de la Cruz v. New York City Human Resources Admin. Dept. of Social Services

• Decision Date: 12 April 1996
• Docket Number: No. 488,D,488
• Citation: 82 F.3d 16
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 893 Sergio DE LA CRUZ, Plaintiff-Appellant, v. NEW YORK CITY HUMAN RESOURCES ADMINISTRATION DEPARTMENT OF SOCIAL SERVICES; the City of New York; Myra Berman, individually and as a supervisor of the New York City Human Resources Administration Department of Social Services, Defendants-Appellees. ocket 95-7472.
• Court: U.S. Court of Appeals — Second Circuit

Page 16

82 F.3d 16

70 Fair Empl.Prac.Cas. (BNA) 893

Sergio DE LA CRUZ, Plaintiff-Appellant, v. NEW YORK CITY HUMAN RESOURCES ADMINISTRATION DEPARTMENT OF SOCIAL SERVICES; the City of New York; Myra Berman individually and as a supervisor of the New York City Human Resources Administration Department of Social Services Defendants-Appellees.

No. 488, Docket 95-7472.

United States Court of Appeals Second Circuit.

Argued Nov. 8, 1995.

Decided April 12, 1996.

Appeal from a judgment of the United States District Court for the Southern District of New York (Constance Baker Motley, Judge ) summarily dismissing plaintiff's complaint alleging national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., and 42 U.S.C. § 1983.

Daniel J. Kaiser, New York City, for Plaintiff-Appellant.

Kathleen Alberton, Office of Corporation Counsel of the City of New York, New York City (Paul A. Crotty, Corporation Counsel; Larry A. Sonnenshein, Chlarens Orsland, Judith McCarthy, of counsel), for Defendants-Appellees.

Before: LUMBARD, KEARSE, and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Sergio de la Cruz, a caseworker for the New York City Human Resources Administration Department of Social Services ("DSS"), brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., and under 42 U.S.C. § 1983. De la Cruz alleged that in April 1992, defendants transferred him out of the Adoption Unit, where he had worked since 1990, because he is Hispanic. The defendants, the DSS, the City of New York, and Myra Berman (de la Cruz's supervisor), moved for summary judgment. The parties submitted affidavits, deposition testimony, and other documentary evidence, including internal memoranda and performance evaluations. Judge Motley granted the defendants' motion. De la Cruz v. New York City Human Resources Dep't, 884 F.Supp. 112 (S.D.N.Y.1995). We affirm, although on a somewhat different ground than that relied upon by the district court.

BACKGROUND

On appeal from a grant of summary judgment we view the facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Henry v. Daytop Village, Inc., 42 F.3d 89, 92 (2d Cir.1994).

Based on the record before us, a trier of fact might find the following. De la Cruz, a native of Puerto Rico, began his service with DSS in August of 1988 in the Division of Adoption and Foster Care Services ("DAFCS"), Centralized Services. DAFCS is composed of several units including Inquiry, Adoption, Placement, and Foster Care. On September 17, 1990, de la Cruz was transferred into the Adoption Unit, where he assumed the title "Acting Supervisor I"--a level above his regular civil service rank. In this capacity, de la Cruz, who is bilingual, evaluated Spanish-speaking applicants seeking to adopt a child. As an "Acting Supervisor" he was expected to carry a larger caseload than regular caseworkers. Despite this increase in duties, de la Cruz did not receive additional remuneration or benefits.

In January 1991, Myra Berman, who is Jewish, was named supervisor for the entire Adoption Unit. As such, she became de la Cruz's direct supervisor. Berman reported directly to Doris Ayala, who is Hispanic. According to de la Cruz's affidavit, Berman was outwardly hostile to him from the moment she assumed her duties as supervisor of the Adoption Unit. For example, de la Cruz alleges that whenever Berman would hear him speaking Spanish in the hallway, she would tell him to "shut up." Additionally, de la Cruz alleges that Berman was unresponsive to his concerns that Spanish-speaking applicants were being assigned to English language orientation sessions. De la Cruz alleges that when he repeated these concerns to other supervisors, Berman retaliated against him by denying him overtime.

A year after Berman became the supervisor for the Adoption Unit, Child Welfare Administration Executive Deputy Director Robert Little issued a memorandum (the "Little Directive") ending the DSS agency-wide policy of permitting employees to perform "out-of-title" work. As a result, all employees in "acting" positions were restored to their original civil service ranks and were no longer permitted to perform the duties associated with higher titles. Along with the redesignation of titles, some employees were transferred to different units.

Upon hearing of the Little Directive, de la Cruz approached Constance Weinberg, the director of DAFCS, about staying on in the Adoption Unit as a regular caseworker. Several days later, Weinberg informed de la Cruz that he would not be allowed to remain in the Adoption Unit because of his poor English skills. Weinberg informed appellant that he would be transferred to the Foster Care Unit where his direct supervisor would be Deyania Bautista, an Hispanic female. Weinberg allegedly commented to de la Cruz that he and Bautista would "understand each other better."

About the same time, de la Cruz received a performance evaluation from Berman. Although the evaluation was generally positive--an overall rating of "good"--de la Cruz received only a "marginal" rating in the category of written home study reports. Specifically, the evaluation stated that de la Cruz's reports were "rarely completed within unit deadlines because he must spend a great deal of time translating his Spanish notes into English." The evaluation further stated that "[a]lthough [de la Cruz] attempts to submit clearly written work, his writing still needs substantial improvement." In the section entitled "Plans for Improvement" Berman suggested that appellant "register for courses that will help him communicate more effectively in English." Upon receiving this negative rating, de la Cruz met with Berman to discuss her criticisms of his performance. De la Cruz claims that Berman told him that his problem was "cultural."

De la Cruz transferred to the Foster Care Unit in April 1992. The Adoption Unit replaced de la Cruz with Jacqueline Peters, a black woman.

On July 7, 1992, de la Cruz filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). His EEOC complaint charged that he had been demoted and returned to his previous assignment, given a negative performance evaluation, and retaliated against for his complaints about the treatment of Spanish-speaking applicants by denying him overtime to run Spanish language orientation sessions. After de la Cruz filed these administrative charges, the Adoption Unit hired Lillian Rivera, a bilingual Hispanic woman, as a caseworker at de la Cruz's civil service rank. In September 1993, the EEOC found no probable cause to believe de la Cruz had experienced discrimination. De la Cruz subsequently filed the present action.

DISCUSSION

We review a district court's grant of summary judgment de novo. Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993).

A. Pretext Claim

Appellant asserts both a "pretext" claim and a "mixed motives" claim. In "pretext" cases, the plaintiff must first present facts sufficient to establish a prima facie case of discrimination. In order to establish the prima facie case, plaintiff must demonstrate that: (i) he is a member of a protected class; (ii) he was qualified for the position; (iii) he was subjected to an adverse employment decision; and (iv) either the position remained open or he was replaced by someone not a member of his protected class. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Owens v. New York City Hous. Auth., 934 F.2d 405, 408-09 (2d Cir.), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 451 (1991); Sweeney v. Research Found. of State Univ. of New York, 711 F.2d 1179, 1184-85 (2d Cir.1983).

An evidentiary proffer that satisfies the McDonnell Douglas test gives rise to an inference of discrimination, see Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1239 (2d Cir.1995), and thereby shifts the burden of production to the employer to proffer a legitimate non-discriminatory reason for its action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. At all times the burden of persuasion remains with the plaintiff, who must prove by a preponderance of the evidence that any seemingly legitimate reason proffered by the employer is, in reality, a pretext for unlawful discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993).

1. Prima Facie Case

As a Puerto Rican, de la Cruz is a member of a protected class. Because de la Cruz was replaced by a black female, he also satisfies the fourth prong of the prima facie case. The district court held, however, that de la Cruz failed to satisfy both the second and third elements of the prima facie test because he produced no evidence that he was "qualified" to remain in the Adoption Unit and because his lateral transfer to another unit within the same division of DSS did not constitute an adverse employment decision. de la Cruz, 884 F.Supp. at 116. We disagree.

We have previously held that the level of proof a plaintiff is required to present in order to establish a prima facie case of discrimination is low. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994); see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981) (plaintiff's burden of proof at the prima facie stage "is not onerous"). To satisfy the second element of the test, de la Cruz need not demonstrate that his performance was flawless or superior. Rather, he need only demonstrate that he "possesses the basic skills necessary for performance of [the] job." Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir.), cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978); see also Owens, 934 F.2d at 409 ("McDonnell Douglas requires...