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.
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
(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
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.
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).
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 ...