OPINION AND ORDER

ROBERT P. PATTERSON, JR, U.S.D.J.

Defendants New York State Department of Civil Service, New York State Office of Mental Health ("OMH") and Nathan Kline Institute for Psychiatric Research ("NKI") ("Defendants") move for an order pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 56 granting summary judgment in favor of Defendants. Plaintiff pro se Bhupendra K. Shah ("Plaintiff") opposes the motion and, without notice of motion, requests that summary judgment be entered on his behalf. For the following reasons, Defendants' motion is granted and Plaintiffs request is denied.

BACKGROUND

I. Procedural History

On December 22, 1994, Plaintiff filed a complaint in this action, alleging employment discrimination and retaliation in violation of, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000) ("Title VII"). Defendant NKI is a research facility operated under the auspices of Defendant OMH. Plaintiff was employed by NKI as a research scientist from 1973 until 1983, when his employment was terminated as part of widespread layoffs.

Plaintiff filed the present action on December 22, 1994, alleging that Defendants, had engaged in a pattern of discrimination against him in hiring, promotion, layoffs, and reinstatement, spanning a period of more than twenty years. Plaintiffs Second Amended Complaint, filed March 2, 1995, also alleged that: (1) Plaintiffs 1983 termination resulted from NKI's "illegal activities" (Second Am. Compl. dated Feb. 10, 1994 ("Second Am. Compl.") ¶ 6.4); (2) OMH discriminated against him on the basis of race and national origin in rejecting his application for the position of Director of Quality Assurance ("DQA") in 1990 (id. ¶ 11); and (3) three refusals by NKI to hire Plaintiff between 1989 and 1994 were retaliatory (id. ¶¶ 8, 9).

In an Opinion and Order dated January 16, 1996 (the "January 1996 Opinion"), all of Plaintiffs allegations other than his claim pursuant to Title VII that OMH had discriminated against him on the basis of race and national origin in rejecting his application for DQA position were dismissed pursuant to Fed.R.Civ.P. 12(b)(6). See Shah v. N.Y. State Dep't of Civil Serv., No. 94 Civ. 9193 (RPP), 1996 WL 19021 (S.D.N.Y. Jan. 17, 1996). In an Opinion dated December 9, 1997, Defendants' motion for summary judgment was granted dismissing the remaining claim. See Shah v. N.Y. State Dep't of Civil Serv., No. 94 Civ. 9193 (RPP), 1997 WL 769565 (S.D.N.Y. Dec. 10, 1997). On January 9, 1998, Plaintiff filed a Notice of Appeal.

On appeal, the Second Circuit reversed this Court's January 1996 Opinion on the issue of dismissal of Plaintiffs claims of retaliation against NKI in the Second Amended Complaint ("Claims 8 and 9") only. See Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610 (2d Cir. 1999). The January 1996 Opinion had dismissed for lack of jurisdiction Plaintiffs claims 8 and 9 because Plaintiffs retaliation claims had not been presented to the New York State Division of. Human Rights ("DHR") and the Equal Employment Opportunity Commission ("EEOC") and the Court held that they were not reasonably related to the claims of discrimination in the complaint Plaintiff had filed on February 22, 1990, with the DHR/EEOC.See Shah, 1996 WL 19021, at *5-6. The Court of Appeals held that Plaintiffs allegations of retaliation based on denials of employment in 1991 and 1994 by NKI could be reasonably related to his allegations of employment discrimination in his 1990 administrative complaint to the DHR/EEOC. See Shah 168 F.3d at 614. The Court of Appeals otherwise affirmed this Court's judgment. Id. at 615.

On remand, discovery was reopened to provide Plaintiff with information and documents concerning NKI's employment practices and hiring during the 1991-1994 period. On November 9, 2000, Defendants moved with supporting affidavits and a memorandum of law for an order pursuant to Fed.R.Civ.P. 56 granting summary judgment. On December 7, 2000, Plaintiff filed a memorandum of law in opposition with supporting affidavit and exhibits. Without notice of motion, Plaintiff also requested that summary judgment be entered on his behalf. On December 21, 2000, Defendants filed a reply memorandum of law in support of the motion with supporting affidavits. By memorandum endorsement dated December 26, 2000, the Court granted Plaintiffs request to file a sur-reply in opposition to the motion, which Plaintiff filed with a supporting affidavit on January 4, 2001. By memorandum endorsement dated January 5, 2001, the Court granted Defendants' request to respond to a new allegation made by Plaintiff in his sur-reply, and Defendants filed an affidavit in response on January 12, 2001. On January 23, 2001, Plaintiff filed an affidavit in further opposition.

II. Facts

Plaintiff is a nonwhite male who was a research scientist with a civil service specialty in Biometrics at NKI for several months in 1973 and from 1974 until he was laid off from that position in 1983 as part of a massive layoff at the institute. (Defs.' Statement Pursuant to Local Civil Rule 56.1 ("Defs.' 56.1") ¶ 1.) Defendants New York State Department of Civil Service and OMB are New York State agencies. (Id. ¶ 2.) Defendant NKI is a research facility operated under the aegis of OMB. (Id. ¶ 3.) On February 22, 1990, Plaintiff filed a verified complaint with the New York State Division of Human Rights and Equal Employment Opportunity Commission ("DHR/EEOC") alleging that he was denied a position at NKI of Director of Quality Assurance ("DQA") on the basis of his national origin. (Id. ¶ 3; Aff. of Bhupendra K. Shah dated Nov. 29, 2000 (Shah Aff.") Ex. 3-A.) Plaintiff claims that Defendant NKI's non-hiring of him as a research scientist in the period of 1991 through 1994 constitutes retaliation in violation of Title VII for his filing of his 1990 complaint with the DHR/EEOC. Plaintiff claims that he is qualified for a position as a research scientist in the civil service specialties of Biometrics, Biostatistics and Epidemiology. (Defs.' 56.1 ¶ 9.) Plaintiff also claims he is qualified to work in the areas of computer science and nuclear medicine. (Rosenzweig Aff. Ex. F at 19.)

NKI's Manner of Hiring Research Scientists

In the early 1990s, NKI's manner of hiring research scientists was "non-competitive." (Aff. of Michael Kohn dated Nov. 7, 2000 ("Kohn Aff.") ¶ 6.) NKI did not hire to fill budgeted positions. Instead, a project leader or Division Chief would advise a "search committee" of the need to hire a research professional possessing certain attributes when a project or research study so required. (Id. ¶ 3.) The search committee was comprised of NKI Division Chiefs and other specialists. (Id. ¶ 2.) On many occasions, the person making the request would have a specific scientist or researcher in mind, based upon familiarity with that candidate's record of accomplishment in the specific area of interest. (Id. ¶ 3.) A justification for hiring, called a "Request to Fill" ("RTF"), which included a synopsis of the project and the proposed hire's responsibilities, would be submitted to OMH and the New York State Division of the Budget. (Id. ¶ 4.) The recommendation of a specific scientist by the project leader and/or the Division Chief was given great deference. (Id. ¶ 6.) Once a decision to pursue an individual was made, Dr. Robert Cancro, the director of NKI, would be advised, and if he approved, that individual would be contacted. (Id.) When no candidate was suggested, an advertisement in a peer journal would be used to recruit candidates. (Id. ¶ 7.)

Upon his or her hiring at NKI, every research scientist was required to designate a civil service specialty which most closely, approximated the type of research he or she was to do. (Aff. of Sylvia Portnoy dated Nov. 7, 2000 ("Portnoy Aff.") ¶ 4.) During the 1991-1994 period, specialty designations were initially arrived at by a joint decision of the scientist and his or her Division Chief from the list of Office Of Mental Health Approved Specialties. (Aff. of Robert J. Allen dated Jan. 11, 2001 ("Allen Aff.") ¶ 5.) The Office of Mental Health's list of Approved Specialties was determined by the New York Department of Civil Service. (Portnoy Aff. ¶ 4 and Ex. A.) Each fall, a scientist was required to review his or her civil service specialty designation, and if he or she believed his or her field of research had changed, a new specialty designation from the approved list had to be requested by the scientist. (Id.) This request had to be countersigned by the researcher's Division Chief and then was considered for approval by a Peer Review Committee. (Id.)

NKI's Hiring (1991-1994)

In 1991, NKI did not hire any research scientists. (Id. ¶ 5.) However, on March 29, 1991, Dr. Virginia Hannon, whose title was Principal Research Scientist-Psychology, retired from NKI. (Aff. of Sylvia Portnoy dated Dec. 20, 2000 ("Portnoy Reply Aff.") ¶ 5.) Dr. Hannon retired pursuant to a retirement incentive, after which Dr. Hannon's position was abolished. (Id.) Early retirement was offered as part of a state plan to reduce the workforce through early retirement incentives and Dr. Hannon's job was abolished so that NKI would enjoy a budgetary reduction. (Aff. of Dr. Robert Cancro dated Dec. 18, 2000 ("Cancro Aff.") ¶ 5; see also Portnoy Reply Aff. ¶ 5.) In 1992, NKI hired two research scientists, neither of whom had a civil service specialty of Plaintiffs claimed specialties of Biometrics, Biostatistics, or Epidemiology. (Defs' 56.1 ¶ 6.)

In 1993, NKI hired four research scientist, one of whom, Dr. Jose(Vitrai, identified his civil service specialty as Biometrics. (Id. ¶ 7.) Dr. Vitrai was specifically recruited to participate in a research protocol at NKI. (Kohn Aff. ¶ 9.) Dr. Vitrai is an experienced scientist with a record of accomplishments in the field of electroencephalography. (Defs.' 56.1 ¶ 10.) The justification for hiring Dr. Vitrai, as described in the "Request to Fill" which included a synopsis of the project and Dr. Vitrai's responsibilities, stated that the position was for an experienced data management expert and statistician who had a background in research concerning violence, psychopharmacology and treatment refusal. (Id. ¶ 13.) None of the other scientists hired in 1993 identified their civil service specialty as Biometrics, Biostatistics or Epidemiology. (Defs.' 56.1 ¶ 7.)

In 1994, NKI hired twenty-one research scientists, one of whom, Dr. Dave O'Neill, identified his civil service specialty as Epidemiology. (Id. ¶ 8.) Dr. O'Neill obtained his position at NKI by responding to an advertisement in the April 1994 edition of Job Openings for Economists, a publication of the American Economic Association, for an opening at NKI for a Ph.D. level health economist with a strong econometric background. (Id. ¶¶ 11, 14.) Dr. O'Neill was hired on October 3, 1994. (Aff. of Bhupendra K. Shah dated Jan. 11, 2001 ("Shah 1/11/01 Aff."), Ex. 35.) The civil service list of Approved Specialties does not include a designation for "economist" or "health economist." (See Portnoy Aff. Ex.A.)

Also in 1994, NKI hired Mr. Douglas Malyszek, a research scientist who identified his civil service specialty as Biophysics. (Rosenzweig Reply Aff. Ex. B.) Mr. Malyszek was recruited by Joseph Helpern, Chief of the Division of Medical Physics and Director for the Center for Advanced Brain Imaging at NKI, who was familiar with Mr. Malyszek's experience. (Aff. of Joseph A. Helpern dated Dec. 20, 2000 ("Helpern Aff.") ¶¶ 1, 4, 6.) Mr. Malyszek was hired to assist in installing three Magnetic Resonance Imaging ("MRI") units, two of which were experimental and had never been utilized before. (Id. ¶¶ 3-4.) Mr. Malyszek had technical experience in installing developmental research MRI units as well as expertise in research computing systems which allowed NKI to successfully install its units. (Id. ¶ 5.)

Plaintiff did not apply for the specific positions filled by Drs. Vitrai and O'Neill. (Defs.' 56.1 ¶ 12.) However, in a letter dated July 19, 1993, Plaintiff did request consideration for a position in the Imaging Technology unit at NKI. (Shah Aff. Ex. 13.) In a response by letter dated December 17, 1993, Dr. Cancro wrote that "I have reviewed your qualifications and feel that other candidates better meet our needs for this new and highly-specialized research" in the Brain Imagining Unit at NKI. (Shah Aff. Ex. 14.) Plaintiff also claims that on or about July 25, 1994, Plaintiff asked Dr. Cancro to rehire him in any vacant position at NKI. (Second Am. Compl. ¶ 10). Plaintiff alleges in his Second Amended Complaint that Dr. Cancro responded to his request that NKI rehire him in any vacant position by informing Plaintiff that "while we received three positions we lost two positions for a net gain of one." (Id.) Plaintiff also states that Dr. Cancro clarified his statement on September 19, 1994, stating that the one position was "dedicated to a senior research psychiatrist (M.D.) with experience in rehabilitation." (Id.)

When Plaintiff was at NKI, which was his only employment in a mental health setting, his position involved statistics and the development of statistical methods. (Defs.' 56.1 ¶ 16.) Plaintiffs resume indicates that he possesses a Ph.D. from Yale University in statistics. (Shah Aff. Ex. 23.) While employed at NKI, Plaintiff "consult[ed] and collaborate[d] closely with many other elements at the Research Center in such areas as computer analysis of EEG, serum levels, and pharmacokinetics." (Id. Ex. 21.) Plaintiff has been retained by the New York Institute for Medical Research as a part-time consultant for analysis of electroencephalography data. (Pl.'s 56.1 Statement ("Pl.'s 56.1") ¶ 8, Shah Aff. Ex. 22.) Defendants assert, and Plaintiff denies, that there is nothing in Plaintiffs resume to indicate that he possessed the credentials, training or experience required for the positions of Dr. Vitrai, Dr. O'Neill or Mr. Malyszek. (Defs.' 56.1 ¶ 15.) Plaintiff asserts that his education, experience and training support that he was qualified for research scientist positions in Biometrics, Biophysics, and Epidemiology. (Pl.'s 56.1 ¶ 10.)

DISCUSSION

I. Standard for Summary Judgment

Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he plain language of Rule 56 (c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails make a showing sufficient to establish 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 (1986). "[T]he burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). "[A]ll ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought."Id. "[T]he moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case." Id. at 1223-24. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Id. at 1224.

II. Application

Defendants move for an order pursuant to Fed.R.Civ.P. 56 granting summary judgment. Plaintiff opposes the motion and requests that summary judgment be entered on his behalf. Plaintiff claims that Defendant NKI's non-hiring of him in the period of 1991 through 1994 constitutes retaliation in violation of Title VII for his filing of the 1990 complaint with the DHR/EEOC. Specifically, Plaintiff alleges that in 1991, when NKI was filling several positions,

it did so without advertising or announcing the openings; that NKI used word-of-mouth solicitation of applicants in order to avoid receiving applications from qualified minority candidates; that one of those positions was given to a person whose specialty was similar to Plaintiffs; and that the avoidance of Plaintiff was "a retaliatory act." (Second Am. Compl. ¶ 9.) Plaintiff further alleges that NKI received funding for several new positions for the fiscal, year 1994-95, and that Plaintiff asked NKI to hire him for any vacant position, but that NKI proceeded to misrepresent to Plaintiff the number of new positions it had received, that it misdescribed the qualifications needed for any position it would fill, and that its refusal to rehire him was retaliatory. (Id. ¶¶ 9-10.) Plaintiff contends that there were four positions for which he was qualified, which are a position formerly held by Dr. Virginia Hannon which was eliminated upon her retirement in 1991, and the positions held by Drs. Vitrai and O'Neill and by Mr.

Douglas Malyszek.

Section 704(a) of Title VII provides in pertinent part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . ., because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

To establish a prima facie case of retaliation under Title VII, a plaintiff must show that:

"'(1) [he] was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiffs participation in the protected activity; (3) the employer took adverse action against plaintiff; and (4) a causal connection existed between the plaintiffs protected activity and the adverse action taken by the employer.'" Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001) (quoting Gordon v. New York City Bd. of Educ. 232 F.3d 111, 116 (2d Cir. 2000)). For retaliation claims arising in the failure-to-hire context, the Ninth Circuit Court of Appeals has held that the adverse action element "requires a plaintiff to show that the position for which she applied was eliminated or not available to her because of her protected activities." Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir. 1986). The "'adverse employment decision' is the closing of the job opening to [plaintiff] and the loss of opportunity even to compete for the position." Id. Thus "in the failure-to-hire context involving a claim of retaliation, the plaintiff meets her prima facie burden by showing that 1) she engaged in protected activities, 2) the position was eliminated as to her, and 3) the position was eliminated as to her because of the protected activities." Id.

"Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action. Raniola, 243 F.3d at 625 (citing Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)). Once the defendant articulates a legitimate nondiscriminatory reason for the alleged retaliation, the burden returns to the plaintiff to establish, through either direct or circumstantial evidence, that the employer's action was, in fact, motivated by discriminatory retaliation.Id. A plaintiff may establish a Title VII violation even when a retaliatory motive is not the sole cause of the adverse employment action. Id. Retaliatory motive must be, however, at least a "substantial" or "motivating" factor behind the adverse action. Id. (citations omitted). A plaintiff may prove that retaliation was a "substantial" or "motivating" factor behind an adverse employment action either: "'(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by defendant.'" Id. (quoting Gordon, 232 F.3d at 117).

A. Plaintiffs Prima Facie Case

With regard to the first two elements of the prima facie case, it is clear that Plaintiff engaged in protected activity by filing a complaint on February 22, 1990, with the DHR/EEOC. (Shah Aff. Ex. 3-A.) Additionally, NKI has previously conceded that it was aware of Plaintiffs administrative complaint against itself and OMH charging a violation of Title VII. See Shah, 168 F.3d at 614. Accordingly, Plaintiff has established the first two elements of the prima facie case.

As to the third and forth elements, however, Defendants argue that Planitff has failed to establish a prima facie case of retaliation under Title VII because: (1) no research scientist was hired by NKI in 1991; (2) Plaintiff cannot demonstrate that NKI's failure to hire him in 1994 was retaliatory because there was too long a lapse in time between the 1990 complaint and 1994; (3) Plaintiff does not claim that he applied for the jobs that were filled by Drs. Vitrai or O'Neill; and (4) Plaintiff cannot show that he was qualified to perform the duties required for the positions he claims he could have filled. Thus Defendants contend that Plaintiff has not shown an adverse employment action or causation. In response, Plaintiff contends that he has shown both adverse employment action and causation.

1. Alleged Retaliation in 1991

Plaintiff claims that in 1991, when NKI was filling several positions, it did so without advertising or announcing the openings; that NKI used word-of-mouth solicitation of applicants in order to avoid receiving applications from qualified minority candidates; that one of those positions was given to a person whose specialty was similar to Plaintiffs; and that the avoidance of Plaintiff was "a retaliatory act." (Second Am. Compl. ¶ 9.) With respect to Plaintiffs claim that NKI filled positions without advertising or announcing the openings, Defendants do not deny that NKI's hiring in the early 1990s was primarily "non-competitive" (Kohn Aff. ¶ 6), although the position filled by Dr. O'Neill was advertised in April 1994 (Defs.' 56.1 ¶ 14). Defendants assert, however, and Plaintiff does not deny, that contrary to Plaintiffs allegation, no research scientists were hired by NKI in 1991 Plaintiff claims that the elimination of the position formerly held by Dr. Hannon upon her retirement in 1991 was a retaliatory act. Because Dr. Hannon's position was abolished, Plaintiff did not have an opportunity to compete for the position and it was therefore closed to him. Accordingly, the elimination of Dr. Hannon's position will be considered adverse employment action for the purposes of this summary judgment motion.

2. Alleged Retaliation in 1994

Plaintiff also alleges that NKI received funding for several new positions for the fiscal year 1994-95, and that Plaintiff asked NKI to hire him for any vacant position, but that NKI proceeded to misrepresent to Plaintiff the number of new positions it had received, that it misdescribed the qualifications needed for any position it would fill, and that its refusal to rehire him was retaliatory. (Second Am. Compl. ¶ 10.) In view of the long history of litigation in this case in which Plaintiff has sought reinstatement or rehiring at NKI (see note, supra, at 2), there is enough evidence in the record for a jury to find that Defendants were on notice that Plaintiff wished to be considered for any position at NKI for which he was qualified. Accordingly, resolving all ambiguities and drawing all inferences in favor of Plaintiff, the failure to rehire Plaintiff to the positions held by Dr. Vitrai, Dr. O'Neill, and Mr. Malyszek will be considered adverse employment actions for the purposes of this summary judgment motion.

3. Adequate Qualifications

Defendants contend that Plaintiff has not shown that he is adequately qualified for the positions at NKI for which he claims discriminatory retaliation. "[A]dequate qualification for the job on the part of the complaining employee . . ., would seem to be almost indispensable to a Title VII violation." Williams v. Boorstin, 663 F.2d 109, 116 (D.C. Cir. 1980) ("Title VII imports no suggestion that the less qualified shall be favored over the more qualified simply by virtue of their connection with some protected antidiscrimination activity.").

Dr. Hannon

With respect to the position formerly held by Dr. Hannon, Plaintiff has not submitted any evidence that he is qualified for a position with the Principal Research Scientist-Psychology. Accordingly, Plaintiff has not established that he is adequately qualified for the position held by Dr. Hannon at the time the position was eliminated.

Dr. Vitrai

With respect to the position held by Dr. Vitrai, the Request to Fill ("RTF") for that position states that "[a]s a data management expert and statistician, Dr. Vitrai serves as a full member of several clinical research teams exploring violence, psychopharmacology and treatment refusal. . . ." (Kohn Aff. Ex. D.) The RTF also states that "[a]s a clinical electrophysiologist, Dr. Vitrai develops his own independent projects in the area of EEG and evoked potentials." (Id.) Plaintiffs resume indicates that he possesses a Ph.D. from Yale University in statistics. (Shah Aff. Ex. 23.) While employed at NKI, Plaintiff "consult[ed] and collaborate[d] closely with many other elements at the Research Center in such area, as computer analysis of EEG, serum levels, and pharmacokinetics." (Shah Aff. Ex. 21.) However, Plaintiffs resume does not indicate that he is a clinical electrophysiologist. Although Plaintiff is a statistician, Plaintiff has not shown that he is adequately qualified for the position because he has not offered evidence to show that he is a clinical electrophysiologist.

Dr. O'Neill

The advertisement for the position held by O'Neill, which was published in the April 1994 edition of Job Openings for Economists, was for a Ph.D. level health economist with a strong econometric background. (Defs.' 56.1 ¶ 14.) After he was hired, Dr. O'Neill identified the civil service specialty that "most closely approximated" his area of research as Epidemiology. (Portnoy Aff. ¶ 4.) The Office of Mental Health's list of Approved Specialties does not contain a listing for economist or health economist. (Id.; see also Portnoy Aff. Ex. A.) Plaintiff claims he qualified for positions in the civil service specialty of Epidemiology. However, while Plaintiff possesses a Ph.D. in statistics from Yale University, he has offered no evidence that he possesses a Ph.D. in economics, which was required for the position. Therefore, Plaintiff has not shown that he possesses adequate qualifications for the position of a health economist with the civil service specialty of Epidemiology.

Mr. Malyszek

With regard to the, position held by Mr. Malyszek, Plaintiff argues that Dr. Cancro's December 17, 1993, letter stating that "I have reviewed your qualifications and feel that other candidates better meet our needs for this new and highly-specialized research" in the Brain Imagining Unit at NKI, is an admission that, Plaintiff was qualified for a position as a research scientist in nuclear medicine. (Shah Aff. Ex. 14.) Dr. Cancro asserts that the letter is not a comment on Plaintiffs qualifications for such a position, however. (Cancro Aff. ¶ 6.) In any case, the Request to Fill ("RTF") for the position held by Mr. Malyszek states that "[t]he incumbent of this position will have a minimum of five years experience in the operation of Magnetic Resonance Imaging (MRI) and Magnetic Resonance Spectroscopy (MRS). . . ." (Portnoy Reply Aff. Ex. B.) Plaintiff has not introduced any evidence that he possesses experience in the operation of MRI or MRS. Accordingly, Plaintiff has not established that he possessed adequate qualifications for the position held by Mr. Malyszek.

4. Causation

Defendants also contend that due to the length of time between Plaintiffs 1990 complaint to the DHR/EEOC and the 1994 hiring of Dr. David O'Neill, Plaintiff cannot show causation. While "[t]he plaintiffs burden at the beginning of the case is a light one, usually demanding only that the protected activity preceded the adverse action in order to satisfy the causation requirement, " with respect to proving causation, however, there must be sufficient proximity of the protected activity to the alleged adverse action. Raniola, 243 F.3d at 624 (citing Grant, 622 F.2d at 46). The Second Circuit has held that "[t]he causal connection needed for proof of a retaliation claim 'can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.'" Cifra v. Gen. Elec. Co. 252 F.3d 205, 217 (2d Cir. 2001) (citing Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996) and quoting Manoharan v. Columbia Univ. Coll. of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)). In Cifra, the plaintiff was fired twenty days after the defendant learned that the plaintiff. had hired an attorney to pursue her claim of gender discrimination and just three days after the plaintiffs attorney had written a letter to the defendant discussing the plaintiffs complaint of gender discrimination.Id. at 217. The Second Circuit reversed the district court's grant of summary judgment for defendant, finding that the facts on causation were sufficient to complete the plaintff's prima facie case. Id. at 217-18. In Reed the requisite connection "was shown . . . by, among other things, evidence that the time between the plaintiffs initial complaint and her discharge was a mere twelve days." Reed. 95 F.3d at 1178 (upholding findings in favor of the plaintiff). In Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998), the Second Circuit held that it was error to grant summary judgment dismissing the plaintiffs retaliation claim for lack of evidence of a causal connection where her "discharge came less than two months after she filed a complaint with [defendant's] management and just ten days after she filed a complaint with the [state division of human rights]."

The Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action." Gorman-Bakos v. Cornell Coop Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001). In Gorman-Bakos, the Second Circuit held that five months was not too long to support an allegation of causal connection in a claim of retaliation and accordingly reversed the district court's grant of summary judgment. Id. at 555. However, the passage of three months has been held by the Second Circuit to be too long to suggest a causal relationship between a complaint and the failure to provide good recommendation. See Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990). One year has been found by a district court to be too long to show causal connection between the filing of an EEOC complaint and termination. Castro v. Local 1199, Nat'l Health Human Servs. Employees Union, 964 F. Supp. 719, 728 (S.D.N.Y. 1997). A period of threeHenderson, No. 98 Civ. 2086 (MGC), 2000 WL 178859, at *4 (S.D.N.Y. Feb. 15, 2000) (noting that "[i]t is not reasonable to infer that three years after plaintiff made an EEO complaint against persons at a different postal station, two supervisors chose to issue a Letter of Warning to punish plaintiff for that complaint").

Here, none of the alleged retaliations closely followed Plaintiffs complaint to the DHR/EEOC alleging discrimination. Plaintiffs complaint to the DHR/EEOC was dated February 22, 1990. More than one year elapsed between Plaintiffs complaint and the elimination of Dr. Harmon's position upon her retirement in March 1991. Almost three years elapsed between Plaintiffs complaint to the DHR/EEOC and the hiring of Dr. Vitrai in or after January 1993. More than four years elapsed between Plaintiffs complaint and the hiring of both Dr. O'Neill and Mr. Malyszek in the fall of 1994. Thus the shortest interval between Plaintiffs protected activity and an alleged act of retaliation was more than one year, and the other alleged acts of retaliation occurred three and four years after Plaintiffs protected activity. Since none of the alleged acts of retaliation closely followed Plaintiffs protected activity, it is not reasonable to infer causation.

In sum, Plaintiff has failed to establish two of the essential elements of a prima facie case of retaliation in violation of Title VII for each of the positions for which he claims discriminatory retaliation. Specifically, Plaintiff has failed to establish both adequate qualifications and causation with respect to all four of the positions for which he alleges retaliation. Accordingly, Plaintiff has failed to establish a prima facie case of employment retaliation in violation of Title VII.

B. Defendants' Nondiscriminatory Reasons

Defendants also argue that, even assuming Plaintiff could establish a prima facie case of employment retaliation, Plaintiff cannot satisfy the remaining elements of his claim, since Plaintiff cannot prove that Defendants' proffered legitimate non-discriminatory reasons for their actions are pretextual. Defendants' proffered non-discriminatory reasons not hiring Plaintiff for the relevant positions are that the research scientists who were hired were more qualified than Plaintiff in that they possessed skills which Plaintiff did not and which were required for those positions.

To that end, Defendants note that Dr. Vitrai had a record of accomplishments in the field of electroencephalography. (Kohn Aff. ¶¶ 8-9.) Dr. Vitrai's resume reveals that he has published several articles on the subject of electroencephalography. (Id. Ex. C.) Dr. O'Neill possessed the required Ph.D. in economics and had experience as a senior level member of a health research policy group. (Portnoy Aff. ¶ 8.) Mr. Malyszek had experience with the developmental Magnetic Resonance Imaging System which he was to assist in installing. (Helpern Aff. ¶¶ 2-5.)

Once the defendant articulates a legitimate nondiscriminatory reason for the alleged retaliation, the burden returns to the plaintiff to establish, through either direct or circumstantial evidence, that the employer's action was, in fact, motivated by discriminatory retaliation.Raniola, 243 F.3d at 625. The Supreme Court has noted that a plaintiff "might seek to demonstrate that respondent's claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position." Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989).

Here, Plaintiff has not offered any evidence demonstrating that he was more qualified than those candidates actually hired by NKI. Plaintiff has not established that he is either adequately qualified or more qualified than Dr. Vitrai. Dr. Vitrai earned a Ph.D. in biometrics from a university in Budapest. (Kohn Aff. Ex. C.) Dr. Vitrai has published several articles on the subject of electroencephalography. (Id.) Additionally, from 1988 through 1990 Dr. Vitrai was the deputy head of an EEG laboratory at Semmelweis Medical Uiversity in Budapest. (Id.) Plaintiffs experience in electroencephalography is that he has been retained by the New York Institute for Medical Research as a part-time consultant for analysis of electroencephalography data. (Pl.'s 56.1 ¶ 8; Shah Aff. Ex. 22.) While at NKI, Plaintiff also consulted with other employees on computer analysis of EEG. (Shah Aff. Ex. 21.) However, this evidence does not show that Plaintiff was more qualified than Dr. Vitrai. Accordingly, Plaintiff has not introduced evidence to show that he was more qualified than Dr. Vitrai for a position described in part as for a clinical electrophysiologist.

With respect to the position held by Dr. O'Neill, Plaintiff has not established that he is adequately qualified for that position since Plaintiffs resume indicates that he does not have a Ph.D. in economics, as does Dr. O'Neill. (Rosenzweig Aff. Ex. D.) Moreover, Plaintiff does not possess experience directing studies in the areas of health policy, labor economics, or education, as does Dr. O'Neill, nor was he a senior member of a health research policy group, as was Dr. O'Neill. (Kohn Aff. Ex. B.) Accordingly, Plaintiff has not introduced evidence to show that he is more qualified than Dr. O'Neill for a position that was advertised as for a Ph.D. level health economist with a strong econometric background.

With respect to the position held by Mr. Malyszek, Plaintiffs resume indicates that he has "evaluated [the] efficacy of a Nuclear measuring bone density of lumbar vertebrae." (Rosenzweig Aff. Ex. D.) However, Plaintiffs resume does not indicate that he has experience installing developmental research Magnetic Resonance Imaging systems as does Mr. Malyszek. (Id.) Accordingly, Plaintiff has not introduced evidence to show that he is more qualified than Mr. Malyszek for a position that required experience with MRI. In sum, Plaintiff has not offered any evidence that he was more qualified than the candidates who were in fact hired at NKI for the positions for which Plaintiff claims retaliation.

With respect to the elimination of the position held by Dr. Hannon, Defendants assert that their legitimate nondiscriminatory reason for the elimination of Dr. Hannon's job is that the position was abolished as part of a state plan to reduce the workforce through early retirement incentives. (Cancro Aff. ¶ 5.) Defendants state that once Dr. Hannon retired in March 1991, there was no budget item or position to fill because the position was abolished so that the facility would enjoy a budgetary reduction. (Id.; See also Portnoy Reply Aff. ¶ 5.) In fact, no research scientists were hired by NKI in 1991. (Defs.' 56.1 ¶ 5.) Plaintiff has not offered any evidence to the contrary. Accordingly, Plaintiff has not offered any evidence to demonstrate that the elimination of Dr. Hannon's position was pretextual.

With respect to direct evidence of retaliatory intent or animus, in his Second Amended Complaint, Plaintiff claims that he had a conversation with Defendants' attorney sometime between March 1992 and December 1992, and that during that conversation Defendants' attorney "accidentally revealed that defendant NKI has refused to rehire you." (Second Am. Compl. ¶ 10.) Although Plaintiff concedes that this statement was "concerning his [prior] civil rights action No. 92 Civ 898 (GLG)," which alleged discrimination by OMH in refusing to hire him for the Director of Quality Assurance position, Plaintiff contends that this statement reveals evidence of discrimination and retaliation against Plaintiff. (Id.) However, NKI did not hire any research scientists in 1991 and hired no research scientists in any specialty designation for which Plaintiff claims he is qualified prior to the statement by Defendants' counsel in 1992. More importantly, Defendants' counsel's statement does not reveal any retaliatory or discriminatory intent.

Additionally, Plaintiff claims that on September 19, 1994, Dr. Cancro misdescribed the qualifications required to be hired at NKI, stating that the only position available was "dedicated to a senior research psychiatrist (M.D.) with experience in rehabilitation." (Second Am. Compl. ¶ 10.) The Request to Fill ("RTF") for Mr. Malyszek was dated September 22, 1994, three days after Dr. Cancro's statement. Mr. Malyszek does not possess a medical degree, nor does he appear have experience in rehabilitation. Rather, Mr. Malyszek is a research scientist with the civil service specialty of Biophysics who has technical experience in installing developmental research Magnetic Resonance Imaging units and expertise in research computing systems. Presumably, Plaintiff alleges that Dr. Cancro's misdescribing the required qualifications for this position shows discriminatory intent. Even if Dr. Cancro misdescribed the position for which Mr. Malyszek was hired, however, Plaintiff does not possess adequate qualifications to perform the duties of either position, since he is neither a medical doctor nor is he experienced with the installation of developmental research MRI units. Accordingly, Plaintiff has failed to establish pretext.

"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., 477 U.S. at 322. The Second Circuit has held that summary judgment on a plaintiffs claim of discriminatory denial of promotions is proper where plaintiff failed to put forth any evidence to suggest that the defendant's articulated non-discriminatory reasons that there were mope qualified candidates were pretextual. Holt v. KMI-Continental, Inc., 95 F.3d 123, 129-30 (2d Cir. 1996). Here, Plaintiff has not proven causation or that he possessed adequate qualifications for the positions for which he claims retaliation. Accordingly, Plaintiff has not established a prima facie case of retaliation under Title VII, upon which he will bear the burden of proof at trial. Even if Plaintiff were to establish a prima facie case of retaliation, Plaintiff has failed to put forth any evidence to show that Defendants' articulated legitimate non-discriminatory I that the candidates were hired at NKI were more qualified than Plaintiff were pretextual or that the elimination of Dr. Hannon' s position was pretextual. Likewise, Plaintiff has failed to introduce direct evidence sufficient to show retaliatory animus or intent. Since Plaintiff has failed to establish the essential. elements of a prima facie case of retaliation and has not introduced sufficient evidence to establish pretext, Defendants' motion for an order pursuant to Fed.R.Civ.P. 56 granting summary judgment in favor of Defendants is granted. Plaintiffs request that summary judgment be entered on his behalf is denied.

CONCLUSION

For the foregoing reasons, Defendants' motion for an order pursuant to Fed.R.Civ.P. 56 granting summary judgment m favor of Defendants is granted. Plaintiffs request that summary judgment be entered on his behalf is denied.

IT IS SO ORDERED.