increase to which he was entitled, the individual scores in one category were downgraded. See Oscar Suros Affidavit, sworn to on Sept. 12, 2000 [hereinafter "Suros Aff."] at ¶ 12. According to Oscar Suros, the Manager of the Engineering/Architecture Design Division, Vernon's rating was downgraded because supervisors were asked to be more realistic about PPR ratings, and this policy was applied to all employees. See id. at ¶¶ 11, 13.

In February 1995, Port Authority issued a job bulletin seeking candidates for a Principal Environmental Engineer position, a Level B-95 position. See Def. 56.1 S. at ¶ 10. Vernon applied for the position but was told that he could not be considered for the position because he did not meet the job requirement of holding an engineer's license. See id. at ¶ 6. Because of a hiring and promotion freeze in 1995, the position was not filled. See id. at ¶ 7.

On March 23, 1995, Vernon filed a charge with the Equal Employment Opportunity Commission ("EEOC"), claiming race, age, and ethnic origin discrimination and retaliation. See Pl.'s Compl. at 5. A Notice of Right to Sue was issued in April 1995. See id. On June 20, 1995, Vernon commenced the instant action by filing a Complaint in this Court, alleging that Port Authority violated Title VII and the ADEA when it: (1) failed to promote him to a B-94 position in September 1989; (2) failed to promote him to a B-95 position in October 1992; (3) failed to promote him to Rosenberg's former position in May 1993; (4) downgraded his PPR in January 1995; and (5) denied him the Principal Environmental Engineer position, another B-95 position, in March 1995. See Plaintiffs Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment [hereinafter "Pl.'s Mem."] at 3-4.


I. Standard for Summary Judgment

A moving party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Holt v. KMI-Continental Inc., 95 F.3d 123, 128 (2d Cir. 1996). When considering a motion for summary judgment, the Court's responsibility is not "to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). In determining whether genuine issues of material fact exist, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986), Holt, 95 F.3d at 129.

The moving party bears the burden of demonstrating that no genuine issue of material fact exists. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Gallo v. Prudential Residential Serv. L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994). "[T]he movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Once the moving party discharges his burden of demonstrating that no genuine issue of material fact exists, the burden then shifts to the nonmoving party to offer specific evidence showing that a genuine issue for trial exists. See Celotex, 477 U.S. at 324. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574. 586 (1986). "A `genuine' dispute over a material fact only arises if the evidence would allow a reasonable jury to return a verdict for the nonmoving party." Dister v. Continental Group, 859 F.2d 1108, 1114 (2d Cir. 1988) (quoting Liberty Lobby, 477 U.S. at 248).

Employment discrimination is often perpetrated "by discreet manipulations and hidden under a veil of self-declared innocence." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). Because "[a]n employer who discriminates is unlikely to leave a `smoking gun' attesting to a discriminatory intent," a "victim of discrimination . . . is usually constrained to rely on the cumulative weight of circumstantial evidence." Id. (internal citations omitted). Consequently, courts must be cautious in granting summary judgment when the employer's intent and state of mind are placed in issue. See Gallo, 22 F.3d at 1224; See also Rosen, 928 F.2d at 533. However, if there is a lack of genuine issue of material fact, courts are not precluded from granting summary judgment in employment discrimination cases. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994); see also Abdu-Brisson v. Delta Airlines Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.").

II. Acts Prior to September 25, 1994

A. 180-day Time Limit Applies

For complaints based on Title VII or the ADEA, a plaintiff must file a charge of discrimination with the EEOC before commencing an action in federal court. See 42 U.S.C. § 2000e-5(e), 29 U.S.C. § 626(d). The charge must be filed within 180 days after the alleged unlawful employment practice occurred or within 300 days if the plaintiff has initiated proceedings with a state or local employment agency. See 42 U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d); Dezaio v. Port Auth. of N.Y. & N.J., 205 F.3d 62, 64-65 (2d Cir. 2000), cert. denied 121 S.Ct. 56 (2000) (ADEA); Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir. 1992) (Title VII).

Port Authority, a bi-state entity created by a Compact between New York and New Jersey, "lies outside New York's [and New Jersey's] anti-discrimination regime[s]." Dezaio, 205 F.3d at 64, 65. Bi-state entities "are not subject to the unilateral control of any one of the States." Id. at 66 (quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 42 (1994)). Thus, "New York's anti-discrimination laws are not controlling with respect to the time limitations that govern when an individual must file a charge of discrimination with the EEOC." Id. at 65. Because there is no state or local agency that has jurisdiction over claims against Port Authority; the 300-day rule does not apply to cases m which Port Authority is a party. See id. at 66. Therefore, in Title VII or ADEA cases involving Port Authority, a plaintiff must file a claim with the EEOC within 180 days of the occurrence of the discriminatory act. See id. at 64; see also Suggs v. Port Auth. of N.Y. & N.J., 1999 WL 269905, *3 (S.D.N.Y. 1999); Rose v. Port Auth. of N Y & N.J., 13 F. Supp.2d 516, 520 (S.D.N.Y. 1998) (Leisure, J.); Settecase v. Port Auth. of N Y & N.J., 13 F. Supp.2d 530, 535 (S.D.N.Y. 1998); Baron v. Port Auth. of N.Y. & N.J., 968 F. Supp. 924, 930 (S.D.N.Y. 1997).

Vernon filed with the EEOC on March 25, 1995. Applying the 180-day rule, only incidents occurring within 180 days prior to his filing are actionable. Therefore, any events occurring before September 25, 1994 are time-barred.

B. Continuing-Violation Exception Does Not Apply

There is an exception to the time limitation to file a claim with the EEOC in cases where there is a continuing violation of Title VII or the ADEA. "The continuing-violation exception extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination even if those acts, standing alone, would have been barred by the statute of limitations." Ouinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (internal quotes omitted). A continuing violation may be found where there is evidence of an ongoing discriminatory policy or a discriminatory mechanism such as a discriminatory seniority list or an employment test. See Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied 511 U.S. 1052 (1994); see also Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Even where there is no formal policy, a continuing violation may also be found where there is proof that "the employer has permitted [specific and related instances of discrimination] to continue unremedied for so long that its inaction may reasonably be viewed as tantamount to a policy or practice of tolerating such discrimination." Fitzgerald v. Henderson, 251 F.3d 345, 362 (2d Cir. 2001). Furthermore, the policy does not need to be widespread; the continuing ...

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