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Mullins v. Consolidated Edison Company of New York, Inc.

United States District Court, S.D. New York

July 22, 2015



LORNA G. SCHOFIELD, District Judge.

Pro se Plaintiff Alexander Orlando Mullins brings suit against his employer, Defendant Consolidated Edison Company of New York, Inc. ("Con Edison"), alleging failure to promote and unequal terms and conditions of employment on the basis of his race, color and national origin under Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"). Defendant moves for summary judgment. For the reasons below, Defendant's motion is granted in its entirety.


The facts are taken from the parties' submissions in connection with the motion, and are undisputed except as otherwise noted.

A. Plaintiff's Initial Employment at Con Edison

Plaintiff is a black, 40-year-old man who was born in Barbados and immigrated to the United States in 1983. Con Edison, a public utility company, hired him in 2005 as a Customer Field Representative in the Customer Operations department. In his time at Con Edison, Plaintiff has been represented by the Utility Workers Union of America AFL-CIO, Local 1-2 (the "Union").

B. Operations Support Group

From 2008 until the present, Plaintiff has been employed in Con Edison's Gas Operations Field Support group ("Operations Support") in the larger Gas Operations department. In 2008, Plaintiff applied to be, and was hired as, an administrative clerk in the group. The position of administrative clerk is part of a "job family" or "career path" in Gas Operations. An administrative clerk can, after working the requisite years and clearing the necessary tests, move to the position of office assistant and then to administrative assistant. Plaintiff affirmed in his deposition that administrative assistant is "the end of the line as far as that career path." In February 2009, Plaintiff was promoted to "office assistant, " and currently holds the position of "administrative assistant."

Ellen Simpson, who is white, was Plaintiff's first manager in Operations Support. Ms. Simpson reported to the department manager Mario Smith, a black man, who is still the department manager. Alecia Copeland replaced Ellen Simpson as Plaintiff's direct supervisor for at least two years beginning in 2009. Ms. Copeland is black, and according to Plaintiff, is Jamaican. While Ms. Copeland served as Plaintiff's direct supervisor, Ms. Simpson remained at Gas Operations as Plaintiff's "Second Level Manager, " until Tom Hagman, who is white, replaced her in December 2010. At all relevant times, the Vice President and the Senior Vice President of Gas Operations were also black.

Plaintiff joined Operations Support in 2008 as the third administrative clerk. The other clerks were Jennifer Fields, who is black, and John Paul Freire, also called John Paul Montalvo, who is Hispanic. In his deposition, Plaintiff refers to Mr. Freire as "JP, " and, for ease of reference, so will this Opinion.

In Operations Support, Plaintiff was assigned "administrative" tasks, such as inventory control, data entry and maintaining supplies. Plaintiff also performed "technical" tasks which he considers more akin to those performed by "analysts, " such as troubleshooting computer hardware and software issues and re-imaging drives. Plaintiff was expected to perform both technical and administrative tasks from the beginning of his tenure at Operations Support. For example, in September 2008, Plaintiff's then-manager Ellen Simpson explained in Plaintiff's performance review that Plaintiff "ha[d] been eager to learn the technical aspects of Operations Support, " an observation she reiterated in the October 2008 review. In the March 2009 review, however, Ms. Simpson noted that Plaintiff was more interested in and adept at technical assignments but that he "need[ed] to improve on his follow-through with administrative tasks." Plaintiff testified that his "duties never changed" in his time at Operations Support, even though his titles changed. He also testified that while his co-clerk Jennifer Fields never performed "technical" tasks, the other co-clerk JP, like Plaintiff, routinely performed them.

C. Plaintiff's Performance Evaluations

From September 2008 until March 2009, Ms. Simpson gave Plaintiff three favorable performance reviews and pay raises. In his September 2008 evaluation, on a scale of "Unsatisfactory, " "Marginal, " "Satisfactory" and "Superior, " she rated Plaintiff "Satisfactory" in all 11 metrics, including "work quality, " "cooperation, " "reliability" and "dependability." In his October 2008 evaluation, Plaintiff again received "Satisfactory" in all areas except "adaptability, " in which Ms. Simpson rated him "Superior." In the March 2009 evaluation, Ms. Simpson rated Plaintiff "Superior" for "cooperation, " but reduced his rating in "dependability" from "Satisfactory" to "Marginal." She rated Plaintiff "Satisfactory" in all other areas. In her comments, she noted that Plaintiff "needed to be prompted to complete [certain] administrative tasks." Nonetheless, Plaintiff's "overall rating" remained "Satisfactory."

In June 2009, Ms. Copeland completed Plaintiff's one-year evaluation. She rated Plaintiff as "Satisfactory" overall and granted him a pay raise, but rated his "work product" and "dependability" as "Marginal." All other ratings, including "reliability, " were "Satisfactory." She noted that she wanted to see Plaintiff "be more proactive in his current role[] by... owning his required responsibilities." When asked about this evaluation at his deposition, Plaintiff stated he "understood the work quality part because [he was] not always... organized, " but "the dependability part, [he] never understood" because "[i]f someone is reliable, they are dependable." Plaintiff further explained that while "[m]ost of [his] work was completed on time[, ] [s]ometimes things fell on the side." "In other words, " Plaintiff testified, "I am not a model employee."

In October 2009, Ms. Copeland again rated Plaintiff as "Satisfactory" overall and granted him a pay raise, but again rated his "work product" and "dependability" as "marginal." In her comments, Ms. Copeland explained that Plaintiff's inability to complete his tasks on time had "cause[d] negative feedback[] from... customers, " and for the last two months "she had to go to [Plaintiff] on a continuous basis asking for the status of various job assignments."

In February 2010, Ms. Copeland gave Plaintiff an overall rating of "Unsatisfactory" and denied him a pay raise. She gave Plaintiff a rating of "Marginal" in "work quality, " "work quantity" and "dependability." Ms. Copeland noted in her comments that Plaintiff's work quality had fallen "below satisfactory standards." She stated that Plaintiff failed to meet deadlines and "need[ed] to be constantly reminded" to complete his tasks. At his deposition, Plaintiff explained that for the period covered by the February 2010 review, he had been tasked with researching and acquiring a computer-based inventory system for his group - without any help from his peers. Because he was busy with this project, he did not attend to the usual tasks "as much." He also agreed with Ms. Copeland's observation that he had to be "constantly reminded" to fulfill his various tasks.

Plaintiff's next performance evaluation in June 2010 looked very similar to his February 2010 evaluation. Ms. Copeland again gave Plaintiff an overall rating of "Unsatisfactory, " denied him a pay raise, and rated him "Marginal" in "work quality, " "work quantity" and "dependability." She noted that "[s]ince [Plaintiff's] last review, his work quality has remained the same and that is cause for concern." She reiterated that Plaintiff's untimely work continued to generate "negative customer feedback" and he had to be "constantly reminded" to finish assigned tasks. She noted that, although Plaintiff had implemented the computerized inventory system, "to date, he has still not trained the entire Support Applications team in the use of the software." At his deposition, Plaintiff testified that he had not been able to train all his co-workers because he wanted to do it efficiently as a group, which proved difficult since his co-workers were rarely at their desks at the same time. Plaintiff confirmed that he had not filed any grievances with the Union regarding his two consecutive "Unsatisfactory" reviews. Plaintiff also affirmed that under Con Edison policy, "you need a year after an unsatisfactory review in order to apply" for another position.

Plaintiff's two remaining performance evaluations in the record - dated October 2010 and October 2011 - are positive. In October 2010, Ms. Copeland gave Plaintiff an overall "Satisfactory" rating and granted him a pay increase. She rated him "Superior" in five of the eleven metrics, "Satisfactory" on the rest, and commended the "vast improvement" Plaintiff had made since his last review. Plaintiff's October 2011 review by his new supervisor, Eugene Morkov, was even stronger. Plaintiff's overall rating was "Superior, " and he was rated "Superior" in six of the eleven metrics.

D. Gas Operations Analyst Positions

In 2008 and again in 2009, Gas Operations posted job openings for "Analyst" positions. Plaintiff did not apply for either position. The 2008 position was filled by Yuv Raj Singh, who had joined Gas Operations after Plaintiff. The 2009 position was cancelled under a company-wide hiring freeze and never filled.

Plaintiff explains that he did not apply for the 2008 position because his supervisors had not made him aware of it, and he did not apply for the 2009 position because he was told it was meant for JP. He also states that he was told the 2009 position required a college degree, even though, according to Plaintiff, JP did not have such a degree.

In November 2010, Plaintiff applied for an Associate Analyst position in Operations Support that was posted in October 2010. In January, 2011, he received an email from Human Resources explaining that he was ineligible for the position because he did not have a satisfactory discipline record. Plaintiff testified that he vigorously challenged Human Resources' characterization of his discipline record, and ultimately Human Resources told him that he was ineligible not because of his disciplinary record, but because of his negative performance evaluations. Plaintiff expressed confusion at this explanation because, according to him, both Ms. Copeland and Ms. Simpson had encouraged him to apply for the position despite writing the negative performance evaluations.

Plaintiff applied for another Analyst position in Operations Support in late November 2010, the same day it was posted. In his declaration in support of Defendant's motion, Mario Smith, the Department Manager for Gas Operations, states that both the October and November 2010 Analyst postings were expected to be filled within a few months of posting in early 2011, but because of budgetary constraints, both positions were cancelled and never filled.

Plaintiff says that he did not receive any notice that the November 2010 position had been cancelled and found out on an unspecified date only when he asked Ms. Simpson. Plaintiff testified that he believed the Analyst positions were "pulled in order to discriminate against me, " as otherwise "it would be a great coincidence that I applied for two separate positions and they both g[o]t pulled."

E. System Analyst Position with Information Resources

In July 2011, Luis Castro, who is Hispanic and a Project Specialist in Con Edison's Information Resources department, posted a job for a System Analyst in his group. Plaintiff applied for this position.

After an initial screening, four candidates were rejected. In the first week of August 2011, Mr. Castro conducted technical interviews on the telephone with Plaintiff and three other remaining candidates and sent them a written exercise via email. Based on the interview and written exercise, Mr. Castro rejected one of the four remaining candidates. The three remaining candidates and their interview scores were: JP (75%), Plaintiff (64%), and Harold Gonzalez (32%). On the written exercise, JP's work was deemed excellent, Gonzalez's reasonably ...

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