The opinion of the court was delivered by: McKENNA, D.J.
Arthur Syken ("Syken" or "Plaintiff"), a white male of Jewish faith, brings this amended action against the State of New York's Division of Housing and Community Renewal ("DHCR" or "Defendant") alleging race and age discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. ("Title VII"). Defendant State of New York now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing Plaintiff's Amended Complaint in its entirety. For the reasons stated below, Defendant's motion is GRANTED IN PART and DENIED IN PART.
The facts of this case, taken in the light most favorable to Plaintiff as the nonmoving party, are as follows.
Plaintiff began working for DHCR in the Office of Rent Administration on June 1, 1987, as a Junior Rent Examiner, grade SG-9. (Def. Rule 56.1 Stmt. ¶ 1.) His position is classified under the Civil Service Law as Civil Service protected. (Id.)
He was promoted to Rent Examiner I, grade SG-14, on September 15, 1988 and then again to Rent Program Specialist I, grade SG-18, and has held that position and grade since June 17, 1993. (Def. Rule 56.1 Stmt. ¶¶ 2-3.)
Plaintiff was assigned to the ETPA Policy Unit of the Emergency Tenant Protection Act/Luxury Decontrol ("ETPA/LD") Bureau, where his supervisor during 1993 and part of 1994 was Robert Maichin. (Def. Rule 56.1 Stmt. ¶ 3; Affidavit of John Stellar, Feb. 23, 2005 ("Stellar Aff.") ¶ 5) During most of 1994, Plaintiff was absent from work because of disability. (Def. Rule 56.1 Stmt. ¶ 4.)
In June of 1996, the Policy Unit was transferred from ETPA/LD to the Policy Bureau, leaving behind three employees. Plaintiff was one of these employees. Maichin was transferred along with the bulk of the office, and then in 1998 was promoted to DHCR's Office of Community Development in Lower Manhattan. (Def. Rule 56.1 Stmt. ¶¶ 5-6.) Arthur Shulman was the unit supervisor while Maichin was on probation at his new assignment. (Def. Rule 56.1 Stmt. ¶ 8, Pl. Rule 56.1 Stmt. ¶ 8.) After Maichin's promotion, the Office of Rent Administration ("ORA") began seeking a replacement for him. (Def. Rule 56.1 Stmt. ¶ 9.)
Plaintiff applied for Maichin's former position, but was rejected. Defendant asserts that, because Plaintiff had not passed a qualifying exam, he was not eligible for the promotion he sought. Plaintiff agrees that he was ranked 35th of 39 candidates on a promotion list other than the one Defendant used to try to fill the position, but asserts transfer or some other means allowed his promotion. Maichin failed the probationary period at his new position, and so returned to his former, still-unfilled post at the Policy Bureau in April 1999. (Def. Rule 56.1 Stmt. ¶ 11.)
In October of 1997, the Luxury Decontrol Unit ("LD") split from the ETPA/LD unit to which Plaintiff was assigned. Patrick Siconolfi, head of the Overcharge Bureau, took charge of LD as well. (Def. Rule 56.1 Stmt. ¶ 12.) October 1997 was the first time that Siconolfi became an official part of Plaintiff's chain of command; however, Plaintiff alleges that Siconolfi also participated in the earlier decision denying his promotion to Maichin's vacant former position. (Def. Rule 56.1 Stmt. ¶ 13; Pl. Rule 56.1 Stmt. ¶ 13.)
Defendant asserts that, while in the LD Bureau, Plaintiff claimed an eye disability preventing his assignment to a case processing position requiring that he read for a significant percentage of the work day. Plaintiff disputes this assertion, but both parties agree that after a brief absence due to illness Plaintiff was transferred to the Freedom of Information Law ("FOIL") and Subpoena unit in November of 1998. (Def. Rule 56.1 Stmt. ¶¶ 15-16; Pl. Rule 56.1 Stmt. ¶¶ 15-16.)
On October 28, 1998, Plaintiff telephoned DHCR's personnel office and stated that he wished to file a harassment complaint against his superior, Siconolfi. (Def. Rule 56.1 Stmt. ¶ 17.)
On November 10, Plaintiff faxed a complaint to Ed Oliver, DHCR's Affirmative Action Officer. (Def. Rule 56.1 Stmt. ¶ 18.) Plaintiff then filed an administrative complaint with the New York State Division of Human Rights on January 25, 1999, stating that he had a condition that "may" be a disability and identifying himself as Jewish. (Def. Rule 56.1 Stmt. ¶¶ 19-20.)
DHCR defended against the complaint, and claimed that 1) Plaintiff was ineligible under applicable Civil Service law for the promotion he sought, and 2) even if that was untrue, Siconolfi was uninvolved in the promotion decision. (Def. Rule 56.1 Stmt. ¶ 23.) DHCR further asserted, regarding Plaintiff's transfer to the FOIL/Subpoena unit, that no demotion had taken place because Plaintiff's nominal title, salary, and opportunity for advancement had remained unchanged. (Def. Rule 56.1 Stmt. ¶ 24.) Plaintiff's responsibilities in his new position were generally handled by more junior personnel than were those in his position with the Policy Bureau. (Pl. Reply Memo. Law Opp. S.J., Ex. 20, Aff. Allan Weinblatt.)
DHCR referred Plaintiff for both medical and psychiatric evaluations. (Def. Rule 56.1 Stmt. ¶ 25; Pl. Rule 56.1 Stmt. ¶ 25.)
The U.S. Equal Employment Opportunity Commission ("EEOC") issued Plaintiff a right to sue letter on March 25, 2002, after which he filed a complaint in this Court alleging discrimination based on his religion and disability, failure to promote due to discrimination, and retaliation. (Def. Rule 56.1 Stmt. ¶¶ 27-29.) Plaintiff alleged in particular: a harassing telephone call from his supervisor in 1994; the removal of the partition from his work area in 1997; the failure to promote him and his subsequent demotion, and Siconolfi's hand in both decisions; and retaliation for filing grievances, by methods including the psychiatric and medical evaluations. (Def. Rule 56.1 Stmt. ¶ 30.)
This Court dismissed the sexual harassment claims, for which administrative remedies had not been exhausted, and those filed under the ADA and New York State and City human rights laws. (Memo. and Order, April 2, 2003.)
The Court now considers those claims Plaintiff was granted leave to replead, alleging discriminatory refusal to promote and unlawful retaliation.
A motion for summary judgment "shall 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). "A fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. In weighing a motion for summary judgment, ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). However, "the non-moving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(citing Fed. R. Civ. P. 56)(emphasis omitted). "[C]onclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996)(citations omitted).
In order to make out a Title VII prima facie case for falure to promote, a plaintiff must demonstrate that (1) he is a member of a protected class, (2) he was qualified for the job for which he applied, (3) he was denied the job, and (4) the denial occurred under circumstances giving rise to an inference of discrimination on a basis forbidden by Title VII. See Howley v. Town of Stratford, 217 F.3d 141, 150 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). These four elements must be established by a preponderance of the evidence. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The Court of Appeals has characterized plaintiffs' prima facie burden as "minimal" or "de minimis." See Woodman v. WWOR-TV, Inc. 411 F.3d 69, 76 (2d Cir. 2005)(citing Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001)).
If a plaintiff suing under Title VII succeeds in making out its prima facie case, the defendant then faces a rebuttable presumption of discrimination that it must defeat by proffering a "legitimate, non-discriminatory" rationale for the decision not to promote. See Harding v. Memorial Sloan-Kettering Cancer Center, 1999 WL 459826, *3 (S.D.N.Y. June 29, 1999) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). If the defendant can offer such a rationale, the burden returns to the plaintiff, who must produce evidence refuting that rationale in order to avoid summary judgment. See Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224-25 (2d Cir. 1994).
Plaintiff has failed, on the evidence submitted in opposition to Defendant's motion, to make out a prime facie case under Title VII because he has failed to establish that he was eligible for the promotion sought. The promotion was governed by the New York Civil Service Law, and no applicable section of that statute or corresponding Rules permitted Plaintiff to obtain the position for which he had applied. Tellingly, Plaintiff acknowledges Defendant's list of four lawful methods by which the civil service position could be filled in his Rule 56.1 statement.*fn1 (Def. Rule 56.1 Stmt ¶ 43.) Plaintiff then tacks onto this acknowledgment the bare allegation that "...there are other approved methods of filling a vacancy pursuant to Civil Service Law." Id. Such an unsupported assertion will not defeat a motion for summary judgment when Defendant has shown that Plaintiff could not take advantage of the enumerated methods.
Choosing the Promotion List
Once DHCR decided to fill Maichin's vacated position, ORA and DHCR's Office of Human Resources Management assessed the skills required and determined the most appropriate promotion list from which to hire a replacement. DHCR chose the Rent Program Specialist II list. Defendant affirms that the only other list considered, the Program Research Analyst II list, was rejected because ...