The opinion of the court was delivered by: Trager, J
Vincent Springer ("plaintiff"), brings this employment discrimination action against defendants, New York City Health & Hospital Corporation, Inc. ("HHC"), Kings County Hospital Corp. ("KCHC") and the City of New York (individually, the "City" and collectively, "defendants"). (Compl. ¶ 1.) Plaintiff alleges that defendants discriminated against him based on his age and race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 ("§ 1981") and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("SHRL"). (Compl. ¶ 1.) Defendants move for summary judgment dismissing the complaint in its entirety pursuant to Federal Rule of Civil Procedure 56. For the following reasons, defendants' motion for summary judgment is granted as to plaintiff's termination claims, racial discrimination rehiring claim, state law claims and as to all claims against the City. It is denied as to plaintiff's remaining age (ADEA) rehiring claim.
In 1989 plaintiff, a black male from Barbados born in 1936, passed Civil Service Exam 7162 for carpentry and was placed on the corporate eligible list as number 119. (Aff. of Pl. ¶ 4; Pl. Ex. 6; Def. Ex. D.) On January 28, 1992, Mary Brady ("Brady"), a Coordinator in the Office of Examination and Certification Service of HHC, sent plaintiff a letter informing him that his name had been selected from the corporate eligible list and inviting him to interview for a temporary position as a carpenter. (Def. Ex. D.)
In February 1992, HHC hired plaintiff as a full-time provisional carpenter*fn1 at KCHC Central Shops. (Aff. of Pl. ¶ 5; Def. Local Rule 56.1 Stat. ¶ 1.) As a carpenter, plaintiff's duties included, inter alia, hanging doors, installing locks and door closures, fireproofing and putting up sheet rock walls and suspended ceilings. (Aff. of Pl. ¶ 5.)
Allegations of Discrimination
Plaintiff alleges various incidents of discrimination over the course of his employment. Plaintiff received several performance evaluations indicating that his work was mostly satisfactory but that he worked at a slow pace, a claim plaintiff disputes. (Pl. Ex. 12, 14-16.) Plaintiff also claims his foreman, George Barozie ("Barozie"), would instruct him to complete tasks within unreasonably short periods of time and not provide the tools to meet his deadlines; for example, Barozie allegedly gave plaintiff a faulty lock to install. (Aff. of Pl.
¶ 23; Pl. Dep. 71.) In another supposed instance of discrimination, plaintiff claims he was standing on a ladder fixing a door when his supervisor, Edward Gorman ("Gorman"), pushed the door out of plaintiff's hand as he walked by, and, as a result, plaintiff almost fell off the ladder. (Aff. of Pl. ¶ 29.)
Plaintiff cites a fourth incident in 1996, when, while he was on a break, he came into the carpenter's shop and saw a hangman's noose hanging on his locker. (Pl. Dep. 58.) Plaintiff took the noose down but never brought the incident to anyone's attention. Id. Additionally, plaintiff recalls a fourth incident were someone, whose name he could not remember, referred to him as an old man and another incident where an unnamed laborer called him a "boy." (Pl. Dep. 59-60.)
Since plaintiff was still not a permanent employee, he retook the Civil Service Examination in 1997. (Aff. of Pl. ¶ 27.) Plaintiff did not pass this second examination. (Aff. of Pl. ¶ 27.)
Plaintiff received a letter, dated February 24, 1999, from Harold Goldstein ("Goldstein") in the KCHC Human Resources department. The letter informed plaintiff that, as a result of a civil service appointment made from the Civil Service Pool, plaintiff had been displaced from his provisional carpenter position. (Pl. Ex. 4 ¶ 1.) The letter also stated that the action would be effective at the close of business on March 19, 1999. (Pl. Ex. 4 ¶ 1.) Upon receipt of this letter, plaintiff checked his pension and realized he was two months short of accruing a sufficient number of pension credits to enable him to collect $700 a month in pension. (Pl. Dep. 94-95.) As a result, plaintiff wrote a letter requesting that defendants continue to employ him for two additional months. (Pl. Dep. 94-95.) Defendants granted plaintiff's request.
On May 3, 1999, Goldstein sent a second letter to plaintiff reiterating that, because of a civil service appointment, plaintiff had been displaced from his provisional carpenter position and that this action was to be effective May 7, 1999. (Pl. Ex. 4 ¶ 1.) Plaintiff then requested employment for three additional years. (Pl. Dep. 95.) Plaintiff asked for this extra time because he had already worked seven years, and he believed that at ten years his pension would achieve its maximum monthly return rate. (Pl. Dep. 95-97.) Gorman informed plaintiff that his request for three additional years was denied. (Pl. Dep. 97-98.)
At the same time KCHC terminated plaintiff, it also posted a notice advertising temporary carpenter positions. (Pl. Dep. 54.) Plaintiff stated at his deposition that, upon seeing the advertisement, he went to the personnel office, filled out an application for the position and gave it to a person he knew as "Mrs. Yauway," but who plaintiff thought was formerly named "Mrs. Kinley." (Pl. Dep. 54.) Subsequent to his application, the KCHC Human Resources department did not put plaintiff on a qualified applicant list and in their briefs defendants deny that plaintiff ever submitted an application for a temporary carpenter position.
(4) Charges Filed with the New York State Department of Human Rights
In October of 1999, plaintiff filed an internal complaint of discrimination against KCHC. Plaintiff filed this charge with Ernest Jones ("Jones"), Director of the HHC Office of Equal Opportunity. (Pl. Ex. 1 ¶ 16). Jones referred plaintiff to Dawn Nurse ("Nurse") at the KCHC Equal Employment Opportunity Office. (Pl. Ex. 1 ¶ 16). Plaintiff claimed he waited five months before filing the internal discrimination complaint because he did not know with whom he should file his complaint. (Pl. Dep. 134.) After reviewing plaintiff's claims, Nurse rejected them. She found the evidence presented did not show discrimination against plaintiff because of his age or race. (Def. Ex. E ¶ 14.) Nurse additionally noted that plaintiff did not pass the second civil service exam, which made him a provisional employee who was simply bumped by a civil service appointee. (Def. Ex. E ¶ 13.)
On February 9, 2000, plaintiff filed a complaint of discrimination with the State of New York Division of Human Rights ("NYDHR"). (Def. Ex. J ¶ 1.) On January 24, 2001, after an investigation but no hearing, the NYDHR released a "Determination and Order After Investigation," which stated: "[t]here is NO PROBABLE CAUSE to believe that [defendants have] engaged in or [are] engaging in the unlawful discriminatory practice complained ...