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DURING v. CITY UNIVERSITY OF NEW YORK

September 16, 2005.

AUSTIN DURING, Plaintiff,
v.
CITY UNIVERSITY OF NEW YORK AND CITY COLLEGE, Defendants.



The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion and Order

I. Introduction

  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.

  II. Procedural History

  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.

  Discussion

  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 him.

  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 ...


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