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United States District Court, S.D. New York

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, non-Hispanic employees." (Compl. ¶¶ 11-14.) The complaint alleges two causes of action: race discrimination and retaliation.*fn6 (See Compl. ¶¶ 15-20.)


  I. The Summary Judgment Standard

  Summary judgment is appropriate when "there is no genuine issue as to any material fact" and the undisputed facts entitle the moving party to judgment as a matter of law. Fed.R. Civ. P. 56(c). In considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, in order to defeat a motion for summary judgment, the non-moving party cannot rely on mere allegations, denials, conjectures or conclusory statements, but rather must come forth with affirmative and specific evidence showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986); Gross v. Nat'l Broad. Co., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002). The evidence must be such that "a reasonable juror could return a verdict" in favor of the non-movant. Anderson, 477 U.S. at 256. Summary judgment is "mandated" when "the evidence is insufficient to support the non-moving party's case." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998). Summary judgment may also be granted when the opposing party fails to establish an element essential to that party's case and on which that party would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986).

  Courts evaluating summary judgment as to employment discrimination claims, which necessarily implicate an employer's intent, motivation, or state of mind, must tread cautiously. See Meckenberg v. New York City Off-Track Betting, 42 F. Supp. 2d 359, 370 (S.D.N.Y. 1999). "Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). However, a court should not hesitate to grant summary judgment where a plaintiff has offered little or no evidence of discrimination. See Gross, 232 F. Supp. 2d at 67-68. The standard that "the plaintiff must offer concrete evidence from which a reasonable juror could return a verdict in his favor," Meckenberg, F. Supp. 2d at 370 (quotations omitted), "applies no less in discrimination cases than to other areas of litigation." Gross, 232 F. Supp. 2d at 67. "Indeed, it is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Id. at 68.

  II. Discrimination and Disparate Pay

  Defendant argues that plaintiff's discrimination and disparate pay claims are time-barred. (See Def.'s Mem. in Support of Summ. J. at 7-8 (hereinafter "Br."); Def.'s Reply Mem. in Support of Summ. J. at 3-5 (hereinafter "Reply").) With respect to disparate pay, defendant also argues that summary judgment should be granted in its favor because plaintiff did not plead disparate pay in his complaint. (See Reply at 2.) Defendant further argues that there is no evidence of an adverse employment action, discrimination based on race, or pretext. (See Br. at 10-14; Reply at 5-7.)

  Plaintiff argues that "the thrust of his discriminatory wage claim centers around the case of Bazemore v. Friday," 478 U.S. 385 (1986), and is therefore timely.*fn7 (See Pl. Mem. in Opp'n to Summ. J. at 2 (hereinafter "Opp'n").) Plaintiff further argues that the following facts support his claim of discrimination: (a) "after the `promotion' 90% of his time was spent doing the job [of an Underwriter Assistant]" and thus "he had no time to learn the skills of an Underwriter";*fn8 (b) "he is the only Underwriter at Starr Technical that does not have his own office"; and (c) "his pay is approximately ½ of the pay given to the other Underwriters". (Id. at 1, 13-14)

  A. The Timeliness of Plaintiff's Claims

  Turning first to whether plaintiff's claims are time-barred, the Court notes that "in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice . . . such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred". 42 U.S.C. § 2000e-5(e)(1) (emphasis added). This short time period indicates that "Congress clearly intended to encourage the prompt processing of all charges of employment discrimination." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).

  Reviewing the undisputed facts of this case, it is clear that plaintiff's grievances stem from his promotion to Underwriter in 1994, after which point plaintiff alleges that he (1) should not have been required to perform the dual role of Underwriter and Underwriter Assistant; (2) should have received his own office; and (3) should have received pay equivalent to other Underwriters. In substance, plaintiff claims that his "promotion was `in name only'." (Compl. ¶ 10.) Given that these grievances first arose in 1994 — considerably more than 300 days before DeJesus filed the EEOC complaint in September, 2001, the issue of timeliness turns on (a) when DeJesus had notice of the allegedly discriminatory actions, see Van Zant v. KLM Dutch Royal Airlines, 80 F.3d 708, 713 (2d Cir. 1996) ("The timeliness of a discrimination claim is to be measured from the date the claimant had notice of the alleged discriminatory action"), and (b) whether these grievances amount to a continuing violation, in which case timeliness would be measured from the latest day on which DeJesus suffered a discriminatory action that was part of the continuing violation, see Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134 (2d Cir. 2003).

  Even if DeJesus did not know on the day that he got promoted in 1994 that he would be doing both Underwriter and Underwriter Assistant work, working in a cubicle, and getting paid less, he admits to knowing of these grievances more than 300 days before he filed the EEOC complaint. As DeJesus believed in 1996 and 1997 — several years after his promotion and several years before his EEOC complaint — that he was being discriminated against because of his race (including being "grossly underpaid," DeJesus Dep. at 217), alleged lack of notice cannot make DeJesus' claim timely.

  That conclusion brings the Court to the continuing violation doctrine articulated in Bazemore. In Bazemore, employees and service recipients of a North Carolina State University organization sued the University and various officials for racial discrimination in employment and in the provision of services. See Bazemore, 478 U.S. at 388-91. Specifically, plaintiffs there alleged, inter alia, that the organization "had failed to recruit, hire, and assign blacks on an equal basis with whites; had denied blacks the same compensation, terms, conditions, and privileges as were provided to whites; [and] had segregated blacks in work assignments". Id. at 392 n. 3. The allegations arose out of the organization's failure to correct disparities existing after a merger of two of its branches (one white, one black) that were separate prior to 1965. See id. at 394. The Supreme Court, reversing a contrary appellate court ruling, held "that the [organization] discriminated with respect to salaries prior to the time it was covered by Title VII does not excuse perpetuating that discrimination after the [organization] become covered by Title VII." Id. at 395 (emphasis in original). The Supreme Court reasoned:

A pattern or practice that would have constituted a violation of Title VII but for the fact that the statute had not yet become effective, became a violation upon Title VII's effective date, and to the extent that an employer continued to engage in that act or practice, it is liable under that statute. While recovery may not be permitted for the pre- 1972 [effective date] acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed. Each week's paycheck that delivers less to a black than a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII. Id. at 395-96.
Thus, under the continuing violation doctrine, "a plaintiff who files a timely EEOC charge about a particular discriminatory act committed in furtherance of an ongoing policy of discrimination extends the limitations period for all claims of discriminatory acts committed under that policy even if those acts, standing alone, would have been barred by the statute of limitations." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997).

  The continuing violations doctrine is a "narrow exception to the limitations period," Blake v. Bronx Leb. Hosp. Ctr., No. 02 Civ. 3827 (CBM), 2003 WL 21910867, at *5 (S.D.N.Y. Aug. 11, 2003), and courts of this Circuit have generally been loath to apply it without a showing of compelling circumstances. See Little v. Nat'l Broad. Co., 210 F. Supp. 2d 330, 366 (S.D.N.Y. 2002). The doctrine has essentially been limited to situations where a specific discriminatory policy or mechanism has been alleged. See Blake, 2003 WL 21910867, at *5. Completed acts or discrete incidents such as termination or resignation, job transfer, discontinuance of a job assignment, denial of a promotion or increased pay grade, or failure to compensate adequately are not acts of a continuing nature and, thus, cannot be the premise of a continuing violation claim. See id. at *5, 7; Little, 210 F. Supp. 2d at 366; Gross, F. Supp. 2d at 68. "Nor can a continuing violation be established merely because the claimant continues to feel the effects of a time-barred discriminatory act or merely because the claimant continues his or her employment." Little, 210 F. Supp. 2d at 366 (quotations omitted); accord Lightfoot, 110 F.3d at 907. Rather, the claimant must allege both the existence of an ongoing policy of discrimination and some act taken in furtherance of that policy within the limitations period. See Little, 210 F. Supp. 2d at 366.

  When determining whether specific and related discriminatory acts constitute a discriminatory practice, courts in this district have examined (a) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; (b) whether the alleged acts are recurring or more in the nature of an isolated work assignment or employment decision; and (c) whether the alleged acts have a "degree of permanence". See id. at 366-67. "The continuing violation doctrine is less likely to apply when the time-barred acts have the degree of permanence which should trigger an employees awareness and duty to assert his or her rights." Id. at 367 (quotations omitted).

  DeJesus' situation is similar to that of someone denied a promotion, pay increase, or a transfer in that, although the effects of the discriminatory actions may be felt by defendant "for as long as he remains employed," the alleged discriminatory actions — denial of an office, denial of an opportunity to do exclusively underwriting work, and denial of a pay raise — are discrete acts. Elmenayer, 318 F.3d at 135. See, e.g., Lightfoot, 110 F.3d at 907 ("If Lightfoot was entitled to a pay raise because of the added responsibilities of his new position, the entitlement arose at the time of his promotion."); Gross, 232 F. Supp. 2d at 69 (dismissing as time-barred all claims arising over 300 days before plaintiff filed EEOC complaint, including claims relating to initial compensation, assignment to particular department, and denial of personal services contract); Hudson v. Delphi Energy & Engine Mgmt. Sys., Inc., 10 F. Supp. 2d 256, 259 (W.D.N.Y. 1998) ("[P]laintiff alleges specific discriminatory acts beginning at her promotion in 1983"). The allegedly discriminatory acts had a permanent effect and should have triggered DeJesus to file a claim soon after he was promoted in 1994. Indeed, discounting the implementation of the team system, DeJesus' situation allegedly had not changed since his promotion until the time he filed the EEOC complaint in September 2001. The Court also finds that the grievances are not a continuing violation because plaintiff offers no evidence that defendant engaged in a pattern or policy of discrimination. See, e.g., Gross, 232 F. Supp. 2d at 69 ("[Plaintiff] offers no evidence that [defendant] maintained and/or applied any type of discriminatory policy or practice."). Thus, the Court concludes that DeJesus' Title VII claim is barred in so far as he alleges that his promotion was in name only, that he had to perform the dual role of Underwriter and Underwriter Assistant, that he was not given time to learn the skills of an Underwriter, and that he did not receive his own office upon becoming an Underwriter.

  However, with respect to his equal pay claim, the Court agrees with plaintiff's argument that "each paycheck reflecting the disparity is a separate act of discrimination." (See Opp'n at 8.) "[A] claim of discriminatory pay is fundamentally unlike other claims of ongoing discriminatory treatment because it involves a series of discrete, individual wrongs rather than a single and indivisible course of wrongful action." Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir. 1997). See also Quarless v. Bronx-Leb. Hosp. Ctr., 228 F. Supp. 2d 377, 382 (S.D.N.Y. 2002) ("each paycheck that Plaintiff received was an (alleged) immediate and individual wrong which gave rise to a separate disparate pay claim"). Therefore, assuming his claim is not faulty for other reasons, DeJesus may proceed with a claim for disparate pay for paychecks he received within and after the 300-day period before filing the EEOC complaint.*fn9 See, e.g., Meckenberg, 42 F. Supp. 2d at 376 n. 7 (holding plaintiff "is barred from recovery based on paychecks received before [300 days prior to filing EEOC complaint], but not those received after that date, assuming she proves intentional discrimination"); Hudson, 10 F. Supp. 2d at 259-61 (barring as untimely claims related to transfer and denial of pay raise but allowing claim as to disparate pay).

  B. Pleading a Claim for Disparate Pay

  Having determined that plaintiff's disparate pay claim is not time-barred, the Court considers whether DeJesus asserted this claim in his complaint and, if not, whether he may assert it now. Defendant argues that both of these questions should be answered in the negative. (See Reply at 2.)

  There is no disparate pay claim alleged in plaintiff's barebones complaint. (See Compl. ¶¶ 1-20.) The only mention of any sort of pay in DeJesus' pleadings is found in the EEOC complaint, which is attached to the Complaint. The EEOC complaint alleges that, "[a]s a result of complainant's being compelled to perform the job of [Underwriter Assistant] in addition to his underwriter position, his compensation has suffered." (EEOC compl. ¶ 4(d).) Though a "short and plain statement" is sufficient to set forth a claim for relief, Fed.R. Civ. P. 8(a), the Court finds that the language in the EEOC complaint simply does not assert, even vaguely, a claim for disparate pay. Innumerable acts of discrimination negatively impact a plaintiff's compensation but do not necessarily give rise to a disparate pay claim. Indeed, plaintiff's EEOC complaint alleges his compensation suffered because he was being required to perform a different job than other underwriters (namely, the dual role of underwriter and underwriter assistant), as opposed to performing the same job but being paid less, which of course is the essence of a disparate pay claim. See Conigliaro v. Horace Mann Sch., No. 95 Civ. 3555 (CSH), 2000 WL 45439, at *8 (S.D.N.Y Jan. 19, 2000) ("[T]he performance of some common tasks does not make jobs substantially equal when material differences also exist.").

  However, finding that a claim is not alleged in a complaint does not lead inevitably to the conclusion that DeJesus cannot assert a disparate pay claim now. Although generally "it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment," Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y. 1997), a court may allow a claim that, while inartfully stated, is alleged in substance in the complaint such that a defendant would not be prejudiced by its late assertion. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 568-70 (2d Cir. 2000).

  Reviewing the record before it, the Court finds that defendant would in fact be prejudiced by the late assertion of a disparate pay claim. As discussed more fully in the next section, the record presented to the Court is missing evidence that is obviously relevant to a disparate pay claim. This omission suggests that the parties did not conduct discovery into a disparate pay claim. Given the apparent lack of discovery, the Court finds that Starr Tech would be unduly prejudiced in defending against a disparate pay claim and, thus, concludes that plaintiff should not be allowed to assert it at this stage of the litigation, in opposition to summary judgment and after the close of discovery. See, e.g., Kahn v. Abercrombie & Fitch, Inc., No. 01 Civ. 6163 (WHP), 2003 WL 22149527, at *10 (S.D.N.Y. Sept. 17, 2003).

  C. The Merits of Plaintiff's Disparate Pay Claim

  Even if the Court were to allow DeJesus to assert a claim for disparate pay at this late stage, the claim would fail on the merits. Courts analyzing discrimination claims under Title VII apply a three step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, a plaintiff must first establish a prima facie case for disparate pay by showing: (1) that he was a member of a protected class; (2) that he was paid less than similarly situated non-members of his protected class; and (3) evidence of discriminatory animus. See Quarless, 228 F. Supp. 2d at 383. Upon establishing a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment action or conduct. See Medina v. New York City Dep't of Parks, No. 01 Civ. 7847 (DKC), 2002 WL 31812681, at *5 (S.D.N.Y. Dec. 12, 2002). If the employer can articulate a legitimate reason, the burden shifts back to plaintiff to show that defendant intentionally discriminated against the plaintiff. See id. "An employer that has put forth nondiscriminatory reasons for its employment action is entitled to summary judgment unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. (quotations omitted).

  Defendant challenges DeJesus' prima facie allegations regarding similarly situated persons and DeJesus' allegations regarding his final burden of showing intentional discrimination. (See Reply at 5-7.) The Court is persuaded by both of defendant's arguments.

  1. Similarly Situated Employees

  To be "similarly situated," the individuals with whom DeJesus attempts to compare himself must be similarly situated in all material respects. See Medina, 2002 WL 31812681, at *4. Their circumstances need not be identical, see id., but they must share a sufficient amount of significant employment characteristics to be considered similarly situated. See Quarless, 228 F. Supp. 2d at 383. These characteristics include similarities in education, seniority, performance, and specific work duties. See, e.g., Quarless, 228 F. Supp. 2d at 384 (noting plaintiff does not account "for differences in education, seniority, performance, or specific work duties"). With respect to work duties, "the performance of some common tasks does not make jobs substantially equal when material differences also exist." Conigliaro, 2000 WL 45439, at *8.

  DeJesus is dissimilar from other Underwriter employees at Starr Tech in three material respects. First, it is undisputed that, unlike DeJesus, the other employees with whom DeJesus compares himself have either an engineering degree, prior experience in the energy industry, prior experience in the insurance industry, or a combination of those qualifications. Thus, DeJesus has a different background, namely less experience and less education, than the other employees. Second, the other employees appear to have performed better than DeJesus. It is undisputed that, from 1995 through December 2000, DeJesus never received an overall score higher than a "Meets Expectations" on his performance appraisals. In contrast, the other individuals "all have very high performance appraisals." (Shaak Dep. at 94, attached to Aff. of James H. Oh; see also id. at 101 ("I don't know the exact score, but it would probably be in the exceeds expectation range.").) Third, DeJesus was not performing the same job as the other employees. It is undisputed that DeJesus performed a "dual" or "hybrid" job, unlike the other employees.*fn10 (See Pl. St. ¶ 51; Def. St. ¶ 10.) In fact, some of the employees with whom DeJesus compares himself were hired not even as Underwriters, the position to which DeJesus was promoted, but as Senior Underwriters or Engineering Consultants.*fn11 For these reasons, the Court finds that the other employees are not similarly situated to DeJesus, and DeJesus has thus not established a prima facie case.*fn12 See, e.g., Staff v. Pall Corp., 233 F. Supp. 2d 516, 536 (S.D.N.Y. 2002) (noting plaintiff "simply dismisses any difference between his performance evaluations and those of" other employees); Quarless, 228 F. Supp. 2d at 384 (noting plaintiff does not account "for differences in education, seniority, performance, or specific work duties"); Meckenberg, 42 F. Supp. 2d at 377 & n. 9 (noting plaintiff did not have similar job responsibilities and experience as other employees). 2. Intentional Discrimination

  Assuming arguendo that DeJesus had established a prima facie case, his claim would still fail at the final burden shifting stage because there is no evidence from which a reasonable juror could conclude that Starr Tech intentionally discriminated against DeJesus based on race.

  If an employer puts forth nondiscriminatory reasons for its employment decision, plaintiff must point to admissible evidence from which a trier of fact could infer that the employer's asserted justification is false and that prohibited discrimination was the real reason. See Medina, 2002 WL 31812681, at *5; accord Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996). A plaintiff's own conclusory statements and subjective feelings will not suffice to meet this burden. See, e.g., Gross, 232 F. Supp. 2d at 72.

  Here, Starr Tech has pointed to three reasons why DeJesus was paid less than other underwriters: (1) he had less experience; (2) his performance was worse; and (3) he was performing a different job. Plaintiff argues that "[t]he fact that DeJesus met expectations indicates that his employers were not displeased with his performance" and that whether he performed as well as other employees is a question of fact for the jury. (Opp'n at 12.)

  This argument does not satisfy plaintiff's burden. The only "evidence" plaintiff has submitted are his own conclusory statements and beliefs, which, even if credited, do not raise an inference of racial animus. Even assuming Starr Tech "was not displeased" with DeJesus' performance, Starr Tech appears to have been more pleased with the performance of other employees. DeJesus has not put forth evidence, such as the performance appraisals of other employees, rebutting that apparent fact. Similarly, he has not put forth evidence showing that non-Hispanic employees with qualifications similar to his were paid more. DeJesus' personal belief that he is as qualified as the other employees who were paid more is not enough to create an issue of fact when the other employees admittedly had more relevant work or educational experience that plaintiff lacked. See Holt, 95 F.3d at 130 (noting personal belief that plaintiff was most qualified is belied by fact that others had more experience); Staff, 233 F. Supp. 2d at 538 ("Plaintiff's personal view of his . . . performance is irrelevant."). Furthermore, there is no evidence that the disparate pay was the result of any racial animus. Title VII prohibits certain discrimination; it does protect an employee from general unfairness, see Delgado v. P.R. Family Inst., Inc., No. 97 Civ. 7122 (DAB), 2001 WL 964000, at *6 (S.D.N.Y. Aug. 23, 2001), and "[i]t is not the function of this Court to second-guess an employer's business decisions." Meng, 73 F. Supp. 2d at 399. There is simply no evidence that DeJesus' race motivated any of Starr Tech's decisions or actions. See, e.g., Medina, 2002 WL 31812681, at *5 ("no direct evidence of racial animus"); Gross, 232 F. Supp. 2d at 72. Since none of the evidence suggests that a genuine issue of any material fact remains concerning defendant's articulated reasons for DeJesus' lower pay, even if plaintiff were allowed to assert a disparate pay claim and even if a prima facie case had been made, Starr Tech would still be entitled to summary judgment.

  III. Hostile Work Environment DeJesus, in his opposition to summary judgment, seeks to include a hostile work environment claim. (See Opp'n at 10.) Defendant argues that this claim is not raised in the complaint and that plaintiff cannot raise it now for the first time in opposition to summary judgment. (See Reply at 7.) Defendant further argues that a hostile work environment claim is beyond the scope of DeJesus' EEOC complaint and, therefore, is now barred. (See Reply at 7-8.) Finally, defendant argues that (a) the allegations are insufficient, as a matter of law, to be considered hostile; (b) there is no evidence that defendant's conduct was related to plaintiff's race; and (c) DeJesus did not suffer an injury during the time of the alleged hostile environment. (See Reply at 8-10.)

  A. Pleading a Claim for Hostile Work Environment

  Turning first to whether plaintiff may include a claim for hostile work environment, the Court again notes that, as a general matter, "it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment." Bonnie & Co., 170 F.R.D. at 119. However, this rule is not an absolute bar. As discussed above, a court may consider a claim that, while not expressly stated in an inartfully drafted complaint, is alleged in substance, such that a defendant would not prejudiced by its late inclusion. See Cruz, 202 F.3d at 568-70.

  In the present action, the Court finds that the complaint does not allege explicitly or implicitly a claim for hostile work environment. (See Compl. ¶¶ 1-20.) In addition, reviewing the declarations and deposition transcripts submitted with the briefs on this motion, it does not appear that discovery was conducted into this claim. Thus, the Court concludes that defendant would be prejudiced if plaintiff were allowed to proceed with a claim for hostile work environment. See, e.g., Kahn, 2003 WL 22149527, at *10. For these reasons, the Court declines to allow DeJesus to proceed with a hostile environment claim.

  B. The Merits of Plaintiff's Hostile Work Environment Claim

  Furthermore, the Court finds that plaintiff's hostile environment claim would be deficient on the merits if it were allowed to proceed. In order to establish a claim for hostile work environment, plaintiff must demonstrate a workplace "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Staff, 233 F. Supp. 2d at 543 (quotations omitted). The environment must be subjectively and objectively offensive, such that, not only the victim, but also a reasonable person would find it hostile and abusive. See id. at 543-44. In determining whether plaintiff has sufficiently alleged a claim for hostile work environment, a court considers the totality of the circumstances, "including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 544 (quotations omitted). As a general rule, incidents must be more than episodic or occasional; they must be sufficiently continuous, concerted, and regular to be considered pervasive. See id.; accord Meckenberg, 42 F. Supp. 2d at 374. In addition to pervasiveness, in order to establish a race-based hostile work environment claim, "a plaintiff must demonstrate that the conduct occurred because of his race." Staff, 233 F. Supp. 2d at 544. Plaintiff has put forth neither evidence that the environment was pervasive nor evidence that defendant's conduct was motivated by race. Even assuming all of plaintiff's grievances are true — that he was paid less than other employees, that he was wrongfully denied an office, and that he was wrongfully denied an assistant thereby preventing him from devoting his time to underwriting work — the grievances "simply fail to rise to the level of severity or pervasiveness necessary for a successful hostile environment claim." Meckenberg, 42 F. Supp. 2d at 374; see, e.g., Staff, 233 F. Supp. 2d at 544 (granting summary judgment on hostile environment claim where plaintiff was denied "the benefits of employment to which he was entitled, such as personnel to work on his projects (like every other Project Manager had) and an office"). "Meritorious hostile environment claims have depended upon the existence of a `poisoned' atmosphere, where the individual is required to run `a gauntlet of discriminatory abuse' in return for the privilege of being allowed to work." Meckenberg, 42 F. Supp. 2d at 374 (citations omitted). That is not the case here. DeJesus does not allege a continuous stream of derogatory comments, insults, intimidation tactics or ridicule. He does not allege an atmosphere so poisoned that he was mentally or physically unable to work. DeJesus' claim that he was humiliated by having to work in a cubicle when others had offices is not enough to satisfy the "objectively offensive" standard. Cf. Staff, 233 F. Supp. 2d at 531-32 (noting that failure to provide office does "not rise to the level of being actionable adverse employment action[]").

  Furthermore, as with his discrimination claims, there is no evidence that DeJesus' situation had any relation to his race. "A plaintiff must also demonstrate that she was subjected to the hostility because of her membership in a protected class." Brennan v. Metro. Opera Ass'n Inc., 192 F.3d 310, 318 (2d Cir. 1999) (emphasis added). The totality of DeJesus' evidence on this point is made up of his own conclusory statements and personal beliefs that he was as qualified as other non-Hispanic underwriters who received better treatment. However, as discussed earlier, defendant has submitted unrebutted evidence of nondiscriminatory reasons to explain why other non-Hispanic underwriters were paid more. Plaintiff has failed to submit evidence from which a reasonable juror could find that DeJesus' alleged mistreatment was racially motivated. Therefore, the Court finds that DeJesus' hostile environment claim would fail under summary judgment scrutiny if it were allowed to be asserted.


  For the foregoing reasons, defendant's motion for summary judgment [23-1] is GRANTED. The Clerk shall close this case.


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