Forsyth v. Federation Employment & Guidance Service

409 F.3d 565, 2005 WL 1324967
CourtCourt of Appeals for the Second Circuit
DecidedJune 6, 2005
DocketDocket No. 03-7348
StatusPublished
Cited by2 cases

This text of 409 F.3d 565 (Forsyth v. Federation Employment & Guidance Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forsyth v. Federation Employment & Guidance Service, 409 F.3d 565, 2005 WL 1324967 (2d Cir. 2005).

Opinion

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 plaintiffs complaint. In that complaint, plaintiff, a black male, alleged employment discrimination based on his race and national origin. The district court granted summary judgment [567]*567to defendants on the grounds that plaintiffs 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 plaintiffs race or national origin. Forsyth v. Fed’n Employment & Guidance Serv., No. 97-CV-3899, 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 plaintiffs 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 plaintiffs 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 pm 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 plaintiffs 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 el 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 [568]*568than those given to other similarly situated employees. But, at least with respect to the two employees for which defendants provided wage increase information — Gali-na 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 plaintiffs 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 For-syth 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.

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Bluebook (online)
409 F.3d 565, 2005 WL 1324967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forsyth-v-federation-employment-guidance-service-ca2-2005.