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
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
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
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. ¶¶
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.)
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
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.
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.
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
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
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.
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
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.
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
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
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.