The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge.
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).
(a) Judgment as a Matter of Law.
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.,
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
To establish a claim under Section 1981, the plaintiff Yadav must
prove, by a preponderance of the evidence, that the conduct of the
defendants' employees in the various adverse employment decisions the
plaintiff is complaining of were motivated by a discriminatory purpose
— that is, the plaintiff must prove that the defendants' employees
intentionally and purposefully discriminated against him because of his
race and Indian national origin; that is, that the race and Indian
national origin of the plaintiff Rajeshwar Yadav was a motivating factor
in the defendants' conduct with regard to the adverse employment
decisions he complains of.
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 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
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.
Michael Schaeffer, the Manager of ECS Group, testified that all four
groups report to Edward Murphy who is the Plant Engineer
Manager. The overall Director of the Plant Engineering Division, in total
command of the Division, is Michael Bebon. Schaeffer commenced work in
the BNL in April, 1978. The plaintiff does not work in Schaeffer's
group. Schaeffer testified that he is in charge of the Architectural
Review Committee dealing with certain issues at BNL, including signage
problems. The proof is clear that the plaintiff never asked to be a member
of this committee, nor is there any pecuniary or other advantage to being
assigned to the Architectural Review Committee.
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.
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
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.
Tr. at 1097.
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.
(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, and it was during your employment
A I don't think so.
Q Is it true that Bebon — I am sorry, Mr. Bebon
does not even recognize you in meetings and he
knows you not recently but a few years back?
Q Based on your observation over the years, would you
agree that Mr. Bebon prefers to be with white
A Most of the people who work there are white, so I
do not know what his preference is.
Q Is it true that sometimes you cried at home because of
your humiliation at work?
Q Is it true that you had told me that once between
me and yourself?
Q Is it true that you have resigned to the fact that
you have to accept this treatment because you had
to do the job?
A I do not understand your question no.
Q Would you agree that neither I nor you are treated with
respect by others in general?
A I don't know about you. I'm fine.
Tr. at 330-31.
Mukherji testified that in 1995 she was eliminated as a supervisor and
her title was changed to project coordinator. She stated that she did not
know if the title of supervisor is higher than that of project
coordinator. However, she further stated that project coordinator was
"one step below" in the management structure; and that was true in the
plaintiff's case as well.
However, with her memory refreshed by being shown notes made by Human
Resources Manager Susan Foster on October 10, 1995, Mukherji testified
about that interview. She stated that she did believe that there is
discrimination in the Plant Engineering Division. Her belief was based on
the treatment by management of the plaintiff, but primarily because of
his "office move." However, significantly, Mukherji, a fellow Indian in
the Plant Engineering Division, on the witness stand stated, in
substance, that she was never subjected to discrimination.
Q Ms. Mukherji, did you tell Ms. Foster that you believe
that there is discrimination in the plant engineering
A I did.
Q Did you base your belief on the treatment by management
of Mr. Yadav, primarily his office move?
Q Did you believe that Mr. Yadav is an intelligent person
and does not receive appropriate respect?
A Yes, I did.
Q Did you also cite the termination of Mr. Patel and his
subsequent replacement of Mr. Javid Far, F A R?
A I probably did. I don't recall that very well, but I
Q Did you also say that the recent changes in your
responsibility and elimination of your supervisory
duties was a cause of discrimination in the
A I don't believe I said that. When I was low, I was
depressed, but I never brought up discrimination
THE COURT: I'm sorry, I didn't hear what you said.
THE WITNESS: I never brought any reason for
discrimination for my change of responsibility.
MR. YADAV: Can I clarify something, your Honor?
THE COURT: Sure.
MR. YADAV: Maybe I did not phrase it right.
BY MR. YADAV:
Q What it says, basically, when you reached a
conclusion that — when you reached the
conclusion in your own mind that there is
discrimination in the plant engineering, was that
also one of the considerations when you were
thinking about that, that your responsibilities and
your elimination of your supervisory duties is also
one of the causes?
A No, I never put myself in discrimination. I never cited
myself as a person who has been discriminated.
Tr. at 377-78.
In addition, Mukherji testified that her transfer in position from a
supervisor to a project coordinator was not a demotion.
Q Right. I believe you testified earlier about the
fact that you were moved into the project
coordination role from the supervisor's role; is
Q And there was not an attendant decrease in
Q And in fact, there was not a demotion?
Q In fact, project coordinators have gone on to
become managers of the engineering and construction
A Yes, except I had my level of the people I was
reporting to — I was directly reporting to
the manager, and now I have another manager in
between. That was the only difference.
Q The only difference is there was an additional level of
A Management, yes.
Tr. at 387-88.
Mukherji also testified that she formerly worked for Tom Timko and John
DiNicola, the plaintiff's managers, and they never discriminated against
her on the basis of her national origin; nor had the two top managers,
Edward Murphy and Michael Bebon.
Q And you do not work for Mr. Timko or Mr. DiNicola
at the present time?
Q Those are Mr. Yadav's managers now?
Q But in fact you did work for both of them at different
periods of time; is that correct?
A That's correct.
Q Would you agree with me that Mr. Timko has never
discriminated against you on the basis of your national
A That's correct.
Q And he's never harassed you on the basis of your Indian
A That's correct.
Q And Mr. DiNicola has never discriminated against
A That's correct.
Q And Mr. Timko never discriminated against you?
A That's correct.
Q And Mr. Murphy has never discriminated against
Q And Mr. Bebon has never discriminated against you
on the basis of your national origin?
A That's correct.
Tr. at 389-90.
Susan Foster of BNL Human Resources Division took notes of an interview
with Mukherji on October 10, 1995. Foster's desk notes revealed the
Finally, Ms. Mukherji believes that there is
discrimination in the Plant Engineering Division. She
bases her belief on the treatment by management of
Mr. Yadav: primarily his office move. She believes
that Mr. Yadav is an intelligent person and does not
receive the appropriate respect. She also cites the
termination of Mr. Patel and his subsequent
replacement by Mr. Javidfar, in addition, the recent
changes in her responsibilities and the elimination of
her supervisory duties. (Plf. Ex. 8).
With regard to this interview, the Court notes that it occurred in
1995, two years before the promotional decision cited by the plaintiff.
In addition, the Court also notes that Mukherji "bases her belief on the
treatment by management of Mr. Yadav, primarily his office move." As will
be seen later in this decision, the 1995 cubicle move, even if not barred
by the statute of limitations, cannot be the basis for a Section 1981
national origin discrimination claim. Being moved from one area to
another, is not an actionable adverse employment decision, as a matter of
law. (See infra Part II E)
In his direct examination of Thomas Timko, the plaintiff questioned him
as to whether Mukherji's voice was annoying and whether she was not
promoted because of her voice. Timko stated that he seriously doubted that
and in fact, was of the opinion that she was "a very capable engineer"
and that at one time he promoted her:
Q And you were also just asked some questions about
A That's correct.
Q You worked with Ms. Mukherji at one time, didn't
A She worked for me, yes.
Q And in fact, you yourself promoted Ms. Mukherji at one
time, didn't you?
A I promoted her to supervisor position.
Tr. at 604.
The unrefuted proof established that Swapna Mukherji was laterally
transferred and made a project coordinator but suffered no decrease in
salary. In fact, as set forth in the salary graph (Def. Ex. I), of
twenty-two P-9s, she is the fifth from the highest salary achieved,
namely, $90,300 per year.
Mukherji also testified that both of her children and the plaintiff's
awarded college scholarships, funded by BSA.
(2) Bal Patel
Michael Schaeffer, Manager of ECS, testified that in 1994 there were
three supervisors of Indian descent in the Plant Engineering Division:
Bal Patel, Swapna Mukherji and the plaintiff. Schaeffer testified that in
June or July 1994 he laid off about 15 people, including Bal Patel. The
plaintiff testified that only 8 people were laid off. The Court accepts
the plaintiff's version. However, Bal Patel and the other employees, all
Caucasians, were laid off in 1994 based on a reduction in force. The
Court notes that neither the plaintiff nor Mukherji were involved in that
reduction in force. That these employees were discharged because of a
reduction in force at the BNL is unrefuted.
A reduction in force, based on neutral factors having nothing to do
with national origin, can be a valid non-discriminatory reason to
terminate an employee. See Woroski v. Nashier Corp., 31 F.3d 105, 109,
110 (2d Cir. 1994).
D. As to the Plaintiff's Claim Involving the Failure
to Promote Him to the Position of Manager of the
Management System Improvement Program
In January 1997, the Management System Improvement Plan ("MSIP") was
initiated. It has since been renamed the Office of Management Services.
There had been a tritium leak, which is a radiological release into the
ground. Schaeffer testified as to the MSIP and the tritium leak:
THE COURT: How do you spell that?
THE WITNESS: T R I T I U M, I am a terrible speller.
THE COURT: What is that?
THE WITNESS: A radiological release into the —
into the ground.
So, Mike Bebon had asked myself and probably others
to talk to our architectural engineering firms and our
contacts to see if we can find someone that has
experience in reactors, experience in cost and
schedule controls and things of that nature, because
he wanted to establish a small group, this Management
Systems Improvement Program. And he started looking.
And I forget who found, but a gentleman by the name of
Steve Maloney from the New York Power Authority, It
might have been Mike Bebon himself. He was brought
in, because one of the first projects that this MIC
group would be involved in would be in the tritium
We posted an ad in our laboratory newspaper. I don't
know if we also posted an ad in local newspapers.
I believe there was a committee formed, applications and
resumes were requested under the normal progress of how we
hire. And Steve Maloney rose as the best candidate. I was
not involved in direct hires, so I don't recall exactly.
We were also hoping that after all the dust had
settled and the tritium was cleaned up, we didn't
really know how extensive the tritium leak had been.
There was also the project called the react restart.
Because after the leak of the tritium our reactor, I
believe it was down anyway, but it certainly wasn't
operation. But we had aspirations of restarting the
reactor down the road.
So, Steve Maloney was involved in that project.
The leak and all the ramifications and the public
concerns were far greater than he had anticipated. And the
reactor ultimately and is permanently closed.
Steve Maloney is a good cost and scheduling expert and
has good project management skills.
The MSIP group was maturing. Brookhaven Science
Associates now took over the laboratory management
away from this Associated Universities, Inc. They came
on board in 1998.
Tr. at 296-98.
On the question of the MSIP managerial opening in 1997, there is an
issue with regard to why the plaintiff never submitted an updated
résumé which he was required to do. After he filled out the
required transfer request form, the plaintiff testified that he asked
Marsha Kipperman at Human Resources to attach a résumé from
a prior application. Kipperman remembers this situation somewhat
differently, in that she testified that she advised the plaintiff that,
in addition to the transfer request form, he was required to furnish an
up-to-date résumé. It is unrefuted that the plaintiff failed
to fully complete the transfer request form and he also failed to furnish
a current résumé.
In any event, the Court need not consider this factual issue, because
it finds, from the clear and undisputed evidence, that there was a
non-discriminatory reason to hire Stephen Maloney as the MSIP Manager.
The position arose as a result of a tritium leak at the facility. Maloney
had extensive experience with the New York Power Authority and the Long
Island Power Authority in safety and environmental issues. In this new
position, safety and environmental concerns were paramount. The Court
finds that even if he had properly applied for the position, the
compelling environmental reasons for the selection of Maloney constituted
a non-discriminatory decision, as a matter of law.
Yadav's contention that he was entitled to an interview is without
merit. He did not even complete the required transfer request form. More
importantly, Maloney was so clearly more qualified in the field of safety
and environmental concerns, that an interview with Yadav would have been
a futile gesture.
Early in 1997, the Department of Energy conducted a safety evaluation
of the Brookhaven facility and issued a report. The report revealed that
there was a radiation leak that raised concerns. This was a tritium
leak. As a result, the MSIP was designed to establish an integrated
safety management program to insure that radiation leaks, like the
tritium leak in early 1997, did not occur again. The BNL hired Maloney
because of his experience with Three Mile Island and the decommissioning
of the Shoreham nuclear power plant. In fact, the memorandum explaining
the new program emphasized that it directly involved ES&H, which is BNL
parlance for environmental safety and health.
Maloney's experience in the field of nuclear power plants and radiation
leak prevention is extensive. In his first job at the Bechtel Power
Corp., he was assigned to the standard nuclear unit power plant system.
His next assignment was at Three Mile Island, working in the damaged
reactor. He was at the Three Mile Island facility for three and a half
years. His next employer was the New York Power Authority, working at the
Indian Point Power Plant. Following that assignment, Maloney was one of
eight persons assigned to develop a plan and perform the Shoreham nuclear
plant decommissioning. This job at Shoreham took 28 months. Maloney was
the last power person at the site. "I was there actually from cradle to
grave for the entire operation." (Tr. at 935).
It is also interesting to note that the plaintiff has not applied for
any other open position at BNL since July 1997. On the subject of
promotions, Schaeffer testified without refutation, that the plaintiff
applied for Martin Fallier's managerial position, and, in fact,
never applied for any position in the Engineering Construction Services
Group. In addition, although at the trial the plaintiff complained that
he was not made a member of the Architectural Review Committee, Timko
testified that the plaintiff never requested to be on that committee and
there was never any intent to exclude him.
It is Yadav's perception that the only reason "all these actions" that
are taken by different people and management, "is because I'm Indian." He
stated that he "sensed" a general perception that they don't want to work
with or under an Indian. Yadav's perception, unsupported by any direct or
circumstantial evidence, is insufficient. As the Second Circuit
repeatedly advised us, belief, speculation or surmise is not a basis for
an employment discrimination charge. See, e.g. Goenaga v. March of
Dimes, 51 F.3d 14 (2d Cir. 1995) (holding that the plaintiff cannot meet
his burden on unsupported assertions, conjecture, surmise or speculative
E. As to the Cubicle Move
One of the plaintiff's contentions as to national origin discrimination
is that he was forced to move out of his supervisor's cubicle in June
1994. Initially, the Court finds that this claim is barred by the statute
of limitations. However, on the merits, to complete the record, the
plaintiff contends that, at some time, he had to sit on boxes in his new
cubicle. This contention cannot support a Section 1981 discrimination
claim. It is clear from the unrefuted evidence that the plaintiff's move
was to relocate him to his proper group, rather than in the ECS group
area. Mukherji also testified on this subject:
Q Now your knowledge — you talked briefly
about Mr. Yadav's cubicle move, the office issue,
when we were talking about that Susan Foster memo?
A I thought that was unfair.
Q And you were not making any decisions about that
cubicle move, correct?
BY MS. KAPPELMAN:
Q And no one ever told you, Ms. Mukherji, the reason that
Mr. Yadav was asked to move, did they?
Q And you didn't talk to any of Mr. Yadav's managers
about his treatment, did you?
Q So the only thing that you know about that cubicle
move in 1995 was what you saw and what you talked
to Mr. Yadav himself about, right?
A That's correct.
Q Okay. So you sort of had the impression through his
eyes and through watching him and seeing him in the
cubicle for a longer period than you thought he
A I was there. My office was there.
Q You would agree, despite the delay, Mr. Yadav was
ultimately moved into a larger office that was
fixed up for him?
Tr. at 388-89.
The Court finds that, as a matter of law, the cubicle argument cannot
support a Section 1981 national origin claim. In defining what
constitutes an "adverse employment action," the Second Circuit observes
that "not every unpleasant matter short of discharge or demotion creates
a cause of action" for discrimination or retaliation. Richardson v. New
York State Dept. of Correctional Service, 180 F.3d 426, 446 (2d Cir.
1999). An "adverse employment action" exists only where the plaintiff
endures a "materially adverse
change in the terms and conditions of
employment." Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997). To be
"materially adverse", a change in working conditions must be "more
disruptive than a mere inconvenience or an alteration of job
responsibility." Grady v. Liberty National Bank & Trust Co., 993 F.2d 132,
136 (7th Cir. 1993). See also Galabya v. New York City Board of
Education, 202 F.3d 636 (2d Cir. 2000).
The following cases illustrate job inconveniences that have been held
not to constitute an "adverse employment decision," as a matter of law.
Wanamaker v. Columbian Rope Company, 108 F.3d 462 (2d Cir. 1997) (to
refuse use of an office and telephone); Leger v. Henderson, No. 99-3636,
4610 2001 WL 43615 S.D.N.Y. Jan. 18, 2001 (a temporary transfer to
another tour-shift); Fredea v. Henderson, No. 99-10749, 2000 WL 1772779
S.D.N.Y. Nov. 30, 2000 (treating her poorly, assigning her excessive work
and denying requests for leave with pay).
In this case, the cubicle move was not an adverse employment decision,
as a matter of law.
F. As to the Plaintiff's Salary Contention
Michael Schaeffer testified that he has no responsibility with regard
to the plaintiff's salary. The plaintiff is in a classification called
Project Engineer 1 and is a P-9. A P-10 is a Senior Project Engineer. The
pay scale goes from P-1 to P-10. Schaeffer stated that "P-9 is generally
the highest that an engineer is expected to rise in his career at
Brookhaven National Laboratory. These are senior engineers or architects
that are responsible for part or an entire project . . . only the most
senior, most talented, educated . . . ever reach the P-10 level." (Tr. at
Planning Manager DiNicola also testified about the plaintiff's salary.
He stated that, in the year 2001, the minimum salary for a P-9 is $67,400
and the maximum is $100,500. DiNicola stated that he had no authority to
set Yadav's salary outside the guidelines. In order to affect the
plaintiff's salary, DiNicola would have to write a memorandum, and he has
never done that.
It is interesting to note that the plaintiff's salary increased from
$32,000 to $77,750 per year, including a $2500 raise on January 1, 2002.
Also, with regard to the plaintiff's salary, as of October 1, 1999, seven
Project Engineer I employees earned less than the plaintiff. As of
January 1, 2002, four Project Engineer I employees were paid less than
Edward Murphy is the Manager of Plant Engineering of BNL, the second in
command of the Division. He explained the salary structure for a Project
Engineer I. The plaintiff's salary was within the mandated range. Murphy
stated that Project Coordinators, like Swapna Mukherji, although also in
the P-9 category, were paid more because of their additional job
responsibilities and their broader knowledge of engineering principles.
The Court finds that, although on the low side, plaintiff's salary is
in the comparable range for P-9 employees. There is absolutely no
evidence in this case that the plaintiff's salary was in any way
diminished, because of his Indian national origin.
G. As to the Plaintiff's Claim of Harassment and
Master Planner DiNicola denied knowing of an incident in which the
plaintiff contends he was "insulted" by Project Coordinator Richard
Scheidet (Tr. at 486). Manager Thomas Timko also denied knowing about the
"Scheidet" incident. In what manner the plaintiff was allegedly
, 142 (2d Cir. 1998):
Drawing all reasonable inferences in favor of the plaintiff and making
all credibility assessments in his favor, no rational juror could find in
the plaintiff's favor on any material issue in this case. The plaintiff
has failed to prove any intent on the part of the defendants to
discriminate against him on the basis of his race or Indian national
origin. The plaintiff has failed to prove that any adverse employment
decision suffered by him, including the failure to be promoted to manager
of MSIP and his salary concerns, were in any way motivated by his race or
Indian national origin.
Accordingly, the motion by the defendants at the conclusion of the
case, pursuant to Rule 50, for a judgment as a matter of law dismissing
the complaint, is granted. In so doing, the Court also denies the
defendants' motion for summary judgment pursuant to Rule 56. The
complaint is dismissed and the Clerk of the Court is directed to enter
judgment in favor of the defendants.