Begovic v. Water Pik 04-CV-447-SM 04/06/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Rusmir Begovic, Plaintiff

v. Civil No. 04-CV-447-SM Opinion No.

Water Pik Technologies, Inc., Defendant

_________________________________ O R D E R

Rusmir Begovic brings this discrimination suit against Water

Pik Technologies, Inc. ("Water Pik" or "the company"), claiming

he was subjected to disparate treatment in violation of 42 U.S.C.

§ 2000e-2(a)(1) (Counts I, II, and III). He also asserts a claim

of retaliation by the defendant in violation of 42 U.S.C.

§ 2000e-3 (Count IV), along with two related state claims.

Defendant now moves for summary judgment, and plaintiff

moves for partial summary judgment (Count IV). For the reasons

set forth below, defendant's motion for summary judgment is

granted and plaintiff's motion is denied. STANDARD OF REVIEW

Summary judgment is appropriate when the record demonstrates

"that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

F e d . R. C i v . P. 56(c). In considering a motion for summary

judgment, the court must view the record "in the light most

hospitable" to the nonmoving party. Euromodas, Inc. v. Zanella,

Ltd.,

(1st Cir. 2004) (citing Houlton Citizens'

Coalition v. Town of Houlton,

(1st Cir. 1999);

Garside v. Osco Drug, Inc.,

(1st Cir. 1990)). An

issue is " ’ 'genuine' if the parties' positions on the issue are

supported by conflicting evidence." Int'l Ass'n of Machinists &

Aerospace Workers v. Winship Green Nursing Ctr.,

(1st Cir. 1996) (citing Anderson v. Liberty Lobby, Inc.,

(1986)). An issue is " ’ 'material' if it potentially

affects the outcome of the suit." Id. at 199-200.

In support of its summary judgment motion, the moving party

must "identify[] those portions of [the record] which . . .

demonstrate the absence of a genuine issue of a material fact."

Celotex Corp. v. Catrett,

(1986). If the

2 moving party successfully demonstrates the lack of a genuine

issue of material fact, "the burden shifts to the nonmoving party

. . . to demonstrate that a trier of fact reasonably could find

in [its] favor." DeNovellis v. Shalala,

(1st

Cir. 1997) (citing Celotex,

) . Once the burden

shifts, the nonmoving party "may not rest upon mere allegations

or denials of his [or her] pleading, but must set forth specific

facts showing that there is a genuine issue for trial."

Anderson,

.

BACKGROUND

The facts, set forth in the light most favorable to Begovic

are as follows. Begovic "was born in the former Yugoslavia, and

immigrated to the United States of America in 1993." (Compl.

5 6.) Around October of 1993, Begovic was hired by Teledyne

Laars, a corporate predecessor to Water Pik, as a CNC Machinist.

(Compl. 5 4.) He was primarily responsible for "making manifolds

for commercial boilers." (Compl. 5 4.) Begovic's position did

not reguire that he supervise other employees. (Def.'s Mot.

Summ. J., Tab 2 (Farrell Aff.) 5 5.)

3 In December 2001, Water Pik posted a job announcement for a

"Production Supervisor." (Farrell Aff., Ex. A.) The person

selected for the position was expected to "supervise

approximately 45 employees," and accordingly, the announcement

sought candidates with "experience in supervising not only the

manufacturing process, but also in supervising the employees."

(Farrell Aff. 5 3.) Begovic applied for the position along with

three other employees, all of whom were interviewed by Water Pik

personnel. (Farrell Aff. 5 4.) Because none of the four in-

house applicants, including Begovic, were found gualified. Water

Pik hired someone from outside the company, Steve Bailey, to fill

the position. (Farrell Aff. 55 6-8.)

Begovic learned that he was not selected for the position

when he received a memorandum dated January 2, 2002, noting that,

in order to become a production supervisor, he must "develop

[his] interviewing skills" and "be able to provide examples of

resume knowledge." (Farrell Aff., Ex. B.)

Several months later, another opening, this time for a

"Pennant Production Lead," became available. (Farrell Aff. 5 9.)

4 Begovic applied for that position but was again turned down,

because the company "did not consider him to be a person likely

to communicate well with others." (Farrell Aff. 5 10.) The

company reached that conclusion, in part, because Begovic "had

been disciplined for 'inappropriate behavior towards another'

employee." (Farrell Aff. 5 10.) The position was filled by

another Water Pik employee who demonstrated "strong communication

and teamwork skills." (Farrell Aff. 5 11.) Begovic was notified

of the company's decision, in writing, on April 16, 2003.

(Farrell Aff., Ex. D.)

In addition to his attempts at professional advancement

within Water Pik, Begovic participated in the company's tuition

reimbursement plan. (Def.'s Mot. Summ. J., Tab 3 (Hope-Reese

Aff.) 5 8.) That plan allowed employees of Water Pik to "enhance

and sharpen skills that each employee brings to his or her job."

(Hope-Reese Aff., Ex. H.) The company reguired that "the subject

of the class or program of study . . . be directly related to the

employee's current position or to future positions in the

company." (Hope-Reese Aff. 5 9.)

5 Over a period of approximately six years, Begovic obtained

reimbursement of $20,662.85 - more than any other Water Pik

employee - for tuition incurred while he pursued both an

associate's and a bachelor's degree. (Hope-Reese Aff. 1 8.)

Begovic continued his education, pursuing a Master's degree in

Business Administration ("MBA"), and continued to submit reguests

for tuition reimbursement to Water Pik. (Hope-Reese Aff. $[$[ 9-

11.) On March 8, 2002, Begovic was given his last tuition

reimbursement payment, and was notified that "no further reguests

. . . would be honored." (Hope-Reese Aff. 1 10.)

Out of 137 employees, Begovic was one of three who took

advantage of the tuition reimbursement program. (Hope-Reese Aff.

1 12.) The other two participants, both Caucasian males, were

working toward degrees that the company believed "would benefit

both [the employee] and [Water Pik] in the future." (Hope-Reese

Aff. I 12.) The company believed that continuing to pay for

Begovic's education, however, "would further no business purpose

for the company, directly or indirectly." (Hope-Reese Aff.

I 11.) Any company positions for which Begovic was eligible

would not "reguire an [MBA] ... or the knowledge gained in the

6 pursuit of [an M B A ] ( H o p e - R e e s e Aff. 5 11.) Water Pik's

concerns were exacerbated by a comment Begovic made on December

27, 2001, explaining that after he received his degree, he

"intended to leave Water Pik to start his own import-export

business." (Hope-Reese Aff. 5 11.) The company was also facing

"budgetary constraints" which affected "many operations of the

business unit, including employee benefits." (Hope-Reese Aff.

5 1 1 .)

On March 24, 2002, Begovic sent an e-mail to Water Pik's

Vice President of Human Resources, Theresa Hope-Reese, alleging

harassment by some of his coworkers and complaining about being

denied tuition benefits. (Hope-Reese Aff., Ex. E.) The company

promptly investigated. (Hope-Reese Aff. 5 4.) On September 15,

1999, Begovic filed a complaint with the Egual Employment

Opportunity Commission ("EEOC") alleging employment

discrimination against him on the basis of his religion and

national origin. (Hope-Reese Aff. 5 25.) The 1999 complaint was

eventually dismissed, but Begovic filed another complaint on

February 26, 2003, alleging employment discrimination on the

basis of national origin. (Hope-Reese Aff. 5 26.) Although the

7 2003 complaint was also dismissed, the EEOC issued a Right-to-Sue

letter on September 2, 2004. (Compl., Appx. A.)

Begovic is paid an hourly wage based upon a structured pay

scale that corresponds to his job classification. (Hope-Reese

Aff. 5 14.) According to the company's records, Begovic has

received twelve pay increases since he started working for Water

Pik (Hope-Reese Aff. 5 12), six of which took place after

Begovic's complaints were filed with the EEOC. Begovic's most

recent pay increase, effective May 11, 2004, was the result of a

"company initiative" to "improve [Water Pik's] competitive

advantage in recruiting skilled workers." (Hope-Reese Aff. 5

16.) The initiative increased the pay range for everyone in

Begovic's job classification. (Hope-Reese Aff. 5 16.)

As a result of being denied two promotions and additional

tuition reimbursement reguests, and based upon a belief that he

has been underpaid since November 1999, Begovic brought this six-

count suit against Water Pik for violations of his rights under

42 U.S.C. §§ 2000e-2, 2000e-3, and related state statutes. DISCUSSION

Defendant moves for summary judgment on all six counts,

arguing that, as to Counts I, II, and III, plaintiff has failed

to establish a prima facie case of unlawful employment

discrimination. Regarding Count IV, defendant contends that

plaintiff has failed to set forth any evidence to support his

retaliation claim. Defendant does not appear to make any direct

argument regarding Counts V and VI, which arise under state law.

I. Title VII Claims

"The operative provision of Title VII makes it unlawful to

'discriminate against any individual with respect to his [or her]

compensation, terms, conditions, or privileges of employment,

because of such individual's . . . [race, color, religion, sex,

or national origin].'" Noviello v. City of Boston, No. 04-1719,

2005 U.S. A p p . LEXIS 2664, *27 (1st Cir. Feb. 16, 2005) (guoting

42 U.S.C. § 2000e-2(a)(1)). "[I]n a disparate treatment case,

'[t]he central focus of the inguiry . . . is always whether the

employer is treating some people less favorably than others

because of their race, color, religion, sex, or national

origin.'" Thomas v. Digital Eguip. Corp.,

(1st Cir. 1989) (quoting Furnco Constr. Corp. v. Waters,

(1978)) (internal quotation marks omitted).

Although "[t]he core inquiry in . . . disparate treatment

cases is whether the defendant intentionally discriminated

against the plaintiff because of [his or] her gender . . .

[d]irect evidence of discriminatory intent is not required."

Rathbun v. Autozone, Inc.,

(1st Cir. 2004)

(internal citations omitted). In considering the plaintiff's

claim, absent any direct evidence of discrimination, the court

must "use the burden-shifting analysis first established by the

Supreme Court in McDonnell Douglas Corp. v. Green,

(1973)." Che v. Mass. Bay Transp. Auth.,

(1st

Cir. 2003) (citing Feliciano de la Cruz v. El Conguistador Resort

& Country Club,

(1st Cir. 2000)).

Under the McDonnell Douglas analysis, a plaintiff must establish a prima facie case, which in turn gives rise to an inference of discrimination. See Dichner v. Liberty Travel,

(1st Cir. 1998). The employer then must state a legitimate, nondiscriminatory reason for its decision. See Zapata- Matos v. Reckitt & Colman, Inc.,

(1st Cir. 2002). If the employer can state such a reason, the inference of discrimination disappears and the plaintiff is required to show that the employer's

10 stated reason is a pretext for discrimination. See

at 45 .

Kosereis v. Rhode Island,

(1st Cir. 2003) .

"Because employment discrimination cases arise in a variety

of contexts, the prima facie elements must be tailored to the

given case." Rodriguez-Torres v. Caribbean Forms Mfr., Inc.,

Nos. 03-2223, 03-2573,

(1st Cir.

Feb. 22, 2005) (citing Swierkiewicz v. Sorema N.A.,

(2002)). Put differently, "[t]he elements of the plaintiff's

prima facie case vary according to the nature of [his or] her

claim." Rathbun,

. The court, therefore,

considers each count in terms of its unigue prima facie case

reguirements.

A. Disparate Treatment - Failure to Promote (Count I)

In order to prevail on his Title VII failure to promote

claim, plaintiff must show that he " (i) is a member of a

protected class who (ii) was gualified for an open position for

which [he] applied, but (ill) was rejected (iv) in favor of

11 someone possessing similar qualifications."

(citing Gu v .

Boston Police Dep't,

(1st Cir. 2002)).

It is uncontested that Begovic was rejected on two occasions

for job openings at Water Pik's Rochester, New Hampshire

facility, and that plaintiff is a member of a protected class.1

Defendant argues it is entitled to summary judgment because

plaintiff has failed to establish two elements of his prima facie

case: (1) that he was qualified for the positions; and (2) he was

denied the promotions in favor of someone with similar

qualifications. Defendant is correct.

The first position for which plaintiff applied required,

according to the published job description, 5 to 7 years of

supervisory experience. Plaintiff did not have any supervisory

1 There is, however, some dispute as to the protected class to which plaintiff claims to belong. Defendant notes that "plaintiff casts his status as 'South Slav' against a class of people he alleges to be 'Caucasian.'" (Def. Mem. of Law at 10.) Because "this is a contrast between persons of differing 'national origin' and 'race[,]'" defendant suggests that plaintiff may not have appropriately pled his claims. Nevertheless, defendant concedes that "for the purpose of this motion only, 'Caucasian' is to be read as 'American.'" (Def. Mem. of Law at 10-11.) The court therefore proceeds as if there is no dispute on this element.

12 experience. The second position required strong interpersonal

and communication skills. Plaintiff's disciplinary history,

coupled with the fact that his current position does not require

him to work closely with other people rendered him facially less

qualified (and probably unqualified) for that position than he

otherwise might have been.

Aside from several bald assertions that he was "qualified"

for each of the two positions, plaintiff offers no evidence that

he met the requisite qualifications sufficient to satisfy his

burden on the first disputed element of the prima facie case -

certainly not with respect to the first position. It is doubtful

that he was qualified for the second position but defendants have

not provided the specific minimum requirements for that position.

Plaintiff's argument that the individuals eventually selected

were less qualified than he is also unsupported. Plaintiff

simply alleges that he was more qualified, but he produces no

evidence to support his bald assertion.

In any event, assuming plaintiff did meet his prima facie

burden, the burden shifts to defendant to offer a non-

13 discriminatory reason for his adverse action. Once an employer

provides a legitimate, nondiscriminatory explanation for its

actions, as defendant has done here, under McDonnell Douglas,

"the inference of discrimination disappears and the plaintiff is

reguired to show that the employer's stated reason is a pretext

for discrimination." Kosereis,

(citation

omitted). While making "the prima facie case" is "not onerous,"

at 213 (citing Santiago-Ramos v. Centennial P.R. Wireless

Corp.,

(1st Cir. 1999)), and reguires only "a

'small showing,'"

(citing Reed v. LaPage Bakeries, Inc.,

(1st Cir. 2001)), "the pretext analysis . . . is

more demanding."

(citing Texas Dep't of Cmty. Affairs v.

Burdine,

(1981)).

"Plaintiffs can show that an employer's stated reasons are

pretextual in any number of ways. One method is to produce

evidence that the plaintiff was treated differently than other

similarly situated employees." Kosereis,

(citing

Santiago-Ramos,

). Specifically, "a plaintiff must

show 'that others similarly situated to him in all relevant

respects were treated differently by the employer.'"

(citing

14 Conward v. Cambridge Sch. Comm.,

(1st Cir.

1999)).

Plaintiff here has arguably not met even the prima facie

burden, but, again, assuming he did, the burden shifted to

defendant to offer a nondiscriminatory reason for its actions.

See Gu,

. Defendant did so by explaining that its

officials reasonably believed plaintiff was insufficiently

gualified for the open positions. The burden then shifts back to

plaintiff to demonstrate that the non-discriminatory reason put

forth by defendant is merely a pretext for discrimination.

Plaintiff has utterly failed to offer any evidence of pretext,

much less evidence sufficient to posit a genuine dispute of

material fact relative to that issue.

Accordingly, defendant is entitled to judgment as a matter

of law on Count I, plaintiff having failed to offer evidence from

which a pretext for discrimination could be found.

15 B. Disparate Treatment - Tuition Reimbursement (Count II)

Although there appears to be no controlling precedent

related to disparate treatment in the administration of tuition

reimbursement programs, there is some Title VII authority related

to employee benefit programs. " [A]n employee establishes a prima

facie case of benefit discrimination by . . . showing that he or

she is a member of a protected class, was eligible to receive a

benefit, was denied a benefit, and non-protected group members

received the benefit." Ramos v. Baxter Healthcare Corp.,

(D.P.R. 2003) (citing L e x K. L a r s o n , L a r s o n ' s

Employment D iscrimination § 14.01 (2d ed. 1994)). Defendant asserts

that it is entitled to summary judgment on this claim because it

has articulated a legitimate, nondiscriminatory reason for

denying plaintiff tuition reimbursement benefits.

Plaintiff has satisfied his burden to establish a prima

facie case of benefit discrimination. As with Count I, there is

no dispute that plaintiff is a member of a protected class.

Moreover, plaintiff established, and defendant effectively

concedes, that plaintiff is eligible to participate in the

tuition reimbursement program as demonstrated by the defendant's

16 past reimbursement of over $20,000 in education-related expenses.

Finally, the company concedes that two other employees, both

Caucasian males, continue to receive tuition benefits.

As plaintiff has met his burden to establish at least a

prima facie case of discrimination, under McDonnell Douglas, the

burden shifts to defendant to "'articulate some legitimate,

nondiscriminatory reason' for its actions." Gu,

.

Here, defendant asserts that it denied plaintiff any future

tuition reimbursement benefits because his studies were unrelated

to his current or future work with Water Pik.

It is apparent that Water Pik's tuition reimbursement

program is designed to help employees improve skills and

abilities of significance to the company. To that end, the

policy reguires that "the subject of the class or program of

study must be directly related to your current position or to

future positions in the company." (Hope-Reese Aff. 1 11.)

Although plaintiff stated his objectives in terms consistent with

that policy - "to obtain his Master's Degree so that he can

obtain a better position within the company" (Compl. 1 13), the

17 company asserts that the positions for which plaintiff is

otherwise qualified do not require academic deqrees, particularly

not an MBA. Moreover, plaintiff made specific statements about

his future plans to leave the company as soon as he received his

Master's deqree. The company has articulated a leqitimate,

nondiscriminatory business reason for rejectinq plaintiff's

tuition reimbursement requests under the benefit plan.

Under the McDonnell Douglas framework, the burden shifts

back to the plaintiff to demonstrate that the nondiscriminatory

reason set forth by defendant is merely a pretext for

discrimination. In attempting to meet that burden, plaintiff

points to "several other employees" who still receive tuition

reimbursement benefits. (Compl. 5 14.) Plaintiff fails,

however, to demonstrate that those other employees are similarly

situated in all relevant respects. To the contrary, the company

has shown, and plaintiff has failed to refute, that the two

individuals presently receiving tuition reimbursement benefits

are pursuing academic programs that will benefit the company,

unlike plaintiff's academic pursuits, which are unlikely to

18 either benefit Water Pik, or enhance plaintiff's opportunities

for promotion within the company.

Having failed to produce evidence that defendant's

justification for denying plaintiff's tuition benefits is merely

a pretext for discrimination, plaintiff's benefit denial claim

fails, and defendant is entitled to judgment as a matter of law

on Count 11.

C. Disparate Treatment - Compensation (Count III)

Although the First Circuit has yet to articulate a specific

test against which to measure the sufficiency of a prima facie

case of disparate treatment in compensation, the Seventh Circuit

has held that:

[t]o state a prima facie case of disparate compensation, a plaintiff must show that: (1) [he or] she is a member of a protected group; (2) [he or] she was fulfilling her employer's legitimate performance expectations; and (3) [he or] she suffered an adverse employment action in that [he or] she was paid a lower salary than a ''similarly situated' nonprotected class member.

19 Dandy v. UPS, Inc.,

(7th Cir. 2004) (citing

Hildebrandt v. 111. Dept, of Natural Res.,

(7th Cir. 2002)) .

As with plaintiff's other claims, there is no dispute that

he is a member of a protected class. It is also undisputed that,

generally, plaintiff was fulfilling defendant's performance

expectations. Plaintiff received a satisfactory rating on his

most recent performance review and, other than a memorandum

regarding inappropriate behavior issued on March 22, 2002, there

is no allegation that plaintiff failed to satisfactorily perform

the duties of his job. Defendant argues it is entitled to

summary judgment because plaintiff has not established the third

element of the prima facie case, that he was paid at a lower

rate than similarly situated employees outside the protected

class.

Although the precise nature of plaintiff's claim is

difficult to discern from the pleadings he has filed, it appears

that he claims that his two most recent pay increases2 should

2 Those increases were from $10.80 to $11.04 per hour on February 2, 2003 (an increase of $0.24), and from $11.04 to

20 have taken effect in 1999. But like many of the assertions in

his complaint, this one is supported by neither evidence nor a

logical explanation. Defendant has offered evidence that

plaintiff's rate of pay was increased on twelve separate

occasions, the last being part of a companywide restructuring of

its position classification and compensation scheme, which

resulted in a pay increase for all individuals falling within

plaintiff's job classification. Except for a long-winded

narrative of plaintiff's personal assessment of the company's

compensation policies, plaintiff has not offered any evidence to

refute that produced by defendant. Plaintiff also failed to

produce any evidence which demonstrates that other, similarly

situated employees, were paid more than he for performing

substantially identical work.

Because plaintiff has failed to demonstrate that he was paid

less than similarly situated employees outside the protected

class, he has failed to establish a prima facie case under Title

VII. Conseguently, defendant is entitled to summary judgment on

Count III.

$12.56 per hour on May 11, 2004 (an increase of 1.52) (Hope- Reese A f f . 1 14.)

21 D. Retaliation (Count IV)

To establish a prima facie case of retaliation, a plaintiff

must show that "(1) [he or she] engaged in protected conduct

under Title VII; (2) [he or she] suffered an adverse employment

action; and (3) the adverse action is causally connected to the

protected activity." Dressier v. Daniel,

, 78 (1st

Cir. 2003) (citing White v. N.H. Dep't of Corr.,

(1st Cir. 2000)).

For purposes of this motion, the court assumes that

plaintiff first engaged in protected conduct when he complained

by e-mail on March 24, 2002, about being denied tuition benefits

The court further assumes, for purposes of this motion, that the

denial of tuition benefits and denial of promotions constitute

adverse employment actions. Given those assumptions, plaintiff

must produce evidence demonstrating that the adverse employment

actions were causally related to his protected conduct. He has

failed to do so.

Most of the adverse employment actions plaintiff claims to

have suffered took place before he first engaged in protected

22 conduct. The first promotion was denied on January 2, 2002,

tuition benefits were first denied on March 8, 2002, and

plaintiff claims he has been underpaid since 1999. All of these

adverse employment actions took place before his first complaint

to the company on March 24, 2002. The sequence of events does

not support plaintiff's claim that adverse employment actions

were causally related to his protected conduct.

The only adverse employment action that took place after

plaintiff's protected conduct was the second promotion denial,

dated April 16, 2003. In that one instance, the sequence of

events supports a possibility of a causal link. But plaintiff's

claim still fails because he does not offer any evidence to

support his assertion. In his objection to summary judqment,

plaintiff summarily criticizes defendant's evidence and questions

its validity, but produces no evidence of his own tendinq to

refute defendant's supported assertions. Plaintiff has, thus,

failed to establish a prima facie case of retaliation.

Even if plaintiff had satisfied the three elements of a

prima facie case of retaliation, his claim would still fail

23 because, under the McDonnell Douglas framework, defendant has

offered a legitimate, nondiscriminatory reason for not promoting

plaintiff. Plaintiff has failed to produce evidence that the

reason provided by defendant was merely a pretext for

discrimination.

In short, the seguence of the majority of adverse employment

actions juxtaposed with the date of plaintiff's initial complaint

to the company does not support a conclusion that the former was

caused by the latter. In the one instance where the seguence of

events might logically support a causal link, plaintiff failed to

produce evidence sufficient to establish that his protected

conduct was causally related to the adverse employment action.

Defendant is therefore entitled to judgment as a matter of law on

Count IV.

II. State Claims

Under the provisions of

(a), a federal court

with original jurisdiction over federal claims may also exercise

"supplemental jurisdiction over all other claims that are so

related to claims in the action within such original jurisdiction

24 . . Another portion of the same statute, § 1367(c), provides

that a district court may decline to exercise supplemental

jurisdiction over a plaintiff's state law claim when:

(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it had original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

The Court of Appeals has held that "if the [district] court

dismisses the foundational federal claims, it must reassess its

jurisdiction, this time engaging in a pragmatic and case-specific

evaluation of a variety of considerations that may bear on the

issue." Camelio v. Am. Fed'n,

(1st Cir. 1998)

(guoting Roche v. John Hancock Mut. Life Ins. Co.,

(1st Cir. 1996)). The factors district courts consider

when determining whether to exercise supplemental jurisdiction

over state law claims include: (1) the interests of fairness;

(2) judicial economy; (3) convenience; and (4) comity. See

Explaining the fairness and comity factors, the Supreme Court

noted:

25 Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial even though not unsubstantial in a jurisdictional sense, the state claims should be dismissed as well.

United Mine Workers v. Gibbs,

(1966) (footnote

omitted).

In the interest of comity, this court declines to exercise

supplemental jurisdiction over plaintiff's state law claims.

CONCLUSION

Defendant's motion for summary judgment (document no. 13) is

granted as to the Title VII claims (Counts I, II, III, and IV),

and plaintiff's motion for partial summary judgment (document no.

15) is necessarily denied. The court declines to exercise

supplemental jurisdiction over the state law claims (Counts V and

VI) which are, accordingly, dismissed without prejudice. The

clerk of the court shall enter judgment in accordance with this

order and close the case.

26 SO ORDERED.

McAuliffe 'Chief Judge

April 6, 2005

cc: Rusmir Begovic, pro se Lee S. MacPhee, Esq.

27