Summary
noting that even a "promise" of promotion from defendant's acting director was not binding upon defendant where plaintiff was not qualified for a promotion
Summary of this case from Sosa v. Rockland Cnty. Cmty. Coll.Opinion
00 Civ. 6712 (SAS)
December 29, 2003
Richard Turyn, Esq., Ballon Stoll Bader Nadler, P.C., New York, New York, for Plaintiff
Stephen Kitzinger, Assistant Corporation Counsel, New York, New York, for Defendant
OPINION AND ORDER
Plaintiff alleges race and national origin discrimination based on defendant's failure to promote him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law and the New York City Human Rights Law. In addition, plaintiff alleges that he was the victim of unequal pay in violation of the Equal Pay Act, 29 U.S.C. § 206(d) ("EPA"), Title VII, and state and local law. Finally, plaintiff brings state law claims for breach of contract and promissory estoppel.
On December 10, 2002, the Second Circuit directed this Court to reconsider its dismissal of plaintiff's Title VII discrimination claim in light of two cases decided after that dismissal — namely National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002), and Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002). See Simpri v. New York City Agency for Children's Services, No. 02-7101, 2002 WL 31558058 (2d Cir. Nov. 19, 2002). Upon reconsideration, plaintiff's failure to promote claims and unequal pay claims were reinstated. See Simpri v. New York City Agency for Children's Services, No. 00 Civ. 6712, 2003 WL 169803, at *4 (S.D.N.Y. Jan. 23, 2003).
Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, defendant's motion is granted in part and denied in part.
I. FACTS
Plaintiff is an African-American male born in Ghana, West Africa. See Defendant's Statement of Undisputed Material Facts Pursuant to Rule 56.1 ("Def. R. 56.1"). Prior to June 10, 1996, plaintiff was employed as a contract manager with the New York City Human Rights Administration's Division of AIDS Services and Income Support ("DASIS") where he held the civil service title of Staff Analyst I ("SA I"). See id. ¶ 2. As a contract manager, plaintiff would have been promoted to Staff Analyst II ("SA II") in early 1997 had he remained at DASIS. See id. ¶ 3.
In early 1997, all DASIS contract managers were in fact promoted to SA II. See 5/22/00 Letter from John A. Dereszewski, Director of Contract Services, Ex. M to the Declaration of Stephen Kitzinger, defendant's attorney, In Support of Defendant's Motion for Summary Judgment ("Kitzinger Decl.").
At the urging of George Lang, then Acting Director of the New York City Agency for Children's Services ("ACS") Audit Review and Analysis Unit, plaintiff voluntarily transferred to ACS as an SA I. See Def. R. 56.1 ¶ 5. Lang promised plaintiff that he would be promoted to Associate Staff Analyst ("ASA") if he came to work in this unit. See id. ¶ 7. According to Lang, then Associate Commissioner Al Piro informed him that ACS could match the upgrade to SA II plaintiff would have received if he remained at DASIS. See George Lang Affidavit ("Lang Aff."), Ex. N to the Kitzinger Decl. Associate Commissioner David Fazio approved the promised upgrade once he took office. See id. Upon transferring to ACS on June 10, 1996, plaintiff purportedly performed the ASA functions previously performed by ASA Ingrid Johnson, who had since left. See Plaintiff's Local Rule 56.1(c) Response to the Defendant's Local Rule 56.1(a) Statement ("Pl. R. 56.1") ¶ 5. Plaintiff was not, however, promoted to either SA II or ASA upon his transfer to the Audit Review and Analysis Unit or any time thereafter. See Def. R. 56.1 ¶ 10.
The position of ASA at ACS is equivalent to the position of SA II at DASIS, as both are at the same salary and functional levels.
In August of 1996, Thomas Welsh was appointed Director of the Audit Review and Analysis Unit, replacing Lang who had been Acting Director of that unit. See Declaration of Thomas Welsh in Support of Defendant's Motion for Summary Judgment ("Welsh Decl.") ¶ 3. In that capacity, Welsh reported to Sylvia Brown, Director of the Audit Division, Office of Finance and Budget. See id. ¶ 5. At that time, the Audit Division was comprised of the following units: Audit Review and Analysis, Audit Response and Internal Audit. See id. ¶ 6. From August 1996 through 1999, Welsh supervised plaintiff, Elaine McPartland and Michaela Albanese, and was responsible for their work assignments and performance evaluations. See id. ¶ 9. In 1999, Welsh was promoted to Director of Audit Services. See id. ¶ 4. From 1999 through plaintiff's retirement, Welsh supervised the entire ACS Audit Services Division including plaintiff's unit. See id.
Brown's employment Director of Audit Division began in January of 1997. See Affidavit of Sylvia Brown, Ex. F to the Kitzinger Decl. ("Brown Aff.").
In May 1997, McPartland was assigned to the Audit Division as the Acting Director of the Audit Response Unit. See Def. R. 56.1 ¶ 16. McPartland held the civil service title of ASA before she was assigned to this unit. See Welsh Decl. ¶ 14. As Acting Director, McPartland reported directly to Brown and functioned as an ASA. See Def. 56.1 ¶¶ 17, 19. McPartland left this position in December of 1997. See id. ¶ 16. In November 1997, Albanese transferred into the Audit Review and Analysis Unit as an Assistant Director, with the civil service title of ASA. See id. ¶ 20. Albanese was already an ASA at the time of her transfer, having been appointed in 1994 while working for the New York City Department of Employment. See id. ¶¶ 20-21; see also Prise History Roster Inquiry, Ex. G to the Kitzinger Decl. Plaintiff concedes that Albanese performed duties typical of an ASA. See Def. 56.1 ¶ 22.
On August 1, 1997, plaintiff wrote a letter to Welsh requesting that his status be adjusted to that of an ASA. See Appeal for Adjustment of My Status Letter, Ex. E to Plaintiff's Opposing Affidavit ("Simpri Aff."). This letter did not mention discrimination as the suspected reason why plaintiff had not yet been promoted. Plaintiff did not receive a response from Welsh. Plaintiff then sent Welsh a second memorandum, dated December 11, 1998, entitled "Final Request For Adjustment Of My Status." See 12/11/98 Memorandum, Ex. F to the Simpri Aff. Copies of this Memorandum were sent to Commissioner Nicholas Scopetta, Associate Commissioner Fazio, Brown, the Staff Analyst Union, and plaintiff's attorney. See id. at 2. For the first time, plaintiff raised the possibility that he was not promoted because of discriminatory animus. See id. ("I sat and wondered why, if this is not a color issue, and have every reason to justify my claim."). Plaintiff received no response other than a verbal indication from Welsh that he passed the Memorandum on to Brown, his supervisor. Def. R. 56.1 ¶ 25.
On February 5, 1999, plaintiff's union, the Organization of Staff Analysts, filed a grievance on his behalf alleging that plaintiff was performing duties substantially above his title of SA I. See id. ¶ 26. This grievance was denied at Steps I, II and III, and was finally decided and denied by an impartial arbitrator. See id. ¶ 27. The arbitrator's award, dated April 18, 2001, stated that "grievant's duties were not substantially inconsistent with the position description for Staff Analyst Level I." Expedited Award, Ex. L to the Kitzinger Decl. On May 2, 1999, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). See Def. R. 56.1 ¶ 31. In that Charge, which describes both failure to promote and unequal pay claims, plaintiff indicated that he was discriminated against on the basis of his race, color, national origin and sex. See id. Plaintiff retired from employment on December 29, 2000. See id. ¶ 32.
II. LEGAL STANDARD
Summary judgment is permissible "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is genuine 'if the evidence is such that a jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A fact is material when "it 'might affect the outcome of the suit under the governing law.'"Id. (quoting Anderson, 477 U.S. at 248).
The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, he "'must do more than simply show that there is some metaphysical doubt as to the material facts,'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and he "'may not rely on conclusory allegations or unsubstantiated speculation.'" Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). See also Gayle, 313 F.3d at 682. Rather, the non-moving party must produce admissible evidence that supports his pleadings. See First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968). In this regard, "[t] he 'mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).
In determining whether there is a genuine issue of material fact, a court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. See Niagara Mohawk, 315 F.3d at 171, Accordingly, a court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marvel, 310 F.3d at 286 (citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000)).
"[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). Courts within "the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination." Scaria v. Rubin, No. 94 Civ. 3333, 1996 WL 389250, at *5 (S.D.N.Y. July 11, 1996), aff'd, 117 F.3d 652 (2d Cir. 1997). Indeed, "[i] t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson, 239 F.3d at 466.
However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue and circumstantial evidence may reveal an inference of discrimination. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law." Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) (internal quotation marks and citation omitted, brackets in original). But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). "[A] party may not 'rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.'" Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (quoting Knight v. United States Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)).
III. DISCUSSION
A. Title VII Claims — Failure to Promote/Unequal Pay
In order to make out a prima facie failure to promote claim under Title VII, a plaintiff must show that: (1) he is a member of a protected class; (2) he applied for a position for which he was qualified; (3) he was rejected for the position under circumstances suggesting an inference of discrimination; and (4) the employer kept the position open and continued to seek applicants. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 354-55 (5th Cir. 2001). With regard to the third requirement, there must be some evidence to support an inference of discrimination other than the fact that plaintiff is a member of a protected class. See Grillo v. New York City Transit Auth., 291 F.3d 231, 234 (2d Cir. 2002) (stating that a plaintiff must produce some credible evidence that defendant's alleged discriminatory actions were "motivated by racial animus or ill-will"); Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001) ("Plaintiff's have done little more that cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.").
Plaintiff's conclusory assertions that he was not promoted because he is a black man of Ghanaian origin do not support an inference of discrimination. The only evidence submitted by plaintiff that even speaks of discrimination is plaintiff's deposition testimony. Plaintiff's testimony — consisting of nothing more than conclusory statements, hearsay and speculation — does not demonstrate that defendant failed to promote him or pay him an equal salary because of his race or national origin. With regard to race, plaintiff testified as follows:
Q: I want to know factually why you believe the decision not to promote you or not to honor the agreement to put you as an associate staff analyst was based on your race.
A: That is what I explained to you, the other three that I mentioned [McPartland, Albanese and Johnson] were all whites. And I'm black. And all the whites were making more money than I made.
Q: Okay.
A: And they — also based on the fact that Miss Brown did exactly the same thing to another black in the same department, another black male.
Deposition of Aristotle Simpri taken June 18, 2001 at 31-32. The other black male referred to is Antoine Gautier who was subsequently promoted to a management position after Brown left the office. See id. at 49-50. Plaintiff stated the following when asked about national origin discrimination:
Q: Can you tell me why you believe you were discriminated against based on your national origin.
A: Well, because of the same situation that happened to Ketema Tingert. Tingert is from Ethiopia. And Miss Brown discriminated against her.
Q: To your knowledge, what did Mrs. Brown do to Tingert Ketema?
A: When Miss Brown came into the audit review and analysis division, Tingert was working there and then she came in to say that Tingert was — did not speak English. Now, Tingert went to school in the United States and had her associate degree in business. And Miss Brown was going to fire her based on her assumption that she did not speak English and therefore she was not qualified.Id. at 59-60. The substantiated allegation in the Tingert internal complaint was that Brown discriminated against Tingert because Brown stated that Tingert should not be answering the phone and taking messages because there was a language barrier. While this comment may have been insensitive, it does not in and of itself evidence discriminatory bias on Brown's part. Although Brown was not yet in office at the time of plaintiff's transfer, plaintiff subjectively feels that it was her decision to deny him a promotion.
Q: Why do you think she [Brown] decided not to promote you?
A: She [Brown] was fired during Mayor Dinkins administration and she came back during Guiliani's administration and being that she was fired by a black administration. This is my speculation that she felt that she has to retaliate.
Deposition of Aristotle Simpri taken May 24, 2001 at 109. Plaintiff further elaborated:
Q: Do you think her [Brown's] failure to promote you is because you are African?
A: Yes.
Q: Why do you think that?
A: It's just obvious because when you see the record all the people that have been promoted there, not a single African — and I know that being an African she — the fact is only a certified staff analyst, she has no cause to fire me or throw me out. She has no justifiable cause so she feel[s] that is the only way she can victimize me, is to steal away my promotion or refuse my promotion and being black, she went and brought in a white lady. She brought Ms. MacPartland, Ellen MacPartland.
Q: Who is white?
A: Yes. Within a short time she is acting director. She came in as associate staff analyst. . . . [A]fter she promoted her, she brought in another white woman and gave her also an associate staff analyst salary.Id. at 114-15. There is no evidence, however, that Brown was a decision-maker, much less a sole decision-maker, in the decision not to promote plaintiff.
In sum, plaintiff's Title VII claims rest on nothing more than his subjective belief that he was the victim of discrimination because his supervisors were white and two staff members who transferred into his division at a higher level than he were also white. An employee cannot defeat summary judgment by restating the conclusory allegations contained in his complaint. See Contemporary Mission, Inc. v. United States Postal Serv., 648 F.2d 97, 107 (2d Cir. 1981). Having failed to prove an inference of discrimination, plaintiff has not made out a prima facie case for his failure to promote and unequal pay claims brought under Title VII, which are therefore dismissed. Because plaintiff's state and local claims are analyzed in the same manner as plaintiff's Title VII claims, his failure to promote and unequal pay claims brought under New York State and City law are also dismissed. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) ("Our consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims. See Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d Cir. 1999) (New York state law); Landwehr v. Grey Adver. Inc., 211 A.D.2d 583, 622 N.Y.S.2d 17, 18 (1st Dep't 1995) (New York City law)).
Claims for unequal pay under Title VII are analyzed in the same manner as claims brought under the EPA. See Lavin-McEleney v. Marist Coll., 239 F.3d 476, 483 (2d Cir. 2001). However, a Title VII plaintiff must also produce some evidence of discriminatory animus in order to establish a prima facie case of intentional salary discrimination. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). Because plaintiff has offered no evidence of discriminatory animus, his unequal pay claim under Title VII is summarily dismissed.
Even if plaintiff were able to make out a prima facie case for failure to promote, this claim would be dismissed nonetheless as defendant has offered a legitimate, non-discriminatory reason for not promoting plaintiff. See McDonnell Douglas, 411 U.S. at 802 (stating that once a plaintiff makes a prima facie case, the burden then shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection"). Notwithstanding Lang's promise to promote Simpri upon his transfer to ACS, defendant claims that Simpri did not deserve a promotion because he did not perform the tasks of an ASA. This was Brown's conclusion after a lengthy comparison of a typical ASA's duties with the duties performed by Simpri. See Brown Aff. ¶¶ 4-5, 9. This was also Welsh's conclusion. See Welsh Aff. ¶ ("Based upon my experience and observations, Mr. Simpri's job duties and performance most resembled that of a Staff Analyst I. . . ."). This was also the conclusion of the impartial arbitrator who decided plaintiff's internal grievance. See Expedited Award ("The grievant's assigned duties were not substantially inconsistent with the position described for Staff Analyst Level I.").
Once an employer "comes forward with admissible evidence of a legitimate nondiscriminatory reason for its adverse employment decision, the plaintiff is given an opportunity to adduce admissible evidence that would be sufficient to permit a rational finder of fact to infer that the employer's proffered reason is pretext for an impermissible motivation. Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981) and McDonnell Douglas, 411 U.S. at 804). Plaintiff has offered nothing to impeach the arbitrator's decision. See Collins v. New York City Transit Auth., 305 F.3d 113, 119 (2d Cir. 2002) ("[A] decision by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiff's proof of the requisite causal link. Where, as here, that decision follows an evidentiary hearing and is based on substantial evidence, the Title VII plaintiff, to survive a motion for summary judgment, must present strong evidence that the decision was wrong as a matter of fact — e.g. new evidence not before the tribunal — or that the impartiality of the proceeding was somehow compromised."). Plaintiff has failed to show that the reason proffered by defendant was a pretext for impermissible discrimination. Accordingly, defendant's legitimate, non-discriminatory reason for not promoting plaintiff is an alternative ground on which to dismiss plaintiff's failure to promote claims.
The lack of pretext is further bolstered by the fact that no other Staff Analysts assigned to the Audit Division were promoted to either SA II or ASA while plaintiff was employed by ACS. See Def. R. 56.1 ¶ 30.
B. Unequal Pay Claim Under the EPA
Unequal pay claims can arise under either Title VII or the EPA. See Tomka v. Seller, 66 F.3d 1295, 1312 (2d Cir. 1995). "To prove a violation of the EPA, a plaintiff must first establish a prima facie case of discrimination by showing: '1) the employer pays different wages to employees of the opposite sex; 2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and 3) the jobs are performed under similar working conditions.'" Lavin-McEleney, 239 F.3d at 480 (quoting Belfi, 191 F.3d at 135). In proving the second element, a plaintiff must show that his position and the higher paid position were "substantially equal" in skill, effort and responsibility, not that they were "merely comparable." Tomka, 66 F.3d at 1310. Unlike Title VII, the EPA does not require a plaintiff to establish an employer's discriminatory intent. See Ryduchowski v. Port Authority of New York and New Jersey, 203 F.3d 135, 142 (2d Cir. 2000) "[T]he EPA makes it illegal for an employer to pay unequal compensation to those of different genders for equal work."); Belfi, 191 F.3d at 136 ("Under the EPA, proof of the employer's discriminatory intent is not necessary for the plaintiff to prevail on [his] claim.").
The EPA reads, in pertinent part, as follows:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . .29 U.S.C. § 206(d)(1).
The EPA has a two year statute of limitations. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 131 (2d Cir. 1996) (citing 29 U.S.C. § 255 (a)). However, the EPA does not require that administrative remedies be exhausted prior to the filing of a civil action. See Abdullajeva v. Club Quarters, Inc., No. 96 Civ. 383, 1996 WL 497029, at *4 (S.D.N.Y. Sept. 3, 1996). "Recurring pay discrimination does not constitute a continuing violation, as each receipt of a paycheck is the basis for a separate cause of action for which suit must be brought within the limitations period." Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 371 (S.D.N.Y. 1999). As stated by the Second Circuit,
a claim of discriminatory pay is fundamentally unlike other claims of ongoing discriminatory treatment because it involves a series of discrete, individual wrongs rather than a single and indivisible course of wrongful action. As the Supreme Court explained in Bazemore v. Friday [ 478 U.S. 385, 395-96 (1986)], characterizing the harm imposed by a racially discriminatory pay scale, "Each week's paycheck that delivers less to a [disadvantaged class member] than to a similarly situated [favored class member] is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date" of limitation.Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir. 1997) (quoting Bazemore, 478 U.S. at 395-96). See also Quarless v. Bronx-Lebanon Hosp. Ctr., 228 F. Supp.2d 377, 383 n. 2 (S.D.N.Y. 2002) (holding that, in light of Morgan, Pollis applies to Title VII claims as well as claims under the EPA), aff'd, No. 02-9343, 2003 WL 2221352 (2d Cir. Sept. 26, 2003).
Plaintiff's unequal pay claims, under the EPA, survive only as to McPartland and Albanese. See Simpri, 2003 WL 169803, at *3. Plaintiff's unequal pay claim with regard to McPartland, however, is time-barred as she left the Audit Division in December of 1997, over two years before plaintiff filed this action in August of 2000. Cf. Quarless, 228 F. Supp.2d at 382 ("Because each paycheck that the Plaintiff received was an (alleged) immediate and individual wrong which gave rise to a separate disparate pay claim, the Plaintiff cannot use the continuing violation doctrine to render timely any disparate pay violations which occurred outside the 300 day statute of limitations."). With regard to Albanese, plaintiff's unequal pay claim is timely only as to those pay checks he received within two years of the filing of this action which, in this case, includes checks he received on or after August 2, 1998.
Plaintiff's unequal pay claim as to Ingrid Johnson, his predecessor, was found to be time-barred. See Simpri, 2003 WL 169803, at *3. To the extent that plaintiff is seeking to assert an unequal pay claim with regard to Brown, such claim is dismissed. It is beyond dispute that Brown, as the Director of the Audit Division, performed work substantially different than that of plaintiff. Accordingly, given the complete lack of comparability, any pay difference between Brown and Simpri is not actionable.
There is a question of fact as to whether plaintiff's position was substantially equal in skill, effort and responsibility to that of Albanese. Although plaintiff was admittedly not an ASA, he claims he performed typical ASA functions while at ACS. See Plaintiff's Opposing Affidavit ¶¶ 25-28. In addition, plaintiff claims that he, not McPartland, recreated the Collections Report in a form satisfactory to ACS senior management. See id. ¶¶ 29-31. Albanese, on the other hand, was an ASA before she was even assigned to the Audit Division. After describing Albanese's functions in detail, see Welsh Decl. ¶ 19, Welsh concluded that Simpri's "job duties and performance most resembled that of a Staff Analyst I while . . . Ms. Albanese's job duties and performance resembled that of an Associate Staff Analyst." Id. ¶ 26. This is a classic "he said, she said" situation that is not amenable to summary judgment.
Weighing the respective tasks of Simpri and Albanese to determine if they were "substantially equal" is not something that should be done on summary judgment. Witness credibility may be especially relevant to this inquiry. It is far too easy to say that a particular person functioned as an ASA merely because she held that title and that another person did not simply because he did not hold that title. Without detailed testimony concerning the duties and functions performed by both Simpri and Albanese, their roles within ACS, and how they fit into the agency as a whole, it is difficult, if not impossible, to decide position comparability on motion papers. Defendant's motion to dismiss plaintiff's unequal pay act under the EPA with regard to Albanese is therefore denied.
C. Plaintiff's State Law Claims
1. Promissory Estoppel
Plaintiff argues, in support of his promissory estoppel claim, that he detrimentally relied on defendant's promise to increase his salary and that such reliance was reasonably foreseeable. Under New York law, the elements of a cause of action for promissory estoppel are: (1) a clear and unambiguous promise, (2) reasonable and foreseeable reliance by the party to whom the promise was made, and (3) an injury to the party to whom the promise was made by reason of the reliance. See Cyberchron Corp. v. Calldata Sys. Dev., Inc., 47 F.3d 39, 44 (2d Cir. 1995). However, "to the extent that the plaintiff's claim for promissory estoppel is based on promises that are consistent with the undertakings contained in the contract, the claim is that the defendants did not perform their obligations under the contract and therefore the [promissory estoppel] claim should be dismissed as duplicative of the breach of contract claim." Four Finger Art Factory, Inc. v. Dinicola, No. 99 Civ. 1259, 2000 WL 145466 (S.D.N.Y. Feb. 9, 2000). In other words, where a municipal employer fails to do what it promised to do in exchange for an employee's action, in this case to promote Simpri in return for his willingness to transfer to ACS at Lang's request, the employee may have a claim for breach of contract. Promissory estoppel is not, however, the appropriate remedy. This claim is therefore dismissed.
2. Breach of Contract
Defendant argues that plaintiff's grievance regarding Lang's broken promise should properly have been brought as a state court proceeding pursuant to Article 78 of New York's Civil Practice Law and Rules. Under Article 78, plaintiff's breach of contract claim would be barred by the four-month statute of limitations. See N.Y. C.P.L.R. § 7801. Article 78 provides procedures for parties seeking "[r]elief previously obtained by writs of certiorari, mandamus or prohibition." Id. Proceedings brought under Article 78 "are typically the avenue for parties challenging administrative actions by governmental agencies or by the decisionmaking bodies of private entities." Clarke v. Trustees of Columbia Univ., No. 95 Civ. 10627, 1996 WL 609271, at *2 (S.D.N.Y. Oct. 23, 1996).
Plaintiff is bringing a breach of contract claim because defendant allegedly agreed to promote him in exchange for his voluntary transfer to ACS. Thus, plaintiff seeks neither to compel not to prohibit any action by defendant. Rather, plaintiff seeks money damages for injuries allegedly suffered as a result of defendant's breach of its contractual obligations. Accordingly, plaintiff's breach of contract claim is not barred by the four-month limitations period governing Article 78 proceedings. See Gally v. Columbia Univ., 22 F. Supp.2d 199, 205 (S.D.N.Y. 1998) (refusing to convert plaintiff's breach of contract claim into an Article 78 proceeding which would be time-barred); Keles v. Manhattan Coll. Corp., No. 88 Civ. 8080, 1993 WL 331582, at *1, n. 1 (S.D.N.Y. Aug. 20, 1993) ("[B]ecause the relief sought by plaintiff was money damages for an alleged breach of contract and not mandamus, Article 78 is not the exclusive remedy."), aff'd, 29 F.3d 622 (2d Cir. 1994). Cf. Finley v. Giacobbe, 848 F. Supp. 1146 (S.D.N.Y. 1994) (agreeing that Article 78 proceedings are not the proper vehicle for contract actions but distinguishing employment contracts, breaches of which must be brought under Article 78).
The next question is whether anyone had actual or apparent authority to enter into this alleged agreement. According to defendant, "[t] he law is clear that only the Commissioner has the [actual] authority to elevate an individual from SA I to SA II. Defendant's Memorandum of Law in Further Support of its Motion for Summary Judgment at 10 (citing Kitchings v. Jenkins, 85 N.Y.2d 694, 699-700 (1985) (approving policy leaving specific assignments within a grade to the discretion of the department head). Arguably, then, only Commissioner Scoppetta had the actual authority to enter into a contract to elevate plaintiff to the position of SA II. One problem with this argument is that plaintiff sought promotion to an ASA position, which is presumably different than an SA II. The Kitchings rule may not be controlling.
Regardless of who had actual authority to promote plaintiff, the question of whether Lang, acting as Commissioner Scopetta's agent, had apparent authority to do so remains.
Apparent authority exists where a third party believes, and has reason to believe, that the agent with whom [he] is dealing is acting within the scope of his authority. Critical to the creation of apparent authority are the words and conduct of the principal. The principal must in some manner lead the third party to believe the agent is acting within the scope of his authority. Furthermore, the third party's reliance on the apparent authority of the agent must be reasonable given the circumstances.Crigger v. Fahnestock and Co., No. 01 Civ. 7819, 2003 WL 22170607, at *14 (S.D.N.Y. Sept. 18, 2003) (citations omitted).
In other words, apparent authority "is normally created through the words and conduct of the principal as they are interpreted by a third party, and cannot be established by the actions or representations of the agent." Minskoff v. American Express Travel Related Servs. Co., 98 F.3d 703, 708 (2d Cir. 1996). See also Estate of Dermady v. Eastman Kodak Co., 136 F. Supp.2d 181, 186 (S.D.N.Y. 2001). Furthermore, a principal may be estopped from denying the apparent authority of one of its agents if "(1) the principal's intentional or negligent acts, including acts of omission, created an appearance of authority in the agent, (2) on which a third party reasonably and in good faith relied, and (3) such reliance resulted in a detrimental change in position on the part of the third party." Minskoff, 98 F.3d at 708. According to the Second Circuit, "[t]he existence of apparent authority is normally a question of fact, and therefore inappropriate for resolution on a motion for summary judgment." Id.
Simpri voluntarily transferred to ACS based on Lang's promise of a promotion equivalent to that which he would have received had he remained at DASIS. Lang made this promise while acting director of the Audit Review and Analysis Unit. The City of New York, including all of the agencies of which it is comprised, is an artificial entity that can only act through people. Lang was ostensibly in charge of the unit to which Simpri was transferring and, as such, was an agent of Commissioner Scopetta. It is reasonable that Simpri would have relied on a person in this position. Without apparent authority, every decision made by the various agencies of the City of New York would have to be cleared by the relevant Commissioner. Apparent authority, coupled with delegation and accountability, is the modus operandi for any governmental entity. Without it, the City of New York could not act. I therefore find that a material issue of fact exists as to whether Lang had the apparent authority to promote Simpri. Defendant's motion with respect to Simpri's breach of contract claim is therefore denied.
IV. CONCLUSION
For the foregoing reasons, plaintiff's unequal pay claim brought under the EPA with regard to Albanese survives as does his breach of contract claim. A status conference is scheduled for January 9, 2004 at 11:45 a.m. in Courtroom 15C at 500 Pearl Street. The Clerk of the Court is directed to close this motion.
SO ORDERED.