BRIAN M. COGAN, District Judge.
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
(4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.
Once an employee makes a prima facie case, "the burden shifts to the employer to give a legitimate, non-discriminatory reason for its actions."
At the summary judgment stage, although continued consideration is given to plaintiff's pro se status,
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.
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.
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 Ceglinski and Hue are not African American, which plaintiff does not allege but which seems fair to infer, those allegations seem adequate to meet the standard for a prima facie case.
Next, plaintiff avers that 14 years after that incident, Hue was making more money than plaintiff without being given any increase in responsibilities, thus showing that Hue received salary increases that plaintiff did not. That also seems adequate for the de minimis burden of showing a prima facie case.
Third, plaintiff swears that while all African American employees had to take a civil service exam, a non-African American woman, Jennifer Fontanet, was promoted to Operations Manager while several African American employees who were on the civil service list did not qualify because SCA allowed the exam list to expire before promoting Fontanet. That is also an adequate factual averment to support a prima facie case.
Finally, plaintiff attests that when an opening for Manager occurred in the Accounts Payable Department, it was given to someone outside the department, even though plaintiff was qualified for it.
Each of these descriptions is sufficient to support satisfy the de minimis showing that plaintiff must make. Collectively, they are more than adequate.
The inquiry then turns to whether defendant has a bona fide business justification for not giving plaintiff the salary increases and promotion that he claims he should have received. Here, defendant has attempted to show that plaintiff either misunderstands the facts, has omitted others which put his conclusions in question, is simply wrong, or that the claims fail under the statute of limitations. The evidence that defendant has submitted is so overwhelming that steps two and three of
As to plaintiff's failure to promote claim, there are numerous reasons why it fails. First, it is time-barred, as Fontanet received her promotion on February 13, 2014, and plaintiff did not file his EEOC complaint until June 2, 2015.
As to Hue's surpassing plaintiff in salary, the reason is straightforward — Hue had more complex work, and he received much better evaluations. Plaintiff prepares funding requests. Hue is a contract manager and is responsible for developing budgets. Hue's evaluations include notations that "he is a strong performer, who has shown an aptitude for handling difficult financial matters." Plaintiff's reviews, summarized above, contain nothing like that.
Plaintiff is not entitled to salary parity just because he is a member of a protected class. Sometimes workers are paid more because they have a harder job or are better at it. Title VII does not seek to repeal the Peter Principle.
Finally, to the extent that plaintiff attempted to state a claim for retaliation, there are no facts to support that claim. His mediocre evaluations were no worse after he filed his internal discrimination complaint than they were before he filed the complaint.
Defendants' motion for summary judgment is granted. The Clerk is directed to enter judgment, dismissing the complaint.