Forsyth v. Federation Employment and Guidance Ser.

• Decision Date: 06 June 2005
• Docket Number: Docket No. 03-7348.
• Citation: 409 F.3d 565
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Allison A. FORSYTH, Plaintiff-Appellant, v. FEDERATION EMPLOYMENT AND GUIDANCE SERVICE, a Corporation of the State of New York, Board of Directors of Federation Employment and Guidance Service, Alfred P. Miller, individually and as Vice President & CEO of Federation Employment and Guidance Service and William Alder, individually and as Vice President & Controller of Federation Employment and Guidance Service, Defendants-Appellees.

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409 F.3d 565

Allison A. FORSYTH, Plaintiff-Appellant, v. FEDERATION EMPLOYMENT AND GUIDANCE SERVICE, a Corporation of the State of New York, Board of Directors of Federation Employment and Guidance Service, Alfred P. Miller, individually and as Vice President & CEO of Federation Employment and Guidance Service and William Alder, individually and as Vice President & Controller of Federation Employment and Guidance Service, Defendants-Appellees.

Docket No. 03-7348.

United States Court of Appeals, Second Circuit.

Argued September 24, 2004.

Decided June 6, 2005.

Joan Franklin Mosley, New York, New York (Barbara A. Morris, Sag Harbor, New York, of counsel), for Plaintiff-Appellant.

Richard A. Levin, New York, New York (Kerri Lynn Stone, Proskauer Rose LLP, New York, New York, of counsel), for Defendants-Appellees.

Before: FEINBERG, CARDAMONE, and PARKER, Circuit Judges.

CARDAMONE, Circuit Judge.

Plaintiff Allison A. Forsyth (plaintiff or appellant), appeals from a judgment entered January 13, 2003 in the United States District Court for the Southern District of New York (Martin, J.) that granted summary judgment in favor of his employer, Federation Employment and Guidance Service, its Board of Directors, and certain of its former and current officers (collectively Federation Employment Service or defendants), and dismissed plaintiff's complaint. In that complaint, plaintiff, a black male, alleged employment discrimination based on his race and national origin. The district court granted summary judgment to defendants on the grounds that plaintiff's claims were untimely made and, in any event, failed to state a basis on which any reasonable trier of fact could find defendants discriminated on the basis of plaintiff's race or national origin. Forsyth v. Fed'n Employment & Guidance Serv., No. 97-CV-3399, 2003 WL 41994, 1, 2003 U.S. Dist. LEXIS 60, at *5-6 (S.D.N.Y. Jan. 6, 2003).

Although we affirm that judgment, we write to explain that plaintiff's claim for relief alleging salary discrimination was properly dismissed because Forsyth failed to establish genuine issues of triable fact with respect to it, and not because plaintiff's claim was time-barred as the district court believed. Further, we note at the outset that on the somewhat out-of-the-ordinary facts of this case, the district court and the defendants were excused from their duty imposed by Rule 56.2 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, see Fed. Proc. Rules Service, Dist. Court for the S. & E. Dist. of N.Y., Rule 56.2, to provide notice to pro se plaintiff of the consequences of defendants' motion for summary judgment. A party's status as either represented or pro se is critical under Rule 56.2. Here plaintiff commenced the instant litigation while represented by counsel, but later, 13 months after having been served by defendants' motion, he began proceeding pro se. This change in status—changing horses in the middle of the stream, so to speak—makes the Rule 56.2 issue in this case unique. As we explain in the discussion that follows, the district court and defendants were properly relieved of any duty to notify plaintiff under Rule 56.2.

BACKGROUND

A. Facts

Plaintiff is a black male whose country of origin is Grenada. Federation Employment Service is a New York not-for-profit mental health and social services agency, for which plaintiff began working in April 1989 as a bookkeeper in the accounting department. When he was hired 16 years ago, Forsyth was the only black employee among the 18 employees in that department. Plaintiff resigned from his position in June 1996. The parties disagree with respect to whether that resignation was voluntary as defendants maintain or was a constructive termination as plaintiff asserts.

The complaint alleges that plaintiff's employer discriminated against him on the basis of his race and national origin when making salary increase and promotion decisions, and that defendants constructively discharged him. These claims were brought under Title VII, see 42 U.S.C. § 2000e et seq. (2001), 42 U.S.C. § 1981, New York State Human Rights Law § 296, see N.Y. Exec. Law § 296 (2004), and the federal and New York State Constitutions. A claim under § 125 of the Administrative Code of the City of New York was included in the complaint, but that claim is not before us.

Plaintiff raises a number of arguments in support of his discrimination cause of action, but only the salary discrimination claim warrants discussion. To support that claim, Forsyth alleged that throughout his employment at Federation Employment Service he was paid less than similarly situated white male and female employees. In his affidavit in opposition to summary judgment, he discusses three fellow employees whom he maintains were given more frequent wage increases or higher entry salaries than Forsyth received—Galina Khasin, Susan McLean, and Thomas Ferri. Plaintiff also maintains that wage increases to him were less than those given to other similarly situated employees. But, at least with respect to the two employees for which defendants provided wage increase information—Galina Khasin and Thomas Ferri—the difference appeared to be in the starting wage, rather than in pay increases, which were substantially the same.

Galina Khasin was hired as an accountant in September 1989, the same year Forsyth began employment. Ms. Khasin made $4,000 more at the time of hire as an accountant than plaintiff was then earning as a bookkeeper, although they both had the same level of education. Plaintiff pursued a graduate degree during much of his employment and contends therefore that he was as qualified as Khasin for the position of accountant. Yet, as her employment application showed, Khasin had much more bookkeeping and accounting experience than plaintiff did. Because much of Khasin's experience was in Russia, rather than in the United States, and because, according to plaintiff, the Russian accounting system is different from the U.S. accounting system, plaintiff suggested that Khasin's experience was not as extensive as it appeared. Nonetheless plaintiff offered no evidence to rebut defendants' explanation for the discrepancy in wages, that is, that Khasin was hired as an accountant and given a higher salary than plaintiff because she had more experience.

Susan McLean was hired as a senior accountant in 1994. McLean's entry salary was $8,000 more than plaintiff was receiving at the time when McLean was hired. Forsyth avers that he had expressed interest in and was qualified for the position McLean was hired to fill, but that it went to McLean instead even though plaintiff asserts she was not qualified. In his deposition plaintiff admitted that he did not think McLean was given the job in preference to him based on his race, but also states that the decision could have been based on his nationality. Regardless, plaintiff failed to offer any proof sufficient to show that he was as qualified or more qualified than McLean for the position of senior accountant.

Defendants hired Thomas Ferri, a white male, about three and one-half years after plaintiff began working. Plaintiff maintains that he was qualified for Ferri's position and, in fact, had to train Ferri when he started. Ferri's starting salary was $10,000 more than plaintiff's salary at the time. Defendants explained that Ferri was given the job, and a higher salary, because he had seven and one-half more years of accounting experience than Forsyth did. Plaintiff failed to rebut this explanation for defendants' decision to hire Ferri rather than him.

B. Prior Proceedings

On March 18, 1994 plaintiff complained to his supervisor, William Adler, that he felt he was receiving disparate treatment and that he believed defendants' salary decisions with respect to Khasin, McLean, and Ferri constituted discrimination against him. Receiving no response to that claim, plaintiff filed a charge of discrimination with the New York State Division of Human Rights and the Equal Employment Opportunity Commission of the United States (EEOC). On April 25, 1997 within 90 days of receiving a right to sue letter from the EEOC on January 26, 1997, plaintiff filed his complaint in the instant litigation.

Defendants filed an answer denying plaintiff's allegations of discrimination. After the close of discovery in July 2000 defendants moved for summary judgment. The district court informed plaintiff that his response was due on July 14, 2000. Forsyth v. Fed'n Employment & Guidance Serv., No. 97-CV-3399, 2001 U.S. Dist LEXIS 1003, at *1 (S.D.N.Y. Feb. 8, 2001). Six months later on February 8, 2001 when it appeared that plaintiff's then-counsel—Barbara A. Morris, Esq. and Frederick H. Hayes, Esq.—had failed to respond to defendants' motion, the district court issued a sua sponte order, ordering plaintiff to show cause why it should not grant summary judgment. Id. at *9. One of plaintiff's counsel, Ms. Morris, submitted two doctor's notes and her own affidavit to the district court explaining that she was having medical difficulties. The district court was not persuaded by these submissions that she was so incapacitated as to be unable to work on the response to defendants' motion. Id. at *7. When neither plaintiff nor his counsel responded to the trial court's order to show cause, plaintiff was given the opportunity to obtain new counsel rather than have the court dismiss his case and grant summary judgment to defendants, provided he first reimburse defendants for the amount of the attorney's fees they had incurred from July 7, 2000. Forsyth v. Fed'n Employment & Guidance Serv., No. 97-CV-11446, 2001 U.S. Dist. LEXIS 11446, at *14-15 (S.D.N.Y. Aug. 9, 2001).

Although plaintiff never retained new counsel, he did pay defendants' attorney's fees and, proceeding pro se, filed an affidavit in opposition to defendants' motion for summary judgment on ...