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United States District Court, S.D. New York

December 14, 2004.

ABDUS SHAHID, Plaintiff,

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Plaintiff, Abdus Shahid ("Plaintiff" or "Shahid), brought the instant case against his former employer, the New York City Health and Hospitals Corporation ("Defendant" or "HHC"). Plaintiff alleges that HHC terminated his employment because of his color, race, gender and national original under Title VII of the Civil Rights Act of 964, 42 U.S.C. § 2000 et seq. ("Title VII") and the New York City Human Rights Law, N.Y.C. Admin Code § 8-101 et seq. ("CHRL"). HHC moves for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, the motion for summary judgment is GRANTED.


  A. Factual Background

  Shahid was born in Bangladesh, and became a United States citizen in 1996. (Dep. of Shahid, 9/9/2004, at 14:1 — 16) (herein, "Ex. A).

  On March 1, 1999, Shahid was appointed to the position of Health Care Investigator at Jacobi Medical Center ("Jacobi") in the Patient Accounts Department. (Ltr. Appointment, 2/26/1999) (herein "Ex. B"). A Health Care Investigator reviews patients' accounts to determine the amount the insurance company should be billed, adjusts patients' accounts upon receipt of payment by the insurance company and, in the event the insurance company fails to pay, requests payment. (Ex. A at 51:1 — 53:15) (Functional Job Desc. For Hosp. Care Investigator, No. 00182) (herein "Ex. C"). The appointment was subject to the satisfactory completion of a twelve-month "probationary period." (Ex. B). On May 20, 1999, Sherri Moore-Walker ("Walker"), a Senior Hospital Care Investigator and Plaintiff's supervisor, prepared, and, on June 8, 1999, Tanya Blanchette ("Blanchette"), Assistant Patient Accounts Manager, reviewed, Shahid's performance evaluation covering March 1, 1999 to June 1, 1999. (Criteria-Based Performance Evaluation of Shahid, dated 5/20/1999) (herein, "Ex. E"). Shahid's overall performance was rated as "satisfactory," but the evaluation indicated a number of categories where Shahid "needed improvement," including "prioritize work appropriately," "responsible for appropriate case documentation and timely follow-up," and "complete assigned tasks on time." (Ex. E). Overall, the evaluation noted Shahid's need to improve, i.e.,:

. . . a more timely follow up on accts {sic} that require additional attention. He needs to complete writeups {sic} in the ONM {sic} and bring accts {sic} to a satisfactory closure. SR {sic} HCI will continue to motivate Mr. Shahid in order to bring forth his best talents and qualities by developing a health {sic} balance during [the] day. Billing and [f]ollow-ups by phone {sic}, mail and electronics to insure {sic} maximization of revenue and thus[,] in turn[,] allow him to realize high standards of performance.
(Ex. E).*fn1

  Three months later, at Shahid's six-month evaluation, Walker, again, prepared and Blanchette, again, reviewed Shahid's performance evaluation. However, this time, Shahid received an overall review of "unsatisfactory." (Criteria-Based Performance Evaluation of Shahid, 9/13/1999) (herein, "Ex. F"). While Shahid maintained his capabilities in using the electronic billing system, his overall progress was insufficient. (Ex. F). Shahid's performance was described in these words:

There has been no progress in follow-up {sic} on his accounts necessary to obtain payments and resolution. Mr. Shahid does not follow up with phone calls and/or electronic status checks to various insurance companies without continuous prodding and reminders (both verbal and written [OAM]) to advise the Senior {sic} or Supv. {sic} of his research. He has failed to make appropriate documentation in his cases and he does not follow instructions thoroughly.
(Ex F.). In addition, the evaluation noted that Shahid failed to conduct detailed interviews, his documentation was inaccurate, and he failed to demonstrate sufficient knowledge of his job. (Ex. F). Shahid "refused to sign or acknowledge the evaluation." (Ex. F).

  On September 22, 1999, the Department of Human Resources/Labor Relations terminated Shahid's employment "as a hospital care investigator at Jacobi Medical Center . . . effective close of business October 5, 1999 due to [Shahid's] failure to satisfactorily complete [his] probationary period." (Ltr. from Morris to Shahid, 9/22/1999) (herein, "Ex. G").

  B. Procedural History

  On January 19, 2000, Shahid filed a joint Complaint with the New York City Commission on Human Rights ("CCHR") and the Equal Opportunity Commission ("EEOC). (Shahid v. Jacobi Hosp., Compl. No. 16FA00130) (Jan. 19, 2000) (herein, "Ex H"). The complaint alleged discrimination based on national origin (Bangladesh) and gender (male). The CCHR conducted a thorough investigation, which "consisted of interviewing the complainant and reviewing documentation supplied by both respondent, Jacobi Hospital, and the complainant." (Determination and Or. of the CCHR, In re Abdus Shahid v. Jacobi Hospital, Compl. No. M-E-NS-100-1008216-E, Apr. 8, 2003) (herein, "Ex. I"). Among other findings, CCHR concluded that "there were seventeen Asian males employed by respondent Jacobi Medical Center who were hired on or before September 1999" and "five of the seventeen Asian males provided clerical and bookkeeping services, or performed other duties not involved with direct patient care." (Ex. I). CCHR found that "there is no probable cause to believe that the respondent engaged in the unlawful discriminatory practices alleged in the complaint." (Ex. I).

  Shahid appealed CCHR's determination. On August 18, 2003, after review of the materials, New York City Human Rights Commissioner, Patricia Gatling ("Gatling"), affirmed the Determination and Order. (Determ. & Or. Aft. Rev., In re Abdus Shahid v. Jacobi Hosp., Compl. No. M-E-NS-100-1008216-E, Aug. 18, 2003) (herein, "Ex. J"). Subsequently, on September 24, 2004, the EEOC adopted the findings of the Commission. (Dismiss. and Not. of Suit Rt., Charge No. 16F-A0-0130, Sept. 24, 2003) (herein, "Ex. K").

  Accordingly, following the denial of his appeal, on October 24, 2004, Plaintiff filed the instant action alleging that he was impermissibly terminated on the basis of race, color, national origin, and sex in violation of Title VII of the Civil Rights Act of 1964 and CHRL § 8-107.1 (Compl. ¶¶ 5, 8), and sought $10,000,000 in damages.


  A. Summary Judgment Standard Fed.R.Civ.P. 56(c)

  A court will not grant a motion for summary judgment unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donohue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). It is not the court's role to resolve issues of fact; rather, the court may only determine whether there are issues of fact to be tried. Donohue, 834 F.2d at 58 (citations omitted). However, a disputed issue of material fact alone is insufficient to deny a motion for summary judgment, the disputed issue must be "material to the outcome of the litigation," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), and must be backed by evidence that would allow "a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

  B. Employment Discrimination

  Pursuant to Title VII, an employer may not "discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin" 42 U.S.C. § 2000e-2(a)(1). The Supreme Court articulated a three-step burden-shifting framework for reviewing cases brought under Title VII in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). First, under McDonnell Douglas and its progeny, the plaintiff-employee "must establish a prima facie case of discrimination by demonstrating (i) membership in a protected class; (ii) qualification for the position; (iii) adverse employment action; and, (iv) circumstances giving rise to an inference of discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000). Second, if the plaintiff-employee satisfies the four-part prima facie burden, the defendant-employer has the opportunity to "articulate a legitimate, clear, specific and non-discriminatory reason" for its adverse employment decision. Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998). Third, where necessary and appropriate, plaintiff-employee may demonstrate that the defendant-employer's explanation was not the actual reason for the plaintiff-employee's dismissal. In other words, "the plaintiff has the ultimate burden to prove that the employer's reason was merely a pretext for discrimination." Holt v. KMI-Cont'l, Inc., 95 F.3d 123 (2d Cir. 1996).

  A discriminatory intent or animus is essential to the ultimate determination of employment discrimination claims and a "trial court must be cautious about granting summary judgment." Gallo v. Prudential Residential Serv., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); accord Kerzer, 156 F.3d at 400 (holding that "in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary."). Essentially, the question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer, the fact-finder must also believe the plaintiff's explanation of intentional discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).


  A. New York City Human Rights Law

  It is uncontested that Shahid filed a discrimination claim with the CCHR. (See Ex. H). Accordingly, under the "election of remedies doctrine," the "election of remedies" provision of the CHRL governs the adjudication of Shahid's CHRL claim. In pertinent part, the CHRL states:

[A]ny person claiming to be aggrieved by an unlawful discriminatory practice . . . shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice. . . .
N.Y.C. Admin. Code § 8-502(a) (emphasis added). Thus, pursuant to the § 8-502(a), and the Second Circuit's holding in York v. Ass'n of the Bar of the City of N.Y., 286 F.3d 122, 127 (2d Cir. 2002), Shahid is barred from relitigating discrimination claims pursued and dismissed by the CCHR. See Brown v. Lawrence Stevens Fashions, Inc., No. 03 Civ. 2822, 2004 WL 691211, at *1 (S.D.N.Y. Mar 31, 2004) ("plaintiff elected her remedies under the New York City Human Rights Law, and may not now bring suit in this Court under the same statute"); Alston v. N.Y. City Transit Auth., No. 02 Civ. 2400, 2003 WL 22871917, at *9 (S.D.N.Y. Dec. 3, 2003) ("the plaintiff is barred from relitigating ? claims pursuant to the NYHRL and the CHRL") James v. City of N.Y., No. 01 Civ. 30, 2003 WL 21991591, at *5 (S.D.N.Y. Aug. 20, 2003) ("[t]he election of remedies doctrine prevents pursuit in court of any claims arising from the same set of facts upon which the Plaintiff sought relief in the administrative forum"); McNulty v. N.Y. City Dep't of Fin., 45 F. Supp. 2d 296, 303 — 04 (S.D.N.Y. 1999). The Plaintiff then is relegated to his Title VII claim for relief.

  B. Title VII Claims

  1. Prima Facie Case

  It is undisputed that Shahid's discrimination claim satisfies the first and third elements of a prima facie case.*fn2 The issue, therefore, is whether the second and fourth element of Shahid's prima facie claim — (a) qualification for the position and (b) that the discharge presents an inference of discrimination — is satisfied.

  a. Qualification for the Position

  "To satisfy the second element of the test, [plaintiff] need not demonstrate that his performance was flawless or superior. Rather, he need only demonstrate that he possesses the basic skills necessary for performance of [the] job." De la Cruz v. N.Y. City Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996). The term, "qualified," has been defined by the Second Circuit to mean "criteria the employer has specified for the position." Thornley v. Penton Publ'g, Inc., 104 F.3d 26 (2d Cir. 1997). Indeed, the Second Circuit has recognized that the court is not designed to "second-guess" job performance evaluations: In determining whether an employee's job performance is satisfactory, courts may — as they often must — rely on the evaluations rendered by supervisors. After all, job performance cannot be assessed in a vacuum; the ultimate inquiry is whether an employee's performance meets his employer's legitimate expectations.

 Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) (citations omitted) (summary judgment granted where employer held "honest belief that [employee's] job performance simply did not measure up").

  Here, Shahid has failed to present a scintilla of evidence that suggests that he had the basic skills necessary to continue as a Health Care Investigator at Jacobi or that he was remotely qualified for the position, even under the applicable de minimis burden. See Douglas v. Dist. Council 37 Mun. Empl. Educ. Fund Tr., 207 F. Supp. 2d 282, 289 — 290 (S.D.N.Y. 2002). As opposed to Ames v. Cartier, Inc., 193 F. Supp. 2d 762 (S.D.N.Y. 2002), where the plaintiff produced an evaluation form from his superior noting his performance as "satisfactory" to satisfy the performance prong of the McDonnell Douglas test, Shahid's evaluation forms illustrate an evolution of disappointment. See also De la Cruz, 82 F.3d at 21 ("[A] performance evaluation that is positive overall is sufficient to withstand summary judgment at the prima facie stage of analysis."). Following a three-month evaluation, which suggested barely "satisfactory" performance, Shahid received a dismal six-month evaluation. In particular, Shahid received unsatisfactory marks in general categories such as knowledge, quantity of work, quality of work, judgment and decision making, relationships with others and miscellaneous factors. (Ex. F). The evaluation specifically noted Shahid's "unsatisfactory" performance in four of five categories regarding Shahid's knowledge of the job and eight of eleven categories regarding Shahid's quality of work. Accordingly, in light of the performance evaluation and because the court in not to "second-guess" employee's job performance evaluations, Shahid has not satisfied his de minimis burden of demonstrating that he was qualified for the position and, therefore, fails to satisfy the second prong of the McDonnell Douglas standard. See Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985). b. Inference of Discrimination

  Even if Shahid was qualified to be a Health Care Investigator at Jacobi, he nonetheless fails to establish a prima facie case for discrimination because he fails to demonstrate "that the circumstances surrounding the adverse action" give rise "to an inference of discrimination." Gordon v. N.Y. City Bd. of Educ., No. 01 Civ. 9265, 2003 WL 169800, at *7 (S.D.N.Y. Jan. 23, 2003). Shahid alleges that his termination was the consequence of the animus inspired influence exercised by his lone supervisor, Walker. In particular, Shahid alleges that he was terminated because Walker is a racist who hates men, prefers black women, and wanted to hire her friend, Janet Pow ("Pow"). See Pl. Op. to Mot. Sum. J. at 1-2.

  However, Pow, the very person allegedly hired to replace Shahid and demonstrate Walker's racist and misogynistic tendencies was, according to a May 19, 1997 HHC Personnel Action Form, promoted to the position of Health Care Investigator nearly two years before Shahid was even hired, and only after she took and passed the Civil Service Examination, which was certified on April 15, 1997. (George Phil Blount ("Blount") Decl. Ex. A, 5/19/1997, HHC Personnel Action Form; Decl. Ex. B, 4/15/1997, Eligible List Referral and Confirmation, Exam No. 5036). According to Blount, the North Bronx Healthcare Network Patient Accounts Manager responsible for the Patient Accounts Departments of Jacobi and North Central Bronx Hospitals, he transferred Pow to the Patient Accounts Department at Jacobi (Blount Decl. at ¶¶ 1, 8) and Walker had nothing to do with it.

  Apart from the conclusory allegations regarding Pow's employment history,*fn3 Shahid fails to present, and the record fails to indicate, any racial, ethnic, or sexually derogatory comments, slurs, animosity, or other evidence of animus. See Baptiste v. N.Y. City Transit Auth., No. 02 Civ. 6377, 2004 WL 626198, at *4 (S.D.N.Y. Mar. 29, 2004). Accordingly, Shahid has not satisfied his burden of demonstrating an inference of discrimination and, therefore, fails to satisfy both the second and the fourth prong of the McDonnell Douglas standard for a prima facie case. See Cruz, 202 F.3d at 567.


  For all of the foregoing reasons, Defendants motion for Summary Judgment is GRANTED. The Clerk is instructed to close this motion and any other open motions and remove this case from my docket.


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