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September 23, 2004.

JOSE DEJESUS, Plaintiff,

The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


Defendant Starr Technical Risks Agency, Inc. ("Starr Tech") seeks summary judgment dismissing plaintiff Jose DeJesus' ("DeJesus") claims of racial discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000(e), et seq. For the reasons stated herein, defendant's motion is granted.


  The following facts, unless otherwise noted, are either undisputed or interpreted most favorably to plaintiff. Starr Tech underwrites property insurance policies for the oil, gas, chemical and petrochemical industries. (See Def.'s Rule 56.1 Statement ¶ 1 (hereinafter "Def. St.").)

  DeJesus began his employment with Starr Tech in 1988 as an Underwriting Assistant, a support staff job. (Pl.'s Resp. to Def.'s St. ¶ 2 (hereinafter "Pl. St."); DeJesus Dep. at 31-32, attached to Aff. of James. J. Oh.) DeJesus does not have an engineering degree and, prior to working for Starr Tech, he did not have any education or experience in the energy or engineering fields. (See id. ¶ 5.) In fact, DeJesus' only prior experience in the insurance industry was as a clerical employee. (See id. ¶ 6.) In 1994, DeJesus was promoted to the position of Underwriter, with a concomitant increase in pay. (See id. at 8.) However, there was (and continues to be) a disparity in pay between DeJesus and all other underwriters employed by Starr Tech. (See id. ¶ 46.)

  At the time he was promoted to Underwriter, DeJesus had "handled renewals of existing Starr Tech business with management guidance, and ha[d] become proficient in reviewing submissions, policy insurance, and to some degree financial and engineering reviews." (Salary Change Recommendation Form, July 18, 1994, attached as Ex. F to Aff. of James J. Oh.) However, DeJesus admits that, at that time, he still "needed to develop a basic understanding of the fundamentals of underwriting." (DeJesus Dep. at 86.) Thus, when DeJesus was promoted to Underwriter, Starr Tech approved tuition reimbursement for him so that he could immediately begin taking courses to complete an Associate Degree in Insurance. (See Pl. St. ¶ 12.) By contrast, all the other Underwriters in DeJesus' department each had an engineering degree and/or prior work experience in the energy and/or insurance industries prior to working for Starr Tech.*fn1 (See id. ¶ 16.)

  Following his promotion to Underwriter, DeJesus performed a dual role, working as an underwriter on smaller accounts, but continuing to provide support to more senior underwriters on more complex accounts.*fn2 (See Def. St. ¶ 10.) DeJesus was the only underwriter employed by Starr Tech who was required to perform the support functions of an Underwriter Assistant while working as an Underwriter. (See Pl. St. ¶ 51.) DeJesus also was and continues to be the only Hispanic underwriter at Starr Tech. (See id. ¶¶ 53-54.)

  Each of DeJesus' performance reviews from 1994 through 1999 recommended that he take a course on "Introduction to Reinsurance" and that he complete his Associate Degree in Insurance. (See id. ¶ 17.) However, DeJesus has done neither of those things. (See id. ¶¶ 18-19.) Although DeJesus took courses at the College of Insurance towards completing an Associate Degree, he asserts that "[t]hese token courses are no substitute for on the job training because of their generic nature."*fn3 (Id. ¶¶ 63, 65, 66.) DeJesus asserts that the reinsurance course, which is taught on Starr Tech's premises, is also a "token" course. (See id. ¶¶ 61-62.)

  From 1995 through December 2000, DeJesus never received an overall score higher than a "Meets Expectations" on his performance appraisals. (See id. ¶ 13.) Each performance review from 1995 through December 2000 itemized areas in which DeJesus needed to improve his underwriting skills, including, inter alia, increasing his knowledge of reinsurance, developing a better knowledge and understanding of policies and policy language, and improving his understanding of the technical risks to be assessed. (See id. ¶ 14.) Despite needing improvement, DeJesus continued to receive annual pay increases and tuition reimbursement for Associate Degree courses, has not been demoted, had his pay cut, or seen his job duties diminished since being promoted to Underwriter. (See id. ¶ 15.)

  However, DeJesus asserts that he received less underwriting training by employees at Starr Tech than other non-Hispanics hired as underwriters after DeJesus was promoted to Underwriter. (See id. ¶¶ 50, 67.) DeJesus also asserts that, at the time when certain other underwriters were hired by Starr Tech, DeJesus had more underwriting experience than the new hires notwithstanding their other qualifications. (See id. ¶ 52.)

  DeJesus points to Starr Tech employee Doug Davies as an example of a Caucasian who was given preferential treatment. (See id. ¶ 73.) Davies, an Underwriter Assistant, was paid a salary in the mid-forties (e.g., $45,000) after two years of employment and was permitted to go on site visits and to build contacts. (See id. ¶¶ 71-72.) DeJesus, after 16 years with Starr Tech, had a salary in the low to mid-fifties (e.g., $55,000) and allegedly had been denied similar opportunities for site visits and networking. (See id.) DeJesus also states that he is the only underwriter at Starr Tech who has a cubicle, rather than an office. (See id. ¶ 55.) Other individuals hired as Underwriters after DeJesus was promoted to Underwriter were given offices. (See id. ¶¶ 57-58.)

  In a July 23, 1998, memorandum that memorialized a verbal warning, DeJesus was advised that the number of his unapproved absences was unacceptable, that he needed to show more of a commitment to Starr Tech before it could increase his underwriting duties, and that a failure to improve could lead to further disciplinary action. (See id. ¶ 23.) DeJesus claims that he was given this warning after he complained to the Human Resources department about Starr Tech's failure to provide him the training being provided to other employees. (See id. ¶¶ 68-69.) DeJesus was verbally counseled again on May 15, 2000, about unapproved absences. (See id. ¶ 24.) On June 26, 2000, DeJesus was issued a written warning cautioning that continued unapproved absences could lead to his termination. (See id. ¶ 25.)

  DeJesus believed as early as 1996 that he was being discriminated against because of his race, see id. ¶ 28, and he believed as early as 1997 that he was "grossly underpaid, even by company standards." (DeJesus Dep. at 217.) On September 10, 2001, DeJesus filed a complaint with the New York State Division of Human Rights, which in turn was filed with the U.S. Equal Opportunity Employment Commission ("EEOC complaint"). (See Compl. ¶ 6.) The EEOC complaint alleged that DeJesus was "denied the same treatment given non-Hispanic underwriters" in that, unlike Caucasian underwriters, (a) DeJesus was not given an assistant; (b) he was denied support and training enabling him to succeed and to be further promoted; and (c) he was paid less.*fn4 (EEOC compl. ¶ 4, attached to Compl.)

  Shortly before DeJesus filed the EEOC complaint, Starr Tech's New York office (where DeJesus worked) implemented a "team system" whereby one Underwriter and one Senior Underwriter were teamed with an Underwriting Assistant.*fn5 (See Pl. St. ¶ 29.) The team system has been an improvement over the working condition about which DeJesus complained in his EEOC complaint. (See id. ¶ 31.) Under the team system, DeJesus no longer performs Underwriter Assistant work, but rather performs "full-fledged Underwriter" work full time. (See id. ¶ 30.)

  However, in December 2001, shortly after the team system was implemented, a regularly scheduled audit of DeJesus' department was conducted by James Regan, an employee from Starr Tech's Chicago office. (See id. ¶ 34.) At the time of the audit, Regan had no supervisory authority over DeJesus and was not aware that DeJesus had filed the EEOC complaint. (See Regan Decl. ¶ 3, attached to Aff. of James J. Oh.) After auditing one of DeJesus' files, Regan recommended that a complete audit of all of DeJesus' files be done. (See Pl. St. ¶ 36.) Thus, DeJesus' underwriting authority was temporarily suspended for two months while this recommended review of DeJesus' files was performed. (See id. ¶ 37.) During that two-month period, DeJesus had to get approval from his superior in order to bind insurance coverage. (See DeJesus Dep. at 355-58.) After the review of his files was completed, DeJesus' underwriting authority was fully restored and no further action was taken. (See Pl. St. ¶ 39.)

  In 2002 and 2003, DeJesus' performance reviews identified areas of performance that needed improvement. (See id. ¶ 33.) However, DeJesus received both salary increases and approval for tuition reimbursement for that period as well. (See id. ¶ 32.)

  On February 26, 2003, DeJesus filed a complaint in the United States District Court for the Southern District of New York. The complaint alleges that DeJesus was promoted to Underwriter "in `name only' [and] was ordered to perform the duties of underwriter assistant" despite his promotion. (Compl. ¶ 10.) As in the EEOC complaint, DeJesus further alleges that (a) he was not given an assistant and (b) he was denied support and training enabling him to succeed and to be further promoted while "promotional opportunities [were] given to less-qualified, ...

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