Plaintiff brings this cause of action against the Defendant for employment discrimination pursuant to the New York State Human Rights Law Executive Law SEC.(s) 290 et seq. Defendant removed the action to federal court. Plaintiff now moves to remand and Defendant moves for summary judgment.

I. BACKGROUND

A. Factual Background

Plaintiff was employed by Defendant as a Senior Customer Engineer ("SCE"). (Def.'s 3(g) Statement P 1; Pl.'s Dep. at 54.) On January 1 1992 Defendant implemented a Drug and Alcohol Abuse Policy ("Drug Policy") to maintain a program for an environment free from the influence of illegal drugs controlled substances and alcohol abuse. (Def.'s 3(g) Statement PP 2-3; MacFarlane Aff. Attachment B.) The Drug Policy applied to all applicants for employment current employees and employees of contractors and subcontractors and copies of the Drug Policy were given to all such individuals. (Def.'s 3(g) Statement PP 4-5.) Plaintiff read the Drug Policy and understood it. (Def.'s.3(g) Statement P 6; Pl.'s Dep. at 12-13.) The Drug Policy provided that all employees were subject to unannounced preventive testing by an independent contractor ASB Meditest ("ASB") and that any employee with a positive drug test result was subject to immediate suspension leading to termination. (Def.'s 3(g) Statement PP 7-8 11.) *fn1

In May 1994 twenty-six of the Defendant's employees in the United States were randomly selected for unannounced preventive drug screening. *fn2 (Def.'s 3(g) Statement P 20.) Plaintiff was one of the employees randomly selected. (Def.'s 3(g) Statement P 26.) Twenty-two of the employees selected were Caucasian one was African-American one was Hispanic and two were Asian. (Def.'s 3(g) Statement P 27.) Plaintiff was given a drug screening packet and directed to be tested at the ASB center; once there he completed the necessary paperwork and provided ASB personnel with his specimen. *fn3 (Def.'s 3(g) Statement PP 29-33; Pl.'s Dep. at 9-20.) The first test was positive for marijuana. (Def.'s 3(g) Statement P 37; MacFarlane Aff. Attachment F.) The second test confirmed the first one. (Def.'s 3(g) Statement PP 38-39; MacFarlane Aff. Attachment F.) As a result Plaintiff's manager informed him he was suspended and subsequently Plaintiff was terminated on May 23 1994. (Def.'s 3(g) Statement PP 41-42.)

None of the other twenty-five samples were positive. (Def.'s 3(g) Statement P 43.) Since the Drug Policy was adopted nine individuals have been discharged for violation of the Drug Policy and six of those as a result of a positive drug test. (Def.'s 3(g) Statement P 47.) Of the six terminations four were Caucasian and two were African-American. (Def.'s 3(g) Statement P 48.)

Plaintiff failed to respond to the Defendant's 3(g) Statement. Local Rule 3(g) states "the papers opposing a motion for summary judgment shall include a separate short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." Court's individual Rules also set forth detailed instructions for 3(g) Statements and Plaintiff was specifically directed to the Rules in a letter from Chambers dated January 10 1996. Plaintiff has failed to comply with these rules. Therefore pursuant to Local Rule 3(g) all Defendant's material facts not in dispute are deemed admitted.

B. Procedural Background

This Court has had a rather involved history with these parties not reflected by the 1995 filing date of the present federal action.

Plaintiff first filed its Complaint in the Supreme Court for the County of New York on August 1 1994. In that Complaint Plaintiff alleged state causes of action as well as an action pursuant to 42 U.S.C. SEC. 1981. Defendant timely *fn4 filed a notice of removal based on federal question jurisdiction and the action was assigned to this Court. No. 94 Civ.6498 (DAB). On September 13 1994 Plaintiff filed an Amended Complaint no longer claiming relief pursuant to 42 U.S.C. SEC. 1981. On October 5 1994 Defendant filed an Amended Notice of Removal based on diversity jurisdiction and served an Amended Answer. Plaintiff took no action regarding these notices of removal. On February 3 1995 Court met with the parties and issued a Scheduling Order. The parties proceeded in discovery and on August 24 1995 a motion to remand was filed. On September 6 1995 Court endorsed a stipulation between the parties which was agreed to by telephone conference with Chambers and subsequently put into writing. The Stipulation stated that Plaintiff was not proceeding against the Defendant pursuant to 42 U.S.C. SEC. 1981 or any other federal claim and that his damages would not exceed $50 000.00. *fn5 The case was then remanded to state court.

On November 3 1995 after Defendant believed Plaintiff did not agree to limit his damages to $50 000.00 it filed a third Notice of Removal. Before Court can rule on the Defendant's Motion for Summary Judgment Defendant must show that Court has subject matter jurisdiction over the Complaint. Court will turn its attention first to the Removal Notice and subject matter jurisdiction.

II. DISCUSSION

A. Motion to Remand

1. Notice of Removal; timeliness

Plaintiff argues that the Defendant's Removal Notice was untimely filed because it was filed more than one year after the filing of the Complaint and hence barred by 28 U.S.C. SEC. 1446(b) which states "a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action." Plaintiff argues that the third notice of removal filed in November of 1995 occurred more than one year after the commencement of this action in August 1994.

On its face Plaintiff argument is correct however the facts presented here are unusual. The Court finds the statute was meant to apply to those litigants who for the first time file a notice of removal after one year. Here Defendant filed three notices of removal. Only upon agreement that the damages would not exceed the jurisdictional amount did the Defendant agree to remand. Hence it would be unfair to penalize the Defendant who timely filed three removal notices *fn6 by denying its statutory right to removal based on untimeliness. Defendant would never had to file its third notice outside the one-year scope of 28 U.S.C. SEC. 1446 had it not been for the Plaintiff's tactics.

Court finds the Defendant's notice of removal was timely filed.

2. Subject Matter Jurisdiction

However although Court finds that the removal notice was timely filed the Defendant still has the burden of showing the grounds upon which removal is based and which confer subject matter jurisdiction. Defendant alleges that this Court has jurisdiction based on diversity. *fn7 Plaintiff is a citizen of New York. Defendant is incorporated in Delaware and maintains its principal place of business in Texas. Diversity of citizenship clearly exists however the issue in this case is whether the jurisdictional amount of $50 000.00 is met.

The party seeking to assert federal jurisdiction has the burden of proving that diversity exists. McNutt v. General Motors Acceptance Corp. 298 U.S. 178 183 80 L. Ed. 1135 56 S. Ct.780 (1936); United Food & Commercial Workers Union Local 919 v. CenterMark Properties Meriden Square Inc. 30 F.3d 298 301 (2d Cir. 1994); Lupo v. Human Affairs Int'l Inc. 28 F.3d 269 273 (2d Cir. 1994); Chappelle v. Beacon Communications Corp. 863 F. Supp. 179 181 (S.D.N.Y. 1994); Mopaz Diamonds Inc. v. Institute of London Underwriters 822 F. Supp. 1053 1055 (S.D.N.Y. 1993). Removal statutes are to be "strictly construed against removal and all doubts should be resolved in favor of remand." Boyer v. Snap-On Tools Corp. 913 F.2d 108 (3d Cir.1990) (quoting Steel Valley Auth. v. Union Switch and Signal Div. 809 F.2d 1006 1010 (3d Cir.1987) cert. denied 484 U.S. 1021 108 S. Ct.739 98 L. Ed. 2d 756 (1988)) cert. denied 498 U.S. 1085 (1991); Irving Trust Co. v. Century Export & Import S.A. 464 F. Supp.1232 1236 (S.D.N.Y. 1979); see Shamrock Oil & Gas Corp. v. Sheets 313 U.S. 100 85 L. Ed. 1214 61 S. Ct.868 (1941) ("Due regard for the rightful independence of state governments which should actuate federal courts requires that they scrupulously confine their own jurisdiction to the precise limits which the (removal) statute has defined.").

The Supreme Court set the standard used to review the complaint to determine whether subject matter jurisdiction exists:

The rule governing dismissal for want of jurisdiction is that . . . the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really less than the jurisdictional amount to justify dismissal. Saint Paul Mercury Indem. Co. v. Red Cab. Co. 303 U.S. 283 288-89 82 L. Ed. 845 58 S. Ct.586 (1938).

See A.F.A. Tours Inc. v. Whitchurch 937 F.2d 82 87 (2d Cir. 1991); Williams v. NYS Livery Serv. Inc. 1995 U.S. Dist 11773 No. 95 Civ. 0401 1995 WL 491485 at *2 (S.D.N.Y. Aug. 17 1995); Pirenne Python Schifferli Peter & Associates v. Wyndham Partners L.P. 1995 U.S. Dist 5835 No. 92 Civ. 9252 1995 WL 261512 at *1 (S.D.N.Y. May 3 1995). Hence Court must find with a legal certainty *fn8 that the claim is less than the jurisdictional amount. See e.g. Deutsch v. Hewes St. Realty Corp. 359 F.2d 96 98 (2d Cir. 1966). A defendant must show a "reasonable probability" that the claim is for more than the jurisdictional amount. Tongkook Am. Inc. v. Shipton Sportswear Co. 14 F.3d 781 784 (2d Cir. 1994); Foschi v. United States Swimming Inc. 916 F. Supp. 232 241 (E.D.N.Y. 1996).

The amount in controversy should be determined from the face of the complaint unless the defendant can show that the amount was determined in bad faith. Saint Paul 303 U.S. at 292; Pirenne 1995 U.S. Dist.5835 1995 WL 261512 at *1 (quoting Horton v. Liberty Mut. Ins. Co. 367 U.S. 348 353 6 L. Ed. 2d 890 81 S. Ct.1570 (1961)). However if the complaint does not allege an amount of recovery then Court is to look to the removal notice. If the removal notice *fn9 fails to allege facts sufficient to establish the jurisdictional amount then the court may find that it lacks jurisdiction. Lupo 28 F.3d at 273-74; Pirenne 1995 U.S. Dist.5835 1995 WL 261512 at *1. Furthermore the amount will be determined at the time of removal. Rosenberg v. GWV Travel Inc. 480 F. Supp.95 96 (S.D.N.Y. 1979). *fn10

Determining the value of the Complaint can be extremely difficult because Court must decide what rights are involved and from whose viewpoint *fn11 they should be measured. Furthermore when the Complaint is silent as to a monetary value this only serves to increase the difficulty of valuation. The following standards are used to assist Court in this evaluation.

In actions seeking declamatory judgment it is well established that the value of the judgment is measured by the value of the object of the litigation. Hunt v. Washington State Apple Advertising Comm'n 432 U.S. 333 347 53 L. Ed. 2d 383 97 S. Ct.2434 (1977); Law Audit Servs. Inc. v. Studebaker Tech. Inc. 1996 U.S. Dist.3621 No. 96 Civ.0926 1996 WL 137492 at *3 (S.D.N.Y. Mar. 27 1996). This doctrine applies to other types of equally intangible items. Punitive damages can be included in the jurisdictional amount if they are legally recoverable. A.F.A. Tours 937 F.2d at 87; Rosenberg 480 F. Supp. at 97. Finally fees are not added to the amount. Givens v. W.T. Grant Co. 457 F.2d 612 on remand on other grounds 472 F.2d 1039 (2d Cir.1972).

Here Plaintiff in his Amended Complaint requests no monetary value. However the Amended Complaint does request that Court:

A. Declare[] that he has suffered discrimination at the hands of defendant and enjoin defendant from continuing its discrimination against plaintiff;

B. Order that plaintiff be reinstated with defendant;

C. Order that plaintiff be awarded the back pay he would have earned had defendant not discriminated against him;

D. Order that plaintiff be awarded compensatory damages for pain suffering and emotional distress and punitive damages;

E. Award plaintiff the costs and disbursements of this action including a reasonable Counsel's fees.

First there are two items the Court cannot consider. Part E cannot be included in the jurisdictional amount. Part D with regard to punitive damages is not included because punitive damages are not recoverable under the NYS Human Rts. Law Exec. Law SEC. 296. Thoreson v. Penthouse Int'l Ltd. 80 N.Y.2d 490 499 591 N.Y.S.2d 978 981-82 606 N.E.2d 1369 (N.Y. 1992).

Next Court must determine the date from which it will measure the damages. Court will measure the damages at the time of the third Notice of Removal which is the Notice at issue here. Plaintiff was terminated on May 23 1994. The Notice of Removal was filed on November 3 1995. Plaintiff received $29 600 a year as salary. (Pl.'s Dep. at 54.) Hence as of November 3 1995 Plaintiff's back pay amounted to approximately $46 168.00. A jury who believed Plaintiff could also award him thousands of dollars in compensatory damages. In addition if Plaintiff were reinstated that would be worth the amount of years he would work at the Defendant also resulting in thousands of dollars. Furthermore the worth of ceasing discrimination or compensating for discrimination a usually humiliating experience can also result in thousands of dollars. Finally Plaintiff's recent requests to settle for more than $50 000 an indication of what he believes his claim is worth all lead Court to find that Defendant advanced a reasonable probability that the claim is over $50 000 and Court concludes that it cannot dismiss the case from federal court as it cannot determine with a legal certainty that the claim is for less than $50 000. *fn12

B. Motion for Summary Judgment

1. Standards

The principles applicable to summary judgment are familiar and well-settled. Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby Inc. 477 U.S. 242 247-48 91 L. Ed. 2d 202 106 S. Ct.2505 (1986); Corselli v. Coughlin 842 F.2d 23 (2d Cir.1988). "The plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett 477 U.S. 317 322 91 L. Ed. 2d 265 106 S. Ct.2548 (1986).

As a general rule all ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. LaFond v. General Physics Servs. Corp. 50 F.3d 165 171 (2d Cir.1995). As is often stated "viewing the evidence produced in the light most favorable to the nonmovant if a rational tries could not find for the nonmovant then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. LILCO 933 F.2d 187 191 (2d Cir.1991); see also Bay v. Times Mirror Magazines Inc. 936 F.2d 112 116 (2d Cir.1991).

2. Plaintiff's Complaint

Plaintiff brought suit pursuant to New York State Human Rights Law Executive Law SEC.(s) 290 et seq. In it he alleges the following claims: (a) Defendant terminated Plaintiff based on a manufactured positive drug test which was a pretext for racial discrimination and refused to retest him (Compl. PP 5-7 9-10 14-17); (b) Defendant unlawfully harassed Plaintiff to force him to exchange work shifts with a Caucasian employee (Id. PP 3-4); (c) Defendant discriminated against Plaintiff by failing to promote him (Id. P 13); (d) Defendant discriminated against Plaintiff by paying him less wages and benefits than other employees (Id.); (e) Defendant discriminated against Plaintiff through the assignment of work (Id.); and (f) Defendant failed to afford Plaintiff the same rights as Caucasian employees to make and enforce contracts. (Id. P 12.)

3. New York Human Rights Law

The New York Human Rights Law is comparable to Title VII. Perry v. Manocherian 675 F. Supp. 1417 (S.D.N.Y. 1987); Bradley v. AMTRAK 797 F. Supp.286 291 n.6 (S.D.N.Y. 1992) (citing Tyler v. Bethlehem Steel Corp. 958 F.2d 1176 1180 (2d Cir.) cert. denied 506 U.S. 826 121 L. Ed. 2d 46 113 S. Ct.82 (1992); Gibson v. American Broadcasting Cos. Inc. 892 F.2d 1128 (2d Cir.1989)). The elements of employment discrimination are similar to those under Title VII and courts have relied on Title VII case law and applied it to cases arising under the NYS Human Rights Law. Kremer v. Chemical Constr. Corp. 456 U.S. 461 479 72 L. Ed. 2d 262 102 S. Ct.1883 (1982); State Office of Mental Health v. State Div. of Human Rights 210 A.D.2d 686 619 N.Y.S.2d 874 876 (N.Y. App. Div. 3d Dep't.1994); Pace College v. Commission on Human Rts. 38 N.Y.2d 28 377 N.Y.S.2d 471 339 N.E.2d 880 (N.Y.1975).

In order to prevail in an employment discrimination action "a plaintiff must first prove by a preponderance of the evidence a prima facie case of discrimination. If he is successful the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the employee's rejection.'" Smith v. American Express Co. 853 F.2d 151 154 (2d Cir. 1988) (quoting McDonnell Douglas Corp. v. Green 411 U.S. 792 802 36 L. Ed. 2d 668 93 S. Ct.1817 (1973)); Mental Health 619 N.Y.S.2d at 876. If the defendant succeeds in establishing such a reason the plaintiff who retains the ultimate burden of persuasion must have "an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination." Texas Dep't of Community Affairs v. Burdine 450 U.S. 248 253 67 L. Ed. 2d 207 101 S. Ct. 1089 (1981); Mental Health 619 N.Y.S.2d at 876. As the non-moving party the plaintiff has the burden of coming forward with specific facts showing the existence of a genuine issue of fact for trial. Fed. R. Civ. P. 56(c).

a. Termination of Plaintiff

To establish a prima facie case of discriminatory termination the plaintiff must demonstrate that he was a member of a protected class that he was qualified for the position that he was discharged and that there is evidence of disparate treatment from which Court may infer that discrimination caused the discharge. Mental Health 619 N.Y.S.2d at 876; Sorlucco v. New York City Police Dep't 703 F. Supp.1092 1098 (S.D.N.Y. 1989) aff'd in part and rev'd in part on other grounds 888 F.2d 4 (2d Cir.1989). "Such cause can be inferred from documentation of satisfactory performance Meiri v. Dacon 759 F.2d 989 995 (2d Cir.1985 [sic]) cert. denied 474 U.S. 829 88 L. Ed. 2d 74 106 S. Ct.91 . . . (1985) or from evidence that the plaintiff was replaced by a person outside the protected class." Sorlucco 703 F. Supp. at 1098. Here the Plaintiff is an African-American which qualifies as a protected class under Title VII. McDonnell 411 U.S. at 1824. The Plaintiff was discharged. Hence Plaintiff easily meets at least two requirements for a prima facie case. However Plaintiff has failed to show any evidence of disparate treatment from which Court may infer that discrimination resulted in his termination. Plaintiff's deposition reads as follows: *fn13

Q. Mr. Leslie why do you believe that your termination was because of your race?

A. Well I feel my race had a lot to do with the termination because of previous happenings within the company.

Q. What were those previous happenings?

A. . . . the way the promotions were handled . . . and how duties were handled.

Q. Anything else?

A. No.

Q. . . . I am trying to find out what about promotions and positions given out caused you to believe you were terminated because of your race?

A. [A white worker was having problems and I believe they were trying to get him in a safe spot so they could] secure a position for him and get rid of me. . . . [The white employee Claude Sitbon was having problems including complaints from customers and my supervisors attempted to get us to switch shifts] . . . . [Roy Stoeckel the supervisor ] just asked me if I would like to work on Claude's shift.

Q. What did you say?

A. I told him yes I would. . . .

(Pl.'s Dep. at 55-58.)

Q. [Was there anything else that made you think you were terminated based on your race?]

A. Well I just feel I was discriminated because of how the whole situation was handled. Claude was promoted he is being promoted I think he is being pushed. He has worked for the company less time than I have and he has been promoted to a senior CE at a faster rate. . . . I don't think I said I was discharged because of my race but I had said I think I was discharged because of a false drug test that's the reason for being discharged not solely because of my race.

Q. Well was the false drug test manufactured because of your race?

A. Yes I feel that way.

Q. Why what causes you to believe that a false drug test was manufactured because of your race?

A. Because I was terminated for using drugs. I don't use drugs.

Q. Any other reason that you believe that was because of your race?

A. Well within the company I feel that they don't put blacks into - blacks don't get a chance to move into senior positions in terms of being managers. I don't see a lot of that happening in the company in terms of getting senior positions.

(Pl.'s Dep. at 63-65.)

Q. [Anything else?]

A. Well I get a feeling that -- I feel that BancTec prefers to have white people represent them or a white co-worker to be more representative of them.

(Pl.'s Dep. at 66.)

Q. Did Mr. Stoeckel say anything to you that indicated that he wanted you to move to a shift because of your race?

A. Because of my race no he didn't say that.

Q. Did he ever say anything to you that caused you to believe that he would want to fire you because you are black?

A. No.

Q. Did anyone in management ever say anything to you that indicated they wanted to fire you or mistreat you because of your race?

A. No.

(Pl.'s Dep. at 67-68.)

Q. . . . What information do you have that indicates that a false drug test was manufactured?

A. Well the only information is that I know I don't smoke so I don't know how it could come up with a positive drug test.

Q. Other than that do you have any other information?

A. No.

(Pl.'s Dep. at 81-82.)

Although not forcefully argued by the Plaintiff these are the only statements that could possibly support his claim that Defendant's reason for termination was based on race. *fn14 However Plaintiff's statements are simply conclusory allegations unsupported any where in the record. There is no evidence from which Court can draw an inference of discrimination. Plaintiff's statement are based on his feelings alone; and although they may be valid they are insufficient to satisfy the requirement under Fed. R. Civ. P. 56(e). Plaintiff has failed therefore to prove a prima facie case.

Furthermore assuming arguendo the Plaintiff had established a prima facie case *fn15 the Defendant argues Plaintiff was terminated pursuant to Defendant's Drug Policy because he tested positive for marijuana on a random drug test. The Second Circuit held that summary judgment in a Title VII case is warranted where the plaintiff can supply no evidence that his employer's justification was a pretext. Smith 853 F.2d at 154.

Plaintiff has failed to discount the Defendant's reason for firing him; he has failed to supply any evidence to support a finding that his employer's justification for terminating him is merely a pretext for discrimination. Plaintiff does not deny there was a drug test or that he was aware of the policy (Pl.'s Dep. at 12-13); instead Plaintiff alleges that a second confirmatory test was not done in accordance with the Defendant's policy. However the Plaintiff is mistaken because the second gas chromatography/mass spectrometry test did occur. (MacFarlane Aff. Attachment F; Mills Aff. P 8.) *fn16 Other than this allegation Plaintiff denies that he uses or used drugs that in the past he tested negative on a drug test and that there may have been problems with the way the test was conducted. (Pl.'s Dep. at 82; see Pl.'s Dep. at 32 ("Q. Is there any legitimate medical reason for you to fail the drug test that you know of? A. No no reason to fail the drug test.") However Plaintiff offers no evidence to support his contention. Again these allegations are insufficient to satisfy the requirement under Fed. R. Civ. P. 56(e). Furthermore as will be shown none of the following acts support Plaintiff's claim of discriminatory termination.

b. Defendant Harassed Plaintiff

Plaintiff claims that he was subject to harassment because he was forced to change work shifts. In his deposition testimony cited above he testified that he changed shifts with a white co-worker. Plaintiff took the night shift and was happy with the change. His co-worker took the day shift. His further deposition testimony is as follows:

Q. Mr. Leslie in the document that is called a complaint that was filed on your behalf it says that you were harassed to force you to change a work shift with a white employee. What did Mr. Stoeckel do that was harassment?

A. Well he didn't ask me to change. When I was asked again to change a shift this was like four months later[ ] to again change shift with Claude I was asked by Morris [Yukovich EIC] on several occasions. Claude would say to me when am I going to give up the shift on more than one occasion.

Q. Let me make sure I understand. Prior to Roy [Stoeckel] asking you to change a shift in about November of 1993 you had had other discussions with Claude and Morris about changing shifts?

A. No. After that because what happened is that Claude wanted to again change the shift. They wanted to put him back on to the 3:00 to 11:00 which I was now doing.

Q. Did you want to do that?

A. No. I told him no on several occasions. . . .

Q. What did Morris then do that you view as harassment?

A. Well they continued to ask me if I wanted to change shift even after I told them that I was comfortable I didn't want to change again.

Q. So you are saying that because Morris asked you more than once if you would be willing to change the shift you view that as harassment?

A. Well Claude was constantly badgering me about changing a shift.

Q. But Claude is not you supervisor?

A. Right.

Q. . . . How many times did Morris ask you?

A. Morris asked me about three times. . . .

Q. Other than asking you three times did Morris do anything else that was harassment or badgering? . . .

A. No.

(Pl.'s Dep. at 70-74.)

These facts do not support a racial harassment claim. As an act of discrimination nothing is forwarded to show any connection between racial discrimination and the requests to change shifts.

c. Whether Plaintiff Was Not Promoted Due to His Race

Plaintiff claims that he was discriminated against because he was not promoted like other employees. His testimony is as follows:

Q. Your complaint says that you weren't promoted to the extent and degree to which white employees are promoted. Other than senior CE what positions was there available to you to be promoted to?

A. EIC probably.

Q. . . . You said you were promoted approximately four years ago correct?

A. Yes.

Q. After that period what EIC position became available that you were qualified for?

A. EIC well I think there was only one at the time that came up.

Q. What EIC was that that you were qualified for?

A. Well the position that is now held by Morris [Yukovich].

Q. . . . What made you qualified over Morris to be the EIC?

A. I think I had knowledge of more equipment than him. . . . I had a longer length of service than he has.

Q. Anything else?

A. No.

(Pl.'s Dep. at 74-76.)

To state a claim for discrimination based on a discriminatory failure to promote the plaintiff must show that he is a part of a protected class that he applied for the job and was qualified that he was rejected and that the position remained open. Perry v. Manocherian 675 F. Supp.1417 1424 (S.D.N.Y. 1987) (citing Hudson v. IBM Corp. 620 F.2d 351 354 (2d Cir.) cert. denied 449 U.S. 1066 66 L. Ed. 2d 611 101 S. Ct. 794 (1980)).

Plaintiff was promoted from Customer Engineer to Senior Customer Engineer within one year of beginning his employment with Defendant. (MacFarlane Aff. P 42.) Claude Sitbon a white employee who was in a comparable position to Plaintiff was promoted three and one half years after beginning work with Defendant and more than two years after Plaintiff. (MacFarlane Aff. P 43.) Hence there is no discriminatory promotion claim with regard to the Plaintiff's promotion to senior CE.

Regarding the EIC or engineer-in-charge position Plaintiff does not even know when the position was available and obviously did not apply for it. (Pl.'s Dep. at 75.) Furthermore Plaintiff's supervisor Morris Yukovich who held the EIC position was hired in 1987 and was promoted to EIC before Plaintiff even began working for Defendant. (MacFarlane Aff. PP 45-47.) Yukovich was promoted in March 1989. (Id. P 46.) Once again Plaintiff has failed to satisfy the four prong test necessary to state a prima facie case of discriminatory promotion.

d. Whether Plaintiff's Salary Was a Result of Discrimination

Plaintiff also claims that the Defendant discriminated against him because it paid a similarly situated employees more than Plaintiff. His testimony is as follows:

Q. Who were the white employees that you were underpaid to?

A. Well I was told by certain employees how much they make. When I compare that to my salary it was off.

Q. Who told you what they made?

A. My co-worker Claude told me how much he had made.

Q. What did he tell you he made?

A. Well he told me he made over $40 000 for 1992 and 1993. . . .

Q. Anyone else?

A. I can't say someone that's told me their salary -- they would say who was making more than who the co-workers.

Q. Who were the white co-workers that said that they made more money than you that you were similarly situated to?

A. I was similarly situated to Claude.

Q. Anyone else?

A. No that I can think of for sure.

(Pl.'s Dep. at 76-78.)

Although Plaintiff believed that Claude Sitbon received more salary than he Plaintiff was mistaken. First Plaintiff's raises were comparable to that of Sitbon. (MacFarlane Aff. P 50 Attachment H.) Furthermore Plaintiff's salary was higher three of the four years in which they worked together. (Id. P 51.) Sitbon was hired in November 1989. (Id. P 43.) Plaintiff was hired in December 1989. *fn17 Plaintiff was promoted to Senior CE in 1990. (Id. P 42.) Sitbon was promoted in May 1993. (Id. P 43.) Plaintiff made more money that Sitbon until he was promoted. Plaintiff makes a valid argument that the fact that Plaintiff and Sitbon received almost the same salary although Plaintiff was a Senior CE and Sitbon was only a CE was discriminatory. However this in itself is not sufficient. Plaintiff does not come forward with any evidence of where the two employees began their salaries nor does he establish that the work they did was sufficiently different. Rather the record shows that they did the exact same work.

e. Whether Plaintiff was Discriminated Against in the Designation of Assignments

Plaintiff also claims the way in which Defendant delegated assignments discriminated against him. His testimony is as follows:

Q. Other than the switch from night shift or from day shift to night shift with Claude were you discriminated in any other way in terms of your assignments?

A. I would say yes.

Q. How is that?

A. . . . We are supposed to do what you call preventative maintenance PMs. When he was on that shift he didn't do any PMs and it was my opinion about it that he wasn't doing any PMs and nothing was done about that and I would say about a year later when I went to work on that shift I was told I had to do the PMs so I felt that was discriminatory. . . . [Also] I don't think I get as much overtime as other people did. . . . [Also I get less company training than others.]

(Pl.'s Dep at 78-81.)

As far as the switch of shifts Plaintiff agreed and was happy with his switch to the night shift. Although asked several times to move back to the day shift he did not do so nor was he forced to. Other than the conclusory allegations made during his deposition Plaintiff forwards no evidence to support his contention that others received more overtime or that he received an insufficient amount of training.

f. Whether Plaintiff's Rights to Make Contracts were Different From Those of White Employees

Plaintiff does not offer any evidence that explains what right he is claiming he was deprived of nor supports a derivation of any contract right.

III. CONCLUSION

Plaintiff's Motion to Remand is DENIED. Defendant's Motion for Summary Judgment is GRANTED.