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United States District Court, Southern District of New York

May 2, 2003


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION To the Honorable Leonard B. Sand United States District Judge
Pro se plaintiff Simpson B. Bailey, Jr. has brought this action against the City of New York, the New York City Department of Transportation ("DOT"), and the New York City Department of Personnel (collectively "the City") alleging race discrimination. Bailey has moved for partial summary judgment on the issue of whether the City discriminated against him. The City has cross-moved for summary judgment dismissing the case. For the reasons stated below, Bailey's motion should be denied and the City's motion should be granted.


A. Factual History

Bailey was an employee of DOT beginning in 1984 and continuing through 1994, when he was terminated. Bailey v. New York City Dep't of Transp., 1997 WL 26290, at *1 (S.D.N.Y. Jan. 22, 1997). In 1992, Bailey attempted to obtain a promotion to Administrative Director of Fleet Maintenance ("ADFM"). See Local Rule 56.1 Statement, dated July 15, 2002 ("Pl. 56.1 Statement"), ¶¶ 2, 7. At the time, there were two possible methods to obtain an ADFM position.

One method was through examination number 1201 ("exam 1201"). To be eligible to take exam 1201, the City originally required an applicant to have either:

(1) A baccalaureate degree from an accredited college and five years of full-time satisfactory experience in the maintenance and repair of a fleet of motor vehicles, including 18 months in the management of the maintenance and repair of a fleet of at least 100 vehicles; or
(2) A high school diploma or its educational equivalent and nine years of full-time satisfactory experience as described in "1" above. College education may be substituted for the required experience on a year-for-year basis for up to four years. However, all candidates must have a high school diploma or its educational equivalent and 18 months of full-time satisfactory experience in the management of the maintenance and repair of a fleet of at least 100 vehicles.
Notice of Examination, (undated) (reproduced in Pl. 56.1 Statement Ex. 1). Bailey applied for this examination and was qualified under subsection (2) of this Notice. See Pl. 56.1 Statement ¶¶ 7, 8; Defendants' Response to Plaintiff's Statement of Undisputed Facts, dated September 30, 2002 ("Def. 56.1 Resp."), ¶¶ 7, 8.

After Bailey had submitted his application and before the examination took place, however, the City issued an amended notice of examination for exam 1201, which changed the qualifications. The amended notice altered the last sentence of subsection (2) to require that candidates have "a high school diploma or its educational equivalent and 18 months of full-time satisfactory experience in an administrative, managerial or executive capacity as described in `1' above." Notice of Examination, Second Amended Notice, dated May 27, 1992 (reproduced in Pl. 56.1 Statement Ex. 2) (emphasis added). Because he lacked 18 months experience in an "administrative, managerial or executive capacity," Bailey was deemed ineligible for exam 1201 under the amended notice. Pl. 56.1 Statement ¶ 9.

Bailey was eligible to apply for the ADFM position through a second method, however, examination number 1606 ("exam 1606"). Defendants' Statement of Undisputed Facts Pursuant to Local Rule 56.1, dated September 30, 2002 ("Def. 56.1 Statement"), ¶ 1. Exam 1606 was an open promotional test available for all persons who held a supervisor of mechanics position (in contrast with exam 1201, which was open only to applicants who met the special qualification requirements discussed above). See Amended Complaint, filed November 1, 1999 (Docket #26) ("Am. Compl."), ¶ 8. While the qualifications for taking the two examinations were different, the actual test utilized for the two examinations was the same. See Letter to Simpson Bailey, Jr. from Carol Wachter, dated February 14, 1997 (reproduced in Declaration of William S.J. Fraenkel in Support of Defendants' Cross-Motion for Summary Judgment, dated September 30, 2002 ("Fraenkel Decl."), Ex. A); Plaintiff's Memorandum in Support of Plaintiff's Motion to Compel Special Discovery and Sur-Reply in Opposition to Defendants' Cross-Motion for Summary Judgment, dated March 11, 2003 ("Pl. Sur-Reply"), at 12.

Bailey took the test for exam 1606 in October 1992. See Am. Compl., ¶ 8; Pl. Sur-Reply at 12. The exam consisted solely of essay questions. See Am. Compl. ¶ 9(c). In order to pass exam 1606, an applicant needed to obtain a score of 70 or above. See Fraenkel Decl., ¶ 5. Bailey was later informed that he had failed the 1606 exam because he received a score of 46.4 — below passing. See Notice of Result, (undated) (reproduced in Fraenkel Decl., Ex. B).

After the exam, Bailey appealed his ineligibility for exam 1201. See Appeal of Manifest Error, dated September 21, 1994 ("Bailey Appeal") (reproduced in Fraenkel Decl., Ex. C). Bailey also complained about his results on exam 1606, claiming that the test had not been graded objectively. See Letter to Simpson Bailey, Jr. from Carol Wachter, dated February 14, 1995 (reproduced in Fraenkel Decl., Ex. A). Bailey's appeals and complaints were denied. See id.; Bailey Appeal at 1.

B. Procedural History

1. Bailey's 1993 Lawsuit

The instant case is the second lawsuit filed by Bailey raising claims of employment discrimination against the City. Bailey filed a complaint in February 1993 claiming the City had violated Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d to 2000d-7, 2000e to 2000e-17, as well as 42 U.S.C. § 1981, 1982, 1983, 1985, 1986, 1988 and New York State law. See Bailey v. New York City Dep't of Transp., 93 Civ. 1121 (LBS) ("Bailey I"). The complaint in Bailey I alleged that Bailey was subjected to racial discrimination because of job transfers, denials of promotions, discharge, failure to rehire, and the civil service examinations that are the subject of this lawsuit. See Bailey, 1997 WL 26290, at *2. Bailey voluntarily withdrew his claims under Title VI and his claim for attorney's fees under 42 U.S.C. § 1988. See id. at *2 n. 1. On January 22, 1997, following the defendants' motion for summary judgment, the Court (by District Judge Leonard B. Sand) dismissed Bailey's claims under 42 U.S.C. § 1981 and 1983 for failure to plead the existence of a policy or custom. See id. at *2-*3. The Court also dismissed the section 1982 claim because the statute does not create a cause of action for employment discrimination and the section 1985 and 1986 claims for failing to properly plead the existence of a conspiracy. See id. at *3-*4. The Court granted summary judgment dismissing Bailey's Title VII claim regarding the failure to re-hire. See id. at *7. Finally, the Court dismissed Bailey's Title VII claim regarding the 1992 civil service examination for failure to exhaust his administrative remedies with the Equal Employment Opportunity Commission ("EEOC"). See id. at *5. However, the Court did not dismiss Bailey's state law claims and most of his Title VII claims regarding various types of discriminatory conduct. See id. at *4-*5.

The case proceeded to trial and a jury rendered a verdict for the City. After trial, the Court denied Bailey's motions for a directed verdict, judgment as a matter of law or for a new trial. See Bailey v. New York City Dep't. of Transp., 1998 WL 472010, at *1 (S.D.N.Y. Aug. 3, 1998). The Court also denied Bailey's challenge to the racial composition of the jury. See id. On April 19, 1999, the Second Circuit affirmed in an unpublished opinion. See Bailey v. New York City Dep't. of Transp., 173 F.3d 843 (table) (2d Cir. 1999).

2. The Instant Lawsuit

In October 1997, prior to the start of his first trial, Bailey filed a claim with the EEOC regarding the 1992 Civil Service examinations at issue in this case. See Bailey v. New York City Dep't. of Transp., 1999 WL 493406, at *2 (S.D.N.Y. July 9, 1999). The EEOC subsequently notified Bailey that it could not investigate his charges because they were not filed within the requisite 300-day time limit. See Dismissal and Notice of Rights, Charge No. 160-98-0192, dated November 12, 1997 (reproduced in Complaint, filed March 12, 1998 ("Orig. Compl.") (Docket #1)); Dismissal and Notice of Rights, Charge No. 160-98-0193, dated November 12, 1997 (reproduced in Orig. Compl). In a telephone conference on November 5, 1997, Bailey informed the Court in Bailey I that he had received a right to sue letter from the EEOC regarding this charge and was apparently directed to file a new lawsuit regarding this claim. See Bailey, 1999 WL 493406, at *2.

Bailey filed the instant lawsuit on March 12, 1998, alleging discrimination by the City regarding the ADFM examinations. See Orig. Compl. ¶¶ 7-13. Bailey claimed that he was discriminated against because he was terminated from his position in 1994, making him ineligible to be promoted under exam 1606, see id. ¶ 8(a); he was deemed unqualified for exam 1201, see id. ¶¶ 8(b); the test utilized for the examination was subjective and biased because it was an essay test, see id. ¶ 8(c); and the defendants placed an unqualified white applicant in the ADFM position. See id. ¶¶ 8(d), 10. Bailey claimed that these actions violated his rights under the Fourteenth Amendment of the Constitution as well as his right under 42 U.S.C. § 1981 to make and enforce contracts. Id. ¶ 11.

On July 9, 1999, the Court granted in part the City's motion for partial summary judgment and dismissed Bailey's Title VII claim relating to the civil service exam because he failed to file his complaint with the EEOC within the 300-day time limit. See Bailey, 1999 WL 493406, at *4-*6. In addition, the Court dismissed Bailey's claim for attorney's fees under 42 U.S.C. § 1988 because pro se litigants are not entitled to recoup such fees. See id. at *6. Bailey's claims under 42 U.S.C. § 1981, 1983 and the New York State Civil Service Law were allowed to stand. See id. at *6. The Court granted leave to file an amended complaint and directed the parties to complete discovery by November 26, 1999. See id. at *7.

Bailey filed an amended complaint on November 1, 1999. See Am. Compl. The amended complaint alleges the City violated 42 U.S.C. § 1981, 1983, as well as New York state laws, through discriminatory practices in the construction and administration of exam 1201 and exam 1606. See id. ¶¶ 8, 12. Bailey alleges that these practices led to the hiring of white persons for positions to the exclusion of African-American applicants. Id. ¶¶ 9(a)-(d), 11, 12. He alleges that he was wrongfully deemed unqualified for a promotion, see id. ¶¶ 9(a), (b); that the test itself was intentionally subjective with the purpose of excluding African-American applicants, id. ¶ 9(c); and that through these policies the City hired an unqualified white person (Herb Graetz) for the position he was seeking. Id. ¶ 9(d). Bailey seeks monetary damages and injunctive relief.

See id. at 5. The City answered the complaint on November 22, 1999. See Answer, filed November 22, 1999 (Docket #27).

On January 27, 2000, a law clerk to Judge Sand wrote Bailey reminding him of the November 26, 1999 deadline for discovery and directed Bailey either to inform the Court whether discovery had taken place or to request an extension. See Letter to Simpson Bailey Jr., from Daniel Stein, dated January 27, 2000. At some point thereafter, Bailey wrote to Judge Sand asking that the case be put on the suspense calendar. By memorandum endorsement, Judge Sand denied the request and ordered Bailey to proceed with discovery. See Memorandum Endorsement, filed July 27, 2000 (Docket #29). On September 27, 2000, Judge Sand noted that no discovery had taken place and warned Bailey that he would dismiss the case for failure to prosecute unless Bailey could offer an explanation for the lack of discovery. See Order, filed September 27, 2000 (Docket #30). Following receipt of the parties' responses to this Order, Judge Sand determined that the suit would not be dismissed. See Order, filed November 22, 2000 (Docket #31). He directed the defendants to respond to the Bailey's discovery requests by December 18, 2000, and directed the parties to notify the Court by February 1, 2000 when they would be ready for trial. Id.

Thereafter, the matter was referred to the undersigned to resolve any outstanding discovery motions. See Order, dated April 6, 2001 (Docket #34). The undersigned thereupon directed the parties to inform the Court what discovery motions remained to be resolved. See Order, filed April 12, 2001 (Docket #35). At a conference held in July 2001, the Court dealt principally with Bailey's motion to compel the City to respond to his written discovery demands. After a number of efforts to obtain responses from the City, the attorney for which (no longer assigned to this case) was consistently recalcitrant in responding to Bailey's requests, the Court issued an order informing the parties that all discovery would end as of February 25, 2002. See Order, filed February 15, 2002 (Docket #48). Ultimately, the Court issued an order concluding that the City had complied with the remaining discovery requests in the case. See Order, filed September 6, 2002 (Docket #56).

The parties filed their respective summary judgment motions thereafter and the motions were referred to the undersigned for a Report and Recommendation.


A. Summary Judgment

Standard Summary judgment may be granted only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P.56(c). The Court must construe all evidence in the light most favorable to the non-moving party and draw all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Niagara Mohawk Power Corp. v. Jones Chemical Inc., 315 F.3d 171, 175 (2d Cir. 2003). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "An issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson, 477 U.S. at 248).

To survive a motion for summary judgment, "the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted) (quoting Fed.R.Civ.P. 56(e)); see also Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) ("To overcome such a motion, the non-moving party must offer sufficient proof to allow a reasonable factfinder to decide in its favor."). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted). Thus, "[s]tatements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999) (citations omitted), cert denied, 530 U.S. 1242 (2000). In addition, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk, 315 F.3d at 175 (quoting Anderson, 477 U.S. at 252).

"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy [its] burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048 (2d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48); see also Chase Manhattan Bank, N.A. v. Am. Nat'l Bank and Trust Co. of Chicago, 93 F.3d 1064, 1072 (2d Cir. 1996) ("A defendant moving for summary judgment must prevail if the plaintiff fails to establish an essential element of its case.") (citation omitted).

B. Law Governing Bailey's Claims

Bailey's claims are brought under 42 U.S.C. § 1981 and 1983. Section 1981 provides in relevant part:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .
42 U.S.C. § 1981(a). Three elements are required to state a claim under section 1981: "(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." Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993), cert. denied, 516 U.S. 824 (1995). To succeed on a claim of discrimination under section 1981, a plaintiff must prove "purposeful discrimination." General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982); accord Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000) ("Section 1981 . . . only prohibits intentional racial discrimination.") (citations omitted), cert. denied, 534 U.S. 816 (2001).

Section 1983 imposes liability on persons who under the color of state law deprive a citizen of the "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. No substantive rights are created by section 1983; instead the statute provides a "procedure for redress for the deprivation of rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citations omitted). To prevail on a section 1983 claim a plaintiff must establish that (1) the defendants were acting under color of state law when they committed the complained of acts and (2) the conduct complained of deprived the plaintiff of "a right secured by the Constitution and laws of the United States." West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978).

When a plaintiff has brought a claim of racial discrimination regarding their employment under either section 1981 or 1983, the Court employs the same analysis as claims brought under Title VII. See Choudhury v. Polytechnic Inst. of New York, 735 F.2d 38, 44 (2d Cir. 1984) (section 1981); Sorlucco v. New York City Police Dep't, 888 F.2d 4, 7 (2d Cir. 1989) (section 1983). Unless the plaintiff has adduced direct evidence of discrimination, the Court examines the claim by utilizing the three-step burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). Under the McDonnell Douglas analysis, plaintiff bears the initial burden to establish a prima facie case of discrimination by showing that he (1) belongs to a protected class, (2) suffered an adverse employment action, (3) was performing his duties satisfactorily, and (4) the circumstances surrounding his adverse employment action give rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802. Where as here the allegations involve a failure to promote, the plaintiff must show the following to make a prima facie case: "1) [the plaintiff] `is a member of a protected class'; 2) [the plaintiff's] job performance was satisfactory; 3) [the plaintiff] applied for and was denied promotion to a position for which [the plaintiff] was qualified; and 4) the position `remained open and the employer continued to seek applicants.'" Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000) (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998)) (citation omitted).

The burden to establish a prima facie case is "`de minimis.'" Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)) (citation omitted). If plaintiff meets his initial burden a rebuttable presumption of discrimination arises. See, e.g., Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). A defendant may rebut this presumption by articulating a "legitimate, nondiscriminatory reason" for the challenged action. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). If defendant meets this requirement, the burden shifts back to the plaintiff to show that this reason is false and the real motive behind the employment action was discrimination. See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993).

Claims for disparate impact are analyzed differently. These claims "are concerned with whether employment policies or practices that are neutral on their face and were not intended to discriminate have nevertheless had a disparate impact on [a] protected group." Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001) (citing Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)), cert. denied, 535 U.S. 951 (2002). Such claims, however, are not available to Bailey because his lawsuit is brought only under 42 U.S.C. § 1981 and 1983 (not Title VII) — both of which require proof of intentional discrimination: that is, disparate treatment. See, e.g., Knight v. Nassau County Civil Serv. Comm'n, 649 F.2d 157, 161 (2d Cir.) ("In failing to prove disparate treatment . . . based on the failure to promote . . . [plaintiff] has also necessarily failed to meet the purposeful discrimination requirement for a section 1983 violation based on equal protection or a section 1981 claim.") (citations omitted), cert. denied, 454 U.S. 818 (1981); accord Weberg v. Franks, 229 F.3d 514, 528 (6th Cir. 2000) ("mere disparate impact is not sufficient to state an equal protection claim under § 1983) (citations omitted); Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 715 (5th Cir. 1994) ("To prove a cause of action under section 1983 based on violation of equal protection, Plaintiffs are required, as under section 1981, to demonstrate intentional discrimination; mere disparate impact will not suffice.") (citation omitted); Jackson v. Univ. of New Haven, 228 F. Supp.2d 156, 162 (D.Conn. 2002) ("the disparate impact theory . . . is available only for claims brought pursuant to Title VII, and not claims under 42 U.S.C. § 1981"); Local Unions v. United Broth. of Carpenters and Joiners, 1997 WL 630179, at *13 (S.D.N.Y. Oct. 9, 1997) (disparate treatment not cognizable under section 1981), aff'd, 131 F.3d 131 (2d Cir. 1997).

An additional element limits Bailey's claims in this case: Bailey's suit is brought only against the City and its subdivisions — not any individuals. Accordingly, as plaintiff himself recognizes, his claims "are limited to acts implementing or executing a municipal policy or custom." Plaintiff's Reply Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment and in Opposition to Defendants' Cross Motion for Summary Judgment, dated February 10, 2003 ("Pl. Reply"), at 9; Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978); see also Bailey, 1997 WL 26290, at *3 (dismissing previous claims under section 1981 and 1983 for failure to allege any "facts indicating that the alleged discriminatory acts were the product of any official policy or custom of the City of New York or DOT"). Thus, whether a particular individual was hired to the ADFM position instead of Bailey, see, e.g., Am. Compl. ¶¶ 9(d), 10, 11, is not at issue.


With respect to exam 1201, Bailey's claim of discrimination is based on the fact that he was deemed unqualified to be considered for this exam. Applying the prima facie requirement, it would appear that Bailey has not met the requirement that he be "qualified" for the position at issue since an employer is entitled to determine the qualification for a position. See Thornley v. Penton Publ'g, Inc., 104 F.3d 26, 29 (2d Cir. 1997) ("being `qualified' refers to the criteria the employer has specified for the position"). As Bailey was unqualified to take the examination, he was also unqualified for the promotion. Nonetheless, Bailey has claimed that the employer's criteria itself were the result of racial discrimination. Accordingly, the Court must examine whether Bailey has adduced evidence that could show that the City's qualifications for the ADFM position were developed in bad faith. See id. ("Absent a showing . . . that the employer's demands were made in bad faith . . . an employer . . . is not compelled to submit the reasonableness of its employment criteria to the assessment of either judge or jury.") (citations omitted). The only manner in which Bailey has attempted to show "bad faith" by the City is to assert that its choice of qualifications was based on intentional racial discrimination.

Similarly, Bailey cannot demonstrate a prima facie case with respect to exam 1606 because his failure to pass the examination prevented him from being qualified for the promotion. Bailey's failure on the examination means that he was not qualified to obtain the promotion and thus precludes him from establishing a prima facie case of discrimination. See Cross v. State Ins. Fund, 1987 WL 9194, at *2 (S.D.N.Y. Mar. 27, 1987) ("Because plaintiff has failed to pass an examination that is a prerequisite for promotion, plaintiff cannot sustain his claim of discriminatory treatment."), aff'd, 837 F.2d 1086 (2d Cir. 1987), cert. denied, 488 U.S. 943 (1988). Nonetheless, Bailey has claimed that the scoring of the examination itself was based on improper racially discriminatory criteria and the Court will examine whether this claim is supported by evidence.

What is left of Bailey's case is his claim that he was the victim of intentional racial discrimination because of two events: the change in the standards for exam 1201 and the grading of exam 1606. Because there are no individual defendants, he must also show that any discrimination was the result of an official policy or custom of the City. Each of these events is discussed in turn.*fn1

A. Change in Requirements for Exam 1201

Bailey argues that the change in qualifications for exam 1201 shows discrimination by the City. See Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment, dated July 15, 2002 ("Pl. Mem."), at 4. With respect to his section 1981 claim, Bailey's argument is that when he applied to take exam 1201 under the original qualifications for the exam, he entered into a contract with the City that bound the City to consider Bailey qualified for the ADFM position under exam 1201. Id. at 3. While it seems unlikely that Bailey's application to take the exam constituted an enforceable contract, the Court need not reach this question because Bailey has not provided evidence of purposeful discrimination in the City's decision to change the qualifications — a requirement, as described above, both of section 1981 and 1983 claims.

Indeed, Bailey has conceded that his challenge to the change in qualifications is not a claim of "intentional race discrimination." Pl. Mem. at 5. Instead he "asks this Court to decide whether or not the defendants acted legally in issuing the second amended notice with new qualifications." Id. at 3. Bailey's admission that he does not allege intentional or purposeful discrimination is fatal to any claims under section 1981 or 1983.

Even without Bailey's concession the City is still entitled to summary judgment because Bailey has adduced no evidence of purposeful discrimination. Bailey provides evidence that the City has changed the qualifications for promotion to an ADFM position on notices of examination over a period of years. See Notice of Examination (undated) (reproduced in Pl. Mem. Ex. 1); Notice of Examination, Second Amended Notice, dated May 27, 1992 (reproduced in Pl. 56.1 Statement Ex. 2); Job Vacancy Notice (undated) (reproduced in Pl. 56.1 Statement Ex. 3); Job Vacancy Notice, dated January 10, 1989 (reproduced in Pl. Mem. Ex. 4). This evidence shows only that at different times different qualifications have been required for the promotional exam. Such evidence would not permit a jury to conclude that the change in qualifications for exam 1201 was based on bad faith or intentional discrimination.

Bailey's remaining evidence on this claim consists of statistics showing that fewer minorities would have had the requisite 18-month experience in an administrative, managerial or executive capacity. Pl. Reply at 10. But this at most constitutes evidence of a disparate impact of the 18-month requirement on minorities; it is insufficient to raise a triable issue that the City included this requirement for the actual purpose of excluding minorities. See Hudson v. Int'l Bus. Mach. Corp., 620 F.2d 351, 355 (2d Cir.) ("In `disparate impact' cases . . . statistical evidence may establish a prima facie case of discriminatory effect. . . . [H]owever . . . [in] an individual `disparate treatment' action . . . the particular employee must establish that he has been discriminated against because of his race . . . [and] statistics standing alone do not create [a prima facie case]."), cert. denied, 449 U.S. 1066 (1980); see also Jenkins v. Metro. Opera Ass'n, Inc., 1999 WL 147745, at *7 (S.D.N.Y. Mar. 18, 1999) ("Even . . . valid statistical data . . . alone cannot establish a prima facie case of discrimination.") (citations omitted), aff'd, 213 F.3d 626 (2d Cir. 2000), cert. denied, 531 U.S. 1091 (2001); Zenni v. Hard Rock Int'l, Inc., 903 F. Supp. 644, 654 (S.D.N.Y. 1995) ("statistical evidence of an employer's general hiring practices is insufficient to prove that a particular plaintiff was discriminated against") (citation omitted).

Because Bailey has not provided evidence of discrimination due to the change in qualifications, the defendants are entitled to summary judgment on this claim.

B. Claims of Bias in the Scoring of the Exam 1606

Bailey asserts that his non-passing score on exam 1606 showed discrimination by the City, principally based on his assertion that the results were biased because it was an essay test that was graded subjectively. Am. Compl. ¶ 9(c); see also Pl. Reply at 20 (claiming "serious questions" exist about "the validity of [exam 1606] itself"). The Court construes this claim as brought under 42 U.S.C. § 1983 and as raising a claim of equal protection.*fn2

As previously noted, "`[p]roof of racially discriminatory intent or purpose is required' to show a violation of the Equal Protection Clause." City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 123 S.Ct. 1389, 1394 (2003) (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977)) (citation omitted). The only evidence Bailey has provided of purposeful discrimination relates to the results of exam 1201 (which, as noted, was identical to exam 1606). Of the 118 persons who took that test, 91 (or 75%) were white. Only three persons passed the exam, all of whom were white. Pl. Reply at 8, 20. Whether or not the pass rate shows disparate impact — a claim that Bailey cannot bring under section 1981 or 1983 — the minute statistical sample and pass rate for whites (3%) versus blacks (0%) is not sufficient evidence to allow a jury to conclude that there was purposeful discrimination by the City in its grading of the exam. See Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 122 (2d Cir. 1997) (stating that "as a matter of law . . . [intentional] discrimination may not be proved by statistics involving" a pool of eight persons); see also Aguirre v. New York State Police, 156 F. Supp.2d 305, 320-21 (S.D.N.Y. 2001) (five examples of disparate treatment insufficient to establish an inference of discrimination). Bailey's reliance on the "four-fifths" rule, see Pl. Reply at 9, 21 (citing 29 C.F.R. § 1607(D)), is irrelevant because that rule — relating to whether the selection rate for the complainant's group is less than 80% of the group with the highest selection rate — relates only to a showing of disparate impact. See generally Smith v. Xerox Corp., 196 F.3d 358, 365-66 (2d Cir. 1999) (discussing the use of the four-fifths rule in disparate impact cases).

Because the evidence Bailey presents would be insufficient for a reasonable jury to find discriminatory intent, Bailey cannot state a claim for a denial of equal protection.

C. State Law Claims

Bailey also claims that the City violated his rights under the New York Human Rights Laws, see N.Y. Exec. L. §§ 290-301, and the New York Civil Service Laws. See Am. Compl. ¶ 2(e). As his federal claims must be dismissed, this Court should decline to exercise jurisdiction over these claims. See, e.g., In re Merrill Lynch Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998) (per curiam) (district court should decline to exercise supplemental jurisdiction over state law claims when it has dismissed all claims over which it has original jurisdiction); accord Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) ("In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well.") (citing Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994); Baylis v. Marriott Corp., 843 F.2d 658, 664-65 (2d Cir. 1988)).


On March 12, 2003, this Court received a document from Bailey requesting additional discovery from the City and containing a sur-reply to the City's reply brief. See Affirmation in Support of Plaintiff's Motion to Compel Special Discovery, dated March 11, 2003; Pl. Sur-Reply. The Court construes Bailey's request as an application pursuant to Fed.R.Civ.P. 56(f) for a continuance to permit additional discovery.

"[A] party resisting summary judgment on the ground that it needs discovery in order to defeat the motion must submit an affidavit showing `(1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.'" Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (quoting Meloff v. N.Y. Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995)) (citations omitted).

Bailey's application is insufficient under this standard for two reasons. First, Bailey had ample opportunity to conduct discovery in this matter, as the case was first filed in 1998. Since that time, the Court set multiple deadlines for the completion of discovery. Rule 56(f) "applies to summary judgment motions made before discovery is concluded." McAllister v. New York City Police Dep't, 49 F. Supp.2d 688, 696 n. 5 (S.D.N.Y. 1999) (emphasis added) (citations omitted); accord McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995) ("Applications to extend the discovery deadline must be made prior to expiration of the deadline . . . Rule 56(f) is not intended to circumvent discovery orders."). The Court recognizes that the City's prior counsel was recalcitrant with respect to the City's discovery obligations. Nonetheless, in April 2001, the Court inquired of the parties as to what discovery motions remained in this matter. See Order, dated April 12, 2001 (Docket #35). The only matters raised by Bailey in response to this inquiry concerned his efforts to obtain responses to the written discovery requests that were ultimately the subject of the July 16, 2001 conference. At that conference, the Court made plain that it was going to rule on "all" of plaintiff's discovery requests "one by one." See Transcript of July 16, 2001 Conference (Docket #39) at 2. The Court made its rulings at that conference, requiring the City to respond to some requests and not to others. The City had completed its responses to plaintiff's requests as of April 2002. See Order, filed September 6, 2002 (Docket #56), at 2. Bailey himself moved for partial summary judgment following his receipt of these responses in July 2002. See Notice of Plaintiff's Motion for Partial Summary Judgment, dated July 15, 2002 (Docket #61). Until the City filed its motion for summary judgment in September 2002, however, Bailey never raised any need for discovery.

Thus, Bailey's application to take discovery now is untimely.

Bailey's application is insufficient also because he does not demonstrate how additional discovery would permit him to show the intentional discrimination required by sections 1981 and 1983. Instead, Bailey seeks the answers to interrogatories and document demands that were at least in part duplicative of his original discovery demands. Compare Pl. Sur-Reply at 2-3, with Defendants' Supplemental Responses and Objections to Plaintiff's Document Requests, filed September 6, 2002 (Docket #58), at 3-12; Defendants' Supplemental Responses and Objections to Plaintiff's Interrogatories, filed September 6, 2002 (Docket #59), at 3-12; Defendants' Supplemental Responses and Objections to Plaintiff's Request for Admission, filed September 6, 2002 (Docket #60), at 1-11. Moreover, the proposed discovery consists solely of document demands, interrogatories, and requests for admission that relate to the qualifications for examinations, information about individuals passing civil service examinations, and information about persons hired into the ADFM position. See Pl. Sur-Reply at 2-3. Even were the City to answer these requests, it could not reasonably be expected that the answers would create a genuine issue of material fact as to whether the City engaged in a policy and practice of intentional discrimination. "[A] district court may refuse to allow additional discovery `if it deems the request to be based on speculation as to what potentially could be discovered.'" Nat'l Union Fire Ins. Co. of Pittsburgh, PA. v. Stroh Cos., Inc., 265 F.3d 97, 117 (2d Cir. 2001) (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994)). Because the discovery sought would not advance Bailey's claims, this provides a separate basis to deny a continuance for additional discovery.*fn3


For the foregoing reasons, the City's motion for summary judgment should be granted. A fortiori, Bailey's motion for partial summary judgment should be denied.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Leonard B. Sand, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Sand. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).

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