Ibrahim v. NY State Dept. of Health, 82 Civ. 0177.

• Decision Date: 26 January 1984
• Docket Number: No. 82 Civ. 0177.,82 Civ. 0177.
• Citation: 581 F. Supp. 228
• Parties: Shawki R. IBRAHIM, Plaintiff, v. NEW YORK STATE DEPARTMENT OF HEALTH, Office of Health Systems Management, New York State Department of Civil Service, New York State Department of Audit and Control, New York State Division of Human Rights, Public Employees Federation Union AFL-CIO, Defendants.
• Court: U.S. District Court — Eastern District of New York

581 F. Supp. 228

Shawki R. IBRAHIM, Plaintiff, v. NEW YORK STATE DEPARTMENT OF HEALTH, Office of Health Systems Management, New York State Department of Civil Service, New York State Department of Audit and Control, New York State Division of Human Rights, Public Employees Federation Union AFL-CIO, Defendants.

No. 82 Civ. 0177.

United States District Court, E.D. New York.

January 26, 1984.

COPYRIGHT MATERIAL OMITTED

Charles S. Butin, Great Neck, N.Y., for plaintiff.

Robert Abrams, Atty. Gen., State of N.Y. (Melvin R. Leventhal, Brenda S. Spears and Florence E. Abrams, Asst. Attys. Gen., of counsel), New York City, for State defendants.

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This is an action for employment discrimination on the basis of age, race, and national origin in violation of 42 U.S.C. §§ 2000e-2(a) & 3(a) ("Title VII") and 42 U.S.C. §§ 1981 & 1983. Plaintiff also asserts pendent state claims under N.Y. Executive Law § 296(1)(a) & (e) (McKinney 1982). In addition to injunctive relief, plaintiff seeks $175,000 as back pay, compensatory, and punitive damages as well as attorney's fees under 42 U.S.C. § 1988. The New York State Department of Health, Office of Health Systems Management, the New York State Department of Civil Service, the New York State Department of Audit and Control, and the New York State Division of Human Rights (the "State defendants") move for summary judgment.¹ Fed.R.Civ.P. 56. For the reasons developed below, the motion is granted in part and denied in part.

FACTS

Plaintiff, a 63 year old male citizen of the United States, is an ethnic Arab who was born in Egypt. Since 1979, defendants have failed to promote him to the position of Principal Health Care Fiscal Analyst ("PHCFA" or "fiscal analyst"), civil service grade 27, even though he successfully passed the appropriate New York State Civil Service examination and is on the Civil Service list for that position. In February, 1980, plaintiff filed an administrative complaint alleging that his failure to be selected for a PHCFA position was the result of discrimination. This was the first in a series of administrative complaints, all of which have been rejected.

In March, 1983, plaintiff was advised that he was being reassigned from New York City to Albany, without promotion, due to job consolidations required by State budget deficits. Plaintiff alleges that he will lose his job if he refuses to relocate, and that the relocation is in retaliation for filing complaints of discrimination. After he was informed of his reassignment, plaintiff filed an administrative complaint on the additional ground of retaliation. That claim has not yet been fully adjudicated on the administrative level.

In December, 1978, the Department of Civil Service ("Civil Service") certified a list of persons who had passed an open-competitive examination, making them eligible for PHCFA positions.² Of the persons listed, plaintiff and three others received a grade of 70%, the lowest passing score. Some of the passing applicants subsequently declined to be interviewed for the position by the defendant State Department of Health ("DOH"), Office of Health Systems Management ("OHSM"). Other applicants either retired or declined to be considered after interviews. In February, 1979, several of those applicants remaining on the list were appointed as PHCFA's, leaving only two candidates, the plaintiff and Mr. Joseph Culpo, for subsequent openings.

The appointing DOH, OHSM officer, relying on New York State Civil Service Law § 61, exercised what he alleges to be his discretionary option not to select from a list of fewer than three candidates and to await the results of a new examination.³ He chose instead to retain, on a provisional basis, two employees who were temporarily serving as PHCFA's, as well as a third person from within the bureau.

Defendants assert that Mr. Gormley, the Director of the DOH Bureau of Residential Health Care Facility Reimbursement ("RHCFR"), retained the three employees because they were already functioning members of the bureau, and because their competence was not in question. Plaintiff and Mr. Culpo, on the other hand, were viewed as candidates of "unknown quality." Affidavit of William J. Gormley, at ¶ 7 (June 2, 1983).

DISCUSSION

1. 42 U.S.C. § 1981

Plaintiff alleges that defendants' failure to promote him constitutes a violation of 42 U.S.C. § 1981, which provides, inter alia, that all persons within the United States shall enjoy the same rights and benefits of law as are "enjoyed by white citizens." Defendants argue that this bars discrimination based upon race, but does not address discrimination based upon national origin. Plaintiff concedes the distinction but characterizes the Arab ethnic group, of which he is a member, as a "race." I disagree.

In a similar case of alleged employment discrimination, Budinsky v. Corning Glass Works, 425 F.Supp. 786 (W.D.Pa.1977), the court dismissed a Slavic plaintiff's § 1981 claim of racial discrimination holding that "Title VII ... provides a thorough remedy for victims of employment discrimination based on ... national origin." Id. at 789. The court reasoned that:

The terms "race" and "racial discrimination" may be of such doubtful sociological validity as to be scientifically meaningless, but these terms nonetheless are subject to a commonly-accepted, albeit sometimes vague, understanding.... On this admittedly unscientific basis, whites are plainly a "race" susceptible to "racial discrimination." Hispanic persons and Indians, like blacks, have been traditional victims of group discrimination, and, however inaccurately or stupidly, are frequently and even commonly subject to a "racial" identification as "non-whites." ....

The same cannot be said with respect to persons of Slavic or Italian or Jewish origin. These groups are not so commonly identified as "races" nor so frequently subject to that "racial" discrimination which is the specific and exclusive target of § 1981.

425 F.Supp. at 788.

Dealing specifically with a plaintiff of Arab origin, the court in Saad v. Burns Intern. Sec. Services, Inc., 456 F.Supp. 33, 37 (D.D.C.1978), dismissed the plaintiff's § 1981 claim on its finding that "Section 1981 is directed solely at discrimination based on race and color" and that plaintiff's classification of himself as "non-Caucasian" was "insufficient for purposes of a claim of racial discrimination."

Accordingly, plaintiff has failed to state a claim under § 1981, and that claim is dismissed.

2. 42 U.S.C. § 1983

Plaintiff also alleges that the actions of the various agencies and departments of the State of New York named as defendants herein give rise to a claim for damages under 42 U.S.C. § 1983. Defendants counter that as departments of the State of New York they are immune from suits under § 1983 by virtue of the Eleventh Amendment.

Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) held that the Eleventh Amendment permits § 1983 suits against municipalities under certain circumstances. The Supreme Court, however, sanctioned suits only against "local government units which are not considered part of the State for Eleventh Amendment purposes."⁴ 436 U.S. at 690, n. 54, 98 S.Ct. at 2035, n. 54. The four named New York State agencies in this case are clearly "part of the State." Thus, plaintiff's § 1983 suit against them must be dismissed.

3. Title VII (42 U.S.C. § 2000e-2(a))

Plaintiff alleges that the DOH, OHSM's refusal to promote him to the position of fiscal analyst was based upon the fact that he is an Egyptian Arab. Section 2000e-2 of Title VII provides in pertinent part:

(a) It shall be an unlawful employment practice for an employer—

(1) to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... national origin; or

(2) to limit ... or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's ... national origin.

42 U.S.C. § 2000e-2(a)(1) & (2).

In McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court described the burden of proof in a Title VII case as follows:

(1) Plaintiff has the initial burden of establishing a prima facie case of discrimination; (2) if plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to "articulate some legitimate non-discriminatory reason" for the non-selection of plaintiff; and (3) if the employer does articulate such a reason, the burden shifts back to the plaintiff to prove that the reason given by the employer is not really legitimate and nondiscriminatory but is merely pretextual. Id. at 802-04, 93 S.Ct. at 1824-1825.

Here, plaintiff has succeeded in presenting a prima facie case by demonstrating that (1) he is within a class protected by § 2000e-2(a); (2) he applied for and was qualified for a job the DOH, OHSM was trying to fill; (3) he was denied the job despite his qualifications; and (4) the DOH, OHSM continued to seek applicants for the position. Id. at 802, 93 S.Ct. at 1824.

In rebuttal, the DOH, OHSM alleges that there were two reasons why, instead of promoting plaintiff, it retained the three provisional fiscal analysts pending new test results: (1) the director decided to exercise his option to choose from a list of at least three qualified applicants; and (2) the retained employees had all worked with the director, and he had confidence in their abilities. In Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-1095, 67 L.Ed.2d 207 (1981), the Court stated that the defendant's rebuttal burden is only the burden of explaining clearly the non-discriminatory...