Mingguo Cho v. City of N.Y.
| Decision Date | 25 July 2012 |
| Docket Number | 11 Civ. 1658 (PAC)(MHD) |
| Parties | MINGGUO CHO, Plaintiff, v. CITY OF NEW YORK, DEPT. OF BUILDINGS, Defendants. |
| Court | U.S. District Court — Southern District of New York |
REPORT & RECOMMENDATION
Pro se plaintiff Mingguo Cho commenced this lawsuit on March 10, 2011, asserting claims under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (the "ADEA") , the New York State Human Rights Law, New York Executive Law §§ 2 90, et seq. (the "NYSHRL"), and the New York City Human Rights Law, New York City Administrative Code §§ 8-101, et seq. (the "NYCHRL"). He claims that the City of New York and the New York City Department of Buildings ("DOB") discriminated against him on the basis of his age in rejecting his application for the position of Construction Inspector, despite his scoring higher on the required civil service examination than others who were hired for the position. He further claims that the defendants retaliated against him for seeking the help and influence of Councilman John Liu in the review of hisapplication.
Defendants have moved for summary judgment. We recommend that the motion be granted.
In March 2007, Mr. Cho applied for and took the civil service examination; at the time of the examination, he was 59 years old. (Compl. ¶¶ 7-10).1 He sat for the examination with the prospect of obtaining a position at the DOB as a Construction Inspector. (Id. ¶ 8). Although the Construction Inspector positions were limited, there were vacancies at the time of plaintiff's application. (See City Defs.' Local Rule 56.1 Statement of Undisputed Facts ( ) ¶¶ 1, 3).
However, the DOB was not immune to the financial instability that attended the year 2008 and consequently suffered budgetary constraints. (Decl. of Gina Betro ("Betro Decl.") ¶ 10) .2 Thus, theDOB instituted an external hiring freeze at the time of plaintiff's application, deciding to appoint only eligible candidates, instead of hiring external candidates, for vacant DOB positions. (Id.).
In or around December 2006, the City of New York Department of Citywide Administrative Services (hereinafter the "DCAS") issued a Notice of Examination, which detailed the duties and responsibilities of the Construction Inspector position for which it was hiring. (Defs.' Rule 56.1 Statement ¶ 4). Mr. Cho's wife found the Notice of Examination on the Internet and provided it to him. (Id. ¶ 5; Decl. of Assistant Corporation Counsel Kuuku Minnah-Donkoh ("Minnah-Donkoh Decl.") Ex. C, Dep. of Mingguo Cho ("Cho Dep.") at 55:6-15, Aug. 26, 2011). In order to qualify for consideration, the applicant must score at least a seventy (70) percent on the civil service examination, be able to understand and be understood in English, and have the required working and educational experiences. (Minnah-Donkoh Decl. Ex. B, at 13-14). The required experiences included, inter alia, "[f]ive years of full-time, satisfactory experience working in the construction trades," or "[t]hree years of full-time, satisfactory work experience [in the construction trades] . . . and two years of formal training or education in an acceptable construction program, given in a college, technical school or trade school." (Id. at 13). Theapplication did not specify an age requirement for the general examination. (See id. at 13-15).3
After a civil service examination is administered, the DCAS frequently provides a list of eligible candidates in rank order of their examination scores. (Betro Decl. ¶ 4). Following publication of the list, DCAS is required to certify a minimum of three candidates as eligible for the position, to ensure that the DOB is provided with multiple options in its effort to fill the position. (Id. ¶¶ 4-5). Upon receipt of the list of eligible candidates, the DOB is permitted to use its discretion in the hiring process, within limitations. The most pertinent hiring limitation is the so-called "one-in-three" rule. (Id. ¶ 5). The rule works as follows: if any candidate is considered and not selected for employment three times, that candidate is removed from the list of eligible candidates promulgated by DCAS and is thereafter no longer considered for appointment by the DOB for the vacant position. (Id. ¶¶ 6-7).
On March 2, 2007, plaintiff took the required civil serviceexamination. (See Cho Dep. at 56:6-7; Defs.' Rule 56.1 Statement ¶ 11). On December 7 of the same year, he received his score on the examination, a 73.75. (Defs.' Rule 56.1 Statement ¶ 13). Three days later, on December 10, the DCAS promulgated its "Certification/Disposition Turnaround Document," which effectively identified and listed forty-seven certified candidates who were eligible for the Construction Inspector position. . The list was provided to the DOB in rank order of the examination scores; plaintiff was ranked 28th. (Id. at CHO000016).4 The list indicated the birth dates of only the appointed applicants, and whether any candidates were "underage" at the time of filing. (E.g., id. at CHO000003, CHO000014).5
The DOB ultimately appointed thirty-one of the candidates listed in the December 10 Certification/Disposition Document. (Betro Decl. ¶ 11). Mr. Cho was considered but was not selected for the Construction Inspector position. (Id.; Minnah-Donkoh Decl. Ex. E, at CHO000002 (), CHO000016 (indicating that Cho was "CNS")). While the hiring freeze was maintained, the DOB still adhered to the aforementioned "one-in-three rule"; prior to the list's expiration on January 9, 2008 the day on which defendants no longer used the December 10, 2007 list of eligible candidates (see id. at CHO000001) -- plaintiff was considered but not selected on three occasions. (Betro Decl. ¶¶ 10-11). Accordingly, his name was stricken from the list of eligible candidates for the position of Construction Inspector.6 (Id.).
Of the thirty-one candidates who were selected for the position, five scored the same as plaintiff, five scored lower than plaintiff, and the remaining twenty-one achieved a higher score.(See generally Minnah-Donkoh Decl. Ex. E). Moreover, four candidates who scored higher than plaintiff -- candidates one, five, sixteen, and seventeen -- were appointed to the position despite their being older than Mr. Cho. (Id. at CHO000008, CHO000009, CHO000012).7 Because of the hiring freeze, the DOB appointed only in-house candidates. (See Betro Decl. ¶¶ 10-15).8
On June 18, 2009, Mr. Cho visited DCAS to inquire about the status of his application for the Construction Inspector position. (Defs.' Rule 56.1 Statement ¶ 28). An employee of DCAS -- whom plaintiff was unable to identify during his deposition -- informed him both of his examination score and his comparative ranking. (Compl. ¶¶ 14-15). The same employee also notified plaintiff that he had not been appointed to the desired position. (Id.; Defs.' Rule 56.1 Statement ¶ 28). Plaintiff inquired as to why he was not hired, and the DCAS employee stated that it was not necessary for defendants to provide Mr. Cho with a reason for their decision. .
In the wake of his conversation with the unidentified DCAS employee, plaintiff sent a letter to then-Councilman John Liu regarding the rejection of his application for the Construction Inspector position. (See Compl. Ex. C, at 18; Ex. D, at 21).9 Neither plaintiff nor his wife informed Councilman Liu that they believed that the DOB's decision not to appoint him was motivated by discrimination. (See Cho Dep. at 102:24-103:8). Councilman Liu replied to Mr. Cho's letter and explained that his office had been informed that Cho had been considered, but not selected, for the Construction Inspector position; Liu also instructed plaintiff to contact the DOB and notify them that he would like to be restored to the list of eligible candidates. (Minnah-Donkoh Decl. Ex. D, at 21, Oct. 16, 2009).
On October 21, 2009, after receiving the letter from Councilman Liu, Mr. Cho sent a letter to the DOB requesting that he be restored to the list of eligible candidates for the Construction Inspector position. (Minnah-Donkoh Decl. Ex. G, Oct. 21, 2009). Plaintiff claims that he received no response to his October 21 letter. (Compl. ¶ 23). Some months later, on May 14, 2010, Mr. Choappeared at the DOB to inquire about the status of his October 21 letter request. (Defs.' Rule 56.1 Statement ¶ 36). While he was there, an unidentified DOB employee reiterated that Mr. Cho would not be appointed to the position of Construction Inspector. (Id.).
On or about September 1, 2010, plaintiff filed an intake questionnaire with the EEOC through counsel. (Id. ¶ 37; Compl. Ex. G, at 34-41; Cho Dep. at 11:14-17).10 The document reflected Mr. Cho's intent to file a charge with the EEOC, because he believed that the DOB had discriminated against him on the basis of race, age, national origin, and color, and had retaliated against him for engaging in protected activities. (Compl. Ex. G, at 35). When prompted to identify his "color" and "national origin," plaintiff stated that he is Asian and of Taiwanese origin.11 (Id.).
On December 17, 2010, the EEOC issued Mr. Cho a Notice of Right to Sue, acknowledging that less than 180 days had passed since the time of his filing the charge and notifying him that the Commission was closing his case. (Id. Ex. H). This meant that he had to file this lawsuit under the ADEA within 90 days of his receipt of the Notice in order for it to be timely. (Id.).
On March 10, 2011, Mr. Cho timely commenced this action alleging age discrimination and retaliation. (See generally Compl.).
When questioned at deposition regarding the foundations of his allegation that defendants had discriminated against him on the basis of his age, Mr. Cho answered: "[B]ecause that's the only reason...
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