Opinion
98-CV-202
February 3, 2000
VALERIE A. HAWKINS, ESQ., Attorney for Plaintiff.
WHITEMAN OSTERMAN HANNA, ALAN J. GOLDBERG, ESQ., Attorneys for Defendants.
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiff Charles C. Jon-Nwakalo ("plaintiff" or "Jon-Nwakalo") brought this action alleging that defendants discriminated against him in his employment due to his race. Jon-Nwakalo asserts claims under 42 U.S.C. § 1981, 1983, 2000-e, and N.Y. Exec. Law § 290. Defendants moved for summary judgment. Plaintiff opposes the motion. Oral argument was heard on December 17, 1999, in Utica, New York. Decision was reserved.
II. FACTS
Jon-Nwakalo is an African American, having moved to this country from his native Nigeria in 1976. He became a naturalized citizen of the United States in July 1988.
Jon-Nwakalo received a B.S. degree in Architecture from the University of Nebraska in 1980, an M.S. degree in City Regional Planning from Pratt Institute in 1984, and a Bachelor of Architecture degree from Catholic University in 1985. Additionally, Jon-Nwakalo received a Ph.D. degree in Urban and Environmental Planning from Rensselaer Polytechnic Institute in 1988. He obtained his architects license in December 1996.
Jon-Nwakalo began his employment with the defendant New York State Facilities Development Corporation ("FDC") in February 1990. While at FDC Jon-Nwakalo held the position of Development Administrator I, managing the Commission for the Blind and Visually Handicapped ("CBVH") program. In March 1990 he applied for the position of Director of Design and Construction, but was not considered because he had been with FDC less than the required six months. He also applied for the positions of Director of Design and Construction (upstate) in October 1990, Director of Design and Construction (downstate) in October 1992, and Director of Design and Construction (upstate) in July 1994. Jon-Nwakalo did not receive any of these positions.
In September 1995 FDC merged into the defendant Dormitory Authority of the State of New York ("DASNY"). Of the 285 employees of FDC at the time of the merger, 105 were not offered positions at DASNY.
Jon-Nwakalo had applied for a Project Manager position with DASNY at the time of the merger. However, Jon-Nwakalo was offered, and accepted, the position of Field Representative III with DASNY in August 1995, and has been employed there since that time. In September 1995 Jon-Nwakalo applied for a Project Manager II position. In October 1995 he applied for a Project Manager I position. Also in October 1995 he applied for two positions, Chief of Design Services and Chief of Field Operations. In June 1996 Jon-Nwakalo applied for a Project Manager III position. He was not promoted to any of these positions.
In January 1998 Jon-Nwakalo was promoted to the position of Project Manager I. In March 1998 he applied for a promotion to a Project Manager III, which he did not receive. Also in 1998 he applied for three additional positions, Managing Director of Construction Services, Senior Director of Project Management, and Director of Engineering Services, none of which he received.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Richardson, 180 F.3d at 436; Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250;Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant.Liberty Lobby. Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475 U.S. at 587.
Moreover, material facts set forth in the movant's statement required by the local rules are deemed admitted unless controverted in the nonmovant's statement in opposition. L.R. 7.1 (a)(3). Thus, no genuine issue exists as to facts set forth in a movant's 7.1 Statement if the nonmovant fails to put such facts into controversy by a response in opposition to the summary judgment motion. See id.
B. Title VII Standard
In order to establish a prima facie case of discriminatory failure to promote, a plaintiff must prove that he was a member of a protected class, he applied and was qualified for an open position for which the defendant sought applicants, and he was rejected for the position under circumstances giving rise to an inference of discrimination. Brown v. Coach Stores, Inc., 163 F.3d 706, 709-10 (2d Cir. 1998); Grady v. Affiliated Central, Inc., 130 F.3d 553, 559 (2d Cir. 1997), cert. denied, 198. Ct. 349 (1998); Hollander v. American Cyanamid Co., 895 F.2d 80, 83 (2d Cir. 1990). If a plaintiff establishes a prima facie case, he "creates a presumption that the employer unlawfully discriminated" against him. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
In order to rebut this presumption of discrimination, the burden shifts to defendant to produce a legitimate, race-neutral reason for the failure to promote. Burdine 450 U.S. at 254;McDonnell Douglas, 411 U.S. at 802-04. The plaintiff must then prove that defendant's proffered reason for the failure to promote was only a pretext, and that he was the victim of intentional discrimination. Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993).
Plaintiff can prove that defendant's reason was pretextual either directly or indirectly. To directly prove pretext, plaintiff must persuade "the court that a discriminatory reason more likely motivated the employer." Id. Plaintiff can indirectly prove pretext by "showing that the employer's proffered explanation is unworthy of credence." Binder v. Long Island Lighting Co., 933 F.2d 187, 192 (2d Cir. 1991) (quoting Burdine, 450 U.S. at 256).
C. Failure to Promote Jon-Nwakalo
For the purposes of this summary judgment motion defendants do not contest that plaintiff has met the de minimis burden of establishing a prima facie case. In support of their motion defendants set forth evidence of legitimate, race-neutral reasons for their selection of applicants other than Jon-Nwakalo for the positions he sought. Thus, the issue to be determined is whether plaintiff presented specific facts showing that there is a genuine issue for trial regarding pretext, either by showing a discriminatory motivation by defendants, or that defendants' proffered legitimate explanations are not credible. See Saint Mary's Honor Ctr., 509 U.S. at 506-08; Binder, 933 F.2d at 192. This, quite simply, he did not do.
Defendants submitted evidence showing legitimate, non-discriminatory reasons why it denied Jon-Nwakalo each of the promotions he sought. (See generally Defs.' L.R. 7.1 Statement.) On each of the occasions where DASNY denied Jon-Nwakalo a promotion, the hiring supervisor selected a person thought to be better qualified and better suited for the position. (See VanVleck Aff.; Bianchi Aff.; Gray Aff.)
In opposition, plaintiff submits evidence that he believed his education and experience made him more qualified for the jobs he sought than any other persons. (See Jon-Nwakalo Aff.) Plaintiff controverts defendants' 7.1 Statement of material facts not in dispute, which sets forth its legitimate reasons for the hiring decisions, merely by reciting his own (asserted by him to be superior) qualifications. In no instance did plaintiff point to evidence from which an inference of race discrimination could be drawn. Plaintiff set forth no evidence of a discriminatory motive on the part of the individuals responsible for hiring decisions or DASNY as a whole.
While initially complaining of discriminatory failure to promote regarding the applications for positions for which he was not hired while at FDC from 1990 to 1994, Jon-Nwakalo has withdrawn any claims pertaining to that time period. (PI.'s 7.1 Statement ¶ 11.)
As required by the Local Rules, plaintiff makes a paragraph by paragraph reference to defendants' 7.1 Statement. However, each paragraph of plaintiff's 7.1 Statement states only that a particular paragraph of defendants' 7.1 Statement is disputed, referring the court to particular paragraphs of the Jon-Nwakalo affidavit. While seemingly meeting the requirements of Local Rule 7.1, this manner of setting forth material facts allegedly in dispute is cumbersome and fails to comply with the intent of Local Rule 7.1(a)(3). In this instance the court meticulously examined the parties' 7.1 Statements, cross-referencing the Jon-Nwakalo affidavit as necessitated by the unconventional format of plaintiff's 7.1 Statement. The parties are hereby put on notice, however, that any future 7.1 Statements in this clumsy, ponderous format will not be considered, and in accordance with Local Rule 7.1(a)(3) the adversary's material facts will be taken as uncontroverted.
Jon-Nwakalo argues that defendants' failure to follow the DASNY Affirmative Action Program ("the Program") demonstrates intent to discriminate. The Program provides that protected-class applicants be afforded opportunities for appointment to vacant positions. (Jon-Nwakalo Aff. Ex. X at D-1689.) The Program requires posting of open positions, certain time intervals between advertising open positions and closing of the application process, and taking the Program into consideration in hiring decisions. Id. Additionally, the Program provides that any experience, educational, licensing, or other prerequisites for a position be required to successfully carry out the duties and responsibilities of the position. Id.
Jon-Nwakalo contends that the licensing requirement for the Chief of Engineering Services and the Chief of Design Services positions for which he applied in October 1995 was not justified by legitimate reasons, as required by the Program. Rather, Jon-Nwakalo argues, defendants' failure to articulate a legitimate reason for the licensure prerequisite indicates discriminatory intent. Defendants, however, assert that the license was a valid requirement for these jobs because the persons filling the positions "conduct design reviews, create designs and stamp drawings with a registered architect's or engineers stamp, and inspect construction projects. An architect or engineer cannot engage in these activities without a license." (Bianchi Aff. ¶ 3.) Jon-Nwakalo has not submitted any other evidence that defendants instituted the licensure requirement based upon discriminatory motives.
The requirement for an architects or engineers license for these positions is facially nondiscriminatory. Plaintiff's suggestion that the requirement is unnecessary and therefore contrary to the Program is rebuffed by the legitimate reason proffered by defendants. Plaintiff has submitted no other evidence from which a reasonable person could draw discriminatory animus from the licensure requirement. See Kresnak v. City of Muskegon Heights, 956 F. Supp. 1327, 1339 (W.D. Mich. 1997)
Jon-Nwakalo further refers to the position of Project Manager III that he sought in June 1996, arguing that the Program was not followed. His argument, while not completely straightforward, seems essentially to be that he was not given due consideration for promotion to this position as was required by the policy. This lack of consideration, as his argument is understood, is demonstrated by the fact that he was not promoted, despite his superior qualifications. Similarly, Jon-Nwakalo cites the hiring process in June 1998 for Managing Director of Construction Services as not following the Program. In that process the vacancy was not posted as required by the Program. Additionally, Jon-Nwakalo alleges that he was not given due consideration for the position, as required by the Program, evidenced by the fact that he did not receive an interview. Even if defendants failed to follow the Program as alleged, plaintiff has not set forth facts indicating how that failure translates into discriminatory animus in light of the legitimate, non-discriminatory rationale set forth by defendants.
Having failed to show pretext directly by establishing a discriminatory motive on the part of defendants, Jon-Nwakalo may still survive summary judgment by setting forth facts showing that whether defendants' proffered explanation is worthy of credence is a genuine issue for trial.
However, plaintiff failed to set forth any evidence that DASNY's proffered legitimate reasons for its hiring decisions were not credible. Regarding the initial assignment as a Field Representative III, rather than as a Project Manager, DASNY set forth the process it underwent to make reassignments to FDC personnel, and asserted the fact that only five of thirteen FDC employees in positions equivalent to the one held by Jon-Nwakalo obtained positions at DASNY superior to Jon-Nwakalo's. (Defs.' 7.1 Statement ¶¶ 55-75.) Plaintiff controverts this fact, asserting that six people (not five) obtained higher positions, and that his own qualifications were superior to those assigned the Project Manager positions. (Jon-Nwakalo Aff. ¶ 63-80.) This comparison of qualifications does not indicate that defendants' decision-making rationale was not credible.
Reference is made to the Jon-Nwakalo Affidavit rather than plaintiff's 7.1 Statement for simplicity. See supra note 2.
Similarly, defendants set forth what they contend are undisputed facts regarding the September and October 1995 Project Manager positions. (See Defs.' 7.1 Statement ¶ 76-84.) Specifically defendants state that the Project Manager position in Buffalo was given to one Carol Maynard based upon her three previous years of service in the Buffalo office, her performance and level of responsibility, and the needs of that office. (Defs.' 7.1 Statement ¶ 82.)
Jon-Nwakalo controverts this assertion of a legitimate reason for the promotion decision by reference to his affidavit at paragraphs 95-103. Nothing in these paragraphs in any way undermines the legitimacy of the hiring decision. (See Jon-Nwakalo Aff. ¶¶ 95-103.) For example, paragraph 96 states that Jon-Nwakalo was invited to apply for an environmental planning position at DASNY, that he had an interview, but no offer was made. Paragraph 100 states that Jon-Nwakalo never informed the supervisor that he was not interested in moving to Buffalo. The only paragraph of those referenced that refers to Carol Maynard, other than paragraph 103, essentially repeats what is set forth in the defendants' 7.1 Statement except to add that Carol Maynard is of European descent. (See Jon-Nwakalo Aff. ¶ 98; Defs.' 7.1 Statement ¶ 82.) Perhaps most telling is paragraph 103: "I believe I was more qualified for this position that [sic] Maynard because my education and experience were superior to hers." (See Jon-Nwakalo Aff. ¶ 103.) Again, Jon-Nwakalo's belief in his own superiority does not make defendants' belief in the superiority of another incredible. See Scaria v. Rubin, 117 F.3d 652, 654-55 (2d Cir. 1997) (employer can make value judgment as to qualifications).
Regarding the Chief of Design Services and Chief of Field Operations positions in October 1995, defendants contend that it is an undisputed fact that Jon-Nwakalo was not considered for these positions because he did not have an architects or engineers license, a requirement of the jobs. (See Defs.' 7.1 Statement ¶ 88-89.) To controvert this fact Jon-Nwakalo again sets forth his "superior" qualifications, stating that he met all the qualifications except licensure. (Jon-Nwakalo Aff. ¶ 104-110.) Jon-Nwakalo's failure to meet the licensure requirements of the positions supports the credibility of defendants' decision-making, not the contrary.
Jon-Nwakalo also argues that defendants imposed unnecessary licensing requirements, contrary to the affirmative action Program, to provide an "artificial barrier" to his promotion. As previously noted, defendants have articulated a legitimate, facially nondiscriminatory reason for the licensing requirements. Additionally, defendants set forth evidence that three internal and several external non-minority candidates were excluded from consideration because of the licensing requirements. (Bianchi Aff. ¶ 4.) Plaintiff's recitation of his high qualifications and insistence that he was a better candidate for the job do not overcome the legitimacy of defendants' hiring decision as supported by undisputed facts. See Kresnak, 956 F. Supp. at 1338-39 (finding issue not submissible to jury where defendants proffer legitimate reason for job requirement and plaintiff fails to adduce evidence that imposition of the requirement was discriminatory).
The facts professed by Jon-Nwakalo to be material and disputed as to the remaining positions at issue in fact are either not material or not disputed. In a manner comparable to that set forth above, Jon-Nwakalo avers superior qualifications without in any way providing evidence that defendants' legitimate reasons for choosing another applicant over Jon-Nwakalo were not credible and thus pretextual.
D. Claim against Buono
Defendant John L. Buono ("Buono") argues that he took no action regarding the decisions not to promote Jon-Nwakalo and therefore the complaint should be dismissed as against him. Based upon the foregoing finding that plaintiff cannot sustain his burden in opposing defendants' summary judgment motion, any claims against Buono must also be dismissed.
E. State Law Claims
New York Human Rights Law claims are analyzed following the same standard as is used to analyze the federal claims. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996). Accordingly, the state law claims must also be dismissed.
IV. CONCLUSION
Defendants have set forth evidence of legitimate, non-discriminatory reasons for each and every promotion decision at issue. Jon-Nwakalo has set forth no evidence that defendants' proffered legitimate reasons were pretextual. Jon-Nwakalo failed to establish pretext, by neither establishing a discriminatory reason that more likely motivated defendants promotion decisions, nor showing that defendants' legitimate explanations for the decisions were unworthy of credence. See Saint Mary's Honor Ctr., 509 U.S. at 506-08; Binder, 933 F.2d at 192. All defendants are therefore entitled to judgment as a matter of law as to all claims.
Accordingly, it is
ORDERED that defendants' motion for summary judgment is GRANTED and the complaint is DISMISSED in its entirety.
The Clerk of the Court shall enter judgment accordingly.
IT IS SO ORDERED.