Opinion
99 Civ. 9857 (HB)
March 20, 2001
MEMORANDUM OPINION ORDER
Plaintiff moves pursuant to 28 U.S.C. § 1915 and Federal Rule of Appellate Procedure Rule 24 for leave to proceed in forma pauperis on appeal to the Second Circuit. As I find that this appeal is frivolous, plaintiff's motion is denied.
28 U.S.C. § 1915 (a) provides, "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." Rule 24 of the Federal Rules of Appellate Procedure provides in relevant part:
(a) Leave to Proceed on Appeal in Forma Pauperis from District Court to Court of Appeals. A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit shown, in the detail prescribed by Form 4 of the Appendix of Forms, his inability to pay fees and costs or to give security therefor, his belief that he is entitled to redress, and a statement of the issues which he intends to present on appeal. . . . If the motion is denied, the district court shall state in writing the reasons for the denial.
The good faith criteria of § 1915 requires an inquiry into the merits of the appeal rather than the subjective good faith of the plaintiff. See Linden v. Harper and Row Pub., 490 F. Supp. 297, 300 (S.D.N.Y. 1980). As I find plaintiff's appeal to be frivolous, her motion to proceed in forma pauperis is denied.
Plaintiff seeks to appeal from my dismissal of her case pursuant to F.R.C.P. 50(a) after a trial in which both sides had the opportunity to present evidence. I found at that time, and my view has not changed, that plaintiff's claim was frivolous as she submitted no evidence to support her claim of employment discrimination. Plaintiff alleged that the defendant had failed to promote her and, ultimately, had terminated her because of her race, color, national origin and/or sex. However, contrary to plaintiff's claims, the record was replete with examples of women, including minority women, being promoted. Even the plaintiff had received a promotion in 1995. Defendant also offered unrefuted evidence dispelling plaintiff's claim of discriminatory termination. Namely defendant showed that it outsourced plaintiff's position as the result of a legitimate business decision, which was in line with defendant's prior business practices, and that the outsourcing resulted in significant savings. Finally, it was also undisputed that plaintiff never complained to anyone at New York National Bank about the alleged discriminatory practices.
See the transcript of proceedings on October 4, 2000, for a more a complete statement of my reasoning for the dismissal.
A list of all of the employees, a total of fourteen, that the defendants promoted from 1989 to 1999 showed that the majority of those who received promotions were women. Three of those women received promotions to the position of Vice President. Four of those women, including the plaintiff who received a promotion from Auditor to Assistant Treasurer in 1995, were African American and the remaining four were Hispanic.
In support of her appeal, plaintiff claims that this Court improperly dismissed her case without considering the possibility of her success on a "mixed motive" claim of discrimination. Specifically, plaintiff contends that a jury may have found that, although the defendant outsourced her position for a legitimate business reason, it still may have been motivated partially by discrimination. Given the nonexistent evidence of discrimination, I find, as I found at trial, that no reasonable juror could find any discriminatory motive on the part of the defendant. Without a shred of credible evidence to support her discrimination claim, I simply cannot find plaintiff's appeal to be anything but frivolous, and, therefore, her motion for IFP status must be denied.
Plaintiff's only allegation evidencing any discriminatory intent on the part of the defendant was one racial epithet that plaintiff claimed Serafin Mariel made in a meeting with her and another African American employee. Both Mr. Mariel and the other African American employee denied under oath that Mariel made any discriminatory statement. Furthermore, even assuming that Mariel had made a racist comment, one statement over the course of plaintiff's employment is insufficient as a matter of law to support an inference of discrimination. See Woroski v. Nashua Corp., 31 F.3d 105, 109-110 (2d Cir. 1994). This is especially true given that the defendant is a bank founded by minorities to serve minority populations with a significant number of minority employees.
Plaintiff's allegations are further undermined by her questionable credibility. One illustration of this was when her counsel questioned her about a memorandum sent to her by the chair of the Audit Committee, Mr. Serrano, regarding problems with plaintiff completing auditing schedules on time. When plaintiff testified that the information in the memo was incorrect and that the memo was "surprising" to her, I pursued the reason for her surprise, asking "But when he writes that, are you saying that he was telling a lie?" She responded "yes." While there may be a legitimate reason for plaintiff's lack of timeliness or a reason for confusion by Mr. Serrano as to the plaintiff's timeliness, it is unlikely that Mr. Serrano documented a concern in a memo that was a complete fabrication.