The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge.
MEMORANDUM OF DECISION AND ORDER
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.
I. THE PLAINTIFF'S CONTENTIONS
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
530 U.S. at 149-151, 120 S.Ct. at 2109-10 (citations omitted). Stated
[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.
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
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
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 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
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
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.
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
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
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
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.
C. As to the Other Two Indian Employees in the Plant
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.
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, ...