Belgrave v. Pena

Full title: WAYNE BELGRAVE, Plaintiff, v. FREDERICO F. PENA, Secretary of the…

Court: United States District Court, S.D. New York

Date published: Sep 7, 2000

98 Civ. 2517 (DAB) (HBP) (S.D.N.Y. Sep. 7, 2000)

Opinion

98 Civ. 2517 (DAB) (HBP)

September 7, 2000

MEMORANDUM OPINION AND ORDER

HENRY PITMAN, United States Magistrate Judge.

I. Introduction

Plaintiff brings this action pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA"), alleging that he was denied a position and constructively discharged on the basis of his race and age. Defendant has moved for summary judgment on plaintiff's claims. This action was referred to me for all purposes with the consent of the parties pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. For the reasons that follow, defendant's motion is granted and the action is dismissed.

II. Facts

A. Background

Plaintiff is an African-American male, born in 1930 (Transcript of plaintiff's Deposition, dated February 9, 1999 ("Pltf. 2/9/99 Dep.") at 14¹). Plaintiff began working for the Department of Energy (the "DOE") in 1979 as an electrical engineer in the New York Regional Support Office (the "New York Office") (Pltf. 2/9/99 Dep. at 39-40). The New York Office was one of ten such offices around the country that implemented various DOE programs, including the Federal Energy Management Program ("FEMP") (Declaration of Anthony Pontello, dated July 27, 1999 ("Pontello Dec.") ¶ 2). In his position at the New York Office, plaintiff's duties included managing several conservation grant programs, including the FEMP program (Pltf. 2/9/99 Dep. at 47).

1 The transcript of plaintiff's February 9, 1999 deposition is annexed to the declaration of Assistant United States Attorney Sean Cenawood, dated July 29, 1999, ("Cenawood Dec.") as Exhibit A.

In the early to mid-nineties, Hazel O'Leary, the then-secretary of the DOE, initiated a restructuring of DOE operations and programs, including the FEMP program (Pontello Dec. ¶ 3). Defendant states that one of the particular goals of this restructuring was to "shift away from passively providing grants and technical assistance, and towards actively motivating energy providers and users to be more efficient" (Id.). In April 1995, defendant hired Vilma Schifano-Milmoe to fill an "FEMP marketing position" in the New York Office (Declaration of Mark Ginsburg, dated July 27, 1999 ("Ginsburg Dec.") ¶ 6). The DOE subsequently considered hiring another individual, Robert Cox, to fill an "FEMP financing position" in the New York Office, but did not make an offer to Cox because of the possibility that the New York Office might soon be closed (Ginsberg. Dec. ¶ 7).

The DOE subsequently decided to close four regional support offices, including the New York Office (Pontello Dec. ¶ 4; Ginsberg Dec. ¶ 8). In December 1995, the DOE notified the employees at the New York Office that their positions would be eliminated as of March 29, 1996, as a part of a general reduction in force (Declaration of William Klebous, dated July 27, 1999 ("Klebous Dec.") ¶ 4; Complaint ¶ 16).

The DOE decided, however, to retain two FEMP positions in New York, which would report to the Philadelphia Regional Support Office (Ginsberg Dec. ¶ 8). The DOE formally announced the positions in January 1996 (Pontello Dec. ¶ 5). Only employees from regional offices that were to be closed were permitted to apply for these positions, and DOE received eleven applications for the two retained positions in New York (Pontello Dec. ¶ 7 and Ex. F).

B. The Selection Process

The parties offer differing accounts of the seclection process. According to defendant, Anthony Pontello, then acting director of the Philadelphia Regional Support Office, was responsible for selecting the candidates for the New York FEMP positions (Pontello Dec. ¶ 6). Pontello states that he narrowed the field to four New York Office employees after consulting with Charles Baxter, then Director of the New York Office (Pontello ¶ 13).² However, Pontello states that Baxter "played no role in ranking or ultimately selecting candidates" (Id.). Pontello ranked the candidates in order of preference, as follows: William Klebous; Vilma Schifano-Milmoe; Kathryn Rise Humphrey and plaintiff (Pontello Dec. ¶¶ 9-12 and Ex. F). Pontello claims that he was seeking candidates that had "strong financial and/or marketing skills," due to the changing nature of the FEMP program, and that he determined that Klebous, Schifano-Milmoe and Hughes all possessed superior abilities in those areas (Pontello Dec. ¶ 6, 9-10, 12). Pontello states that, after making this ranking, he consulted Mark Ginsburg, the national director of the FEMP program (Pontello Dec. ¶ 17). Ginsberg states that he "did not disagree" with Pontello's ranking (Ginsberg Dec. ¶ 9).

2 Charles Baxter is unable to provide testimony in this action due to a serious medical condition (Declaration of Philip J. Melchiorre, dated May 12, 1999, at ¶ 2).

Plaintiff disputes defendant's account of the selection process. Plaintiff claims that it was Ginsberg who supplied the ranking to Pontello, and refers to a statement Pontello made to the Equal Employment Opportunity Commission ("EEOC") in 1997 that "[Ginsberg] gave me [(Pontello)] his 4 recommendations, from 1 to 4" (Affirmation of Stephen Bergstein, Esq., dated August 13, 1999 ("Bergstein Aff.") Ex. 1 at 30-31). Plaintiff also disputes Pontello's claim that he consulted with Baxter, and refers to Baxter's statement to the EEOC that he "played no part in the selection of the two positions" and that no one called him or met with him regarding DOE's decision to close the New York Office (Bergstein Aff., Ex. 1 at 27).

There is no dispute, however, that the two positions were initially offered to Klebous and Schifano-Milmoe (Pontello Dec. ¶ 18). Although Klebous accepted, Schifano-Milmoe declined the position. It was subsequently offered to Humphrey, who accepted (Pontello Dec. ¶¶ 19-20).

C. Plaintiff's Retirement and EEOC Complaint

Sometime prior to March 31, 1995, plaintiff submitted an application for voluntary retirement to the DOE (Transcript of Plaintiff's Deposition dated February 12, 1999 ("Pltf. 2/12/99 Dep.") at 92³; Cenawood Dec. Ex. C). Plaintiff's application was approved as of March 29, 1996, and plaintiff received a $25,000 buyout from the DOE (Cenawood Dec. Ex. C).

3 The transcript of plaintiff's February 12, 1999 deposition is annexed to the Cenawood Declaration as Exhibit B.

In his application for voluntary retirement, plaintiff stated that his reasons for retiring were that the New York Office was being closed, and that he was "taking retirement in lieu of being separated by `reduction in force'" because "there are no other positions available within the commuting area" (Cenawood Dec. Ex C). Plaintiff also stated that "[m]y decision to retire is entirely voluntary and has not been coerced" (Id.).

In March of 1996, plaintiff contacted the Equal Employment Opportunity Commission (the "EEOC"), claiming that he had been passed over for the FEMP positions on the basis of his age and race (Pltf. 2/12/99 Dep. at 164, 166). On March 14, 1996, plaintiff received and signed a document entitled "Your Rights and Responsibilities as an EEO Complainant" (Declaration of Melverlyn Hull dated July 29, 1999 ("Hull Dec.") Ex. G), which stated, among other things, that "[y]ou have 15 CALENDAR DAYS to file a formal complaint with the [Office of Civil Rights] after receiving the Notice of Final Interview and Right to File a Formal Complaint" (Hull Dec., Ex G at 3).

On April 22, 1996, the EEOC mailed a Notice of Final Interview to plaintiff; plaintiff states that he received it on or about April 22 (Hull Dec. ¶ 3 and Ex. H). The Notice stated that, if plaintiff desired to exercise his right to file a formal complaint of discrimination with the Office of Civil Rights (the "OCR"), he had fifteen calendar days in which to do so (Hull Dec., Ex H). Plaintiff mailed his formal complaint to OCR on May 14, 1996 (Pltf. 2/12/99 Dep. at 168). OCR received plaintiff's complaint on May 17, 1996 (Hull Dec. ¶ 4, Exs. I and J). By letter dated July 31, 1996, William L. Garrett, the Acting Deputy Director of the OCR, notified plaintiff that his complaint had been accepted for investigation and "further EEO processing" (Bergstein Aff., Ex. 1 at 114).

Pursuant to a contract with the DOE, James Turner, an independent investigator, submitted a Report of Investigation of plaintiff's complaint to the DOE on September 26, 1997 (Bergstein Aff., Ex. 1 at 116). Turner's report summarized plaintiff's claims and the relevant facts, but did not reach any conclusion as to the validity of plaintiff's claims (Bergstein Aff., Ex. 1) Apparently, no further action was taken in connection with plaintiff's complaint.

Plaintiff commenced this action on April 9, 1998, alleging that Pontello selected younger, Caucasian candidates for the open FEMP positions in violation of Title VII and the ADEA (Complaint ¶¶ 29, 31). Plaintiff also claims that he was constructively discharged from the DOE because he was not selected for one of the two FEMP positions in New York (Complaint ¶ 26).

Defendant now moves for summary judgment, arguing that (1) plaintiff's claims are barred by his failure to exhaust his administrative remedies in a timely fashion; (2) plaintiff cannot show that the proffered reason for defendant's refusal to select him for an FEMP position was a pretext for discrimination, and (3) plaintiff's voluntary retirement and buyout precludes his claim of constructive discharge.

III. Analysis

A. Summary Judgment

The standards applicable to a motion for summary judgment are well-settled and require only brief review.

To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). In deciding such a motion, the district court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir. 1995).

Hemphill v. Schott, 141 F.3d 412, 415 (2d Cir. 1998). See also Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000) Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998); Grady v. Affiliated Central, Inc., 130 F.3d 553, 559 (2d Cir. 1997).

Once the moving party has met its initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party, in order to defeat the motion, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party "must set forth specific facts showing that there is a genuine issue for trial" in order to avoid summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Summary judgment is "ordinarily inappropriate" in discrimination cases, in which the employer's intent and state of mind are in dispute.Carlton v. Mystic Transp., 202 F.3d 129, 134 (2d Cir. 2000). See Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994);Montana v. First Fed. Sav. Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); Griffin v. Ambika Corp., 98 Civ. 8985 (NRB), 2000 WL 968005 at *6 (S.D.N.Y. July 13, 2000). In discrimination cases:

summary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. . . . There must either be a lack of evidence in support of the plaintiff's position, . . . or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error.

Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998). See Weber v. Parfums Givenchy v. Inc., 49 F. Supp.2d 343, 354 (S.D.N Y 1999) (same).

B. Exhaustion

EEOC regulations require an employee suing the federal government for employment discrimination to exhaust administrative remedies before initiating a suit in federal court.⁴ See Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000); Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996);Butts v. City of New York Dep't of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993); Alston v. Heyman, 98 Civ. 3640 (AGS), 1999 WL 1206698 at *3 (S.D.N Y Dec. 16, 1999). The exhaustion requirement is not a jurisdictional prerequisite to suit in a federal court; rather, EEOC time limits are analogous to a statute of limitations and are, therefore, considered subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines Inc., 455 U.S. 385, 393 (1982); Downey v. Runyon, 160 F.3d 139, 145 (2d Cir. 1999); Pauling v. Secretary of the Dep't of Int., 71 F. Supp.2d 231, 232-33 (S.D.N.Y. 1999).

4 The exhaustion requirement applies equally to claims under Title VII and the ADEA. See Braham v. State Ins. Fund, 97 Civ. 7121 (DLC), 1999 WL 14011 at *2 (S.D.N.Y. Jan. 14, 1999).

Defendant argues that plaintiff's claims are barred by his failure to file a timely formal complaint with the OCR after his receipt of the Notice of Final Interview. As noted above, EEOC regulations provide that an employee has 15 days after the Notice of Final Interview to file a formal complaint with the agency. 29 C.F.R. § 1614.106 (b); Alston v. Heyman, supra, 1999 WL 1206698 at *3; Baber v. Runyon, 97 Civ. 4798 (DLC), 1998 WL 912065 at *3 (S.D.N.Y. Dec. 30, 1998); Chalom v. Perkins, 97 Civ. 9505 (LAP), 1998 WL 851610 at *3 (S.D.N.Y. Dec. 9, 1998); Pauling v. Secretary of the Dep't of Int., 960 F. Supp. 793, 799 (S.D.N.Y. 1997). In this case, plaintiff received his Notice of Final Interview on or about April 22, 1996 (Pltf. 2/12/99 Dep. at 167). Plaintiff did not mail his formal complaint until May 14, 1996, twenty-two days later.⁵ Even assuming that the April 22 Notice took three days to reach him, see Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525 (2d Cir. 1996), plaintiff's complaint was still untimely.

5 Plaintiff, in his memorandum of law, claims both that his complaint was filed fourteen days after his receipt of the Notice of Final Interview and, contradictorily, that his complaint was four days late (Pltf. Mem. at 15). However, plaintiff does not cite to any portion of the record to support these statements. Unsupported statements of fact in a memorandum of law, such as these, are not sufficient to raise an issue of fact on a motion for summary judgment. See Bonaparte v. New York City Dep't of Housing Preservation Dev., 94 Civ. 5106 (DC), 1997 WL 148252 at *5 (S.D.N.Y. March 31, 1997); Jimenez v. Mobil Oil Co., 90 Civ. 5938 (SWK), 1991 WL 64186 at *3 (S.D.N.Y. April 18, 1991).

In response, plaintiff first claims that defendant has waived the exhaustion defense because it did not assert in its answer that "the statute of limitations bars this suit" (Plaintiff's Memorandum of Law dated August 13, 1999 ("Pltf. Mem.") at 15). Plaintiff argues that, in light of the Second Circuit's decision in Downey v. Runyon, supra, 160 F.3d at 145, defendant's failure to assert failure to exhaust as an affirmative defense in his answer constitutes a waiver. In addition, plaintiff argues that defendant should not be permitted to argue that his complaint was untimely, because the OCR accepted his complaint for investigation notwithstanding the fact that it was filed after the fifteen-day deadline (Pltf. Mem. at 15).

In response to plaintiff's assertion that defendant has waived his exhaustion defense, defendant argues that his initial brief in this matter was submitted prior to the decision in Downey, and, since decisions in this Circuit up to that time had held that exhaustion was a jurisdictional requirement in Title VII suits by government employees,see e.g., Dillard v. Runyon, 928 F. Supp. 1316, 1323 (S.D.N.Y. 1996),aff'd, 108 F.3d 1369 (2d Cir. 1997), the government adequately preserved the issue by asserting in its answer that the Court lacked subject matter jurisdiction.⁶ Defendant also argues that he should be permitted to amend his answer to assert failure to exhaust as an affirmative defense.

6 I note, however, that defendant's characterization of the state of the law on this issue prior to Downey overlooks the Second Circuit's opinion in Briones v. Runyon, supra, 101 F.3d at 290, in which the Court noted that the requirement that a government employee seek EEO counseling within a certain time after an allegedly discriminatory event "is analogous to a statute of limitations and is, therefore, considered subject to waiver, estoppel and equitable tolling."

Motions to amend should be freely granted in the absence of prejudice,see generally Foman v. Davis, 371 U.S. 178, 182 (1962), and it is difficult to see how plaintiff would be prejudiced by allowing the defendant to amend his answer in this case. Whether the issue is characterized as one of subject matter jurisdiction or an affirmative defense in the nature of a statute of limitations, "the substance of [defendant's] motion remains exactly the same; i.e., that plaintiff has failed to properly exhaust administrative remedies as to his claims."German v. Pena, 88 F. Supp.2d 222, 224 n. 3 (S.D.N.Y. 2000).

Because plaintiff has addressed defendant's exhaustion defense on the merits as well as raising a procedural objection, delaying the resolution of this action until a motion to amend the answer could be fully briefed and submitted would involve unnecessary delay. Accordingly, I shall deem the failure to exhaust defense to be properly before me and consider plaintiff's claim that defendant has waived the defense by the OCR's acceptance and investigation of plaintiff's untimely complaint.

It is undisputed that the OCR accepted plaintiff's complaint for investigation without raising any objection as to its timeliness (Bergstein Aff., Ex. 16). However, such acceptance alone does not constitute a waiver of the defense of untimely exhaustion. The Ninth Circuit has held that:

The mere receipt and investigation of a complaint does not waive objection to a complainant's failure to comply with the original filing time limit when the later investigation does not result in an administrative finding of discrimination. See Saltz v. Lehman, 672 F.2d 207, 208 (D.C. Cir. 1982); Oaxaca v. Roscoe, 641 F.2d 386, 389-90 (5th Cir. 1981).

Boyd v. United States Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985). This view is shared by the Fifth Circuit and the District of Columbia Circuit. See Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997) ("[A]gencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint. . . . "); Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir. 1992) ("In order to waive a timeliness objection, the agency must make a specific finding that the claimant's submission was timely."). In addition, District Courts in the Third and Fourth Circuits have also held that the mere acceptance and investigation of an untimely complaint does not constitute a waiver of a defense of untimeliness. See Blount v. Shalala, 32 F. Supp.2d 339, 341 (D. Md. 1999), aff'd mem., 199 F.3d 1326 (4th Cir. 1999); Bruno v. Brady, Civ. A. No. 91-2605, 1992 WL 57920 at *3 (E.D.P.A. March 16, 1992).

I do not believe that the Second Circuit's opinion in Briones v. Runyon, supra, 101 F.3d 287, is to the contrary. In Briones, the plaintiff's administrative complaint was initially dismissed as untimely. Thereafter, the EEOC made an explicit determination that the plaintiff's administrative complaint was, in fact, timely filed. The Second Circuit, adopting the Ninth Circuit's analysis in Girard v. Rubin, 62 F.3d 1244 (9th Cir. 1995), held that the EEOC's determination was binding on the District Court, and that the District Court erred in dismissing the action on the ground of untimeliness. Briones v. Runyon, 101 F.3d 290-91.

There was no such explicit finding of timeliness here, and this case, therefore, falls squarely within the rule of Boyd and its progeny. Accordingly, the OCR's acceptance of plaintiff's untimely complaint does not constitute a waiver of defendant's right to object to plaintiff's failure to meet the fifteen-day deadline for filing his complaint with the OCR, and defendant is entitled to summary judgment based on plaintiff's failure to exhaust his administrative remedies in a timely fashion. See Blount v. Shalala, supra, 32 F. Supp.2d at 341.

Even if plaintiff's administrative complaint had been timely, however, defendant would still be entitled to summary judgment on the merits of plaintiff's claims.

C. Plaintiff's Title VII and ADEA Claims

Plaintiff's claim of racial discrimination is governed by Title VII, which makes it unlawful for an employer to "fail or refuse to hire or discharge any individual or otherwise to discriminate against any individual with regard to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1).

Plaintiff's claim of age discrimination is governed by the ADEA, which makes it unlawful for an employer to discharge an employee who is at least forty years old because of his or her age. See 29 U.S.C. § 623(a) and 631(a); Butler v. New York State Dep't of Law, 211 F.3d 739, 745 (2d Cir. 2000).

Although the Supreme Court has not squarely addressed whether the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973), which was developed to assess claims brought under Title VII, also applies to ADEA actions, the Courts of Appeals, including the Second Circuit, "have employed some variant of the [McDonnell Douglas] framework . . . to analyze ADEA claims that are based principally on circumstantial evidence." Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2105 (2000); see Galabaya v. New York City Bd. of Ed., 202 F.3d 636, 639 (2d Cir. 2000) (applying McDonnell Douglas analysis to ADEA claim). Accordingly, the following analysis applies equally to plaintiff's claims of racial and age-based discrimination, unless otherwise noted.

McDonnell Douglas and subsequent decisions have "established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory-treatment cases." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). First, the plaintiff must establish a prima facie case of discrimination. Ibid., Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Reeves v. Sanderson Plumbing Prods., Inc., supra, 120 S.Ct. 2106.

In order to establish a prima facie case of discriminatory treatment, a plaintiff must show that (1) he is a member of a protected class; (2) he satisfactorily performed the duties of his position; (3) he was subject to an adverse employment action and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. Williams v. Salvation Army, 98 Civ. 2056 (RMB), 2000 WL 1121357 at *5 (S.D.N.Y. July 31, 2000), citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981); Brennan v. Metropolitan Opera Ass'n Inc., 192 F.3d 310, 316 (2d Cir. 1999); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir. 1997).

"The burden of establishing a prima facie case is not a heavy one. One might characterize it as minimal." Carlton v. Mystic Transp., supra, 202 F.3d at 134. See Galabaya v. New York City Bd. of Ed., supra, 202 F.3d at 639; Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997) (per curiam);Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (describing the burden of production as de minimis).

If a plaintiff succeeds in establishing a prima facie case of discrimination, a presumption is created "that the employer discriminated against the employee in an unlawful manner," Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998), and the burden then shifts to the employer to rebut the presumption by articulating a legitimate, nondiscriminatory reason for its actions. Carlton v. Mystic Transp., Inc., supra, 202 F.3d at 134; Gallo v. Prudential Residential Servs.,supra, 22 F.3d at 1224; Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir. 1999).

The defendant's burden of production also is not a demanding one; [it] need only offer such an explanation for the employment decision. Although the burden of production shifts to the defendant, the ultimate burden of persuasion remains always with the plaintiff.

Bickerstaff v. Vassar College, supra, 196 F.3d at 446 (citations omitted).

If the employer articulates a non-discriminatory reason for the termination, the presumption of discrimination raised by the prima facie case "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks,supra, 509 U.S. at 510-11. See Carlton v. Mystic Transp., Inc., supra, 202 F.3d at 134-35. At this point, the burden shifts back to the plaintiff to offer proof that would allow a rational factfinder to conclude that the employer's proffered reason for the termination was pretextual. St. Mary's Honor Ctr. v. Hicks, supra, 509 U.S. at 507-08;Carlton v. Mystic Transp., Inc., supra, 202 F.3d at 135. Although the presumption of discrimination "drops out of the picture" once the defendant meets its burden of production, "the trier of fact may still consider the evidence establishing plaintiff's prima facie case and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual . . . ." Reeves v. Sanderson Plumbing Prods., Inc., supra, 120 S.Ct. at 2106 (internal quotation marks omitted). "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." 120 S.Ct. at 2109. See Connell v. Consolidated Edison Co., 98 Civ. 2588 (DC), 2000 WL 1170900 at *5 (S.D.N.Y. Aug 17, 2000);Schwabach v. Memorial Sloan-Kettering Hosp., 99 Civ. 1320 (DLC), 2000 WL 1028589 at *4 (S.D.N.Y. July 25, 2000); Griffin v. Ambika Corp., supra, 2000 WL 968005 at *11 ("[T]he Reeves holding . . . overrule[s] the Second Circuit's so-called `pretext-plus' requirement . . . . ") (citation omitted); Lizardo v. Denny's, Inc., 97-CV-1234, 2000 WL 976808 at *7 (N.D.N.Y. July 13, 2000).

1. Plaintiff's Prima Facie Case

Defendant does not dispute that plaintiff can establish a prima facie case of age and race discrimination regarding defendant's failure to select him for a FEMP position.⁷ Instead, defendant contends that plaintiff cannot show that defendant's proffered reason for not selecting plaintiff — that other employees "possessed superior financial and/or marketing skills that were better suited to the positions" — is pretextual (Def. Mem. at 23-24).

7 Defendant states that "[s]trictly for purposes of this summary judgment motion, the Government assumes arguendo that plaintiff could establish a prima facie failure to hire/promote case with respect to the DOE's decision not to select plaintiff for one of the two revamped FEMP positions stationed in New York" (Defendant's Memorandum of Law dated July 30, 1999 ("Def. Mem.") at 23).

2. Defendant's Burden

Defendant states that Pontello chose Klebous on the basis of his superior financial skills. He was certified as a contracting officer and, as Deputy Director of the New York Office, he "had an overview of all the regional support office programs, including FEMP" (Pontello Dec. ¶ 9). Defendant states that Schifano-Milmoe was chosen for her superior marketing skills because "since joining the DOE, she had developed an outstanding reputation for her FEMP work, especially in the area of motivational marketing of FEMP initiatives" (Pontello Dec. ¶ 10). Finally, Pontello states that he ranked Humphrey above plaintiff because he determined that Humphrey had superior marketing skills, based in part on positive reviews from national program directors who had worked with Humphrey in the past and "lauded [her] promotional abilities, marketing efforts and overall work performance" (Pontello Dec. ¶ 12, 14). Defendant contends that plaintiff's skills were unsuited for the new positions because his work was focused in technical areas and did not provide "relevant experience to the new manner in which FEMP was expected to operate — e.g., reaching out to utilities and federal entities, creating partnerships, motivating appropriate parties, crafting innovative financing arrangements, and marketing the goals and solutions of the DOE" (Pontello Dec. ¶ 15).

Plaintiff argues that defendant has failed to meet his burden of articulating a non-discriminatory reason for his decision because "no one [from the DOE] is willing to accept responsibility for the adverse decision" (Plaintiff's Memorandum of Law at 18). Plaintiff argues that Pontello and Ginsberg have made conflicting statements regarding who was responsible for ranking the candidates to fill the positions, and that Baxter's statements to the EEOC raise an issue of fact as to whether Pontello consulted him or not. Plaintiff concludes that defendant is "deliberately hiding the true decisionmaker" and should be considered not to have articulated a non-discriminatory reason for rejecting plaintiff (Pltf. Mem. of Law at 18).

Defendant has not sought to obscure the decisionmaker in this case, and has unequivocally stated that it was Pontello who ranked the candidates for the positions. Defendant has also clearly articulated the reasons for Pontello's rankings, and stated that Ginsberg did not disagree with those rankings (see Pontello Dec. ¶¶ 9-16; Ginsberg Dec. ¶ 9). Thus, because it is undisputed that Ginsberg and Pontello agreed on the ranking of the four candidates, to the extent their statements to the EEOC raise an issue of fact as to which individual initially ranked the candidates, that issue is not material. Furthermore, whether Baxter did or did not advise Pontello regarding the qualifications of the candidates for the positions, it is undisputed that the ultimate decision regarding filling the positions belonged to either Pontello or Ginsberg.

Bearing in mind that defendant's burden at this stage of the McDonnell Douglas analysis is minimal, see Bickerstaff v. Vassar College, supra, 196 F.3d at 446, defendant has met its burden of articulating a non-discriminatory reason for his decision. The burden now shifts to plaintiff to raise an issue of fact as to whether that reason was a pretext. See Reeves v. Sanderson Plumbing Prods., supra, 120 S.Ct. at 2106.

3. Plaintiff's Burden

Plaintiff first argues that a factfinder could conclude that defendant's proffered reasons for the selection of the other candidates are pretextual because the announcement of the FEMP positions did not state that marketing or financial skills were to be considered as job requirements. Plaintiff argues that this omission leads to the inference that defendant "tailored the requirements to select younger, white candidates" as the decision-making process was underway (Pltf. Mem. at 20).

However, the record does not support such an inference. First, the brief description of the positions in question does not purport to be an all-inclusive list of skills and abilities sought by the DOE, but rather briefly and generally describes the duties connected with the positions. Moreover,

[i]t is not a violation of Title VII for an employer to utilize an undocumented criterion not described on paper in choosing the best applicant to fill a job, especially a supervisory position. Subjective evaluation can also be part of a selection process without[,] for that reason[,] violating the statute, but cannot be allowed to become a pretext for illegal discrimination based on race or other forbidden criteria. See Watson v. Ft. Worth Bank Trust Co., 487 U.S. 977, 108 S.CT. 2777, 101 L.Ed. 827 (1988); Mertens, "Watson v. Fort Worth Bank Trust," 14 Employee Rel. L.J. No. 2 at 163 (Fall 1988). Were the contrary the rule, 42 U.S.C. § 2000e and Title VII would become a collective straitjacket requiring extensive paperwork to justify otherwise proper employment decisions; there is no indication that this was the intent of Congress.

Tolliver v. Sullivan Diagnostic Treatment Ctr., 818 F. Supp. 71, 73-74 (S.D.N.Y. 1993), aff'd mem., 22 F.3d 1092 (2d Cir. 1994). See Hines v. Hillside Children's Ctr., 73 F. Supp.2d 308, 319 (W.D.N.Y. 1999) ("In almost any situation involving a job opening, the job requirements simply establish a minimum standard. . . . Employers will generally look at factors beyond those requirements as a means of assessing which of the qualified candidates is the best qualified.").

Nor has plaintiff offered any evidence that the job criteria were modified to add financial and marketing skills after the selection process began. The description states that one of the job duties is to serve as "account representative for one or more of the States or major customer groups in the region," which implies some marketing and financial ability was required from the outset (see Bergstein Aff., Ex. 2). Furthermore, in a memorandum dated February 27, 1996, Pontello stated that his selections were informed by DOE's desire to find "good financial and marketing people" to fill the FEMP positions (Bergstein Aff. Ex 12). Thus, although plaintiff asserts that the criteria were changed to exclude him, he has not cited any evidence to support a finding that the job requirements were modified. See Lambert v. Genesee Hosp., 10 F.3d 46, 57 (2d Cir. 1993) (defendants entitled to judgment as a matter of law on plaintiffs' Title VII claims where plaintiffs failed to offer evidence to support their claim that job description was tailored to select particular candidate and exclude plaintiffs).

Plaintiff also argues that age discrimination can be inferred from a remark by Klebous to the effect that, if Klebous were in plaintiff's shoes, he would retire (Pltf. 2/9/99 Dep. at 73-74). However, because Klebous was himself a candidate for an FEMP position and not a decisionmaker, this comment is not probative of any discriminatory intent by defendant to deny plaintiff an FEMP position. Moreover, this comment may be aptly described as a "stray remark" and would not be sufficient defeat defendant's motion even if it did come from a decisionmaker. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998); Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994); Vaughnes v. United Parcel Serv., 97 Civ. 5849 (SHS), 2000 WL 1145400 at *10 (S.D.N.Y. Aug. 14, 2000).

Plaintiff next argues that the falsity of defendant's stated reasons can be inferred from the fact that the three candidates ranked ahead of him were younger and Caucasian. However, this argument is insufficient to defeat summary judgment because plaintiff has not shown that these other candidates were similarly situated. Although unequal treatment of similarly situated employees may support an inference of discrimination, the individuals to whom a plaintiff attempts to compare himself must be "similarly situated in all material respects." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). See Norville v. Staten Island Univ. Hosp., supra, 196 F.3d at 96.

Employees are not similarly situated merely because their conduct might be analogized. Rather, in order to be similarly situated, other employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff's, without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it.

Francis v. Runyon, 928 F. Supp. 195, 203 (E.D.N.Y. 1996) (internal quotation marks omitted). In this case, each of the four candidates held different positions in the New York Office, and each was responsible for different tasks. Accordingly, the bare fact that the three candidates ranked ahead of plaintiff were younger and Caucasian is insufficient to defeat summary judgment here.

Plaintiff also argues that he was "eminently qualified" for an FEMP position, and the fact that he was not chosen supports an inference of discrimination. However, "with respect to proof of the claimant's qualifications either to fill the position sought, to continue in his present position, or to assume another position at the time of a reduction-in-force, the testimony of the employee himself carries little weight." EEOC v. Trans World Airlines, Inc., 544 F. Supp. 1187, 1219 (S.D.N Y 1982). See Dawkins v. Witco Corp., 103 F. Supp.2d 688, 696 (S.D.N.Y. 2000); Walters v. Columbia Presbyterian Hosp., 89 Civ. 1326 (MBM), 1990 WL 43932 at *5 (S.D.N.Y. April 9, 1990), aff'd mem., 916 F.2d 709 (2d Cir. 1990); Morser v. ATT Information Sys., 703 F. Supp. 1072, 1083 (S.D.N.Y. 1989). "It is the perception of the decision-maker, not the plaintiff himself, which is relevant." Pisan v. Merril Lynch Co., 93 Civ. 4541 (LMM), 1995 WL 438715 at *3 (S.D.N.Y. July 24, 1995), quoting Rosengarten v. J.C. Penney Co., 605 F. Supp. 154, 157 (E.D.N Y 1985). Even assuming that Pontello's rankings were not well-advised, this is not sufficient to raise a genuine issue of fact of discriminatory animus. See Dister v. Continetal Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) (evidence "that an employer made a poor business judgment in discharging an employee generally is insufficient to establish a genuine issue of fact as to the credibility of the employer's reasons."); Walters v. Columbia Presbyterian Hosp., 89 Civ. 1326 (MBM), 1990 WL 43932 at *5 (S.D.N.Y. April 9, 1990) ("[A]n employer is allowed to misjudge the worth of its employees, so long as its evaluation is not based upon a discriminatory purpose."), citing Texas Dept of Community Affairs v. Burdine, supra, 450 U.S. at 258-59.

Although plaintiff disputes the ranking that was agreed upon by Pontello and Ginsberg, and argues that it was ill-advised and erroneous, he has not come forward with any evidence to suggest that either Pontello or Ginsberg was motivated by race or age in selecting candidates for the positions. Beyond the bare fact that plaintiff was not selected for an FEMP position after the closure of the New York Office, there is no evidence in the record to support the conclusion that defendant's stated reasons were pretextual.

Accordingly, plaintiff has failed to meet his burden under the third step of the McDonnell Douglas analysis, and summary judgment is appropriate.

C. Constructive Discharge

Finally, plaintiff claims that defendant's refusal to select him for one of the open FEMP positions forced him to retire and amounted to a constructive discharge. Defendant contends that plaintiff's voluntary retirement precludes this claim.

"A constructive discharge occurs when the employer, rather than acting directly, makes working conditions so intolerable that the employee is forced into involuntary resignation." Lopez v. S.B. Thomas, 831 F.2d 1184, 1188 (2d Cir. 1987). "To find that an employee's resignation amounted to a constructive discharge, `the trier of fact must be satisfied that . . . the working conditions would have been so difficult or unpleasant that reasonable person in the employee's shoes would have felt compelled to resign.'" Parker v. Chrysler Corp., 929 F. Supp. 162, 166 (S.D.N.Y. 1996), quoting Lopez v. S.B. Thomas, supra, 831 F.2d at 1188.

Although plaintiff argues that he was coerced into retiring by defendant's failure to select him for an FEMP position, it is undisputed that plaintiff applied for early retirement and a voluntary buyout from the DOE sometime before March 31, 1995, more than nine months prior to the DOE's announcement of the positions in January 1996. Thus, it is clear that plaintiff applied for voluntary retirement before he even found out that he would not be selected for an FEMP position.

In any event, whether or not plaintiff knew he would not be selected for an open FEMP position at the time he filed for voluntary retirement, he cannot establish a prima facie case of discriminatory discharge based on the closing of the New York Office. Although plaintiff alleges that he was denied an FEMP position on the basis of his race and age, he does not assert that the underlying reduction in force which led to the closing of the New York Office was motivated by discriminatory animus (see Pltf. 56.1 ¶ 32; Def. 56.1 ¶ 32). Therefore, even assuming that plaintiff's voluntary retirement does not preclude a claim of constructive discharge from his position in New York, he has not established that the termination of that position took place under circumstances giving rise to an inference of discrimination. See Texas Dep't of Community Affairs v. Burdine, supra, 450 U.S. at 253 (plaintiff must establish discriminatory circumstances by a preponderance of the evidence). Accordingly, defendant is entitled to summary judgment on plaintiff's constructive discharge claim.

IV. Conclusion

For the foregoing reasons, defendant's motion for summary judgment is granted and plaintiff's complaint is dismissed.

SO ORDERED.