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DARRELL v. CONSOLIDATED EDISON COMPANY OF 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 ...


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