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DARRELL v. CONSOLIDATED EDISON COMPANY OF NEW YORK

United States District Court, S.D. New York


May 15, 2004.

SAMUEL R. DARRELL, Plaintiff, -against- CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant

The opinion of the court was delivered by: JOHN KOELTL, District Judge

OPINION and ORDER

The plaintiff, Samuel R. Darrell, brings this employment discrimination action against his employer, Consolidated Edison Company of New York, Inc. ("Con Ed"). The plaintiff commenced the action pro se by filing a form employment discrimination Complaint on August 29, 2001. In the Complaint, the plaintiff asserted claims of discrimination on the basis of race, color, religion, and age, as well as a claim of retaliation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The plaintiff also attached a twelve-page addendum to the Complaint laying out the alleged facts of his case, his charges of discrimination, and several other claims, including claims for unequal pay, defamation, and failure to honor the terms of the Con Ed employee handbook. Thereafter, an attorney entered an appearance on behalf of the plaintiff, and the plaintiff is now represented by counsel in connection with this motion. At a pre-motion conference held on July 2, 2003, the Court directed the plaintiff's counsel to submit a statement to the Court and to defense counsel clarifying the plaintiff's factual allegations and the claims he asserts in this action. On July 18, 2003, the plaintiff's counsel submitted a statement of claims indicating that the plaintiff intended to pursue (1) claims of discrimination based on race, color, and age, as well as a claim of retaliation, under Title VII,*fn1 the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107; (2) a claim under the Equal Pay Act; (3) a claim of breach of the plaintiff's employment contract; and (4) a claim of "disparate impact." (Letter from Gregory R. Preston to Eva Martinez dated July 18, 2003 attached as Ex. G to Declaration of Eva L. Martinez dated Sept. 5, 2003 ("Martinez Decl.").)

The statement of claims indicates that the plaintiff's claims of discrimination and retaliation are based, in part, on alleged unfair and prejudicial performance reviews of the plaintiff; Con Ed's alleged failures to give the plaintiff "appropriate promotions, raises and upgrades;" criticism of the plaintiff's work habits; failure to recognize the plaintiff's accomplishments; failure to consider the plaintiff for the position of Manager of Con Ed's Workers' Compensation Department; taking away the plaintiff's duties and responsibilities in the Workers' Compensation Department; and transferring the plaintiff out of the Workers' Compensation Department. The plaintiff's "disparate impact" claim is based on the contention that Con Ed's alleged failure to post the position for Manager of the Workers' Compensation Department within the company before filling the position had a disparate impact on African Americans. (Id.)

  The defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In the plaintiff's memorandum submitted in opposition to the defendant's motion for summary judgment, the plaintiff indicates that he is no longer pursuing a claim under the Equal Pay Act. (Pl. Mem. at 11 n.1 ("Plaintiff is not pursuing a claim under the Equal Pay Act.").) At the argument of the motion, the plaintiff's counsel reaffirmed and clarified that the plaintiff is not asserting any claims for defamation, discrimination on the basis of religion, breach of contract, constructive discharge, or a claim under the Equal Pay Act. The plaintiff's state law claims are limited to alleged discrimination and retaliation in violation of the NYSHRL and NYCHRL.

  I

  The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

  In determining whether summary judgment is-appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,-587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Yinq Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases). II

  Unless otherwise noted, the following facts are not in dispute. The plaintiff is currently employed by Con Ed in its Human Resources Department. (Def.'s Rule 56.1 St. ¶¶ 1, 9-10; Pl.'s Resp. Rule 56.1 St. ¶¶ 1, 9-10.) The plaintiff has been employed by Con Ed from the time he was first hired by the company in September 1979. (Def.'s Rule 56.1 St. ¶ 2; Pl.'s Resp. Rule 56.1 St. ¶ 2.) The plaintiff was initially hired as a management employee and he has remained a management employee throughout his career at Con Ed. (Def.'s Rule 56.1 St. ¶ 3; Pl.'s Resp. Rule 56.1 St. ¶ 3.)

  From the time he was hired in September 1979 until in or about January 2000, the plaintiff held the position of Investigator in Con Ed's Workers' Compensation Department. (Def.'s Rule 56.1 St. ¶ 4; Pl.'s Resp. Rule 56.1 St. ¶ 4.) In or about January 2000, Con Ed outsourced its Workers' Compensation Department to Sedgwick Claims Management Services, Inc. ("Sedgwick"), a third party administrator that handles workers' compensation claims. (Def.'s Rule 56.1 St. ¶ 5; Pl.'s Resp. Rule 56.1 St. ¶ 5.) In or about February 2000, the plaintiff along with other employees of the Workers' Compensation Department, was laterally transferred to Con Ed's Human Resources Department. (Def.'s Rule 56.1 So. ¶ 6; Pl.'s Resp. Rule 56.1 St. ¶ 6.) The employees transferred out of the Workers' Compensation Department varied in age, race, and gender. (Def.'s Rule 56.1 St. ¶ 7; Pl.'s Resp. Rule 56.1 St. ¶ 7.)

  When the plaintiff was transferred to the Human Resources Department, his job title was changed from Investigator to Associate Specialist. (Def.'s Rule 56.1 St. ¶ 8; Pl.'s Resp. Rule 56.1-St. ¶ 8.) The plaintiff's job transfer to the Human Resources Department did not result in a loss of pay or a change in his job level or benefits, and he enjoys working in that department and gets along well with his co-workers and supervisor there. (Def.'s Rule 56.1 St. ¶¶ 9-10; Pl.'s Resp. Rule 56.1 St. ¶¶ 9-10.) However, the plaintiff contends that his opportunities for promotion within the Human Resources Department are diminished, because he does not have the same level of experience in that department that he had in the Workers' Compensation Department. (Pl.'s Resp. Rule 56.1 St. ¶¶ 9-10; Transcript of Deposition of Samuel Darrell dated Oct. 10, 2002 ("Darrell Tr.") attached as Ex. A to Declaration of Gregory R. Preston dated Oct. 6, 2003 ("Preston Decl.") at 153-54.)

  As an Investigator in the Workers' Compensation Department, the plaintiff's duties included conducting investigations, visiting the scene of an accident, locating documents, gathering information, interviewing witnesses, processing subpoenas, handling third party recoveries, processing medical authorizations, and making occasional appearances before the Workers' Compensation Board. (Def.'s Rule 56.1 St. ¶ 11; Pl's Resp. Rule 56.1 St. ¶ 11.) The plaintiff also claims that he appeared before the New York State Supreme Court on at least one occasion to assert Con Ed's entitlement to a worker's compensation lien. (Pl.'s Resp. Rule 56.1 St. ¶ 11; Letter from Samuel Darrell to Tom Cronin dated Jan. 30, 1986 attached as Ex. M to Preston Decl. at 2.)

  In 1986, 1987, 1989, and 1992, the plaintiff asked to have his job evaluated because he felt that the duties he was performing justified an increase in salary. (Def.'s Rule 56.1 St. ¶ 14; Pl.'s Resp. Rule 56.1 St. ¶ 14.) In 1986 and 1989, the plaintiff received an upgrade in job level and an increase in salary. (Def.'s Rule 56.1 St. ¶ 15; Pl.'s Resp. Rule 56.1 St. ¶ 15.)

  In 1991, Con Ed had a Management Incentive Award Plan. (Def.'s Rule 56.1 St. ¶ 17; Pl.'s Resp. Rule 56.1 St. ¶ 17.) Con Ed claims that decisions about who would receive these awards were discretionary and that approximately eight percent of the workforce in each organization within Con Ed received the award each year. (Def.'s Rule 56.1 St. ¶ 18; Affidavit of George Christ dated Sept. 5, 2003 ("Christ Aff.") ¶ 5.) In 1991, the plaintiff submitted a letter to Alfred Wassler, then the Treasurer of Con Ed, to nominate himself for the Management Incentive Plan award based upon what the plaintiff considered to be his contributions to the Workers' Compensation Department. (Def.'s Rule 56.1 St. ¶¶ 21-22; Pl.'s Resp. Rule 56.1 St. ¶¶ 21-22.) In 1991, Leonard Middleton, an African-American Con Ed employee who is older than the plaintiff, received a Management" Incentive Plan award. (Def.'s Rule 56.1 St. ¶¶ 19-20; Pl's Resp. Rule 56.1 St. ¶¶ 19-20.)

  The plaintiff, like other management employees at Con Ed, received yearly reviews of his work performance by supervisors. (Def.'s Rule 56.1 St. ¶ 23; Pl.'s Resp. Rule 56.1 St. ¶ 23.) On September 18, 1992, the plaintiff received a performance review from his then-supervisors, Manager Lawrence Gleason and Director Thomas Cronin. (Def.'s Rule 56.1 St. ¶ 24; Pl.'s Resp. Rule 56.1 St. ¶ 24.) The report following his performance review concluded that the plaintiff's performance in producing his monthly reports and in contributing overall to the Workers' Compensation Department was "unsatisfactory." (Performance Review attached as Ex. A to Declaration of John Stack, undated, ("Stack Decl."), at 2.) The plaintiff signed the performance review on December 12, 1992, but added comments indicating, among other things, that the plaintiff considered the review to be "very unfair." (Id. at 3.) On December 18, 1992, the plaintiff wrote to Eugene McGrath, the Chairman of Con Ed, alleging that he had been treated unfairly in connection with his self-nomination for a Management Incentive Plan award in 1991 and his September 1992 performance review. (Def.'s Rule 56.1 St. ¶ 28; Pl.'s Resp. Rule 56.1 St. ¶ 28.) In 1992, the plaintiff did receive a merit increase in salary based on his overall performance. (Def.'s Rule 56.1 St. ¶ 27; Pl.'s Resp. Rule 56.1 St. ¶ 27.)

  On September 14, 1993, the plaintiff filed a complaint with the New York City Commission on Human Rights ("NYCCHR"). (Def.'s Rule 56.1 So. ¶ 29; Pl.'s Resp. Rule 56.1 St. ¶ 29; Ex. A to Martinez Decl.)

  In early March 1999, the plaintiff's then-supervisor, Section Manager John Stack, discussed the plaintiff's performance with him and suggested that he put in additional hours at work in order to complete some outstanding work-related tasks. (Def.'s Rule 56.1 St. ¶ 30; Pl.'s Resp. Rule 56.1 St. ¶ 30.) The plaintiff also received a performance review in March 1999 that noted, among other things, that the plaintiff was unable to complete his work and meet the needs of the Workers' Compensation Department. (Def.'s Rule 56.1 St. ¶ 32; Pl.'s Resp. Rule 56.1 St. ¶ 32.) The March 1999 performance review also noted that the plaintiff had been hesitant to adapt to certain changes in the department, and that he had "made statements during the year that he is unable to extend himself to meet the needs of the department and the company due to his need for sleep." (Def.'s Rule 56.1 St. ¶ 33; Pl.'s Resp. Rule 56.1 St. ¶ 33.) In 1999, the plaintiff received a merit increase in his salary. (Def.'s Rule 56.1 St. ¶ 34; Pl.'s Resp". Rule 56.1 St. ¶ 34.) The parties agree that the plaintiff was not the only employee in the Workers' Compensation Department to receive "constructive criticism" from Mr. Gleason or Mr. Stack during performance reviews in 1999. (Def.'s Rule 56.1 St. ¶ 35; Pl.'s Resp. Rule 56.1 St. ¶ 35.)

  In late 1999, Con Ed created a new position of "Manager Workers' Compensation," the duties of which included coordinating the process of outsourcing the Workers' Compensation Department to Sedgwick. (Stack Decl. ¶ 18 & Ex. C.) On or about December 1, 1999, Christine Bolger, an applicant from outside Con Ed, was hired for the position of Manager Workers' Compensation. (Def.'s Rule 56.1 St. ¶ 38; Pl.'s Resp. Rule 56.1 St. ¶ 38.) Shortly thereafter, Con Ed created the position of "Specialist Workers' Compensation," the duties of which included, among other things, assisting Bolger. (Stack Decl. ¶ 21 & Ex. D.) On or about July 17, 2000, Con Ed hired Sally Keller, an applicant from outside Con Ed, to fill the position of Specialist. (Def.'s Rule 56.1 St. ¶ 42; Pl's Resp. Rule 56.1 St. ¶ 42.) The plaintiff did not apply for either position, in part, the plaintiff claims, because the jobs were not posted internally at Con Ed. (Darrell Tr. 122, 134-35.) The parties dispute whether Con Ed had a policy requiring that job vacancies first be posted internally at Con Ed. (Def.'s Rule 56.1 St. ¶ 37; Pl.'s Resp. Rule 56.1 St. ¶¶ 37, 40.)

  On December 15, 2000, the plaintiff filed a complaint with the New York State Division of Human Rights PNYSDHR") alleging acts of discrimination based on age, race, and religion under the New York State Human Rights Law. (Def.'s Rule 56.1 St. ¶ 45; Pl.'s Resp. Rule 56.1 St. ¶ 45; Ex. B to Martinez Decl.) On March 28, 2001, the NYSDHR dismissed the complaint on the grounds that the plaintiff had a complaint already pending before the NYCCHR. (Def.'s Rule 56.1 St. ¶ 46; Pl.'s Resp. Rule 56.1 St. ¶ 46; Ex. C to Martinez Decl.) On May 31, 2001, the EEOC issued the plaintiff a right-to-sue letter, stating that the EEOC was dismissing the complaint, also because the plaintiff had a complaint pending before the NYCCHR. (Def.'s Rule 56.1 St. ¶ 47; Pl.'s Resp. Rule 56.1 St. ¶ 47; Ex. D to Martinez Decl.) The plaintiff filed the complaint commencing the present action on August 29, 2001. (Def.'s Rule 56.1 St. ¶ 48; Pl.'s Resp. Rule 56.1 St. ¶ 48.)

  On July 11, 2003, the NYCCHR administratively closed the plaintiff's case on the grounds that the plaintiff's claim was pending before this Court. (Def.'s Rule 56.1 St. ¶ 58; Pl.'s Resp. Rule 56.1 St. ¶ 58; Ex. I to Martinez Decl.) On or about August 11, 2003, the plaintiff appealed the NYCCHR decision to close his case. (Def.'s Rule 56.1 So. ¶ 59; Pl.'s Resp. Rule 56.1 St. ¶ 59.) On November 6, 2003, the NYCCHR affirmed its administrative closure dismissing the plaintiff's complaint. (Determination and Order After Review dated Nov. 6, 2003 attached to Ltr. of Gregory R. Preston to the Court dated May 10, 2004.)

  III

  The defendants first contend that many of the plaintiff's federal and state claims are time-barred.

  Under Title VII and the ADEA, a New York plaintiff must file an administrative claim within 300 days of the alleged unlawful conduct. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (Title VII); Flaherty v. Metromail Corp., 235 F.3d 133, 137 n.1 (2d Cir. 2000) (ADEA). The filing requirement acts as a statute of limitations to bar all claims falling outside the 300-day period. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996).

  The plaintiff filed an administrative complaint before the NYCCHR on September 14, 1993. The complaint was never cross-filed with the EEOC even though the plaintiff authorized the NYCCHR to cross file the complaint with the EEOC, and the plaintiff never received a right-to-sue letter from the EEOC. Assuming that the NYCCHR complaint provides a basis for asserting federal discrimination claims in this action, the Court could consider allegations of discrimination under Title VII and the ADEA in this complaint only if they occurred after November 18, 1992 — that is, 300 days before September 14, 1993.

  The plaintiff's NYCCHR complaint alleges that "[i]n or about September 1992, and continuing to the present date, [Con Ed and Con Ed supervisors] subjected complainant to disparate treatment, including but not limited to: citing unsubstantiated work deficiencies in his evaluations, not giving complainant appropriate promotions and raises, and criticizing complainant's work habits." (Ex. A to Martinez Decl. ¶ 8.) Apart from these general allegations, the only specific instance of discrimination alleged in the NYCCHR complaint concerns the plaintiff's September 18, 1992 performance review, which would be time-barred under Title VII and the ADEA, because it occurred before November 18, 2002. Although the plaintiff alleged in generalized terms that he was discriminated against from September 1992 "continuing to [September 14, 1993]," there is no evidence in the record in this case of any allegedly discriminatory conduct that occurred between November 1992 and September 1993 that could form the basis for charges under Title VII or the ADEA. Therefore, the plaintiff's 1993 NYCCHR complaint cannot provide the basis for any federal discrimination claims in this action.

  The plaintiff filed another administrative complaint before the NYSDHR on December 15, 2000. This complaint was cross-filed with the EEOC, and the EEOC issued a right-to-sue letter. Any claims of discrimination under Title VII or the ADEA alleged in this complaint that arose before February 19, 2000 — 300 days before December 15, 2000 — are time-barred. The plaintiff has alleged only discrete acts of discrimination, not a hosfile work environment, so he cannot rely on the continuing violation doctrine to avoid the limitations period and base claims on conduct falling outside the 300-day period.*fn2 See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-1-4 (2002); Coffey v. Cushman & Wakefield, No. 01 Civ. 9447, 2002 WL 1610913, at *2 (S.D.N.Y. July 22, 2002) (noting that discrete acts falling outside the statutory period cannot form basis for relief even if they are related to other actionable conduct that is otherwise not time barred).

  Under the NYSHRL and the NYCHRL, claims of discrimination are subject to three-year statutes of limitations. See N.Y. C.P.L.R. § 214(2); N.Y.C. Admin. Code § 8-502(d); Hill v. Citibank Corp., No. 02 Civ. 1917, 2004 WL 613399, at *7 (S.D.N.Y. Mar. 26, 2004). The plaintiff filed the Complaint in this case on August 29, 2001. Therefore, any claims under the NYSHRL or the NYCHRL before August 29, 1998 are time-barred.

  IV

  Of the plaintiff's claims asserted under Title VII and the ADEA, only Con Ed's alleged failure to post the Specialist position internally at Con Ed — which the plaintiff brings as a disparate impact claim — clearly occurred after February 19, 2000.*fn3 The parties agree that the plaintiff was transferred to the Human Resources Department sometime in February 2000, so it is possible that claims of discrimination based on the transfer are also timely. Neither of these claims has any merit.

  A

  The plaintiff's disparate impact claim under Title VII alleges that Con Ed's failure to post vacant employment positions internally at Con Ed, including the Specialist Workers' Compensation position in early 2000, had a disparate and prejudicial impact on African-American employees at Con Ed.

  Disparate impact claims do not require proof of discriminatory intent, because "disparate impact theory targets practices that are fair in form, but discriminatory in operation." Smith v. Xerox Corp., 196 F.3d 358, 364 (2d Cir. 1999) (internal quotation marks and citation omitted). "To make out a prima facie case of disparate impact, a plaintiff must (1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two." Malave v. Potter, 320 F.3d 321, 325 (2d Cir. 2003) (internal quotation marks omitted). The plaintiff may submit statistical data to show a disparity in outcome between groups, but to establish a prima facie case "the statistical disparity must be sufficiently substantial to raise an inference of causation." Id. (internal quotation marks omitted).

  The plaintiff has not made out a prima facie case for a disparate impact claim. The plaintiff has made no showing that Con Ed's failure to post vacant employment positions internally, including the Specialist position, has a disparate impact on African Americans. To establish the existence of a disparity, the plaintiff refers to an expert report filed in Sheppard v. Consolidated Edison Co. of New York, Inc., No. 94-CV-0403, 2002 WL 2003206 (E.D.N.Y. Aug. 1, 2002), a class action involving claims that Con Ed discriminated on the basis of race in violation of Title VII. The plaintiff did not submit a copy of the report on the grounds that "there should be no dispute by Defendant of the existence of the Plaintiff's report analyzing the promotional policy, the disparity and the causal connection." (Pl. Mem. at 24 n.4.) Apart from the fact that the putative expert report is not part of the record in this case and was not subject to expert discovery and disclosure, the plaintiff's conclusory allegations concerning its content are insufficient to establish a prima facie case of disparate impact. The plaintiff's disparate impact claim is therefore dismissed.

  B

  The plaintiff also claims that his transfer to the Human Resources Department was discriminatory. It is unclear whether the claim is asserted under Title VII, the ADEA, or both. As noted above, it is also unclear whether this claim is timely. In any event, the claim is without merit.

  Employment discrimination claims, brought pursuant to Title VII and the ADEA, are governed at the summary judgment stage by the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (Title VII and ADEA); Jetter v. Knothe Corp., 324 F.3d 73, 75 (2d Cir. 2003) (per curiam) (ADEA). Under the McDonnell Douglas test, the plaintiff carries the initial burden of establishing a prima facie case of discrimination. Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 142 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981) (citing McDonnell Douglas); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997). To state a prima facie case of discrimination under Title VII the plaintiff must allege that the plaintiff (1) is a member of a protected class; (2) was performing his job satisfactorily; (3) was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. St. Mary's Honor Ctr., 509 U.S. at 507; McDonnell Douglas, 411 U.S. at 802; Chambers, 43 F.3d at 37; Ali v. Bank of New York, 934 F. Supp. 87, 92 (S.D.N.Y. 1996). Similarly, to establish a prima facie case of age discrimination under the ADEA, a plaintiff must demonstrate that: (1) he was within the protected age group; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. Terry, 336 F.3d at 137-38 (internal quotation marks omitted). However, the burden of establishing a prima facie case is de minimis. Chambers, 43 F.3d at 37.

  When a plaintiff has successfully demonstrated the elements of a prima facie case, the burden of production shifts to the defendant to put forth a legitimate, nondiscriminatory reason for the employer's challenged action. See Burdine, 450 U.S. at 252-53. After the defendant articulates a legitimate reason for the action, the presumption of discrimination raised by the prima facie case drops out, and the plaintiff has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision and that the plaintiff's membership in a protected class was. Id. at 254-56; Fisher, 114 F.3d at 1336. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the" plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253; see also Reeves, 530 U.S. at 143; Fisher, 114 F.3d at 1336. The Court of Appeals for the Second Circuit has instructed that in determining whether the plaintiff has met this burden, a court is to use a "case by case" approach that evaluates "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case." James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (quoting Reeves, 530 U.S. at 148-49). Although summary judgment must be granted with caution in employment discrimination actions "where intent is genuinely in issue, . . . summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers, 43 F.3d at 40; see also Alston v. New York City Transit Auth., No. 02 Civ. 2400, 2003 WL 22871917, at *4-*5 (S.D.N.Y. Dec. 3, 2003).

  In this case, the plaintiff has failed to make out a prima facie case of discrimination under Title VII or the ADEA. The plaintiff has established that, as an African-American employee over age forty, he is a member of the protected classes under Title VII and the ADEA. Nevertheless, even assuming that the plaintiff was performing his job satisfactorily and that his lateral transfer to the Human Resources Department would qualify as an adverse employment action, the plaintiff has not established that the transfer occurred under circumstances giving rise to an inference of discrimination on the basis of age or race. Indeed, the plaintiff has not submitted any evidence to suggest that the transfer might have been motivated by age discrimination.

  The only evidence adduced by the plaintiff to raise an alleged inference of racial discrimination is the fact that one white management employee was not transferred out of the Workers' Compensation Department at the time that the department was being outsourced to Sedgwick. This fact does not present circumstances giving rise to an inference of racial discrimination. Indeed, the parties agree that the employees transferred out of the Workers' Compensation Department varied in age, race/ and gender. (Def. Rule 56.1 St. ¶ 7; Pl. Resp. Rule 56.1 St. ¶ 7.) The fact that one employee who was not transferred was white does not raise an inference that racial discrimination motivated the plaintiff's transfer, especially where other employees of various races were also transferred. Because the plaintiff cannot make out a prima facie case of discrimination under Title VII or the ADEA in connection with his transfer out of the Workers' Compensation Department, summary judgment must be granted and the claim dismissed.

  Moreover, even if the plaintiff could make out a prima facie case under Title VII and the ADEA, the defendant has come forward with a legitimate, nondiscriminatory reason for the transfer. The plaintiff and nearly all the other employees of the Workers' Compensation Department were transferred to other departments within Con Ed when the Workers' Compensation. Department was outsourced to Sedgwick beginning in January 2000. See May v. Shuttle, Inc., 129 F.3d 165, 173 (D.C. Cir. 1997) (per curiam) (finding that airline workers could not succeed on ADEA claim, even if prima facie case were established, because "[d]efendants have produced evidence showing that plaintiffs were furloughed for a legitimate, nondiscriminatory reason — to save money by outsourcing the entire department"); Johnson-Carter v. B.D.O. Seidman, LLP, 169 F. Supp.2d 924, 942 (N.D. Ill. 2001) (granting summary judgment to defendant on plaintiff's Title VII claim of discriminatory termination where defendant "proffered a legitimate reason — reorganization and outsourcing of instructional design work — for terminating [the plaintiff's] employment, and she has failed to show that this reason is unworthy of belief"). The plaintiff has submitted no evidence from which a reasonable jury could conclude that this reason was actually a pretext for unlawful discrimination on the basis of age or race.

  The defendant's motion for summary judgment on the plaintiff's claims under Title VII and the ADEA is granted.

  V

  The remaining claims in this case arise under the NYSHRL or the NYCHRL. A district court may, in its discretion, decline to exercise supplemental jurisdiction over state law claims after. dismissing all federal claims in an action. 28 U.S.C. § 1367(c)(3); Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 102-03 (2d Cir. 1998) (affirming dismissal of state claims after grant of summary judgment on federal claims).

  A

  To the extent that the plaintiff asserts the Title VII and ADEA claims dismissed above under the NYSHRL and NYCHRL as well, those claims are also dismissed. Discrimination claims under the NYSHRL and the NYCHRL are analyzed using the same standards as those that apply to Title VII and ADEA claims. See Cruz v. Coach Stores, 202 F.3d 560, 565 n.1 (2d Cir. 2000); Wanamaker v. Columbian Rope Co., 108 F.3d 462, 467 (2d Cir. 1997); Duncan v. New York City Transit Authority, 127 F. Supp.2d 354, 360 (E.D.N.Y. 2001) (applying same standard to plaintiff's disparate impact and disparate treatment claims under Title VII, ADEA, and NYSHRL). It is within the Court's discretion to maintain jurisdiction where doing so merely involves applying the same analysis to the same facts; certainly, judicial economy, convenience and fairness are all served in this instance, and comity concerns are not implicated when the New York courts have indicated that the same analysis applies. See, e.g., Evans v. Port Auth. of New York and New Jersey, No. 00 Civ. 5753, 2002 WL 77074, at *3 (S.D.N.Y. Jan. 22, 2002) (simultaneously granting summary judgment dismissing § 1981, state, and city claims); Kirnon-Emans v. Am. Mgmt. Ass'n, No. 00 Civ. 3960, 2002 WL 523368, at *8 (S.D.N.Y. Apr. 5, 2002). Therefore, the Court maintains jurisdiction over the plaintiff's NYCHRL and NYSHRL discrimination claims to the extent they are based on the same facts as those underlying the plaintiff's timely Title VII and ADEA claims, and, for the reasons explained above, grants the defendant's motion for summary judgment with respect to those claims.

  B

  The plaintiff's other claims under the NYSHRL and NYCHRL, would require the Court to consider additional facts and legal issues beyond those addressed above. As explained above, the plaintiff has alleged discrimination claims under the NYSHRL and NYCHRL that reach back into the period between August 29, 1998 and February 19, 2000, where claims are time-barred under federal law but are not time-barred under state law. This period would include, for example, the plaintiff's complaints about his 1999 performance review. Because the Court has dismissed all of the plaintiff's federal claims, there is no longer any federal question in this case. Moreover, the Complaint does not allege diversity jurisdiction pursuant to 28 U.S.C. § 1332, and the parties agree there is no diversity jurisdiction. The case has also not yet proceeded to trial and presents no other exceptional circumstances that might warrant maintaining jurisdiction over the remaining claims under the NYSHRL and the NYCHRL. The parties agreed at the argument of the motion that the decision whether to exercise jurisdiction over the state discrimination charges that are not coincident with the federal discrimination charges is a matter within the Court's discretion. In these circumstances; the Court declines to exercise supplemental jurisdiction over the plaintiff's state law discrimination claims that arose between August 29, 1998 and February 19, 2000, and those claims are dismissed without prejudice for lack of jurisdiction. See 28 U.S.C. § 1367 (c)(3); Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001); Morse v. University of Vermont, 973 F.2d 122, 128 (2d Cir. 1992); DeVito v. Incorporated Village of Valley Stream, 991 F. Supp. 137, 145 (E.D.N.Y. 1998); Irish Lesbian and Gay Organization v, Bratton, 882 F. Supp. 315, 319 (S.D.N.Y. 1995), aff'd, 52 F.3d 311 (2d Cir. 1995); see also Lieberman v. Fine, Olin & Anderman, P.C., No. 00 Civ. 6533, 2002 WL 142198, at *4 (S.D.N.Y. Jan. 31, 2002). CONCLUSION

  For the reasons explained above, the defendant's motion for summary judgment is granted and the Complaint is dismissed with prejudice except for the plaintiff's claims of discrimination in violation of the NYSHRL and the NYCHRL that arose between August 29, 1998 and February 19, 2000, which are dismissed without prejudice. The Clerk is directed to enter Judgment dismissing the Complaint and closing this case.

  SO ORDERED.


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