REPORT AND RECOMMENDATION
TO THE HONORABLE LEWIS A. KAPLAN, U.S.D.J.:
Ahmed Shehab brings this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., charging that the New York State Department of Transportation (the "NYDOT") discriminated against him on the basis of national origin. The NYDOT now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that the NYDOT was not Mr. Shehab's employer, that actions taken by the NYDOT complied with federal affirmative action regulations, and that Mr. Shehab has failed to set forth any triable issue of fact. For the reasons discussed below, I recommend that the motion be granted.
A. The Hiring and Discharge of the Plaintiff
The NYDOT maintains highways and bridges in the State of New York with funding from the Federal Highway Administration (the "FHWA"). See 23 U.S.C. §§ 105, 106. As a condition of receiving FHWA funds, the NYDOT must adhere to regulations promulgated by the United States Department of Transportation to implement the anti-discrimination provisions of the Federal Highways Act. See 23 U.S.C. § 140. Under 23 C.F.R. § 230.111, which requires on-the-job training programs in state highway construction projects, the NYDOT must designate a certain number of highway contracts as on-the-job training contracts and must ensure that private companies operating under those contracts create and maintain positions for minority trainees.
The definition of minorities is provided in 23 C.F.R. § 230.305(c):
As defined by U.S. Federal agencies for employment purposes, minority group persons in the U.S. are identified as Blacks (not of Hispanic origin), Hispanics, Asian or Pacific Islanders, and American Indians or Alaskan Natives. "[P]ersons having origins in any of the original peoples of Europe, North Africa, the Middle East, or the Indian Subcontinent" are categorized as "White (not of Hispanic origin)[,]" and do not qualify for the affirmative action training programs. 23 C.F.R. § 230.305(d).
Pursuant to NYDOT contract requirements, contractors first select candidates for on-the-job training positions and then obtain approval of the candidates from the NYDOT. Approval rests on, among other things, verification by the NYDOT Office of Equal Opportunity Development and Compliance (the "OEODC") that the candidates are members of minority groups as defined by the FHWA. (Declaration of Naim Orayfig dated Oct. 13, 2005 ("Orayfig Decl."), attached to Notice of Motion for Summary Judgment, ¶ 3).
The plaintiff is an Egyptian-born American citizen trained in civil engineering. In February 2002 he applied for an affirmative action training position at Chas. H. Sells, Inc. ("Sells"), an engineering firm with a contract to inspect bridges for the NYDOT. (Deposition of Ahmed Shehab dated June 24, 2005 ("Shehab Dep."), attached as Exh. C to Declaration of Steven L. Banks in Support of Defendant's Motion for Summary Judgment dated Oct. 12, 2005 ("Banks Decl."), at 20-22, 31; Orayfig Decl., ¶ 6).
Sells offered Mr. Shehab the training position, contingent upon approval by the NYDOT. (Letter of Salvatore Iodice dated Feb. 13, 2002 ("Iodice Letter"), attached as Exh. 10 to Amended Complaint). On March 6, 2002, Sells proposed Mr. Shehab as a trainee for the affirmative action plan and then contacted the OEDOC to confirm that the plaintiff was eligible. (Orayfig Decl., ¶ 6). David Perez, a compliance associate at the OEDOC, mistakenly informed Sells that Mr. Shehab was qualified. (Orayfig Decl., ¶ 9). Mr. Shehab began employment on March 18, 2002. Later that week Naim Orayfig, an OEDOC supervisor, reviewed Mr. Shahab's application and, applying 23 C.F.R. § 230.305, determined that Mr. Shehab was ineligible for the training position. (Orayfig Decl., ¶ 7). Mr. Orayfig conveyed the news to Sells, and Sells discharged Mr. Shehab on March 22, 2002. (Orayfig Decl., ¶ 8; Shehab Dep. at 57-58).
Mr. Shehab filed a complaint with the New York State Division of Human Rights (the "SDHR") on April 16, 2002. Finding that the NYDOT acted in accordance with federal mandates, the SDHR ruled that the NYDOT did not engage in unlawful discrimination. (Determination and Order after Investigation dated March 31, 2003, attached as Exh. D to Banks Decl.). The United States Equal Employment Opportunity Commission adopted the SDHR's findings on May 2, 2003, and notified Mr. Shehab of his right to sue. (Dismissal and Notice of Rights dated May 2, 2003, attached as Exh. E to Banks Decl.). On August 1, 2003, the plaintiff filed this action.*fn1
There have been two previous Reports and Recommendations in this case. On June 16, 2004, I recommended that Mr. Shehab be given the opportunity to amend his complaint and allege that the NYDOT was his employer within the meaning of Title VII. The Honorable Lewis A. Kaplan, U.S.D.J., adopted that recommendation, Shehab v. New York State Department of Transportation, No. 03 Civ. 5730, 2004 WL 1585923, at *1 (S.D.N.Y. July 15, 2004), and on August 30, 2004, Mr. Shehab filed an amended complaint.
The NYDOT moved to dismiss on the basis that it was not Mr. Shahab's employer, but on March 10, 2005, I recommended that the motion be denied because Mr. Shehab's amended complaint raised sufficient issues of fact concerning that issue. Shehab v. New York State Department of Transportation, No. 03 Civ 5730, 2005 WL 659146, at *4-5 (S.D.N.Y., March 10, 2005). Judge Kaplan adopted that recommendation as well. Shehab v. ...