Opinion
Civ. 4864 (GEL)
September 24, 2002
Robert J. Barsch, for Plaintiff Janine Collette.
David R. Marshall, Littler Mendelson PC, New York, N.Y. (Erika L. Ozer, Littler Mendelson PC, New York. NY, of counsel) for Defendant St. Luke's Roosevelt Hospital.
OPINION AND ORDER
Janine Collette ("Collette" or "plaintiff") brought this action against St. Luke's Roosevelt Hospital ("SLRH" or "defendant"), her former employer, claiming among other things that its failure to promote her, and eventual termination of her employment, violated federal, state and city anti-discrimination laws. In an earlier decision, this Court dismissed plaintiffs claims that SLRH's hiring practices had a disparate impact on non-Jewish applicants for certain positions, but held that her complaint that SLRH retaliated against her for complaining of alleged violations of equal employment opportunity laws stated a claim for which relief could be granted. Collette v. St. Luke's Roosevelt Hospital, 132 F. Supp.2d 256 (S.D.N.Y. 2001).
Discovery having been completed, SLRH now moves for summary judgment on plaintiffs retaliation claims, and for dismissal of her pendent state-law contract claim. The motion will be granted.
BACKGROUND
The basic facts of the case can be summarized briefly, having been set forth in detail in the Court's prior opinion. Collette was hired by SLRH in or about January 1997, first as an independent contractor working for defendant's Continuing Medical Education ("CME") program and later, on defendant's payroll, as the CME Coordinator. (P. Rule 56.1 Stmt. ¶ 2; D. Rule 56.1 Stmt. ¶¶ 1, 2.) As CME Coordinator, Collette was asked to create a three-year business plan describing the structure, mission, and funding for a financially self-sufficient CME Department that could handle continuing education matters for SLRH and certain of its affiliates. (Compl. ¶ 15.) The plan, as eventually accepted by the SLRH administration in June 1999, provided for a full-time staff of three, including a Director and Assistant or Associate Director of CME, and a clerical assistant. (P. Rule 56.1 Stmt. ¶¶ 8, 9; D. Rule 56.1 Stmt. ¶¶ 30, 34.)
Although Collette expected that she would be appointed to one of the new directorial positions (Compl. ¶¶ 19, 27, 32), and was interviewed for the Director position, SLRH selected other candidates — Lois Grossman as Director and Ruth Weinstein as Assistant Director. (P. Rule 56.1 Stmt. ¶¶ 12, 23; D. Rule 56.1 Stmt. ¶¶ 69, 112.) During the hiring process, and after Grossman's appointment, Collette made various complaints about the manner by which SLRH filled the managerial positions, and about Grossman's competence and performance. Among other things, Collette complained to various administrators that SLRH violated equal employment opportunity requirements by failing to post notices of the directorial job openings. (Compl. ¶¶ 55-58.) In September 1999, Collette submitted a written petition of grievance to SLRH's Employee Resources Department, detailing her complaints. (Id. Ex. E.)
Although she initially applied for the Associate Director position. Collette cancelled a scheduled interview and withdrew her application. (P. Rule 56.1 Stmt. ¶¶ 21, 23; D. Rule 56.1 Stmt. ¶ 115.) On November 11, 1999, she was terminated. (P. Rule 56.1 Stmt ¶ 24; D. Rule 56.1 Stmt. ¶ 115.) Collette now alleges that she was fired because of "[her] Opposition to defendant's unlawful employment practices." (Compl. ¶ 35.) SLRH contends that the new administrative plan essentially eliminated her position as CME Coordinator. and assigned its responsibilities to the new Director and Associate Director. (Id. Ex. G.)
DISCUSSION
I. Plaintiff's Remaining Claims
Plaintiff's remaining federal cause of action alleges wrongful retaliation in violation of Title VII, claiming that Collette was fired because she had reported to her immediate supervisors, and to the defendant's Employee Resources Department, that SLRH had engaged in discriminatory hiring practices and had violated federal regulations requiring the posting of all available employment positions. (Compl. ¶¶ 9-39.) Collette also asserts similar retaliatory discharge claims under comparable New York State and New York City laws prohibiting employment discrimination, respectively, New York State Executive Law ("Exec. L.") § 296(7) (id. ¶¶ 40-46), and the New York City Administrative Code ("NYCAC") (id. ¶¶ 47-53). Like the first cause of action, these counts allege retaliation on account of Collette's reporting of defendant's disparate hiring practices and violation of federal posting requirements. Finally, plaintiff asserts a claim for breach of contract under state law, alleging that SLRH owes her back pay and unused vacation time. (Id. ¶¶ 72-75.)
II. Standard for Summary Judgment
Defendant moves for summary judgment on the retaliation claims. Summary judgment may only be granted when "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(b). The party opposing summary judgment "may not rest upon mere allegations or denials," but must set forth specific facts showing that there is a genuine issue for trial." Id. 56(e). To defeat a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio, 475 U.S. 574, 586 1986). "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986). Similarly, the non-moving party cannot defeat summary judgment by "offering purely conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), or by offering evidence in opposition that is merely speculative. Dister v. Continental Group, Inc., 5859 F.2d 1108, 1116-1117 (2d Cir. 1988). Accordingly, to defeat summary judgment, the opposing party must set forth "concrete particulars" showing that a trial is needed. R.G. Group v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).
III. Retaliation Claims
A. Governing Law
Claims I, II and III allege that SLRH retaliated against Collette because she complained that its employment practices violated equal opportunity laws. Section 704(a) of Title VII provides:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants or employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter. or because he has made a charge . . . or participated in any manner in an investigation . . . under this subchapter.42 U.S.C. § 2000e-3(a). "The objective of this section is obviously to forbid an employer from retaliating against an employee because of the latter's opposition to an an lawful employment practice." Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988).
To establish a claim for retaliation pursuant to Title VII. a plaintiff need not prove that her underlying discrimination claim was valid in the first instance. Sumner v. Postal Service, 899 F.2d 203, 208-09 (2d Cir. 1990). A plaintiff is engaged in "protected activity" under Title VII if she opposes conduct by her employer with a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law."Manoharan, 842 2d at 593. See also Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001); Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 135 (2d Cir. 1999).
"To make out a prima facie case of retaliation, an employee must show [1] that the employee was engaged in protected activity; [2] that the employer was aware of that activity; [3] that the employee suffered adverse employment decisions; and [4] that there was a causal connection between the protected activity and the adverse employment action."Manoharan, 842 F.2d at 593. See also Slattery v. Swiss Reinsurance America, 248 F.3d 87, 94 (2d Cir. 2001) (applying same standard to retaliation under Age Discrimination in Employment Act). In retaliation cases, the courts apply the same burden-shifting analysis utilized in other employment discrimination cases. See Choudhury v. Polytechnic Inst. of New York, 735 F.2d 38, 44 (2d Cir. 1984) (citing Grant v. Bethlehem Steel, 622 F.2d 43, 46 (2d Cir. 1980)). A successful prima facie showing "creates a presumption that the employer unlawfully discriminated." Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc). This presumption "places the burden of production on the employer to proffer a nondiscriminatory reason for its action." James v. New York Racing Assoc., 233 F.3d 149, 154 (2d Cir. 2000). If the employer fails to present such a reason, plaintiff prevails. "On the other hand, once the employer `articulates a non-discriminatory reason' for its actions, Fisher, 114 F.3d at 1336, the presumption completely `drops out of the picture.' St. Mary's [Honor Ctr. v. Hicks], 509 U.S. [502,] 510-11 [(1993)]." Id. At that point, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id.
Once the defendant has provided a non-discriminatory reason for its adverse employment action, the burden shifts back to the plaintiff, who then bears the burden of showing that the defendant's explanation was pretextual. "The probative value of the proof that the employer's explanation is false" is an important factor in determining a summary judgment motion of this sort. Reeves v. Sanderson Plumbings Prods., 530 U.S. 133, 148 (2000). However, evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to defeat summary judgment. Fisher, 114 F.3d at 1333. UnderJames and Fisher, even if the plaintiff adequately demonstrates the falsity of the employer's explanation for his termination, this is not necessarily enough to survive a motion for summary judgment, because proof that the employer's explanations were false would not necessarily constitute affirmative evidence that the real reason was prohibited discrimination:
The requirements of the McDonnell Douglas prima facie case are so minimal that they do not necessarily support any inference of discrimination; and there are so many reasons why employers give false reasons for an adverse employment action that evidence contradicting the employer's given reason — without more — does not necessarily give logical support to an inference of discrimination.James, 233 F.3d at 154. Thus, the combination of the prima fade case and some evidence of pretext may or may not be enough to survive a motion for summary judgment. The Court's task is to "analyze the particular evidence to determine whether it reasonably supports an inference of the [discrimination] plaintiff must prove." Id. at 157. When the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves, 530 U.S. at 143).
Although the state and city retaliation claims are technically pendent state claims that could be dismissed on jurisdictional grounds if the parallel federal claim does not reach trial on the merits, because "the identical standards apply to employment discrimination claims brought under Title VII, . . . Executive Law § 296 and the Administrative Code of the City of New York," Keady v. Nike, Inc., 116 F. Supp.2d 428. 437 n. 8 (S.D.N.Y. 2000) (internal citation omitted), plaintiffs state and city human rights law claims will be analyzed, as the commonly are by district courts in this circuit, in conjunction with her Title VII claims. See, e.g., Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir. 1997) ("We have repeatedly noted that claims brought under New York State's Human Rights Law are analytically identical to claims brought under Title VII") (internal citations omitted).
B. Prima Facie Case
Defendant seeks summary judgment, arguing that plaintiff has failed to raise a material issue of fact as to virtually all of the required elements. Defendant argues first, that Collette failed to show that she was engaged in statutorily-protected activity; second, that her complaints were too vague to make her employer aware that she was protesting claims of discrimination; third, that she is unable to establish a causal connection between the adverse employment actions she admittedly suffered and her protected activity; and fourth, that she has failed to raise a material issue of fact about the pretextual nature of the asserted reasons for her denial of promotion and eventual termination. In short, defendant argues that on the record of this case, no reasonable factfinder could determine that Collette has satisfied her "ultimate burden of persuading the trier of fact that [SLRH] intentionally [retaliated] against [her]." Reeves, 530 U.S. at 143.
1. Protected Activity
In her affidavit submitted in opposition to defendant's motion, plaintiff identifies four specific occasions, between the adoption of the new CME business plan in June 1999 and her termination in November 1999, on which she claims she "opposed" practices prohibited by Title VII. First, in June 1999, Collette "voiced [her] objections to [Tim Day, an SLRH Vice President] about the lack of EEO compliance." (Collette Aff. ¶ 12.) This "objection" appears to refer to Collette's contention that "the job [opening for Director of CME] was not posted as required by law." (Id. ¶ 10.) Collette also indicates that she made SLRH's Human Resources Department aware of "this." (Id.) Second, Collette states that in early July 1999, upon learning that "Human Resources was trying to work with unspecified contracts [contacts?] to fill the position," "I voiced my objections concerning the hiring process, both to Dr. [Norma] Braun [the chair of SLRH's CME committee] and Mr. Day. I specifically objected to them that Equal Opportunity objectives were not being met." (Id. ¶ 16.) Third, upon being advised that she could apply for the position of Assistant Director, "I protested [defendant's] continuing violation of EEO compliance and failure to post the job, or open up the process as promised. and that the process appeared to be tainted." (Id. ¶ 19.) Collette does not identify when or to whom this "protest" was made, but goes on to state that upon learning in August 1999 that interviews for the Assistant Director position had begun, "I told Dr. Braun and Ms. Grossman that I would not apply for the job unless EEO compliance occurred." (Id. ¶ 20.) Finally, in September 1999, Collette filed a "formal grievance" with SLRH's Human Resources Department "regarding my claims concerning my employment, the employment process (the lack of EEO compliance), and the way the CME program was now being administered [, including] my allegations concerning Ms. Grossman's incompetence." (Id. ¶ 21.)
Defendant argues that these complaints do not constitute "protected activity" under Title VII, because they do not involve opposition to or charges of "any practice made an unlawful employment practice by this subchapter," as required by § 704(a). (D. Mem. at 14-16.) Title VII makes it an unlawful employment practice to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [employment conditions], because of such individual's race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2. Defendant argues that nowhere in Collette's carefully-drafted affidavit does she state that she ever expressly suggested to anyone that SLRH had discriminated against anyone on any prohibited ground. Rather, her vague assertions about "EEO compliance" seem to have focused on the failure to publicly post the job opening. However, nothing in Title VII requires public posting of employment opportunities. Collette alleges in her complaint that such posting is required of federal contractors by Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (Sept. 24, 1965) available at 1965 WL 7913 (Pres.), and 41 C.F.R. § 60-1.42 (2002). But even these regulations only provide that employers who do engage in public advertising include language pledging equal treatment of all qualified applicants, and do not require public posting. Accordingly, defendant argues, Collette's various complaints never asserted any violation of Title VII and therefore did not constitute protected activity.
Plaintiff dismisses this argument, asserting that "[e]qual employment opportunity is Title VII," and that the executive order and attendant regulations are themselves "derived from Title VII." (P. Mem. at 4.) These assertions are somewhat cavalier; Title VII's prohibition of retaliation protects those who complain about violations of "this subchapter," not those who protest alleged violations of other laws, or who advance their own conceptions of fairness. Still, one who complains of illegal discrimination doesn't have to be correct in asserting that a violation of Title VII has occurred; she only needs a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Manoharan, 842 F.2d at 593. Thus, for example, someone who complains of sexual harassment may not be retaliated against, even if the underlying conduct complained of does not constitute a violation of Title VII. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998).
A reasonable factfinder could determine that Collette believed that she was complaining about conduct that violated Title VII. While plaintiff's blithe assertions about the equivalence of Title VII, various executive orders, and the general principle of equal opportunity and nondiscrimination may not be accurate statements of the law, they do reflect a widespread set of popular assumptions about the law. Collette eventually pursued the same complaints she made to various SLRH administrators in a complaint to Labor Relations of the Human Resources Department and in her complaint in this action. While this Court dismissed these claims as failing to state a claim under Title VII, Collette's vigorous pursuit of them constitutes strong evidence of her subjective belief that the conduct she objected to was unlawful.
Defendant argues at length that this belief was not reasonable, particularly for a person such as Collette, who had completed a year of law school at the time of these events. (D. Mem. at 12-13.) But a reasonable factfinder need not agree. Plaintiff asserts that her belief that public posting was a legal requirement came from various sources at SLRH itself, and while defendant may be right that she would have done better to have consulted a lawyer or one of her law teachers, or to have researched the question herself, the Court is not prepared to hold as a matter of law that no reasonable factfinder could find her belief, albeit mistaken, to have been reasonable. While the issue is not free from doubt, the Court will assume for purposes of this motion that plaintiff reasonably believed that the conduct she objected to was a violation of Title VII, and thus that her complaints constituted protected activity.
2. SLRH's Awareness
Defendant's argument about protected activity blurs into its next contention, that Collette's complaints were too vague to put SLRH on notice that she was engaged in protected activity. (D. Mem. at 13.) In order to establish a prima facie case, plaintiff must show that her employer was aware of her protected activity. Manoharan, 842 F.2d at 593. Typically, this issue concerns whether the employer ever learned of the plaintiffs protest activities. See, e.g., Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998); Shin v. ITOCHU Int'l, Inc., No. 97 Civ. 6235, 1998 WL 474198, at *4 n. 2 (S.D.N.Y. Aug 13, 1998.) Here, there is no question that SLRH was aware of Collette's actions, since the protected activity she relies on consists exclusively of internal complaints to SLRH administrators.
SLRH's argument, however, is more subtle. Even assuming that Collette's complaints of "lack of EEO compliance" were protected activity becauseshe could reasonably have believed that she was complaining of violations of Title VII, could such vague complaints have put SLRH on notice that it was dealing with an employee who had engaged in a protected protest against asserted violations of Title VII? The argument is ingenious, and its factual predicate is sound. Collette's complaints, as she herself reports them, were either extremely general assertions of lack of "openness" or failure to comply with "EEO policies," or specific objections to the failure to post the vacancy. She did not expressly charge that SLRH had discriminated against anyone, and her complaints, by her own account, were intermingled with assertions of personal unfairness to her (which apparently were never explicitly linked to her race, gender or religion), and of the incompetence or lack of qualifications of her successful rival for the Director's position. Whatever plaintiff herself might reasonably have thought, it is far from clear that SLRH officials confronted with her miscellaneous objections should reasonably have understood her to be making a protected complaint.
Nevertheless, as a matter of law defendant's argument must fail. SLRH cites no precedent interpreting the "awareness" requirement in this expansive a manner, and its interpretation is ultimately inconsistent with the purposes of Title VII's prohibition on retaliation. "[T]he burden that must be met by an employment discrimination plaintiff to survive summary judgment motion `at the prima facie stage is de minim[i]s.'" Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994) (quoting Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). As a component of a plaintiff's "minimal" burden of establishing a prima facie case, the awareness requirement should relate only to the employer's knowledge of plaintiff's activities. Once it is concluded that an employee was complaining of behavior that she reasonably believed violated Title VII, and that the employer was aware of that activity, the employer should not be allowed to fire the employee with impunity on the ground that it thought she was only protesting violation of an executive order and not of Title VII.
3. Causal Connection
Defendant concedes that plaintiff satisfies the third requirement of a prima facie case, since failure to promote and discharge are both adverse employment actions. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (citing Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir. 1995)) (citing Rutan v. Republican Party, 497 U.S. 62, 75 (1990)). It argues, however, that plaintiff fails to establish a causal connection between her "EEO compliance" complaints and those adverse actions. (D. Mem. at 18-23.) Defendant's argument. however, confuses the minimal showing of causation necessary to establish a prima facie case with the ultimate question of whether plaintiff raises an issue of fact about defendant's retaliatory motive.
SLRH is correct that Collette points to no evidence whatsoever affirmatively suggesting that her protests about "EEO compliance" played any role in the process of hiring for the directors' positions. Although plaintiff is fully aware, from her own involvement in the process and from discovery in this case, of the identities of all the relevant decisionmakers, she chose to depose none of them. A contemporaneous paper trail, including a number of candid e-mail messages discussing the merits of various candidates for Director of CME, has been made available via discovery. There is nothing to suggest that Collette's protected activity played any role whatsoever in her being denied the position.
Nevertheless, plaintiffs burden to establish a prima facie case of retaliatory motive is minimal, since her success in doing so does not win the case, or even require a trial, but merely requires the defendant to come forward with evidence of legitimate motives for its employment decisions. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507-508 (1993); Fisher v. Vassar College, 114 F.3d 1332, 1336-37 (2d Cir. 1997). Plaintiff's principal argument is that despite the absence of any "smoking gun" evidence of retaliation — which would be unlikely in any case involving a sophisticated employer — the close temporal connection between her complaints and her failure to be promoted and eventual dismissal supports an inference of causation. (P. Mem. at 5-6.)
It is well established that "temporal proximity can demonstrate a causal nexus," Manoharan, 842 F.2d at 593. On the other hand, however, temporal proximity in the absence of other evidence is often insufficient to establish a prima facie case of retaliation. Compare Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (finding no prima facie causal connection where only evidence was three month lapse between complaint and defendant's attempt to block his employment) with Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993) (prima facie causation established where adverse action took place one month after complaint and employer failed to follow its own procedures for addressing employee deficiencies) and Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir. 1986) (finding prima facie causation where "protected activity was closely followed by adverse actions").
Here, the temporal connection between Collette's objections and the adverse employment actions is as close as could be: her protests were completely intertwined with the process of interviewing for the Director and Assistant Director positions. The new business plan was submitted in April or May 1999 (compare P. Rule 56.1 Stmt. ¶ 7 with D. Rule 56.1 Stmt. ¶ 33), and formally approved in June (P. Rule 56.1 Stmt. ¶ 7; D. Rule 56.1 Stmt. ¶ 34), candidates were solicited for the Director's position as early as May, with the hope of having someone in the position by July 1 (Collette Aff. ¶¶ 10, 16); and Grossman was actually hired sometime in July (P. Rule 56.1 Stmt. ¶ 12; D. Rule 56.1 Stmt. ¶ 69). Collette's first protest to Day was in June, and she may have said something to the Human Resources Department even earlier. (Collette Aff. ¶¶ 9, 11.) She reiterated her complaints to Braun and Day in July 1999, apparently just before Grossman was hired for the position. (Id. ¶ 17.) And she pressed the matter with Braun and Grossman, and again with the Human Resources Department, in August and September, during the process of selecting an Assistant Director, which was completed in October, shortly before her termination in November. (Id. ¶¶ 21-24.) The proximal connection is thus extremely close.
Accordingly, the Court finds that plaintiff has, narrowly, satisfied her minimal burden of establishing a prima facie case. The inquiry thus turns to the legitimacy of the reasons offered by defendant to justify its decision.
C. Pretext
In the end, plaintiff's only potentially viable claim of retaliation relates to the failure to hire her for the Director position. Plaintiff herself acknowledges that she cancelled a scheduled interview for the Assistant Director position and withdrew her application. (Collette Dep. Tr. 413, 418-19, 423, 467.) Whatever plausibility there might be to plaintiffs claim that she withdrew because "the search process was a sham" and it had already been decided not to offer her the post (Collette Aff. ¶ 22) turns on the merits of her claim about the prior selection of the Director. Similarly, there is no question that the restructuring plan that Collette herself participated in drafting called for the termination of her prior position as Coordinator of CME, and its replacement by the Director and Assistant Director. (Marshall Aff. Ex. 5.) While Collette implies in passing that she could nevertheless have been kept on for some kind of subordinate or clerical position (Collette Aff. ¶ 23; P. Mem. at 9-10), there is no dispute that these were different positions than the Coordinator job that Collette had held, and the record is utterly barren of any indication that Collette ever applied for or expressed interest in applying for any such position. In short, to the extent that plaintiffs withdrawal of her application for the Assistant Director position does not completely doom her claim with respect to that position, see Brown v. Coach Stores, 163 F.3d 706, 711-12 (2d Cir. 1998) (prima facie case for failure to promote fails where plaintiff did not apply for the position), any remaining claim turns on the reasons why she was not hired as Director. Similarly, plaintiffs termination as Coordinator was the direct consequence of the replacement of that position by the Director job.
SLRH presents considerable evidence of legitimate reasons for its hiring of Grossman in preference to Collette. Dr. Braun, who chaired the Committee that made the decision, testified that the Committee selected Grossman primarily because she had worked for 17 years in a CME program regarded by the Committee members as the "premier" program in New York City. This experience was important because it allowed Grossman to develop contacts with the pharmaceutical industry — a major source of funding for CME programs. Moreover, she had a good reference from her former boss, who was regarded as a leading figure in CME. In addition, interview reports from Committee members indicated that Grossman had good communication and interpersonal skills. (Braun Aff. ¶¶ 17, 20.)
Collette, in contrast, had a stronger educational background and greater knowledge of the existing programs at SLRH, where she had worked for two years. However, her total involvement with CME consisted of her two years of mostly part-time employment at SLRH. Moreover, Collette was pursuing a law degree, which in the Committee's view both affected her short-term availability and commitment to a full-time job building a new CME program, and made it less likely that she would stay in the position for a long time — a priority for Braun, as evidenced by a contemporaneous e-mail that had nothing to do with Collette and indeed raised a question about Grossman's long-term commitment. (Id. ¶¶ 4, 17, 20; Barsch Aff. Ex. A.) Moreover, it is undisputed that Collette had occasional interpersonal difficulties with other SLRH staff including Braun. In particular, Collette does not dispute that she refused to provide Braun, the CME Committee Chair, with the keys to the CME office when Collette was going on vacation. (P. Rule 56.1 Stmt. ¶ 27; D. Rule 56.1 Stmt. ¶ 8.) Collette attempts to argue that this behavior was somehow appropriate because she thought that Braun did not need the keys and wanted to give the keys to someone that Collette, a part-time employee, believed should not have been authorized to enter the office. (Collette Aff. ¶ 26.) The issue, of course, is not who was right and wrong in this dispute (though a reasonable factfinder might well conclude that Collette's own account of this incident displays a remarkable tendency to insubordination), but rather that Braun would have had ample reason, wholly apart from any protected activity on Collette's part, to oppose her candidacy.
Braun testified, without contradiction, that the decision to hire Grossman was made by the CME Committee, which was made up of about twenty SLRH physicians and administrators, acting on the recommendation of a subcommittee of five members who had interviewed and reviewed the qualifications of four candidates, including Collette and Grossman. (Braun Aff. ¶¶ 12-13, 17-21.) of the five members of the subcommittee (Drs. Braun, Pierson, Macken, Hoskins and Wisnicki), there is no evidence that anyone other than Braun was aware of any of Collette's complaints regarding "EEO compliance" or the openness of the process, and Braun avers that no member of the subcommittee ever mentioned such matters. (Id. ¶ 20.) On the other hand, according to Braun, several members expressed problems with Collette's "reliability, availability, . . . ability to manage her time [and] interpersonal skills," as well as her long-term commitment to the program in light of her continuing legal studies. (Id.) Dr. Pierson, a member of the committee who, so far as the record reflects, had no knowledge of Collette's objections to the process, described her as the "least capable problem-solver" he had ever met, and expressed the view that offering her the position would be "unacceptable." (Id.)
Pierson's comments are quoted here as they are quoted by Braun in her affidavit. Braun's testimony about what Pierson said at the meeting are admissible non-hearsay, since they are offered not for the truth of what Pierson asserted but for the fact that they were made at the meeting. That is, the point is not whether Collette is in fact as Pierson described her, but rather that Pierson's opinion was reported to and considered by the decisive committee, and Braun is a first-hand witness to the meeting. of course, since Braun, unlike Pierson, was aware of Collettes alleged protected activity, an affidavit from Pierson would perhaps be more persuasive. Nevertheless, in view of Collette's failure to depose any of the members of the committee, despite ample opportunity to do so, she is ill-placed to challenge Braun's account of the meeting.
Given this evidence, it cannot be doubted that defendant has carried its burden of presenting legitimate non-retaliatory reasons for its failure to offer the Director's position to Collette. At this point, the burden shifts back to plaintiff to demonstrate that there is a genuine issue of fact about defendant's motivation. Evidence that the reasons given by the employer are false may contribute to raising such an issue, since proof that the reasons given are false could support an inference that the employer must be covering up an illegal. discriminatory motive. However, as noted above, it is not sufficient for the plaintiff even to prove that the proffered reasons are false — let alone, simply to raise a debatable issue about their accuracy. The ultimate question is whether a reasonable factfinder could determine that plaintiff was not offered the position as Director of CME in retaliation for her protests about purported violations of Title VII.
The Court concludes that Collette has not raised a genuine issue as to retaliation. First, plaintiffs prima facie case is only minimally adequate. The protests that lie at the heart of her claim only barely qualify as protected activity at all, and are so far removed from serious allegations of illegal conduct that it is difficult to see how an employer could have found the accusations threatening or worthy of retaliation — indeed, it is unclear that a reasonable employer would have recognized her claims as accusations of illegality at all. Collette never accused SLRH of actually discriminating against anyone, but merely sought greater "openness" and raised questions about "EEO compliance." These objections, in context, specifically concerned posting notices of the job opening, a matter that could easily have been as based on SLRH's own internal policies, to which Collette specifically alluded (Collette Aff. ¶ 10), or complaints that she personally had not been advised of the search (id. ¶ 11). There is no evidence that most of those who participated in making the decision were even aware of these complaints, and no affirmative evidence that the complaints played any causal role in the process — the only basis for finding even a minimal prima facie case of causation is the relatively weak inference from temporal proximity.
Second, plaintiffs evidence of the falsity or pretextual nature of the reasons given is also extremely weak. Collette disputes whether she was in fact unavailable or difficult to get along with, but it is undisputed that she had major outside commitments that would make it reasonable for SLRH to doubt her long-term or full-time commitment to the job, and she admits to engaging in conduct (completely unrelated to her charges of discrimination) that Braun, fairly or otherwise, could well have viewed as difficult. Collette argues that she was more qualified for the position than Grossman because she had a master's degree while Grossman was not a college graduate (P. Mem. at 8), but there is no evidence whatever that advanced education was regarded as a prerequisite for the position and considerable evidence that it was not regarded as particularly important. (Braun Aff. ¶ 16; Ex. B.) It is not for the Court to second-guess the employer's assessment of the importance of various qualifications, absent some evidence that the asserted weighing was pretextual. See Scaria v. Rubin, No. 94 Civ. 333, 1996 WL 389250 at *8 (S.D.N.Y. July 11, 1996); Lamb v. Citibank, No. 93 Civ. 2358, 1994 WL 497275 at *6 (S.D.N.Y. Sept. 12, 1994.) At any rate, Grossman's far greater relevant experience, a factor that would rationally be expected to weigh heavily with any employer, is undisputed.
On this record, no reasonable fact-finder could conclude that the selection of Grossman rather than Collette as Director of CME was the product of retaliation for protected complaints of violations of Title VII. Plaintiff cannot demonstrate that the reasons proffered by defendant are pretextual: she cannot show that any of the facts proffered by defendant as demonstrating Grossman's better qualifications for the job are false; she can raise only weak factual issues concerning the allegations of her own deficiencies; and she points to no evidence that the reasons given were not in fact considered in the hiring process, or were not regarded as significant by the decisionmakers. Moreover, there is no evidence that her protected activity, which only barely qualifies for the term and which, objectively considered, did not actually allege any violation of law, was even known to four of the five decisionmakers who voted on the appointment, or played any role in the thinking of the one who was aware of it, and who had other, non-retaliatory, reasons for disliking plaintiff. Under the standards set by Reeves, Fisher, andJames, this is not enough to call for a trial on the merits.
Accordingly, defendant's motion for summary judgment as to Claims I, II and III is granted.
IV. Breach of Contract
Plaintiff's remaining claim, for salary and vacation pay allegedly due under her employment contract, raises only issues of state law. Thus, in the absence of diversity of citizenship between the parties, which has not been asserted, this Court has only supplementary jurisdiction over that claim. A district court may decline to exercise such jurisdiction when it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Ordinarily, this discretion to decline to adjudicate should be exercised; the Second Circuit has held that "if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well." Castellano v. Bd. of Trustees, 937 F.2d 752, 758 (2d Cir. 1991). Here, the state claim in question is a garden-variety breach of contract claim in which there is no conceivable federal interest, and there is little factual or legal overlap with the Title VII claims that brought the case to federal court in the first place. The claim is thus more suitable for resolution in the state courts. Accordingly, the motion to dismiss that claim for lack of jurisdiction is granted.
CONCLUSION
Defendant's motion for summary judgment is granted as to the first, second and third causes of action is granted. Plaintiff's pendent state-law claim for breach of contract is dismissed for lack of jurisdiction.