The opinion of the court was delivered by: BARBARA JONES, District Judge
Austin During ("Plaintiff") brought this employment
discrimination action in October 2001 against defendants City
University of New York and City College ("CUNY"). Plaintiff's
original complaint alleged employment discrimination and unlawful
employment practices under Title VII of the Civil Rights Act of
1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et
seq.,*fn1 the New York State Human Rights Law, N.Y. Exec.
Law 290 et seq., the Administrative Code of the City of New York,
§§ 8-101 et seq., and the Civil Rights Act of 1866, as amended,
42 U.S.C. § 1981. In an order dated May 31, 2002, I granted
CUNY's motion to dismiss Plaintiff's state, city and Section 1981 claims. See During v. City University of New York and City
College, Mo. 01 Civ. 8584 (BSJ), 2002 WL 1159675 (S.D.N.Y. May
31, 2002). The parties have since completed discovery, and CUNY
has moved for summary judgment on Plaintiff's remaining three
Title VII claims for discrimination, retaliation, and hostile
work environment. Plaintiff's current allegations span almost
twenty years, from 1984 through 2002.
The facts giving rise to this action are set forth in my May
31, 2002 opinion, familiarity with which is assumed. For present
purposes it is sufficient to note that Plaintiff is from Sierra
Leone and is of African descent. He began working at CUNY in 1982
in the custodial workforce. He claims that since 1984, CUNY has
discriminated against him based on his race and national origin.
Plaintiff filed an administrative complaint in 1987 with the
New York State Division of Human Rights ("DHR"), alleging that
his superiors at CUNY had discriminated against him by harassing
him and transferring him from Steinman Hall to Baskerville Hall.
The 1987 complaint also alleged that Samuel Lessner, his superior
at CUNY, informed Plaintiff that he did not like Plaintiff and
did not want Plaintiff to have the position of supervisor.
Plaintiff argued that because he performed his duties in a
satisfactory manner and was the only Sierra Leonian working for Mr. Lessner, this disparate treatment
constituted discrimination based on his national origin.
In 1988, Plaintiff filed an amended verified complaint, again
alleging that CUNY subjected him to discriminatory treatment by
harassing, discrediting and refusing to promote him. Plaintiff
alleged that his Mr. Lessner told him that he did not like his
"foreign a ." Despite the fact that his 1987 administrative
charge complained of his transfer from Steinman Hall to
Baskerville Hall, in 1988 Plaintiff complained about his
reassignment to Steinman Hall. Plaintiff asserted that this
assignment was discriminatory because Steinman Hall was later
closed due to asbestos contamination. Plaintiff claimed that in
1984, he was given a promotion that was to include a $1000 raise
upon the completion of a probationary period, but unlike other
CUNY employees, all of whom are "American blacks," he was never
given the raise as promised. Plaintiff alleged that he was not
promoted to various positions for which he was qualified,
including Assistant Custodial Supervisor, Senior Supervisor, and
"clerical positions" in the Custodial Department, and that all of
these positions were instead filled with "American blacks."
In 1989, Plaintiff filed a second administrative complaint with
the DHR. In his 1989 complaint, Plaintiff alleged that in
retaliation for his 1987 complaint, his superiors at CUNY had
harassed him, transferred him and denied him promotions. He alleged that James Watson, a Principal Custodian at CUNY,
threatened him with physical harm if he did not withdraw his 1987
complaint. He also claimed that John Williams, another Principal
Custodian, threatened that he would not be promoted unless he
withdrew his complaint.
Ten years later, in October 1999, Plaintiff filed a third
administrative charge with the DHR, in which he claimed that in
retaliation for his administrative complaints in the 1980s, CUNY
denied him the position of Chief Administrative Superintendent in
1996 and Administrative Superintendent in 1999.
In January 2000, Plaintiff filed a fourth charge with the DHR.
Plaintiff again claimed that CUNY had retaliated against him,
this time by withholding work assignments and bypassing him in
the chain of command.
In 2001, the EEOC issued Plaintiff a right to sue letter based
on his 1999 and 2000 administrative charges. Plaintiff filed this
action in October 2001. On May 29, 2002, the Court dismissed
Plaintiff's § 1981 claims and state law claims. In January 2003,
the EEOC issued Plaintiff another right to sue letter based on
his 1987 and 1989 administrative charges. In May 2003, Plaintiff
amended his complaint to include allegations regarding those
earlier administrative charges. Discovery concluded in December
2003, and this motion for summary judgment followed. Before reviewing the standard for this motion for summary
judgment, the Court must note the difficulty it faced in deciding
this motion due to the lack of clarity in Plaintiff's opposition
papers. Only a handful of the allegations made in those papers
are supported by citations to depositions or sworn affidavits,
and what few citations Plaintiff does provide are to voluminous
exhibits without reference to specific page numbers. Plaintiff's
papers thus made the task of deciding this motion significantly
more difficult than necessary.
III. Standard for Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary
judgment should "be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c). To prevail, the party moving for summary judgment must
"demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548
(1986). If the moving party does so successfully, the non-moving
party must present "specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(c). The court must
draw all reasonable inferences and resolve all ambiguities in favor of the non-movant. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986).
However, the non-movant cannot rely on "conclusory statements or
on contentions that the affidavits supporting the motion are not
credible." Ying Jang Gan v. City of New York, 996 F.2d 522, 535
(2d Cir. 1993).
The Second Circuit has warned that district courts should be
"particularly cautious about granting summary judgment to an
employer in a discrimination case when the employer's intent is
in question. Because direct evidence of an employer's
discriminatory intent will rarely be found, `affidavits and
depositions must be carefully scrutinized for circumstantial
proof which, if believed, would show discrimination.'" Schwapp
v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting
Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d
Cir. 1994)). That said, a court can grant a defendant's motion
for summary judgment in an employment discrimination case where
the plaintiff relies "on conclusory allegations of discrimination
and the employer provides a legitimate rationale for its
conduct." Tojzan v. New York Presbyterian Hosp., No. 00 Civ.
6105 (WHP), 2003 WL 1738993, at *4 (S.D.N.Y. March 31, 2003). IV. Plaintiff's Discrimination Claims
Discrimination suits brought under Title VII follow the
familiar burden-shifting regime established by McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). First, the
plaintiff must make out a prima facie case of discrimination by
showing that (1) he belongs to a protected class; (2) he suffered
an adverse employment action; and (3) the circumstances
surrounding the adverse employment action give rise to an
inference of discrimination. Brown v. Coach Stores, Inc.,
163 F.3d 706, 709 (2d Cir. 1998) (citing McDonnell Douglas Corp.).
The burden then shifts to the employer to show a legitimate,
nondiscriminatory reason for the adverse employment action. If
the employer does so, the final burden remains with the plaintiff
to show that the nondiscriminatory reason asserted by the
employer was pretextual and that the employer discriminated
against him. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143-44, 120 S.Ct. 2097 (2000).
Plaintiff relies on a number of incidents that occurred over an
eighteen-year period to support his race and national origin
discrimination claim. First, Plaintiff makes a handful of failure
to promote claims; he alleges that CUNY failed to promote him to
various positions in 1987, 1996, 1998, 2000 and 2002. Plaintiff
also makes a variety of other allegations, including that
Plaintiff's superiors insulted him, transferred him to different work locations, transferred him to a work site
with asbestos contamination, placed negative employment reviews
in his file, gave him inferior supplies, and physically assaulted
All of Plaintiff's allegations suffer from similar defects. His
failure to promote allegations fail because he either did not
apply for the positions at issue, failed to satisfy the Title VII
exhaustion requirements, or failed to rebut CUNY's evidence of
legitimate, non-discriminatory reasons for not promoting him. The
remainder of his allegations are conclusory, supported only by
Plaintiff's declaration, which is filled with speculation not
based on his personal knowledge. Furthermore, Plaintiff fails to
provide any evidence linking the alleged adverse employment
actions to race or national origin discrimination. Taken as a
whole, the sparse evidence Plaintiff presents would not permit a
rational juror to find race or national origin discrimination.
Accordingly, his discrimination claims are dismissed.
The Failure to Promote Claim
To make out a prime facie case for failure to promote under
Title VII, the plaintiff must allege four elements: (1) that he
is a member of a protected class; (2) that his job performance
was satisfactory; (3) that he applied for and was denied a
promotion to a position for which he was qualified; and (4) that the position remained open and the employer continued to seek
applicants for it. Cruz v. Coach Stores, Inc., 202 F.3d 560,
565 (2d Cir. 2000). Plaintiff's failure to promote claims center
on positions that were vacant in 1987, 1996, 1998, 2000 and 2002.
For the 1987, 1998 and 2002 positions, Plaintiff fails to make
out a prima facie case because he did not apply for those
positions. Additionally, he did not administratively exhaust any
claims arising out of CUNY's failure to promote ...