Summary
rejecting same actor inference in race discrimination case where failure to promote occurred over three years after the plaintiff's hiring
Summary of this case from Allen v. J.P. Morgan Chase CompanyOpinion
No. 03 CIV. 6167 (DLC).
December 21, 2004
Paula Johnson Kelly, Goodstein West, New Rochelle, New York, for Plaintiff.
Michael A. Cardozo, Corporation Counsel for the City of New York, Diana Goell Voight, Assistant Corporation Counsel, New York, New York, for Defendants.
OPINION ORDER
McLaughlin Harris ("Harris"), an African-American Assistant Architect with the New York City Fire Department ("FDNY") filed this action on August 18, 2003, alleging that his employer, the FDNY, and supervisor Joseph Mastropietro ("Mastropietro") discriminated against him on the basis of his race by failing to promote him and retaliated against him for complaining of racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. §§ 1981 and 1983. Harris also asserts claims of racial discrimination under New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. ("State HRL"), and New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107 et seq. ("City HRL"). On August 9, 2004, the defendants moved for summary judgment against the complaint in its entirety. For the reasons set forth below, the defendants' motion is denied.
At the time of the alleged failure to promote, Mastropietro was the Director of Building Maintenance at the FDNY. In July 2003, he was promoted to Assistant Commissioner.
Discussion
Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed.R.Civ.P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
Failure to Promote
Claims of employment discrimination brought pursuant to Title VII, the NYS and City HRL, and Sections 1981 and 1983 are analyzed under the burden-shifting approach set forth inMcDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).See, e.g., Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996) (NYS HRL); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004) (Section 1983). A plaintiff bears the initial burden of establishing aprima facie case of discrimination. Williams v. R.H. Donnelly Corp., 368 F.3d 123, 126 (2d Cir. 2004). "To meet this burden, a plaintiff must show: (i) membership in a protected class; (ii) qualifications for the position; (iii) an adverse employment action; and (iv) circumstances surrounding that action giving rise to an inference of discrimination." Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002). A plaintiff's burden in presenting prima facie evidence is de minimis. Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 467 (2d Cir. 2001).
If the plaintiff establishes a prima facie case, he "creates a presumption that the employer unlawfully discriminated, and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action." James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000) (citation omitted); Mandell v. County of Suffolk, 316 F.3d 368, 380 (2d Cir. 2003). Once the employer articulates a nondiscriminatory explanation, the burden shifts back to the employee to prove, by a preponderance of the evidence, that the adverse employment decision was discriminatory. Mandell, 316 F.3d at 381. A plaintiff's demonstration that the employer's proffered reason is pretextual may provide evidence of discrimination. Id.
The plaintiff bears the ultimate burden of persuading the trier of fact that his employer intentionally discriminated against him. James, 233 F.3d at 154; see also Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 153 (2000). "Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James, 233 F.3d at 154. Nonetheless,
to defeat summary judgment within the McDonnell Douglas framework the plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the "motivating" factors.Back, 365 F.3d at 123 (citation omitted).
"The issue of pretext is ordinarily for the jury to decide at trial rather than for the court to determine on a motion for summary judgment." Id. at 124 (citation omitted). Conclusory statements and general attacks on the defendant's credibility, however, are insufficient to defeat a motion for summary judgment. Opals on Ice Lingerie v. Body Lines, 320 F.3d 362, 370 n. 3 (2d Cir. 2003); Crawford El v. Britton, 523 U.S. 574, 600 (1998). Rather, the plaintiff must identify affirmative evidence upon which a fact-finder could rely in concluding that he carried his burden of proving a defendant's illicit motive. See, e.g., Crawford, 523 U.S. at 600. Such affirmative evidence, however, may be in the form of circumstantial evidence since direct evidence of discrimination is not required. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-101 (2003); see also United States v. Alameh, 341 F.3d 167, 173 (2d Cir. 2003). Indeed, "plaintiffs in discrimination suits often must rely on the cumulative weight of circumstantial evidence, since an employer who discriminates is unlikely to leave a `smoking gun,' such as a notation in an employee's personnel file, attesting to a discriminatory intent."Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998) (citation omitted). "To meet his or her ultimate burden, the plaintiff may, depending on how strong it is, rely upon the same evidence that comprised her prima facie case, without more."Back, 365 F.3d at 124.
Viewing the facts in the light most favorable to Harris, Harris has produced sufficient evidence to defeat summary judgment. Harris has met the de minimis burden of establishing a prima facie case. As an African-American who was denied a promotion, it is uncontested that plaintiff satisfies the first and third elements of the prima facie case. Harris' affidavit as well as the affidavit of Gerrit Geurs ("Geurs"), a former supervisor of both plaintiff and Paul Soehren ("Soehren"), the white male who was promoted on two occasions over Harris, provide evidence that Harris satisfied the second element — he was more qualified for the Deputy Director of Construction position than Soehren.
The defendants have requested that certain exhibits to the Geurs and Harris affidavits be stricken because plaintiff failed to produce these documents during discovery. Even if these exhibits were stricken, the Geurs and Harris affidavits as well as other unchallenged exhibits provide sufficient evidence for a reasonable juror to conclude that Harris was more qualified than Soehren.
Plaintiff's affidavits also suffice to permit an inference of racial discrimination against Harris by the defendants. Geurs, whose departure as Manager of Construction created the precise vacancy Harris sought in 2001, specifically recommended plaintiff to defendant Mastropietro as the person most qualified to replace him. Geurs also told Mastropietro that Soehren was not qualified for the position. Viewed in the light most favorable to the plaintiff and because of Soehren's lack of experience and subpar job performance prior to his promotion in 1999 and 2001, a jury could determine that Soehern was not qualified to be the Deputy Director of Construction.
While defendants have questioned Geurs' motives for his testimony, they have offered no evidence or testimony from any disinterested party to contradict his evaluation of the skills, experience, and work performance of Harris or Soehren.
The defendants also failed to post the Deputy Director of Construction position in 2001 as well as a 1999 opening for the position of Special Projects Coordinator in contravention of both a New York City policy governing the FDNY and the FDNY's own equal employment opportunity ("EEO") policy. While the defendants argue that the New York City policy was "discretionary," they do not contest that the FDNY EEO policy required that they post the job openings.
In April 1999, a job opening for a Construction Coordinator, Administrative Project Manager was posted. Harris applied for this position, but was not considered or interviewed for the position. Mastropietro has testified that the April 1999 posting was to fill an opening created by the resignation of Chief Architect Cynithia Crier ("Crier"). Crier, however, did not announce her resignation until early June 1999. The vacancy, as posted, however, was never filled. In July 1999, Soehren was promoted to the newly created position of Special Projects Coordinator, a position which was not posted and for which no job description was created.
The citywide rule provides that if vacancies are going to be filled from internal candidates, the "agency should post a Vacancy Notice within the agency for a period of ten (10) working days." (Emphasis supplied.)
The FDNY EEO policy states that the FDNY "shall ensure that opportunities to fill vacancies are given to qualified minorities. . . . within the Department by widely circulating the vacancy notices on bulletin boards and the civilian bulletins. The selection process shall be fair and non-discriminatory." (Emphasis supplied.)
Despite Harris' express desire to succeed Geurs in 2001 and fill the 1999 opening, Mastropietro did not interview Harris or any other candidate, including Soehren, for these positions. With respect to the 1999 opening, Mastropietro concedes that he did not consider any candidate other than Soehren. He testified that "I'm not sure why I didn't hold any interviews at the time, but I was looking to, to promote Paul [Soehren] into that position."
The defendants' proffered legitimate, non-discriminatory reasons for promoting Soehren and not Harris — namely that Mastropietro believed Soehren was more qualified to be the Deputy Director of Construction and that this position was "merely an enhancement" of Soehren's previous duties — are not dispositive. In light of the evidence of Harris' superior qualifications, Soehren's inferior performance and experience, the substantive differences between Soehren's previous position and the responsibilities of the Deputy Director of Construction, and the manner in which Mastropietro and the FDNY filled the 1999 and 2001 openings, including the failure to post these openings, a jury could find defendants' proffered reasons for failing to promote Harris in 2001 to be pretextual and that racial discrimination was one of the motivating reasons for this action.
The defendants assert that the "same actor inference" applies here. This defense provides them no comfort. When the same person hires a person already within the protected class, and then later fires that same person, "it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000) (citation omitted). Where the termination occurs "within a relatively short time after the hiring there is a strong inference that discrimination was not a motivating factor in the employment decision." Id. (collecting cases). The failure to promote Harris, however, occurred over three years after his hiring by the FDNY in the Spring of 1998. In addition, there are disputed questions as to Mastropietro's role in Harris' original hiring. The defendants have also failed to address the application of the "same actor inference" in a failure to promote case as opposed to its more common use in discrimination claims arising out of a termination. For example, an employer may be willing to hire a member of a protected class, but unwilling to promote that person because of her protected status.
Retaliation
Title VII and the NYS and City HRL forbid retaliation against an employee for opposing any practice made unlawful by these statutes. 42 U.S.C. § 2000e-3(a); N.Y. Exec. Law § 296(e); N.Y.C. Admin. Code § 8-107.7; see also Coffey v. Dobbs Int'l Serv., Inc., 170 F.3d 323, 326 (2d Cir. 1999). "In order to establish aprima facie case of retaliation, an employee must show (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a casual connection between the protected activity and the adverse employment action." Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004) (citation omitted). The lone issue contested by the defendants is whether Harris suffered a materially adverse employment action as a result his bringing a discrimination claim.
In their initial memorandum of law, the defendants argued that plaintiff had failed to show that there was a casual connection between his race discrimination allegation and the adverse employment action. Harris strenuously objected to this argument, and it is not reasserted in defendants' reply memorandum of law.
To establish that Harris suffered an "adverse employment action" as a result of his protected activity, he must point to a "materially adverse change in the terms, privileges, duration [or] conditions of employment." Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (citation omitted). A materially adverse change is "more disruptive that a mere inconvenience or an alteration of job responsibilities." Weeks v. New York State, 273 F.3d 76, 85 (2d Cir. 2001) (citation omitted). "Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand."Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) (Section 1983 retaliation action) (citation omitted). The prohibition against retaliation, however, is "not limited to pecuniary emoluments, but includes discriminatorily-motivated dimunition of duties." Preda v. Nissho-Iwai American Corp., 128 F.3d 789, 791 (2d Cir. 1997) (citation omitted). Lesser actions such as negative employment evaluation letters, a diminution in the complexity and prestige of work assignments, and transfers may also be considered adverse. See Patrolmen's Benevolent Ass'n of New York v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002);Treglia, 313 F.3d at 720; Lovejoy-Wilson v. Noco Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001). Employees are protected from actions injurious to their "ability to secure future employment." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (emphasis in original). Indeed, "a combination of seemingly minor incidents [can] form the basis of a constitutional retaliation claim once they reach a critical mass." Bowen, 278 F.3d at 109.
Harris has shown an issue of material fact as to whether he suffered an adverse employment action as a result of his allegations of race discrimination. He contends that after he told Mastropietro that he planned to file a discrimination complaint, Mastropietro threatened to "write up" Harris and fire him. While Harris has not denied the conduct underlying an August 2002 disciplinary memo placed in his personnel folder, he has raised questions about the timing of and motivation for the discipline. Similarly, although not Harris' direct supervisor, Mastropietro personally summoned plaintiff for a disciplinary conference in July 2003 — only one day after Harris sent an email complaining of continuing retaliation resulting from his discrimination complaint — for alleged actions that occurred one month earlier. Harris has also submitted evidence that colleagues were instructed not to speak to him following his discrimination filing.
More importantly, Harris has testified and submitted evidence that prior to his complaints of racial discrimination, he was assigned to work on "major projects." After his filing, however, he was "no longer given design work or gut rehab projects." Instead, he was assigned mostly smaller, "more menial projects, such as a toilet renovation or window replacement" and was sent "to write minor reports." Even without the aforementioned alleged disciplinary actions against Harris, the purported diminution in the nature and quality of Harris' work assignments raises material questions of fact as to whether Harris suffered an adverse employment action following his protected conduct.
Conclusion
The motion for summary judgment by the New York City Fire Department and Joseph Mastropietro is denied.
SO ORDERED.