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Mingguo Cho v. City of New York

September 25, 2012

MINGGUO CHO,
PLAINTIFF
v.
CITY OF NEW YORK,
DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

ELECTRONICALLY FILED

x DOC #:

ORDER ADOPTING R&R DEPT. OF BUILDINGS,

On March 10, 2011, Plaintiff Mingguo Cho*fn1 ("Cho"), pro se, filed this action seeking damages for alleged violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law §§ 290, et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§ 8-101, et seq. Cho claims that the City of New York and New York City Department of Buildings ("DOB"), (collectively, "Defendants"), discriminated against him on the basis of his age when they rejected his application for the position of Construction Inspector, even though he scored higher on the qualifying examination than the candidates who were hired for the position. Cho also claims that Defendants retaliated against him after he sought help from City Councilman John Liu to review his application.

On March 22, 2011, the Court referred this case to Magistrate Judge Michael H. Dolinger for general pretrial and dispositive motions. On November 14, 2011, Defendants moved for summary judgment, pursuant to Fed.R.Civ.P. 56. On July 25, 2012, Magistrate Judge Dolinger issued a Report and Recommendation ("R&R") recommending that the Court grant Defendants' motion in its entirety. Cho filed timely objections to the R&R on August 9, 2012.

The Court has reviewed the R&R and Cho's objections. For the reasons discussed below, the Court adopts the R&R and grants Defendants' motion for summary judgment.

BACKGROUND*fn2

A. Facts

On March 2, 2007, Cho sat for the New York City civil service examination in order to apply for a position as a Construction Inspector. He was then 59 years old. At the time he took the examination, there were few vacant Inspector positions available. As a result of the economic downturn in 2008, DOB suffered budgetary constraints, and instituted an external hiring freeze. Thus, at the time Cho applied for the position, DOB was appointing only eligible candidates, rather than hiring external candidates for vacant DOB positions.

According to the Notice of Examination issued in December 2006 by the New York City Department of Citywide Administrative Services ("DCAS"), to be considered for the position of Construction Inspector, candidates must score at least 70 percent on the civil service examination, be able to understand and be understood in English, and have the required work and educational experience. Required work experience included "[f]ive years of full-time, satisfactory experience working in the construction trades," or "[t]here years of full-time, satisfactory work experience [in the construction trades] . . . and two years of formal training or education in an acceptable construction program, given in a college, technical school or trade school." (R&R at 3.) No age requirement for the examination was specified.

After the examination was administered, DCAS published a list of eligible candidates for the position of Construction Inspector, ranked in order of their examination scores. DCAS then provided DOB with a list of at least three candidates certified as eligible for each available position. DOB has discretion in hiring, but must follow certain limitations. Under one such limitation, the so-called "one-in-three" rule, DOB may not consider a candidate who has already been considered and not selected for employment three times.

On December 7, 2007, Cho received his examination score of 73.75. Shortly thereafter, on December 10, 2007, DCAS published a list of 47 certified candidates who were eligible for the Construction Inspector position. Candidates on the list were ranked in order of their examination scores, and Cho was ranked 28th. The list also indicated that 31 of the 47 eligible candidates were selected for the position by DOB. The list provided the birthdates of the appointed candidates and stated whether they were "underage" at the time their application was filed. Of the 31 candidates selected, five scored the same as Cho on the examination; five scored lower than Cho; and the remaining 21 had higher examination scores. Four candidates who scored higher than Cho were appointed to the position, despite being older than Cho.

Defendants continued to select candidates from this list until it expired on January 9, 2008. While the list was active, Cho was considered, but not selected, for the Construction Inspector position on three occasions. Pursuant to the "one-in-three" rule, ...


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