Opinion
00-CV-0050E(Sr).
August 16, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff Dow brings this action asserting claims for defendants' alleged violation of 42 U.S.C. § 2000e et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"). On May 20, 2002 defendants sought dismissal or, in the alternative, summary judgment in their favor. Plaintiff submitted no opposition. Defendants' motion for summary judgment will be granted. The parties are largely in agreement as to the underlying facts. Dow is an African-American male and disabled veteran formerly employed as a police officer at the Department of Veterans' Affairs Western New York Health Care System (the "VA"). Compl., at ¶¶ 6-8; Defs.' Statement, at ¶¶ 1-2. Dow was hired pursuant to the Veterans' Readjustment Act ("VRA") Appointment Authority and, as such, he held an excepted service appointment rather than a competitive service position. Human Resource Specialist Tuttle Decl., at ¶ 5. The VA announced a Reduction-in-Force ("RIF") on March 17, 1997 that was effective May 24, 1997. Id. at ¶ 3. Dow was one of the employees who received a Notice of Separation via the RIF ("Termination Notice"). Id. at ¶ 4.
The Amended Complaint also lists in the initial paragraph a purported claim under 42 U.S.C. § 1981 — despite dismissal of such claim by this Court's Order dated July 5, 2000. Accordingly, to the extent that plaintiff is attempting to assert any claims other than his Title VII claim, such will be dismissed. See Brown v. Gen. Servs. Admin., 425 U.S. 820, 828-829 (1976) (dismissing plaintiff's section 1981 claims because Title VII is the "exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination."); Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996) ("Title VII is the exclusive remedy for discrimination by the federal government on the basis of race, sex or national origin."). Furthermore, the Complaint sets forth 42 U.S.C. § 2000e et seq. and Title VII of the Civil Rights Act of 1964 — which are one in the same — and the Civil Rights Act of 1991 — which amended Title VII. See Wrensen v. City of New York, 826 F. Supp. 698, 699 (S.D.N.Y. 1993) (noting that the Civil Rights Act of 1991 amended Title VII of the Civil Rights Act of 1964). Accordingly, plaintiff's only claim is under Title VII.
Amos v. Quebecor Printing, No. 96-CV-0072E(F), 1997 WL 251471, at *1 n. 1 (W.D.N.Y. Apr. 29, 1997) ("Inasmuch as [plaintiff] failed to submit, as required by [Rule 56 of the Local Rules of Civil Procedure ("LRCvP")], an opposing statement of material facts as to which it is contended that there exists a genuine issue to be tried, the facts contained in [defendant's] statement are deemed admitted unless otherwise adequately controverted in the record. It is also noted that, inasmuch as [plaintiff] submitted neither a memorandum of law nor a supporting affidavit, he additionally failed to comply with LRCvP 7.1(e) ***."). Although Dow has failed to properly oppose West's motion for summary judgment, this Court must first determine whether West has carried its initial burden under Rule 56 of the Federal Rules of Civil Procedure.
With the Termination Notice, Dow received a document entitled "Information for Employees Separated by RIF" ("Information Sheet"). Id. at ¶ 7. The Information Sheet advised Dow that, because he did not hold a competitive service position, he was not eligible for (1) the Re-employment Priority List Program ("RPL"), (2) Special Selection Priority Program ("SSP"), or the (3) Interagency Career Transition Assistance Plan ("ICTAP"). Id. at ¶¶ 9-11. Consequently, Dow was not entitled to any manner of priority reinstatement and, indeed, could not be considered for future positions unless he applied therefor or if he submitted an application for the Applicant Supply File, which is "maintained to keep or accept applications on a limited basis from persons not currently employed by the VA for future employment considerations." Id. at ¶ 12.
RPL "was available to give separated employees priority appointment over other outside applicants for a period of up to two years." Tuttle Aff., at ¶ 9.
SSP "gave employees separated by RIF selection priority at VA facilities in the local commuting area over other employees from within or outside the VA." Tuttle Aff., at ¶ 10.
ICTAP, run by the Office of Personnel Management, "provides displaced employees with special selection priority with other federal agencies within the local commuting area when vacancies are filled from outside their agency."
After Dow had been terminated, several police officer positions became available. On July 2, 1997 such a position was the subject of a promotion announcement. Id. at ¶¶ 13-14. This position, however, went unfilled. Id. at ¶ 15. On August 6, 1997 the VA made an open competition announcement for two police officer positions (including the unfilled position announced in July). Id. at ¶ 16. This announcement was posted by the Office of Personnel Management at www.usajobs.opm.gov. Ibid. Dow did not apply for either position and, consequently, there was no basis for the VA to consider him for either vacancy. Id. at ¶¶ 17-18. On August 28, 1997 the VA filled the positions from a pool of eight applicants. Id. at ¶ 19.
There appears to be some dispute, however, whether Dow had filed a Form SF-171 in response to an open continuous announcement for a police officer position in April 1997. Dow Dep., at 165-166. The VA, however, has no record that Dow ever filed such a form. See Tuttle Decl., at ¶ 26. Also, Dow does not have a copy of the form that he allegedly filed. Dow Dep., at 165. To the extent that the parties dispute whether Dow filed such a form, however, such is irrelevant because, even if Dow filed the form, its effect ended when he was terminated and there was no open position at the time he allegedly filed it or prior to his termination. Tuttle Decl., at ¶¶ 20-26; Dow Dep., at 165-166. In any event, there was a happy ending for Dow, who secured a police officer position with the United States Department of the Interior — at a pay grade two levels above his pay grade at the VA. Dow Dep., at 152-153.
"I have been advised that Larry Dow alleges he submitted a SF-171 Form, subsequent to notice of the RIF and prior to its effective date, in response to the Open Continuous announcement for positions at the VA. The Open Continuous announcement is a listing of various positions which are or may be available at some time in the future at the VA. Current VA employees are eligible to submit applications in response to the Open Continuous announcement, which then may be considered in the event that a position becomes available in the future. A review of the records maintained by the Human Resource Department failed to reveal any applications submitted by the plaintiff in response to any Open Continuous announcement in or about March, April or May of 1997. In addition, there is no record of any SF-171 submitted by the plaintiff in or about this time. Only current VA employees are eligible to be hired pursuant to the Open Continuous announcement. Once plaintiff was separated from service on May 24, 1997, even if Mr. Dow had previously submitted an application of SF-171 in response to the Open Continuous announcement, the application would become a nullity. He would no longer be eligible for consideration on this basis because he was no longer a current VA employee. The sole avenue which existed for the plaintiff to be considered for employment at the VA subsequent to the RIF, was by submission of an application to the Applicant Supply File or in connection with a specific vacancy announcement. As previously set forth, no application was ever received from the plaintiff for the Applicant Supply File or with respect to the August 1997 announcement of the police officer positions at the VA." Tuttle Aff., at ¶¶ 20-26 (emphasis added).
Consequently, even if Dow's Amended Complaint survived summary judgment, any damages would be limited to the period of time that he was unemployed — May 24, 1997 through September 21, 1997 — less any mitigation.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "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." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18. Indeed, in order to survive a motion for summary judgment, plaintiffs in discrimination cases must offer more than "purely conclusory allegations of discrimination, absent any concrete particulars ***." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). Summary judgment is nonetheless appropriate in discrimination cases. Holtz v. Rockefeller, 258 F.3d 62, 69 (2d Cir. 2001).
In employment discrimination cases, district courts must be "especially chary in handing out summary judgment *** because in such cases the employer's intent is ordinarily at issue." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).
See footnote 9.
Title VII states that "[i]t shall be an unlawful employment practice for an employer *** to discriminate against any individual with respect 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). Title VII claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny.
"First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981).
Internal citations and punctuation omitted. See also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 n. 3 (1993) (discussing the burden-shifting analysis established in McDonnell Douglas and construed in Burdine).
Indeed, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 253.
In order to establish a prima facie case of racial discrimination, plaintiff must show that (1) he is a member of a racial minority, (2) he applied for and was qualified for the position sought, (3) he was rejected despite his qualifications and (4) after his rejection, the position remained open and the employer continued to seek applicants from persons of plaintiff's qualifications. McDonnell Douglas, at 802. At the summary judgment stage the plaintiff's burden to show a prima facie case of racial discrimination is de minimis. Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (citing Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)).
Despite this low threshold, plaintiff fails to establish a prima facie case under Title VII because he cannot satisfy the second, third or fourth element set forth in McDonnell Douglas. Indeed, the fact that plaintiff did not apply for the police officer positions — either by submitting an application in response to the vacancy announcement or by having any priority reinstatement rights — is fatal to his Title VII claim. Brown v. Coach Stores, Inc., 163 F.3d 706, 709-711 (2d Cir. 1998) (discussing McDonnell Douglas and Burdine and holding that plaintiff's failure to apply for position was fatal to her Title VII claim); McKnight v. Graphic Controls Corp., No. 98-CV-0662E(H), 2000 WL 1887824, at *6 (W.D.N.Y. Dec. 11, 2000) (applying Coach Stores).
Such decision may be cited in whole or in any part.
Moreover, inasmuch as Dow suffered no adverse employment action — because he could not be "rejected" for a position for which he did not apply — his retaliation claim also fails. See Shah v. New York State Dep't of Civil Serv., No. 94CIV9193 RPP, 2001 WL 839986, at *6 (S.D.N.Y. July 25, 2001) (discussing prima facie case of retaliation in failure-to-hire cases and implicitly holding that plaintiff must have applied for the position in question).
Inasmuch as the amended complaint does not assert a hostile environment claim, this Court does not address such.
Accordingly, it is hereby ORDERED that any claim by plaintiff under 42 U.S.C. § 1981 is dismissed, that defendants' motion for summary judgment is granted, that this action is dismissed and that the Clerk of this Court shall close this action.