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Taffe v. New York City School Construction Authority

United States District Court, E.D. New York

September 1, 2017

KENNETH E. TAFFE, Plaintiff,


          BRIAN M. COGAN U.S.D.J.

         Plaintiff pro se contends that he has not received both salary increases and a promotion that his peers have received based on the fact that he is African American and they are not, in violation of Title VII. He has not responded to defendant's motion for summary judgment, even though the Court gave him both an extension of time and additional time after the extension. Because plaintiff is proceeding pro se, I have reviewed the record and considered the strongest arguments that could be made on his behalf. The evidence clearly shows that the reason why plaintiff has been stuck in his same position is because his work is average at best, and those who have received promotions and salary increases have done better or more valuable work. No reasonable jury could conclude otherwise, and defendant's motion for summary judgment is accordingly granted.


         Plaintiff was hired in July 2000 as a Senior Management Specialist in the Capital Budget Group of the New York City School Construction Authority (“SCA”). His duties have consisted of preparing funding requests, and he remains in his original title. In May, 2014, he filed an internal discrimination complaint alleging that (1) he had only received across-the-board pay increases, while others in his title received discretionary increases; (2) African American employees were required to take a civil service examination to obtain promotions, while some Caucasian employees' titles were changed to exempt them from the exam; and (3) on one occasion, although he had scored at the top of the civil service exam list, the SCA allowed the list to expire and then promoted a non-African American for a more senior position. SCA investigated the complaint and found it to be without merit.

         SCA has conducted annual performance evaluations of plaintiff since the 2012-2013 period. They have all concluded that he “meets expectations.” Notwithstanding this assessment, his 2012-2013 report also stated that his work “frequently contained errors” and that he “needs to pay better attention to detail and proofread his work prior to submission to his supervisor.” It also stated that his work was “frequently late and [does] not provide the detail required.” It further noted that these issues “had been discussed” with him “on multiple occasions and his performance has only improved marginally.” These comments continued in the same vein for each of his successive annual reports.

         At his deposition, plaintiff testified that he believed his evaluations are based on discrimination. He acknowledges that his work sometimes contained errors, was incomplete, or late, but he attributes the latter two problems to the failure of others to get him required information, and as to his mistakes, he points out that no one is infallible, and the mistakes, in his view, are only occasional.


         Discrimination claims under Title VII are governed by the familiar burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010). To show a prima facie case of discrimination under Title VII, a plaintiff must provide evidence showing that (1) he belongs to a protected class; (2) he is qualified for the position held; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). In considering plaintiff's prima facie case, the Court must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. See Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135 (2d Cir. 2013). And the burden of demonstrating a prima facie case is de minimis. See Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006).

         Once an employee makes a prima facie case, “the burden shifts to the employer to give a legitimate, non-discriminatory reason for its actions.” Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (citing McDonnell Douglas, 411 U.S. at 802). If it does so, “the burden then shifts back to the plaintiff to show that the employer's explanation is a pretext.” Id. This means that at summary judgment, “once the employer has made a showing of a neutral reason for the complained of action, to defeat summary judgment[, ] the employee's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the employer's employment decision was more likely than not based in whole or in part on discrimination.” Id. (internal quotation marks, brackets, and ellipsis omitted). On a motion for summary judgment, the assessment of plaintiff's prima facie case and of his evidence of pretext “tend to collapse as a practical matter under the McDonnell Douglas framework.” Collins v. New York City Transit Auth., 305 F.3d 113, 119 n.1 (2d Cir. 2002).

         At the summary judgment stage, although continued consideration is given to plaintiff's pro se status, see Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994), and every inference must be construed in plaintiff's favor, see, e.g., Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 621 (2d Cir. 1996), plaintiff must show sufficient proof at the outset to satisfy his prima facie case, and if defendant shows a bona fide business justification for the alleged discriminatory action, plaintiff must show, either through his prima facie case or through additional evidence, facts upon which a reasonable jury could find discrimination. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 81 (2d Cir. 2001); Fields v. N.Y. State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 120 (2d Cir. 1997).

         When a plaintiff fails to oppose a summary judgment motion, it substantially reduces the likelihood that the Court will be able to discern a prima facie case. The evidence that the employer submits is obviously not intended for that purpose, indeed just the opposite; nonetheless, it may be possible for a court to find enough there to remedy plaintiff's failure to participate. In this case, however, the Court has the advantage of plaintiff's complaint which, because it is attested, can constitute evidence. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Although plaintiff's failure to offer the complaint in opposition to defendant's motion may not make it technically part of the summary judgment record, I will consider it anyway in light of his pro se status.

         Plaintiff's sworn complaint in this action is essentially a clone of the administrative complaint that he submitted internally to SCA. Because of the de minimis standard required to demonstrate a prima facie case, it suffices. It shows that plaintiff is a member of a protected class (African American). It alleges, albeit in conclusory form, that he was qualified to receive the promotion and raises that he did not receive. And the failure to give salary increases or promotions based on race are adverse employment actions. See Humphries v. City Univ. of New York, No. 13-cv-2641, 2013 WL 6196561 (S.D.N.Y. Nov. 26, 2013) (finding unequal pay based on discrimination to be an adverse action); Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (finding that a failure to promote based on discrimination to be an adverse employment action).

         As to evidence giving rise to an inference of discrimination, plaintiff offers evidence of several instances where he believes discrimination occurred.

         First, he asserts that shortly after 2000 when he was hired full-time (perhaps he worked as a temporary employee prior to that time; we are not told), he was called into a supervisor's office and told that while two other employees in his title, Marcin Ceglinski and Didier Hue, were getting $20, 000 salary increases (“maybe” - it appears he is estimating that increase), plaintiff was not getting the increase because he was making a lot more than Ceglinski and Hue, and SCA wanted the two to “catch up.” Plaintiff asserts that he had “twenty plus years of accounting experience, ” implying that Ceglinski and Hue did not. Assuming ...

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