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March 31, 2003


The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge


Plaintiff Gregory Morris ("Plaintiff" or "Morris") is a white male over the age of forty who is a former employee of the New York City Department of Sanitation ("DOS"). Morris brings this cause of action against DOS and the City of New York ("City" or "Defendant") alleging that his employer violated his rights under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e et seq., and New York State and New York City Human Rights Law s. Specifically, Morris claims that he was constructively discharged from his employment in July 1996 because of his race and his age.

Before us now is Defendant's motion for summary judgment on both claims and Plaintiff's cross-motion for partial summary judgment on his race claims. Defendant's motion to dismiss Plaintiff's claims as against the DO S is also before us.


Morris is a white male whose date of birth is April 14, 1947. On or about June 30, 1969, Morris began his employment with the DOS in the capacity of Sanitation Worker. Morris retired in July or August 1996; he alleges that his retirement was actually a constructive discharge. Over the course of his career, Morris took and passed several promotional civil service examinations which enabled him to be promoted through the DOS ranks. In September 1981, Morris was promoted to the title of General Superintendent I. The title of General Superintendent ("GS") consists of five levels, the first of which is the only one that is secured by passing a civil service examination. The other levels, which are deemed "managerial," may be reached only through a discretionary promotion within the agency. Morris was promoted to GS II in 1986 and to GS III in 1993. Prior to his retirement, Morris was the Assistant Chief of Collection Operations working out of the agency's Central Office. His salary in this position was approximately $89,000. During his employment with DOS, Morris' performance evaluations ranged from good to excellent. Plaintiff received a rating of "Very Good (-)" on his final performance evaluation in 1996. Additionally, over the course of his career with DOS, Morris received various commendations for his performance.

Morris' claims center around the events leading up to his retirement in 1996. Morris claims that in early May 1996, he met with Frank Landers ("Landers"), the Director of Bureau of Cleaning and Collection for DOS. According to Morris, Landers informed him that he was not in DOS' future plans and that the First Deputy for DOS, Michael T. Carpinello ("Carpinello"), wanted him to retire so that the agency could promote younger people. It is alleged that at around the same time, two other GS IIIs, Lou Scalzo ("Scalzo") and Jack Lorenzo ("Lorenzo") had similar meetings with Landers. In late May 1996, Morris met with Carpinello. Morris claims that Carpinello told him that his "management style" differed from what DOS wanted and that Carpinello wanted Morris to retire. Morris also claims that Carpinello told him that if he did not retire, he would demote plaintiff down two levels. Such a demotion would have reduced plaintiff's salary by approximately $25,000 and would have diluted his future pension benefits. Carpinello allegedly made the same threat of demotion to Scalzo and Lorenzo during May 1996. During July or August 1996, Morris, Scalzo, and Lorenzo all retired rather than be demoted.

Michael Hawkins ("Hawkins") is also an employee of DOS, and also holds the position of G S III. Hawkins is an African-American who is younger than Morris. According to Morris, Hawkins received a 1996 performance rating from DOS of "marginal" after one year in the position of Borough Superintendent. As a result, Hawkins w as temporarily removed from his command, retrained, and then reinstated.

On approximately February 18, 1997, Morris timely filed a charge of discrimination on the basis of age and race with the New York State Division of Human Rights. Such a charge is deemed to be simultaneously filed with the Equal Employment Opportunity Commission (EEOC). The EEOC determined that there was reasonable cause to believe that plaintiff was treated differently than a similarly situated employee, based on age and race. On approximately April 8, 1999, the Civil Rights Division of the United States Department of Justice issued Morris a Notice of Right to Sue. Morris then filed the instant complaint.


I. Defendant's Motion to Dismiss the Action Against DOS

Defendant moves to dismiss Plaintiff's claims against DOS because DOS is not a suable entity. That motion is GRANTED. Under Chapter 17, § 396 of the New York City Charter, "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York, and not that of any agency, except where provided by law." N.Y. City Charter, § 396. Under this provision of the Charter, individual City agencies are not suable entities unless specified by law. See Jackson v. The City of New York Dep't (S.D.N.Y. October 7, 1996) No. 96 Civ. 5779 (MBM), 1996 U.S. Dist. LEXIS 14804, at *17. DOS is a City agency that has not been authorized as a suable entity by law. Thus Plaintiff's claims against DOS are hereby DISMISSED.

II. Summary Judgment Standard

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 247. The burden is on the moving party to demonstrate that no genuine issue respecting any material fact exists. Heyman v. Commerce & Indus. Ins. Co. (2d Cir. 1975) 524 F.2d 1317, 1320. We resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. Eastway Constr. Corp. v. City of New York (2d Cir. 1985) 762 F.2d 243, 249, cert. denied (1987) 484 U.S. 918. The mere existence, however, of an alleged factual dispute between the parties will not defeat a motion for summary judgment. In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256.

Discrimination cases such as this one call for extra precaution when deciding whether this "drastic provisional remedy should be granted." Gallo v. Prudential Residential Services, Ltd. Partnership (2d Cir. 1994) 22 F.3d 1219, 1224. In fact, summary judgment is "ordinarily inappropriate" in the context of a workplace discrimination case because the allegations usually require an exploration into employer's true motivation and intent for making a particular employment decision. Patrick v. LeFevre (2d Cir. 1984) 745 F.2d 153, 159. We abide by the Second Circuit's command that ...

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