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June 28, 2005.


The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



Plaintiff, LeRoy N. Strickland ("Strickland" or "plaintiff"), an African-American male, over 40 years of age, commenced this action claiming employment discrimination on account of race, age and gender. Plaintiff also claims that he was retaliated against for complaining about discrimination.

  Plaintiff's pro se complaint*fn1 is based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The gist of plaintiff's complaint is that he was denied employment as a probation officer with the Monroe County Probation Department ("the County" or "defendant") from 1996 through 1999. Plaintiff filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR") and the Equal Opportunity Employment Commission ("EEOC") alleging retaliation, but the NYSDHR dismissed those charges finding no probable cause to believe that the County retaliated against him for filing a discrimination charge. The EEOC adopted the findings of the NYSDHR and issued plaintiff a right to sue letter. (Dkt. #1, Exs.1-3).*fn2

  Plaintiff claims that he was on a list of eligible candidates for the position of probation officer, but was passed over and not hired, although there were numerous vacancies in the department during the relevant time period. Plaintiff claims that such unfavorable action was motivated by his race, gender, and age, as well as in retaliation for having filed a claim of discrimination against his previous employer, the City of Rochester.

  The County moves for summary judgment.*fn3 (Dkt. #65). Plaintiff opposes summary judgment, and argues, based on affidavits and exhibits, that there are issues of fact regarding the County's decision not to hire him that should be decided by a jury. (Dkts. ##71-75). I disagree and grant defendant's motion. FACTUAL BACKGROUND

  The following facts are undisputed. In 1995, plaintiff worked for the City of Rochester Police Department as a paralegal. In August, he was told that his position at the RPD was being eliminated and that he was laid off. On February 8, 1996, plaintiff filed a charge of discrimination with the NYSDHR against the City, alleging that he was terminated because of his race.*fn4

  While he was working at the City, plaintiff applied to the County for the position of probation officer and, on June 1, 1995, he took the civil service examination. On November 3, 1995, based on the results of that examination, the County established an eligible list of 81 passing candidates for the probation officer position. Originally, plaintiff was ranked 41st. On March 7, 1996, the County revised the eligible list, and plaintiff moved up in rank to 28th.

  In addition to passing the civil service examination, probation officer candidates also had to meet other qualifications, which are set forth in New York Executive Law § 257(1). That provision states that: "[n]o person shall be eligible for appointment as a probation officer who is not physically, mentally and morally fitted. Probation officers shall be selected because of definite qualifications as to character, ability and training, and primarily with respect to their capacity for rightly influencing human behavior."

  All candidates, including plaintiff, were asked to complete a Department of Human Resources Employment Application and a Candidate Questionnaire which asked about, inter alia, a candidate's employment, mental health, and criminal histories. In addition, a thorough background investigation was conducted for each new candidate. Past employers were contacted, neighbors interviewed, references checked, criminal histories were run, and a written background investigation report was prepared detailing the background investigation.*fn5

  Pursuant to the rules set forth in New York's Civil Service Law § 61(1), plaintiff first became eligible for the position of probation officer in March 1996. He completed a Monroe County Employment Application and was given a first interview. (Def. Ex. H). He then completed a Candidate Questionnaire before his second interview. (Def. Ex. I). Robert J. Burns, the Probation Administrator and the person who ultimately made the decision not to hire plaintiff, conducted plaintiff's second interview. (Burns Aff. ¶¶ 15, 26). Burns then requested that Probation Supervisor Lewis Barone conduct plaintiff's background investigation, which was completed in June 1996.

  Between March 1996 and April 1999,*fn6 35 candidates (including plaintiff) competed for probation officer positions. During this period, the County hired 33 of the 35 eligible candidates. Only plaintiff and one other candidate were not hired. (Burns Aff. ¶ 44). Each time plaintiff was passed over for the position, Burns made the determination that plaintiff had more negative elements in his background investigation and that the candidate hired was more fit for the position. (Burns Aff. ¶ 34). Plaintiff's background investigation report indicated that plaintiff had pleaded guilty to assault and battery in Florida in 1970 and received a term of probation of 2 1/2 years. The report also stated that plaintiff had left three different jobs under acrimonious or troubling circumstances in which his veracity had been called into question. According to the report, one job with the Florida Department of Health and Rehabilitative Services, which had duties quite similar to those of probation officer, ended when plaintiff was asked to resign because his work was unsatisfactory. (Def. Ex. J).

  Of the 35 candidates who were in direct competition for the probation officer positions, 20% (7) of those appointed were African-American, 43% (15) were male, and 46% ...

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