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May 31, 2002


The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge.


The plaintiff, an individual of Indian origin, commenced this action against his employer, defendant Brookhaven National Laboratory ("BNL") and Brookhaven Science Associates ("BSA"), alleging that he was denied promotion and subjected to unequal terms and conditions of employment based upon his race and national origin in violation of 42 U.S.C. § 1981. The plaintiff is an architect who was born in Delhi, India and obtained a Bachelor's degree in Architecture in Delhi and a Master's degree in Architecture in the United States.

Two defense motions are presently before the Court. (1) a motion for summary judgment pursuant to Fed.R. Civ. 56 and (2) a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 50, at the conclusion of the evidence at the trial. Unlike at the summary judgment stage, the Court now has the benefit of having received all of the evidence, including the testimony and the exhibits.


Giving the plaintiff the benefit of all reasonable inferences, the plaintiff's five complaints of race and national origin discrimination are: (1) he was not promoted to the job of manager of the Management System Improvement Program "(MSIP)"; (2) his salary was not commensurate with non-Indian supervisors in the P-9 classification; (3) his office was moved into an inconvenient cubicle; (4) he was harassed and humiliated while on the job, because of his Indian heritage; and (5) of the three Indian employees in the Plant Engineering Division, one, Bal Patel, was terminated in 1994, the second, Swapna Mukherji, was demoted and the third, the plaintiff, was discriminated against as set forth above in the first four contentions.


In addressing the present motion, the Court again is mindful that the plaintiff is proceeding pro se and that his submission should be held to less stringent standards than lawyers. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993); Kielhurn v. Giammarinaro, 145 F. Supp.2d 219, 227 (E.D.N.Y. 2001). The Court recognizes that it must make reasonable allowances so that the pro se plaintiff does not forfeit rights by virtue of his lack of legal training. See Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir. 1983). Although, the Court notes that the plaintiff has shown remarkable knowledge of the law. Nevertheless, the Court is also aware that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law. . . ." Traguth, 710 F.2d at 95 (citation omitted).

The defendants are moving, at the conclusion of the entire case, both for summary judgment dismissing the complaint pursuant to Fed.R.Civ.P. 56 and for judgment as a matter of law, pursuant to Rule 50(a)(1).

Rule 50 provides in relevant part as follows:

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

A court decides a motion for judgment as a matter of law under Fed.R.Civ.P. 50(a)(1) using the same standard that applies to motions for summary judgment. See Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111 (2d Cir. 2000), but at a different stage; after the evidence is in. As stated recently by the United States Supreme Court in Reeves v. Sanderson Plumbing Supply, 530 U.S. 133, 120 S.Ct. 2097 (2000),

Rule 50 requires a court to render judgment as a matter of law when a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue . . . The standard granting summary judgment "mirrors" the standard for judgement as a matter of law, such that "the inquiry under each is the same . . ." It therefore follows that, in entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record. In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. `Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.' Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that `evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses'.

530 U.S. at 149-151, 120 S.Ct. at 2109-10 (citations omitted). Stated differently,

[O]n a motion for a judgment as a matter of law after a jury verdict, or on appeal after trial, the question is always whether, after `drawing all reasonable inferences in favor of the nonmoving party and making all credibility assessments in his favor, there is sufficient evidence to permit a rational juror to find in his favor.' `Sir Speedy, Inc. v. L & P Graphics Inc., 957 F.2d 1033, 1039 (2d Cir. 1992); see also Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505 ("[T]he judge must ask . . . whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented [,] . . . whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. . . ."); Hollander v. American Cyanamid Co., 172 F.3d 192, 200 (2d Cir. 1999) (standard to grant summary judgment is whether there is "sufficient evidence for a reasonable jury to conclude that [defendant] discriminated.")

McCarthy v. New York City Technical College, 202 F.3d 161(2d Cir. 2000).

The Statute — Section 1981

This claim is based upon 42 U.S.C. § 1981. That statute provides:

All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, . . . as is enjoyed by white citizens . . . (emphasis added)

Section 1981 guarantees each person, regardless of race or national origin, freedom from discrimination in the making and enforcing of contracts, including employment agreements at will. The opportunity to contract or enter into agreements, is denied in violation of Section 1981 when, on the basis of race or national origin, a defendant refuses to contract at all or when, on the basis of race or national origin, it varies the terms of its offers or acceptances to contract. If, because of race or national origin, a plaintiff is denied the right to contract entirely, or is given less opportunity to contract, or is offered less favorable contractual terms or unequal treatment he has a claim under Section 1981.

In determining whether the defendants intentionally discriminated on the basis of the plaintiff's Indian national origin, the Court must consider all the evidence presented in the case, both direct and circumstantial evidence.

The Court must analyze this case under the Section 1981 standards set forth in Mian v. Donaldson, 7 F.2d 1086, [7 F.3d 1085,] 1087 (2d Cir. 1993), as follows:

To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts). See, e.g., Baker v. McDonald's Corp., 686 F. Supp. 1474, 1481 (S.D.Fla. 1987), aff'd 865 F.2d 1272 (11th Cir. 1988), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989).

In this case, the plaintiff is a member of a racial minority and the alleged discrimination concerns activities in the statute. However, after reviewing all the evidence and drawing all reasonable inferences in favor of the plaintiff and making all credibility assessments in his favor, the plaintiff has failed to prove intentional racial or Indian national origin discrimination. In addition, the Court finds that, as to the failure to promote claim, the defendants have presented a legitimate, non-discriminatory reason, which is impervious to attack, as a matter of law. Also, the Court finds that many of the plaintiff's assertions of racial and Indian national origin discrimination are based on conclusory allegations and speculation, conjecture and surmise. See Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). In the Court's view, there are no viable triable issues for the jury in this case.

The Trial — Overview

The Brookhaven National Laboratory was formerly a World War II facility known as Camp Upton, with wooden barracks and buildings. The Brookhaven National Laboratory has been operated by the defendant Brookhaven Science Associates since 1998. The BNL is owned by the United States Department of Energy. The Brookhaven National Laboratory is a small city covering 6000 acres, 400 buildings, 3300 miles of road and 3000 employees. BNL has its own post office, zip code, police department, fire department and golf course.

The Plant Engineering Division at BNL as reconstituted in 1994, consists of four main groups: (1) Engineering and Constructions Services ("ECS"), in which Michael Schaeffer is the Manager; (2) Infrastructure Management ("IM"), in which Thomas Timko is Manager, John DiNicola is the Master Planner and the plaintiff is Supervisor; (3) Operation and Maintenance, with Alanson Warren as the Manager; and (4) Energy Management with G. Channey as Manager. For the purposes of this discussion, the ECS group did the engineering and construction on the buildings in the BNL, and the IM group did the early planning for the engineering and construction and other early planning.

John DiNicola is a master electrical engineer and a licensed professional engineer. He is the Master Planner in the IM Group, and is the plaintiff's immediate superior. On the organizational chart, DiNicola is under Thomas Timko, who is the Manager of the IM. The hierarchy at the Plant Engineering Division, insofar as the plaintiff is concerned, from the top down, is Bebon, Murphy, Timko, DiNicola and Yadav. DiNicola testified that the plaintiff is a good negotiator but needs improvement in personal skills. He related that three persons made complaints about the plaintiff. Also, according to DiNicola, a number of people in the BNL indicated that they did not want to work for Yadav.

In response to a question by Yadav, DiNicola stated that Yadav was not qualified to be a master planner because he has difficulty working with people and makes promises or commitments he cannot meet. (Tr. at 468-69). In addition, DiNicola testified that Yadav is not qualified to manage the demolition of a building. Also, DiNicola expressed reservations about whether the plaintiff is a "competent and qualified supervisor." DiNicola wrote the plaintiff's Performance Evaluations and, generally, he rated him as an effective employee. Also, the plaintiff was occasionally rated as distinguished and also as an adequate performer.

Thomas Timko, the Manager of the IM Group, testified that Yadav was a mostly effective and sometimes a highly effective employee. He described work that Yadav had done in his Group which was very commendable. On one occasion, Timko sent Michael Bebon an email giving "Raj" full credit for a particular idea and Bebon responded, "Great idea, great idea by Raj." On another occasion, Timko wanted to give Yadav a Brookhaven award, but found that P-9s were not eligible for that award.

The plaintiff conceded that, except in his conversations with other Indians, he never heard anyone at Brookhaven make derogatory remarks about Indians.

Q Are you suggesting other people of your national origin have said derogatory things about Indians?
A No. I am saying other people have related their experiences to me.
Q I am not talking about other people's experiences. I am talking about your experiences and what you heard. Is the answer you gave two weeks ago still correct today that you never heard anyone else at Brookhaven make derogatory comments about Indians, you personally, sir?
A I personally did not hear any negative comments from other people except my conversation with Indians.

Tr. at 784.*fn1

Edward Murphy is the Manager of Plant Engineering at BNL, the second in command of the Division. During the course of the years of working with the plaintiff, Murphy has had occasion to discuss his performance with him. One such occasion occurred on November 19, 1998, when Yadav threw a tantrum in Murphy's office and yelled at him for 20 minutes. Murphy felt compelled to note his disapproval in a written memorandum dated November 20, 1998 (Dft. Ex. H).

DATE: November 20, 1998
TO: R. Yadav
FROM: E.T. Murphy
SUBJECT: Your Work Performance and Teamwork
I was extremely disappointed in the behavior you exhibited in my office yesterday.
I called a meeting yesterday afternoon to pull together our project team and discuss the major space upgrades and departmental moves that Plant Engineering is responsible for carrying out this year. (You did much of the preliminary planning work for this effort.)
After the meeting, you came into my office and threw a tantrum. Although I tried to calm you down and talk with you in an appropriate manner, you persisted in yelling at me for over 20 minutes. I've tolerated this behavior from you in the past, but it is inappropriate and it must stop.
You indicated that you were personally insulted by my assignment of Mr. Dyling to manage this project. I told you that important, major projects are best carried out by teams of talented people. I told you that you were an important part of the team we've assembled — due to your planning and space management skills. I told you that you had no reason to feel insulted or slighted by my need to assign additional people to the project — now that it is funded and proceeding under tight schedule constraints. Detailed project management is not your normal job responsibility.
You responded by telling me that you "are just a peon" and were going to, in effect, conduct a work slowdown — that you would only do what you are directed to do by management. I told you that is unacceptable behavior.
You are to continue your skills to the project team; perform at your appropriate professional level (project engineer and supervisor); and help make this project a success. I also told you that if you plan to do less, you should resign now.
I expect nothing less than professional contributions and teamwork from you. We have talked in the past at length about your performance re these issues. While you've alleged in the past that these performance issues are due to some kind of personal discrimination, I strongly believe that is not the root cause. You have not learned to work well with others in a group or team. Your outburst yesterday demonstrated that again.

Teamwork is key to the kind of work we do.

If your performance and attitude do not improve immediately, I will pursue stronger disciplinary action.


Pressed by the plaintiff on cross-examination to explain his work at BNL, Murphy responded:

Q Could you explain to me, sir, what I could have done better to make people move?
A One thing I thought you could have done better is work better with people. One of the things that we have consistently dealt with is a tendency when you work with people that you are demanding of them, you leave them angry. I frequently and periodically received phone calls that they are unhappy with having to deal with you. They request to deal with other people. On occasion I have had requests why are you in the job you are in? Because people don't want to move anyway, and having to deal with people who are difficult makes it more stressful.

Tr. at 1097.

C. As to the Other Two Indian Employees in the Plant Engineering Division

A major part of the plaintiff's complaint is that all three of the Indian employees at the Plant Engineering Division suffered from national origin discrimination. The three Indian employees in the Plant Engineering Division were the plaintiff, Bal Patel and Swapna Mukherji.

(1) Swapna Mukherji

Swapna Mukherji testified that she attained Bachelor's and Master's degrees in engineering in Calcutta, India. She joined BNL in 1984. She is a project coordinator in the ECS Group headed by Schaeffer. According to Schaeffer, she was made a project coordinator in his group "which was equal or perhaps higher than a supervisor." (Tr. at 226).

In many aspects, Mukherji did not support the plaintiff's position in this Indian national origin discrimination case:

Q Have you been humiliated by Peter Boyke, Tom Nehring, N E H R I N G, it is not on that list, because he is no longer there, and I will give you correct spelling, ...

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