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February 9, 2004.


The opinion of the court was delivered by: BARBARA JONES, District Judge


Plaintiff Sharon Council brings this action against Tri-Star Construction Company ("Tri-Star"), her former employer, alleging that Tri-Star discriminated against her based on her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the New York State and City Human Rights Laws. Defendant moves for summary judgment, arguing that Plaintiff cannot set forth sufficient facts to establish that Tri-Star intentionally discriminated against her. For the reasons stated below, Defendant's motion is GRANTED.


  In deciding a summary judgment motion, a court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 42d Cir. 2001). The following facts are either Page 2 undisputed or as described by Plaintiff. Plaintiff was employed as an administrative assistant by Tri-Star from January 1999 until February 18, 2000. (Compl. ¶ 6). She was hired by Richard Delgado, Executive Vice President of Tri-Star, with whom she was acquainted from her previous employer, AJ Contracting. (Council Dep. at 20-21; Delgado Dep. 24, 51). As an administrative assistant, Plaintiff's duties consisted of typing various documents that were handwritten by Tri-Star's estimators and project managers. (Council Dep. at 25-26). Plaintiff also assisted the receptionist by answering telephones when necessary. (Council Dep. at 35).

  During her tenure at Tri-Star, Plaintiff never received a negative employment review. She was never reprimanded about her attitude, attendance, or punctuality. (Council Dep. at 63). Plaintiff had a good working relationship with the receptionist and the other administrative assistant employed by Tri-Star. (Council Dep. at 65). Plaintiff performed her job well and received three bonuses. (Council Dep. at 65; Delgado Dep. at 46).

  In early February 2000, Mr. Delgado advised Plaintiff that her position was being eliminated and that, in the future, the estimators and project managers would do their own typing. (Compl. ¶ 10; Council Dep. at 42-45). Plaintiff's employment was terminated on February 18, 2000. The decision to discharge Ms. Page 3 Council was made by Mr. Dergado and Ken Butterman, the comptroller of Tri-Star. (Dergado Dep. at 127, 133). `Immediately after Plaintiff's employment was terminated, Tri-Star hired Ivona Bender, a Caucasian woman. Ms. Bender's responsibilities included creating standard formats or templates on Tri-Star's computer network, which would allow estimators and project managers to type their own documents from their own desktop computers. (Butterman Aff. ¶ 38). Ms. Bender was also required to perform Plaintiff's duties until she completed the templates. (Butterman Aff. ¶ 39). Ms. Bender was also hired to assist Tri-Star's salespeople in creating sales presentations and to assist employees in using new computers and software. (Butterman Aff. ¶¶ 41, 42, 69). Ms. Bender completed several templates in or around June 2000, and subsequently assisted Tri-Star employees with several additional computer software related tasks. (Def. Mem. at 11). Once the templates were completed, Tri-Star estimators and project managers typed their documents into the templates from their own computers. In July 2001, Ms Bender went on vacation to Poland and never returned to Tri-Star. (Delgado Tr. at 135).

  After her discharge, Plaintiff filed a charge of discrimination with the EEOC, stating that her employment was terminated due to racial discrimination. (Compl. ¶ 13) The EEOC found probable cause of discrimination and issued a right to Page 4


  In order to state a claim of discriminatory discharge, a plaintiff must make a prima facie case of discrimination. Specifically, the plaintiff must show (1) that she was in a protected group; (2) that she was qualified for the position; that she was discharged; and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination.*fn1 Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir. 1998).

  Once the plaintiff establishes a prima facie case of discrimination, the defendant has the burden of producing reasons for its actions that — if believed by the trier of fact — would support a finding that unlawful discrimination was not the cause of the employment action If the defendant meets its burden of producing a race-neutral reason for the discharge, the burden then returns to the plaintiff, who must adduce sufficient evidence to allow a rational fact finder to infer that the employer was motivated in whole or in part by discrimination In doing this, the plaintiff is entitled to rely on the evidence constituting the prima facie case, together with supportable inferences to be drawn from the false or erroneous character of Page 5 evidentiary burdens shift back and forth under this framework. the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotations and citations omitted).

  Plaintiff's claim of racial discrimination rests entirely on the fact that she was told her employment was being terminated because her position was being abolished, but that Ms. Bender, a Caucasian woman, was immediately hired to perform "essentially the same duties that previously had been performed by plaintiff " (Compl. ¶ 12). Plaintiff does not allege that any person at Tri-Star made any racially derogatory remarks, nor does she allege any additional facts upon which she bases her claim of racial discrimination.*fn2

  The evidence submitted by Defendant demonstrates that Ms Bender's responsibilities included creating computer templates and assisting Tri-Star employees with other computer-related Page 6 needs. Ms. Bender performed the typing tasks that had originally been performed by Plaintiff only until only until the computer templates were complete. Defendant has satisfied its burden to `present a neutral reason for Plaintiff's discharge — that is, Ms. Bender was discharged because Defendant needed to hire someone who could create computer templates.

  In response, Plaintiff argues that she "could have performed the job of creating templates since she had studied this subject in college but Defendants did not even consider providing minimal refresher training." (Pl. Mem. at 10-11). However, Plaintiff's deposition testimony regarding her computer skills is not nearly as definite. Plaintiff testified that she has taken no computer courses since graduating from college in 1986 — thirteen years before she began working for Defendant. Although Plaintiff claims that she was taught how to create templates in college, she claims to have acquired this knowledge in "basic courses" and could recall "nothing specific" about those courses. (Council Dep. at 12-13). Even assuming that Plaintiff could have created the templates Defendant needed with only "minimal refresher training" — despite having no computer training in more than thirteen years — Plaintiff does not allege that she informed Defendant of her computer skills or that Defendant otherwise knew that she was capable of creating these templates.*fn3 Since Page 7 decision to discharge Plaintiff and hire "someone whom they knew could create templates supports no inference of discrimination.

  Plaintiff also points to various inconsistencies in responses given in the Defendant's EEOC position statement and deposition testimony, suggesting that Defendant's proffered reason for her discharge is not credible.*fn4 (Pl. Mem. at 9-10). Although proof that a defendant's non-discriminatory explanation for a plaintiff's termination is false, combined with a plaintiff's prima facie showing of discrimination, may be sufficient to preclude summary judgment, the Second Circuit has made it clear that such a showing will not always be sufficient to survive summary judgment Rather, a court must examine the Page ...

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