Opinion
No. 07-1250-cv.
December 8, 2008.
Appeal from the United States District Court for the Southern District of New York (Paul A. Crotty,Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be, and hereby is, AFFIRMED.
Appearing for Appellant: Samuel O. Maduegbuna, Maduegbuna Cooper LLP, New York, NY.
Appearing for Appellees: Victoria Scalzo, City of New York (Michael A. Cardozo, Corporation Counsel of the City of New York; Stephen J. McGrath and Bruce Rosenbaum, of counsel), New York, NY.
Plaintiff Alton L. Hurd appeals from a judgment based on the grant of summary judgment against him entered by the district court. Hurd v. New York Health, No. 04 Civ. 998, 2007 WL 678403, 2007 U.S. Dist. LEXIS 15635 (S.D.N.Y. Mar. 5, 2007).
Summary judgment followed claims brought by the plaintiff pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., 42 U.S.C. § 1981, New York Executive Law §§ 290, et seq., and New York City Administrative Code §§ 8-101, et seq. against defendants New York Health Hospitals Corporation, Vincent Mirdita, Caroline Brozak, and Yolando Russell.
Hurd alleges he was denied promotion on the basis of his race, national origin, age and gender. He further alleges that the defendants retaliated against him for filing a charge with the Equal Employment Opportunity Commission ("EEOC").
Hurd claims that he was denied promotion to four separate positions based on discriminatory decisions: (1) Coordinating Manager in the Managed Care Department; (2) Coordinating Manager in the Finance Department; (3) Coordinating Manager in HIV Services; and (4) Community Coordinator in HIV Services.
Employment discrimination claims are analyzed under the burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973). First, the plaintiff must make out a prima facie case of discrimination. If he does, the burden shifts to the defendant to present a non-discriminatory reason for its action. If the defendant meets this burden, the plaintiff must demonstrate that the reason offered is a mere pretext for discrimination in order to survive summary judgment.
Hurd satisfies his burden to make out a prima facie case with respect to the first position he sought because he had been a Hospital Care Investigator longer than had the individual who did receive the position, Ms. Lulaj. Hurd had also received better performance evaluations, and had a college degree while Ms. Lulaj did not. The defendants presented evidence that Hurd did not receive the position for race-neutral reasons: Ms. Lulaj had five years of managed care experience while he had only three months, and Hurd interviewed poorly. This evidence is sufficient to shift the burden back to the plaintiff.
Hurd argues that these reasons were a pretext for discrimination, but offers no evidence to support this argument. He therefore fails the third part of theMcDonnell Douglas test.
As to the second promotion he sought, Hurd argues that he was more qualified for the position than Ms. Rodriguez, who was selected, but he presents no evidence of her qualifications or why they are inferior to his own. Because Hurd does not make any showing that the failure to promote him occurred under circumstances giving rise to an inference of discrimination, he fails to meet his prima facie burden. Even if he had met it, moreover, Hurd fails to present evidence sufficient to rebut the defendants' showing of non-discriminatory reasons for their selection, relying on conclusory statements regarding one supervisor's favoritism towards Hispanics.
As to the third and fourth positions he applied for, Hurd again argues that he was more qualified than those who were hired, but again presents no evidence of their qualifications or why they are inferior to his own. Such a bare assertion without evidence, is insufficient to meet the prima facie burden. Even if it were, the defendants have made a showing of a non-discriminatory reason for their hiring decisions (superior experience), and Hurd has failed to put forth any evidence that this reason is a pretext for discrimination.
Hurd also claims that he was subject to retaliation for his filing of a complaint with the EEOC. To establish a prima facie case of retaliation, a plaintiff must show: (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action. Richardson v. Comm'n on Human Rights Opportunities, 532 F.3d 114, 123 (2d Cir. 2008) (quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998)).
All of the alleged acts that Hurd identifies as evidencing a retaliatory hostile work environment were committed by people who were not involved in hiring for the positions at issue, and who were not identified as discriminators in the EEOC charge. Hurd thus fails to demonstrate a causal connection between the protected activity and the adverse employment action, and thereby fails to establish a prima facie case of retaliation.
The district court therefore properly ordered summary judgment for the defendants as to all claims.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.