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United States District Court, Southern District of New York

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 Robinson recommended to Specht that Clare be given priority consideration for promotion to her vacated position.

Pursuant to the "one-in-three" rule, the selection committee interviewed the top three candidates on the 1995 "A" eligibility list for the position: Caughron, Clare, and Marcucilli. The selection committee also interviewed Caldwell, although his complaint regarding his placement on the "B" list was under review.

The selection committee at that time was comprised of Director Specht, who years before had been Clare's first supervisor at NYDHCR, and the two Assistant Directors, Jane Berrie, and John Smith, who each had, as Senior Management Representatives, served as the immediate supervisor to both Clare and Marcucilli. Specht, Berrie, and Smith are all Caucasian.

The committee members each named Marcucilli as their first choice and agreed that although Clare's performance as a Representative was "perfectly acceptable," Marcucilli's performance was "outstanding." Marcucilli had been working in the Housing Management Bureau as a Representative since 1989.

Specht, Berrie, and Smith have given depositions and affidavits explaining the reasons for their decision. Both Berrie and Smith, noted that Marcucilli had better organizational skills than Clare. Smith specifically mentioned that he had sometimes been unable to locate a needed document or information when Clare was away from the office, but that he had never had such a problem when Marcucilli was away. Smith also commented on Marcucilli's speed and accuracy in completing his paperwork. All three members commented on Marcucilli's interpersonal skills. Smith noted that he had received numerous laudatory reports from persons outside of NYDHCR who had dealt with Marcucilli and that no such reports on Clare had ever been brought to his attention as Clare's supervisor. Director Specht noted that Marcucilli had worked with tenant groups who had frequently posed a problem for NYDHCR and convinced them to cooperate with the agency.

All three committee members also cited Marcucilli's superior judgment when compared with Clare's and each pointed to perceived lapses in judgment and specific deficiencies in Clare's performance, which, while not being so severe as to merit an overall assessment of Clare's performance as unsatisfactory, were factors leading them to conclude that the promotion should be awarded to Marcucilli.

Also, Deputy Commissioner Otis Jones, an African-American, who possessed veto power and final say over the promotion, had prior experience with both Clare and Marcucilli. Jones concurred with the committee that Marcucilli had better judgment and better people skills than Clare in that Marcucilli "seemed to have a unique ability to deal with people and quell situations before they mushroomed out of control."

The selection committee received and reviewed Robinson's letter of recommendation, but did not agree with her assessment of Clare.

The members of the committee have described certain specific incidents involving Clare which, in their view, demonstrated his lack of good judgment.

A. The Sea Rise Incident

One incident involved a housing project known as "Sea Rise I," managed under NYDHCR by Grenadier Realty. On February 20, 1991, Clare visited Sea Rise and met the site manager, Greta Thomas, and the maintenance director, Jeff Hower. Suddenly, without warning, Clare apparently grabbed Hower and held him in a choke hold from behind. Although Clare has since given various versions of what occurred, it is clear that Clare's superiors concluded that he acted in the way described above. The incident occurred in front of a security camera at Sea Rise, as a result of which security personnel responded in some form over the intercom system. Clare then released Hower. Clare claims that whatever he did was designed to test the security system. However, Hower was not part of the security system, and Clare gave no warning to Hower that he was going to take some strong physical action against him. Grenadier objected strenuously to what occurred, taking the position that an assault on its employee Hower was in no way necessary to test the security system. Although, as indicated, there is some dispute as to the nature of what transpired in the lobby of Sea Rise I that day, it is undisputed that the incident was regarded seriously enough that there were numerous communications and meetings between Grenadier and NYDHCR at the highest levels, and that as a result Clare was transferred to another unit and removed from having anything to do with Grenadier's properties.

B. The Rock Salt Purchase

Another incident the committee cited as an example of Clare's lack of good judgment involved Clare listing a $12,000 purchase of rock salt for an apartment complex he managed as a capital expenditure rather than an operating expense. In her affidavit, Berrie noted that the committee found that this was the type of error that Clare should know to avoid in his own work and should correct in his subordinates if he were promoted to supervisor. The committee gave this incident some weight in deciding that Clare would not be promoted to a supervisor position. In his deposition, Clare admitted that normally such routine maintenance expenses are listed under operations, but explained that the substantial rock salt purchase was an exception because he was buying several years' worth of rock salt at once and got a good deal so it was a capital expenditure. But the fact is uncontested that the committee viewed the situation unfavorably to Clare.

C. The Misplaced Paperwork

A third incident cited as an example of Clare's lack of good judgment is testified to by Berrie. Berrie asserts that approximately six months after Clare moved from one unit to another following the Sea Rise problem she discovered a book in a stack of papers that Clare had left behind. This meant that Clare caused the temporary loss of the book. This book contained an original waiting list for available apartments. It had been recreated at great effort in the interim. Roughly six months to a year after Clare's transfer, Berrie also discovered a number of checks made out by applicants seeking to be placed on the waiting list at one of the developments Clare had supervised. The drafters of these checks did not obtain positions on the waiting list. Thus, the checks were to be returned. Instead, they had simply been left in a box.

Clare disputes that he had anything to do with the missing list and checks that were found after his transfer. But again, the uncontested fact is that the committee believed otherwise and weighed those circumstances against Clare.

3. The June 1999 Opening

The second opening for a Senior Management Representative to be filled from the 1995 list occurred in June 1999 after Director Specht retired and Assistant Director Berrie was appointed to take his place. John Smith remained an Assistant Director and Mark Marcucilli was appointed as Assistant Director, thereby leaving a Senior Management Representative position available.

The top three candidates pursuant to the one-in-three rule were Susan Caughron, a Caucasian, Clare, and Caldwell. The selection committee consisted of Berrie and Smith (who had been on the earlier committee) and Mark Marcucilli. The committee selected Caughron.

The committee felt that Caughron excelled in computer and organizational skills and that she had procedural abilities and a proven aptitude for setting up the systems that were needed. Her input in setting up a protocol for the audit of tenant selection procedures was deemed far more valuable than input on the same submitted by Clare, and the committee felt that Caughron had demonstrated her superior computer skills on that project.

Deputy Commissioner Jones concurred, believing that Caughron had exhibited superior computer skills, while such skills had not been demonstrated by Clare.

4. The October 1999 Opening

The third opening for a Senior Management Representative to be filled from the 1995 list occurred in October 1999 when Assistant Director Smith retired. Senior Management Representative Elliot Ashrey was promoted to Assistant Director, which left a vacancy for a supervisor of a field unit.

The top three candidates pursuant to the one-in-three rule were Clare, Caldwell, and John Marcucilli, a Caucasian and brother of Assistant Director Mark Marcucilli.

The selection committee consisted of Berrie (who had been on the two previous committees) and Ashrey, a Caucasian. Mark Marcucilli was not involved in the selection process. Deputy Commissioner Jones affirmatively recommended John Marcucilli. Such a recommendation can be made under NYDHCR procedure.

John Marcucilli had been the Housing Management Representative assigned to Co-op City as long as Jones had been with NYDHCR. Co-op City is the largest of the two-hundred fifty State supervised "Mitchell-Lama" developments. A Mitchell-Lama development is privately owned and operated, assisted by low interest government financing and municipal tax abatements, intended for low and moderate income families. It is created pursuant to the New York State Private Housing Finance Law.

Jones states that the reason for his recommendation was because he found John Marcucilli "to be extremely knowledgeable and possessed of excellent skills in dealing with people — better than Clare — most especially with the Board of Directors of Co-op City, which I can state from personal experience, is a fractious, difficult group at best."

A 1997 State Comptroller's audit on Co-op City criticized NYDHCR supervision of the development. Clare contends that this shows John Marcucilli was "profoundly deficient." NYDHCR claims that the audit is a political document, brought about by a Democratic official, Carl McCall, criticizing a Republican Administration. NYDHCR references its own detailed responses, and those of the Co-op City management company rebutting and disagreeing with various portions of the audit. In any event, there is nothing to show that the committee and Jones had anything but a high evaluation of John Marcucilli.


1. Clare's ADEA Claim

On April 28, 1999, the Court ordered this case held in abeyance pending a decision by the United States Supreme Court in the Kimel case. The Supreme Court subsequently held that the ADEA was not a valid exercise of Congress' power under section 5 of the Fourteenth Amendment and that the ADEAs purported abrogation of the States' sovereign immunity was accordingly invalid. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000). Accordingly, Clare's ADEA claim against NYDHCR, a state agency, must be dismissed.

2. Clare's State Law Claim

The Eleventh Amendment prohibits a federal court from granting any relief, prospective or retroactive, against state officials based on state law. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106 (1984). Furthermore, as the Court made clear in Pennhurst: "[N]either pendant jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment." 465 U.S. at 121. Therefore, Clare's state law claims under the New York State Human Right Law must be dismissed.

3. Clare's Title VII Claim

At issue then is NYDHCR's motion for summary judgment as regards Clare's first cause of action for race and gender discrimination in violation of Title VII. Clare alleges that NYDHCR discriminated against him because he was an African-American male.

In a motion for summary judgment in an employment discrimination case, once the employer has proffered a nondiscriminatory reason for an employment action, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." McGuiness v. Lincoln Hall, 263 F.3d 49, 55 (2d Cir. 2001) (quoting James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000)).

The ultimate question "is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." Id.

NYDHCR has provided detailed evidence of nondiscriminatory reasons why Clare was not selected for the three promotions he sought and other candidates were selected. These reasons have been attested to by committee members and also by Deputy Commissioner Otis Jones, who had the ultimate authority.

In connection with the July 1997 selection, the committee members have specified the superior organizational and interpersonal skills of Marcucilli, which they viewed as superior to those of Clare. They also regarded Marcucilli's judgment as superior, as contrasted with that of Clare, which they regarded as deficient.

In connection with the June 1999 opening, both organizational and computer skills were important, and the chosen candidate, Caughron, was considered to have superior abilities in connection with each.

As to the opening that occurred in October 1999, John Marcucilli was selected, who was viewed as having performed in an excellent manner in dealing with the Board of Directors of Co-op City, which was regarded as a significant achievement.

In the background were the incidents regarding Sea Rise I, the rock salt purchase, and the missing paperwork and checks. These matters were viewed by Clare's superiors as reflecting badly upon both the judgment and diligence of Clare.

The evidence is conclusive in favor of NYDHCR's nondiscriminatory reasons for its employment actions. The attempts by Clare to show a basis for inferring prohibited discrimination are without substance.


For the foregoing reasons, NYDHCR's motion for summary judgment is granted and the action is dismissed.



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