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March 31, 2003


The opinion of the court was delivered by: Thomas P. Griesa, United States District Judge


Plaintiff Ronald Clare sues the New York State Division of Housing and Community Renewal ("NYDHCR") asserting various claims of discrimination arising out of his failure to be selected for promotion.

On September 24, 1997, Clare filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination based upon race, sex, and age. On December 22, 1998 the EEOC notified Clare of his right to sue. This action was commenced on January 22, 1999. At the time, Clare was sixty-three years old.

Clare, an African-American, asserts three causes of action: (1) race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, 42 U.S.C. § 2000 et seq.; (2) age discrimination in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"); and (3) deprivation of his civil rights in violation of the New York State Human Rights Law, Section 296.

NYDHCR now moves for summary judgment dismissing Clare's three causes of action. The motion is granted.


1. Background

NYDHCR is a state agency in the Executive Department of the State of New York established to supervise and regulate public and other types of housing receiving forms of public assistance under various government programs. Since February 8, 1984 Clare has been employed by NYDHCR as a Housing Management Representative, a civil service position classified as salary grade 23(SG-23).

Civil Service promotions are governed by the New York State Civil Service Law. Candidates for a vacant position take an examination and are graded and ranked. On the basis of the examination an eligibility list is created. When filling vacancies, the appointing agency is required to appoint one of the three highest ranking persons. See New York Civil Service Law § 61(1). This policy is known as the "one-in-three" rule.

Clare is complaining about his failure to be promoted from Housing Management Representative (SG-23) to Senior Housing Management Representative (SG-26).

Three position openings occurred in July 1997, June 1999, and October 1999. The Court notes that Clare has not amended his complaint filed in January 1999 to incorporate the later two occasions, but for the purposes of this motion the Court will include all three in Clare's claim.

A promotion examination was held in March 1995. Clare took this examination. The results were established in July 1995. The promotional eligibility rankings were divided into "A" and "B" lists. The "A" list related to Housing Management, while the "B" list related to Community Development. The July 1995 lists were to be used to fill vacancies in the position of Senior Housing Management Representative, the position Clare sought. Clare was on the "A" list. The relationship between the A & B lists does not require detailed discussion, except that Clare raises an issue about the fact that one John Caldwell was transferred from the B list to the A list sometime after July 1995. This will be discussed below.

The three top ranking individuals on the 1995 "A" list were Susan Caughron, a Caucasian with a score of 103; Clare with a score of 102; and Mark Marcucilli, a Caucasian with a score of 101.

John Caldwell, an African-American, had a final score of 102 but was on the "B" list.

Caldwell made a complaint to the Civil Service for placing him on the "B" list, since he had previously held a Housing Management title in the early 1990s. Civil Service restored Caldwell to the "A" list, though there is some dispute as to when this exactly occurred. It is, however, undisputed that after Caldwell's reinstatement to the "A" list his placement was equal to that of Clare's since both had a score of 102.

In the Housing Management Bureau responsibility for selecting among the eligible candidates for promotion to Senior Representative from Representative rests with the Director and the two Assistant Directors, acting as a selection committee. The committee reviews the three highest ranking candidates from the "A" list and their performances and, after discussion, selects a candidate to be promoted, subject to the approval of the Deputy Commissioner. The Deputy Commissioner, who is aware of any vacancies to be filled, can also make recommendations directly to the selection committee. The promotion must also be approved by NYDHCR's Affirmative Action Office, now formally known as the Office of Fair Housing and Equal Opportunity.

Clare has been employed as a Housing Management Representative (SG-23) since 1984. He has consistently received satisfactory performance evaluations. Pursuant to NYDHCR's evaluation procedure, satisfactory and unsatisfactory are the only designations available. Clare has a college degree in accounting and a master's degree in Urban Studies. He also holds various housing management-related certifications and designations. Prior to his employ with NYDHCR, Clare worked for fourteen years in the housing management field, both in the public and private sector. Prior to that, Clare had a fifteen-year career as a New York City police officer, during which time he rose to the position of detective. Also for two years while a police officer Clare worked as a staff auditor at the accounting firm of Coopers & Lybrand.

2. The July 1997 Opening

The first opening for a Senior Management Representative to be filled from the 1995 list occurred in the summer of 1997 when Claretha Robinson, an African-American and Clare's direct supervisor, resigned to take a position in the private sector. In a memorandum dated July 18, 1997 Clare applied directly to then Housing Management Bureau Director Marvin Specht for the position. In a letter dated July 25, 1997 ...

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