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August 26, 2005.


The opinion of the court was delivered by: SANDRA TOWNES, District Judge


Plaintiff Samuel Rumala ("Plaintiff"), a black Nigerian male, brings this employment discrimination action under 28 U.S.C. §§ 1981, 1983, New York Executive law § 290 et. seq. ("NYHRL"), New York City Administrative Code § 8-107 ("NYCHRL"), against his employer, defendant New York City Transit Authority ("NYCTA"), and a former NYCTA employee, Thomas Calandrella ("Calandrella") (collectively the "Defendants"). For reasons discussed herein, Defendants' motion for summary judgment is granted and Plaintiff's complaint is dismissed.


  In 1983, Plaintiff began his employment at NYCTA as a staff analyst in the Department of Budget and Planning. (Def. 56.1 Stat. ¶ 1.) Two years later, he was promoted to provisional associate staff analyst in the Department of Track and Structures. (Def. 56.1 Stat. ¶ 2; Pl. 56.1 Stat. ¶ 2.) In 1986, he was promoted to provisional Principal Transit Management Analyst in the Department of Track. (Def. 56.1 Stat. ¶ 5; Pl. 56.1 Stat. ¶ 5.) In November 1998, Plaintiff was promoted to provisional Manager of Track Applications in the Department of Track and Structures. (Def. 56.1 Stat. ¶ 6; Pl. 56.1 Stat. ¶ 6.) Four years later, Plaintiff's title became provisional Director of System Rail Maintenance. (Def. 56.1 Stat. ¶ 9; Pl. 56.1 Stat. ¶ 9.)

  Defendant Calandrella worked his way up in the NYCTA to become Chief Track Officer, the highest ranking official in the Department of Track,*fn1 in 1995. (Def. 56.1 Stat. ¶ 7; Pl. 56.1 Stat. ¶ 7.) In this position, he was responsible for 2100 employees. (Agostisi Dec., Ex. B at 21.) His duties included hiring Assistant Track Officers and other managers. (Agostisi Dec., Ex. B at 111.)

  Job Applications Submitted by Plaintiff*fn2

  From 1999 to 2002, Plaintiff applied for and was denied fourteen promotions by the NYCTA. For the majority of these jobs, he claims that he was more qualified than the successful applicants because, inter alia, he holds a bachelor's degree in computer science, a master's degree in industrial engineering, and a doctoral degree in electrical project management. (See Ellman Dec., Ex. 7.) Each position will be discussed in turn.

  In 1999, the NYCTA created a new department called Technology and Information Services ("TIS"). (Def. 56.1 Stat. ¶ 10.) Gerald Provenzano was the Senor Vice President of this new department and responsible for its creation. Id. He was also responsible for the selection of people to fill the new positions in TIS who reported directly to him. (Def. 56.1 Stat. ¶ 12.) These positions included: Chief Telecommunications Officer; Chief Officer-Strategic Planning, Integration and Engineering; Chief Officer-New Technology Implementation; Chief Financial Officer; and Chief Information Officer. Id. The NYCTA posted vacancy notices for these positions in August 1999. Id.

  Plaintiff applied for all five TIS positions on or about September 1999. (Def. 56.1 Stat. ¶ 13.) After review by Human Resources, it was determined that Plaintiff was minimally qualified to interview for three positions: Chief, New Technology Implementation; Chief Financial Officer; and Chief Information Officer. (Def. 56.1 Stat. ¶¶ 14, 15.) Plaintiff was not selected for any of the TIS positions, and claims that the candidates who were selected were not chosen on their individual merits. (See Def. 56.1 Stat. ¶ 16-24; Pl. Stat. 56.1 ¶ 16.) Defendants claim that the selection of the candidates was based on the resumes, letters of application, experience, skills and interviews of the candidates. (Def. 56.1 Stat. ¶ 16.)

  In 2000, Plaintiff applied but was not selected to interview for two new positions, Senior Director of Operations Support Information Management and Senior Director of Sales Business, in the newly-created Information Management Unit in the Department of MetroCard Operations. (Def. 56.1 Stat. ¶¶ 25, 26, 28.) This unit was created "to support the growing information needs of MetroCard Operations as the MetroCard vending machines were being installed throughout the Transit system," and therefore, Defendants claim, a high level of management knowledge and experience was required for these positions. (Def. 56.1 Stat. ¶ 28.) Steven Ernst, then Chief Officer, MetroCard Information Management, selected the successful applicants. (Def. 56.1 Stat. ¶ 25.)

  Defendants claim that Plaintiff was not selected to interview for these positions because "his resume did not demonstrate that he was a full-time systems professional, i.e., someone whose job is to develop relational database systems, work with users and consultants to ensure the systems meets the needs of the department." (Pl. 56.1 Stat. ¶ 26.) Further, they state that his resume did not indicate that he "had experience with (and knowledge of) MetroCard Operations," or "clearly illustrate what his job duties were as they related to Information Systems." (Def. 56.1 Stat. ¶ 26.) Plaintiff claims that he has this experience because he "envisioned and created the database system used by Department of Track." (Pl. 56.1 Stat. ¶ 26.) He also disputes whether his lack of experience in "MetroCard Operations factored into NYCTA's decision" not to interview him for these positions, "insofar as neither of the successful job applicants listed significant MetroCard experience in their respective resumes." Id. Moreover, Plaintiff claims that he was more qualified than both of these individuals because he has vast experience with information management. (Pl. 56.1 Stat. ¶ 28.)

  Also in 2000, an audit of the NYCTA's inspection and maintenance practices for track and switches was completed to determine if inspections were performed as required, and defects were documented completely and accurately. (Def. 56.1 Stat. ¶ 46.) Defendants state that "the results of the audit indicated that `better administrative controls and technical support is [sic] needed in order to effectively manage identified deficiencies and to schedule track maintenance." Id. The audit also suggested that "`quality assurance inspectors, independent of the subdivision, should verify inspections and determine if the information in the database is complete and accurate [and] all defects . . . should be incorporated into one linked database to help Superintendents effectively schedule maintenance forces.'" Id. Plaintiff asserts that this suggestion was essentially to develop a new analytical framework, through the implementation of a new computer system. (Pl. 56.1 Stat. ¶ 46.) Defendants claim that as a result of this audit, the Department of Track was reorganized in 2002, creating a new group in the Department called Track/Construction Maintenance, also known as the Track Planning Group. (Def. 56.1 Stat. ¶ 47.) This group's structure included a General Superintendent who was responsible for implementing a new computer system and supervising four to five maintenance supervisors, who were to complete track inspections, and analysts, who were to compile and analyze the data. Id. On or about December 14, 2001, the NYCTA posted a job vacancy notice for this new position of General Superintendent. (Def. 56.1 Stat. ¶ 48.) Plaintiff applied in January 2002, and was not selected to interview for this position because the NYCTA states that he had not performed track work in track construction or track maintenance, and therefore lacked operating experience. Id.

  Calandrella selected Terri Rumph ("Rumph"), a black female, for the position of General Superintendent. (Def. 56.1 Stat. ¶ 49.)*fn3 She completed the NYCTA's Superintendent Intern Program where college graduates rotate through different positions in the Track Department, including track worker, night supervisor, and superintendent, and different subdivisions, including Signals, Infrastructure, Third Rail, and Rapid Transit Operations over a thirty-nine-month period. (Def. 56.1 Stat. ¶ 50.) From 1997 through 2002, Rumph held the title of Superintendent, Track Construction Department. (Def. 56.1 Stat. ¶ 51.) Defendants state that through her eight years of experience in the Maintenance of Way Division, five of which were in a managerial and supervisory capacity, she had experience in different areas, such as project management, maintenance management techniques, and labor relations. Id. Plaintiff gives a very different account of the audit and the resulting change in his department. He claims that this department reorganization cannot be characterized as such because only one new person, Rumph, was hired, she was hired for the General Superintendent position, no positions were eliminated from the unit, and only his duties changed as a result of the reorganization. (Pl. 56.1 Stat. ¶ 47.) He claims that the changes were in fact retaliation against him for his formal complaint of discrimination, which was filed less than a month prior to the issuance of the job vacancy notice. Id. Plaintiff also asserts that Rumph's position could not have been the result of the audit because she reported to the head of the division, Calandrella, and the audit recommended that the new quality assurance inspectors be independent of the subdivision. He also claims that the people who were under Rumph's supervision formerly reported to him. Id.

  With respect to his application for the General Superintendent position, Plaintiff claims that the NYCTA's stated reason for not selecting him to interview, i.e. that he lacked operational experience was pretextual, in that it was either fabricated or disregarded. (Pl. 56.1 Stat. ¶ 48.) He supports this claim by stating that Joseph Caizzo, one of the Assistant Chiefs of Track was hired for that position despite the fact that he had no operational experience. Id. He points out that his current supervisor, Michael Iovino, also has no operational experience. Id. Moreover, he claims that operational experience is not needed to detect track defects in the field and/or to monitor repairs and maintenance. Id. He also claims that Calandrella sought to exclude him from weekly "red-tag" meetings, which were attended by high-level officials in the Department of Track and for which he would compile a report, and that the reorganization gave him the opportunity to do so. (See id.; Rumala Aff. ¶ 16.) Plaintiff also claims that the fact that the length Rumph's experience fit the requirements of the job vacancy notice exactly was an attempt to preclude Plaintiff from being selected. (Pl. 56.1 Stat. ¶ 51.)

  After Rumph was selected for the General Superintendent position, she also became Plaintiff's supervisor. (Def. 56.1 Stat. ¶ 52.) Plaintiff's position was eliminated from the budget as a part of the reorganization. Id. Nevertheless, he retained his title, salary, and duties, and became part of the new Track Planning Group. Id.

  In November 2000, Plaintiff applied for the position of Senior Director, Traffic Checking Operations. (Def. 56.1 Stat. ¶ 31; Pl. 56.1 Stat. ¶ 31.) Defendants state that Plaintiff was not selected to interview for this position because "he had only supervised a small number, five to eight, of professional and technical employees," and therefore lacked sufficient managerial experience. (Def. 56.1 Stat. ¶ 33.) Plaintiff disputes Defendants' claim that having operations experience in a large field unit was a requirement for the successful job applicant because it is not listed on the job vacancy notice for this position, and questions whether or not all applicants selected for interviews had this experience at the time they applied for the position. (Pl. 56.1 Stat. ¶ 33.) Additionally, he claims that the reason he lacked supervisory experience over a large group of people at the time of his application was due to NYCTA's unlawful discrimination in addition to, or alternatively, retaliation against him. Id.

  In March 2002, the NYCTA posted three job vacancies in the Department of New Technology Implementation/TIS. (Def. 56.1 Stat. ¶¶ 40, 42, 44; Pl. 56.1 Stat. ¶ 40, 42, 44.) These positions were: Director, Operations Coordination; Senior Director, Project Planning; and Senior Project Director. Id. Again, Plaintiff applied and but not interviewed for these positions. Id. For the position of Director, Operations Coordination, Anthony Carestia, Senior Director, New Technology Implementation, selected William Shrange ("Shrange"), a white male. (Def. 56.1 Stat. ¶ 41.) Shrange had been Deputy Superintendent in Rapid Transit Operations. Id. Defendants claims that Plaintiff was not selected to interview for the position because he did not have a background in Rapid Transit Operations. (Def. 56.1 Stat. ¶ 40.) Plaintiff disputes that this background was a prerequisite for this position and that this type of experience was "listed as one of a number of `desirable skills.'" (Pl. 56.1 Stat. ¶ 40.) He also claims that five years prior to his appointment, Shrange owned and operated a pet store in Connecticut. Id. In addition, he reasserts his argument that his lack of managerial experience was due to a pattern and practice of discrimination and retaliation by the NYCTA, and that his educational background surpassed that of the selected candidate. Id.

  Defendants claim that the candidates selected to interview for the position of Senior Director, Project Planning, "demonstrated knowledge of Intelligent Transportation Systems, necessary experience in managing multiple projects and supervising both managers and professional and technical personnel, or Rapid Transit operations experience." (Def. 56.1 Stat. ¶ 43.) Blakely, Chief Officer, New Technology Implementation, selected David Weiss ("Weiss"), a white male, who held title of Senior Director, Control Center Modernization in the Department of New Technology Implementation for ten years. Id. His previous experience included responsibility for the scope, schedule, and budget for the Automatic Train supervision, Rail Control Center and the Subway Traffic and Train Information System. Id.

  The NYCTA claims that it interviewed candidates whose resumes demonstrated "experience in managing various projects . . . interconnected with other departments, familiarity with new transportation technology, or Rapid Transit Operations knowledge" for the position of Senior Project Director. (Def. 56.1 Stat. ¶ 45.) To fill this position, Blakely chose James Bailey ("Bailey"), a black male,*fn4 who held the title of Director, New Technology Implementation, Subway System Technology at the time of his application and had eight years of experience in the Department. Id. Plaintiff asserts that he had eleven years of seniority over Bailey, and that a pattern and practice of discrimination by the NYCTA prevented him from gaining the managerial experience. Id.

  In March 2002, Plaintiff applied for the position of Senior Director, Operations System Software. (Def. 56.1 Stat. ¶ 37; Pl. 56.1 Stat. ¶ 37.) Although Plaintiff interviewed for the position, Defendant claims that McDermott did not select him because he lacked experience managing a large staff. Further, his background included no experience with authority-wide computer systems, and in the new technology of Intelligent Transportation Systems. (Def. 56.1 Stat. ¶¶ 38, 39.) The successful applicant, Isaac Takyi ("Takyi"), a black male,*fn5 was considered better qualified because he had this experience. Id. At the time of Takyi's selection, he held the title of Director, Intermodel Systems Software/Customer Systems Technology/Intelligent Transportation Systems. Id. In this position, Takyi was responsible for initiating new information systems and user requirements, managing and reviewing the information systems work of consultants, providing software development lifecycle support, program management and coordination of bus service and maintenance technology applications, and managing professional and technical staff. Id. Takyi previously held the position of Director, Facilities and Equipment Planning/Intelligent Transportation Systems, where his responsibilities included developing operational plans for technology systems and service improvement programs and acting as the NYCTA's representative to committees and groups associated with Intelligent Transport Systems, and developed capital project proposals with various departments in the NYCTA. Id. Takyi also published articles and presented at workshops and conferences dealing with the new technology of Intelligent Transport Systems. Id.

  Plaintiff contends that he was more qualified than Takyi. He points to the fact that he had seniority over and more tenure than Takyi. (Pl. 56.1 Stat. ¶ 39.) He also asserts that experience with authority-wide computer systems, Intelligent Transport Systems, and managerial experience over "supervisors and managers" were not prerequisites for the position of Senior Director, Operation System Software. Id. He further asserts that his dissertation entitled "Automated Condition Interpretation Strategy for Track Geometries" was a study of a field "akin to" Intelligent Transport Systems. Id. In addition, he reasserts his argument that his lack of managerial ...

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