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Shehab v. Chas. H. Sells


March 29, 2006




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., alleging that Chas. H. Sells, Inc. ("Sells" or the "firm") discriminated against him on the basis of national origin. Mr. Shehab also asserts pendent state law claims. Sells now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that Mr. Shehab was not qualified for the position sought because a government contract reserved it for members of certain minority groups that do not include the plaintiff. For the reasons discussed below, I recommend that Sells's motion be granted.


A. The Hiring and Discharge of the Plaintiff

Mr. Shehab is an Egyptian-born American citizen trained in civil engineering. Sells is an engineering firm specializing in bridge design and inspection. In January 2002, Sells entered into a contract with the New York State Department of Transportation (the "NYDOT") to provide bridge inspection services in the Mid-Hudson Valley region of the state. (Affidavit of Salvatore Iodice in Support of Defendant's Motion to for Summary Judgment dated Aug. 19, 2005 ("Iodice Aff."), attached as Exh. 3 to Defendant's Notice of Motion for Summary Judgment ("Defendant's Notice of Motion"), ¶ 4). NYDOT bridge and road repair contracts are funded by the Federal Highway Administration (the "FHWA") under the Federal Highways Act (the "Highways Act"), 23 U.S.C. § 101 et seq. Under the anti-discrimination provision of the Act, states receiving highway funds must certify to the federal government that private contractors engaged in FHWA-backed road work provide opportunities for members of minority groups to enter the road construction trades. 23 U.S.C. § 140; 23 C.F.R. §§ 230.105, 230.111.

The FHWA defines minority groups as "Blacks (not of Hispanic origin), Hispanics, Asian or Pacific Islanders, and American Indians or Alaskan Natives." 23 C.F.R. § 230.305(c). "[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 affirmative action training programs. 23 C.F.R. § 230.305(d)(1).

In compliance with the Highways Act and federal regulations, the NYDOT requires certain contractors to maintain trainee positions to be filled by members of minority groups. (Iodice Aff., ¶¶ 5, 6; Declaration of Naim Orayfig dated Oct. 13, 2005 ("Orayfig Decl."), attached as Exh. 10 to Plaintiff's Opposition to a Motion for Summary Judgment ("Plaintiff's Opposition"), ¶¶ 2, 3). Contractors select candidates for the 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 candidates in question are members of minority groups as defined by the FHWA. (Orayfig Decl., ¶ 3).

Sells interviewed Mr. Shehab in early February 2002 for a trainee position and hired him on the spot, conditioning employment on approval by the NYDOT. (Defendant's Statement of Uncontested Facts Pursuant to Rule 56.1, attached to Defendant's Notice of Motion, ¶ 9; Letter of Salvatore Iodice dated Jan. 22, 2002, attached as Exh. 4 to Defendant's Notice of Motion; Iodice Aff., ¶¶ 8, 10). On February 13, 2002, Sells sent Mr. Shehab a letter containing a formal job offer and an express statement that the offer was contingent upon approval by the OEODC. Mr. Shehab acknowledges receiving the letter. (Letter of Salvatore Iodice dated Feb. 13, 2002 ("Iodice 2/13/02 Letter"), attached as Exh. 4 to Defendant's Notice of Motion; Deposition of Ahmed Shehab ("Shehab Dep."), attached as Exh. 1 to Defendant's Notice of Motion, at 162-64).

Shortly before Mr. Shehab was to start work, the firm contacted the OEODC to confirm that Mr. Shehab was eligible for the affirmative action program. (Iodice Aff., ¶ 12). A worker at the OEODC erroneously responded that he was. (Iodice Aff., ¶ 12). Relying on the confirmation, Sells permitted Mr. Shehab to begin employment on March 18, 2002. (Iodice Aff., ¶ 14). However, later that week, Naim Orayfig, an OEODC supervisor, informed Sells that the plaintiff was not eligible because he did not qualify as a minority under federal regulations. (Iodice Aff., ¶ 15). Consequently, Sells discharged Mr. Shehab on March 22, 2002. (Iodice Aff., ¶ 15; Shehab Dep. at 195-96).

B. Procedural Background

Mr. Shehab filed a complaint with the New York State Division of Human Rights (the "SDHR") on April 16, 2002. (Verified State Division of Human Rights Complaint dated April 16, 2002 ("SDHR Complaint"), attached as Exh. 5 to Defendant's Notice of Motion). Finding that the firm acted in adherence to state and federal affirmative action requirements, the SDHR concluded that the firm was not liable. The SDHR noted that persons of Egyptian ancestry are not qualified for highway affirmative action programs under federal regulations. (State Division of Human Rights Determination and Order after Investigation dated July 16, 2003, attached as Exh. 6 to Defendant's Notice of Motion, at 1-2). The United States Equal Employment Opportunity Commission adopted the SDHR findings and notified Mr. Shehab of his right to sue. (Dismissal and Notice of Rights dated Nov. 20, 2003, attached as Exh. 7 to Defendant's Notice of Motion).

Mr. Shehab filed this action pro se against Sells on February 23, 2004, alleging violations of Title VII and the Americans with Disabilities Act (the "ADA").*fn1 Sells moved for dismissal. I recommended that the motion be denied with respect to the Title VII claim and granted with regard to the ADA claim, and the Honorable Lewis A. Kaplan, U.S.D.J., adopted those recommendations. Shehab v. Chas. H. Sells, Inc., No. 04 Civ. 1354, 2004 WL 2659835 (S.D.N.Y. Nov. 22, 2004). Dismissal of Mr. Shehab's Title VII claim was inappropriate at that stage because his complaint did raise a possibility of illegal discriminatory conduct. A defendant's compliance with an affirmative action program does not automatically preclude a finding of liability for discrimination; a plaintiff may yet prevail if he can demonstrate that the affirmative action plan is actually a pretext for discrimination. See Johnson v. Transportation Agency, 480 U.S. 616, 626-27 (1987); Davis v. Halpern, 768 F. Supp. 968, 974 (E.D.N.Y. 1991).

The defendant now moves for summary judgment. Sells argues that under 23 C.F.R. § 230.305(c) Mr. Shehab was not qualified to participate in its trainee program, and that Mr. Shehab has failed to present evidence that the affirmative action program was invalid or used as a pretext to discriminate.


A. Standard for Summary Judgment

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "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); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). The moving party bears the initial burden of demonstrating "the absence of genuine issues of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted). Where the movant meets that burden, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute concerning material facts. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). While the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party, that party cannot prevail by showing the "mere existence of some alleged factual dispute between the parties." Anderson, 477 U.S. at 247. Rather, the non-movant must set forth evidence that there is some genuine issue of material fact for trial. Id. at 248.

Conclusory, speculative evidence will not do. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is no fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (citation and internal quotation marks omitted); see Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts"). If the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Electric Industrial Co., 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)); see Montana v. First Federal Savings & Loan Association, 869 F.2d 100, 103 (2d Cir. 1989).

Where a litigant proceeds without counsel, his pleadings should be read liberally and interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, proceeding pro se does not relieve the litigant from the usual requirements of summary judgment, Gittens v. Garlocks Sealing Technologies, 19 F. Supp. 2d 104, 110 (W.D.N.Y. 1998), and "a pro se party's bald assertion, completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); accord Howard Johnson International, Inc. v. HBS Family, Inc., No. 96 Civ. 7687, 1998 WL 411334, at *3 (S.D.N.Y. July 22, 1998); see also Stinson v. Sheriff's Department, 499 F. Supp. 259, 262 (S.D.N.Y. 1980) (noting that the liberal standard accorded to pro se pleadings "is not without limits, and all normal rules of pleadings are not absolutely suspended").

B. Title VII

Title VII makes it illegal for an employer to discriminate on the basis of a person's race, color, religion, sex, or nation origin. 42 U.S.C. § 2000e-2(a)(1). Courts employ a three-step burden-shifting framework to analyze Title VII claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-02 (1973). First, the plaintiff must establish a prima facie case of discrimination by showing (1) that he is within a protected group (2) that he was qualified for a job at issue, (3) that he was subjected to an adverse employment action, and (4) that this action occurred under circumstances giving rise to an inference of discrimination. See id. at 802; Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). Second, if the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence that the action against the plaintiff was taken "'for a legitimate, nondiscriminatory reason.'" St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). Third, if the defendant successfully articulates a nondiscriminatory reason, the burden shifts back to the plaintiff to "prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253).

Adherence to an affirmative action plan is a legitimate, nondiscriminatory reason for an employer to make a race-conscious employment decision. United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 206-07 (1979). If an employer responds to a plaintiff's prima facie case by providing evidence of such a plan, the burden of production shifts back to the plaintiff to "prove that the employer's justification is pretextual and the plan is invalid." Johnson v. Transportation Agency, 480 U.S. 616, 626-27 (1987).

C. Application to the Plaintiff's Claims

Mr. Shehab challenges the validity of the NYDOT affirmative action plan under which Sells hired him, arguing that the NYDOT applied the wrong eligibility standard to on-the-job training applicants. The NYDOT based its eligibility determinations on 23 C.F.R. § 230.305, the regulation defining minority group persons. Mr. Shehab maintains that two other regulations, 23 C.F.R. §§ 230.107 and 230.111(d)(1), were the more appropriate guide to eligibility. (Plaintiff's Statement in-accordance-to Local Rules for Civil Procedures ("Plaintiff's Statement"), ¶ 2). Those two sections announce the FHWA's policy objectives for on-the-job training programs. Section 230.107(b) states that "[i]t is the policy of the FHWA to require full utilization of all available training and skill-improvement opportunities to assure the increased participation of minority groups and disadvantaged persons and women in all phases of the highway construction industry[,]" and section 230.111(d)(1) explains that the "primary objectives" of the FHWA-backed on-the-job training programs are "training and upgrading minority group workers, women and disadvantaged persons." In Mr. Shehab's view, the term "disadvantaged persons" requires FHWA-funded contractors to include persons of low socio-economic status. (Plaintiff's Answer to Report and Recommendation, attached as Exh. 3 to Declaration of Ahmed Shehab dated Oct. 26, 2005 ("Shehab Decl."), ¶¶ 1, 2 ).

However, agency policy statements "lack[] the firmness of a prescribed standard[.]" Sprint Corp. v. Federal Communications Commission, 315 F.3d 369, 373 (D.C. Cir. 2003) (internal punctuation marks omitted) (quoting Sugar Cane Growers Cooperative of Florida v. Veneman, 289 F.3d 89, 95 (D.C. Cir. 2002)). Policy statements in regulations do not function as substantive rules. Panhandle Eastern Pipeline Co. v. Federal Energy Regulatory Commission, 198 F.3d 266, 269 (D.C. Cir. 1999) (delineating distinction between agency policy statement and substantive rule, likening policy statement to an announcement or press release). Mr. Shehab's invocation of the two policy statements thus does not mount an effective attack on the validity of the on-the-job training program.

Mr. Shehab also challenges the exclusion of nationalities other than those listed in the definition of minority groups in 23 C.F.R. § 230.305(c). (State Division of Human Rights Complaint of Ahmed Shehab, attached as Exh. 3 to Exh. 12 of Shehab Decl. , ¶ 16; Plaintiff's Statement, ¶ 18). However, a plaintiff challenging underinclusiveness in a government affirmative action plan must come forth with evidence that the government either had a discriminatory purpose in excluding a particular group or lacks a rational basis for defining eligibility as it does. See Jana-Rock Construction, Inc. v. New York State Department of Economic Development, 438 F.3d 195, 200 (2d Cir. 2006). Mr. Shehab has not provided any evidence that addresses the NYDOT's reasons for establishing the affirmative action program or that suggests that the NYDOT had a discriminatory purpose. In the absence of such a showing, Sells's proof is sufficient to demonstrate that the firm had a legitimate, non-discriminatory rationale for its actions.

D. Breach of Contract and Wrongful Termination Claims

Mr. Shehab also sets forth state law claims, contending that Sells is liable for breach of an employment contract and for wrongful termination. (Plaintiff's Statement, ¶¶ 3, 7, 17). A federal district court's jurisdiction over state law claims is governed by 28 U.S.C. § 1367, which provides that in cases over which a federal court has original jurisdiction, the court "shall have supplemental jurisdiction over all other claims that are so closely related to claims in the action . . . that they form part of the same case or controversy under Article III of the United States Constitution." The statute codifies the rule, articulated by the United States Supreme Court in United Mine Workers v. Gibbs, that when federal law and state law claims "derive from a common nucleus of operative fact[,]" district courts have jurisdiction over the entire action. 383 U.S. 715, 725-29 (1966).

A district court "may decline to exercise supplemental jurisdiction" if the court "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c). The provision is discretionary, not mandatory, and whether a court should decline to exercise jurisdiction over state law claims after federal claims have been dismissed depends on factors of "judicial economy, convenience, fairness, and comity[.]" Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003). Where a court has dismissed federal claims at an early stage of litigation and the remaining claims raise unsettled issues of state law, the federal court should not retain jurisdiction. See Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998)(collecting cases). However, where the parties have already expended substantial time and effort on the dispute and the court need only apply well settled law to remaining claims, it "further[s] neither fairness nor judicial efficiency" for the court to decline jurisdiction. See Mauro v. Southern New England Telecommunications, Inc., 208 F.3d 384, 388 (2d Cir. 2000)(affirming district court's retention of jurisdiction over state law claims after its dismissal of federal discrimination claim).

Because the state law in this case is clear and the parties have already engaged in extensive litigation, it would serve neither judicial economy, convenience, nor fairness to require the parties to begin anew in state court. Mr. Shehab cannot prevail on a claim that he was wrongfully terminated because New York State does not recognize the tort of wrongful discharge. See Murphy v. American Home Products Corp., 58 N.Y.2d 293, 300-01, 461 N.Y.S.2d 232, 235 (1983); Larson v. Albany Medical Center, 173 Misc. 2d 508, 509, 662 N.Y.S.2d 224, 225 (N.Y. Sup. Ct. 1997).

Nor can Mr. Shehab win his breach of contract claim. Sells's duty to perform never arose because a condition precedent was not satisfied: the NYDOT did not approve Mr. Shehab's candidacy. Where there is no duty to perform, there can be no breach of contract. See Jim Ball Chrysler LLC v. Marong Chrysler-Plymouth, Inc., 17 A.D.3d 1113, 1113-14, 794 N.Y.S.2d 545, 546 (4th Dep't, 2005); 22 N.Y. Jur. Contracts § 324 ("Before liability can arise on a promise qualified by conditions expressed or implied in fact, those conditions must be fulfilled.") (citations omitted). Sells's offer contained the following statement: "As we discussed, your eligibility for this position and this offer of employment is contingent upon the approval of your academic and other qualifying credentials for the Assistant Team Leader Training Program by the New York State Department of Transportation Structures Division and Office of Equal Opportunity Development and Compliance." (Iodice 2/13/02 Letter). In accepting that offer, Mr. Shehab agreed to the contract's conditions. Because these conditions were not satisfied, Sells incurred no contractual obligation, and no claim of breach can lie.


For the reasons set forth above, Sells's motion for summary judgment should be granted. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 62, 6(a), and 6(e)of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Lewis A. Kaplan, U.S.D.J., Room 1310, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

Respectfully Submitted,


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