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., 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).
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 ...