Opinion
5:01-CV-1394(FJS/DEP)
February 9, 2004
JOHN L. VALENTINO, ESQ., LAWRENCE M. ORDWAY, JR., ESQ., GREEN SEIFTER PLLC, Syracuse, New York, of counsel for Plaintiff
PAULA RYAN CONAN, AUSA, Syracuse, New York, of counsel for Defendant
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff, a fifty-seven-year-old employee of the Social Security Administration ("SSA"), commenced this action in September 2001 alleging she was subject to unlawful discrimination and retaliation based on her age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a) and (d).
Plaintiff filed an Amended Complaint in January, 2002.
II. BACKGROUND
Plaintiff alleges that during 1996-1997 and 1999-2000, the Office of Hearings and Appeals ("OHA") subjected her to several instances of discrimination. Plaintiff claims that the pattern of discrimination culminated in Defendant's failure to award her two promotions, to legal assistant in 1997 and to case assistant in 2000, for which she was the most qualified candidate.
Presently before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that Plaintiff has failed to establish a prima facie case for unlawful discrimination or retaliation under the ADEA. The Court will address each of Defendant's arguments in turn.
III. DISCUSSION
A. Summary Judgment Standard
A court should grant a motion for summary judgment only if "there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). In making this determination, the court must resolve all ambiguities and draw all reasonable inferences in a light most favorable to the non-moving party. See id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)).
Although discrimination cases often involve a fact-intensive inquiry that precludes summary judgment, a court may award summary judgment where a fact finder could not infer a discriminatory motive. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
With these standards in mind, the Court will address Plaintiff's claims.
B. Plaintiff's Claim of Discrimination
The ADEA, which protects individuals over the age of forty, makes it unlawful for an employer to discriminate against an individual with respect to the terms, conditions, and privileges of employment because of that individual's age. See 29 U.S.C. § 623, 631(a).
When a plaintiff has alleged that she was discriminated against based on her age, courts analyze the Plaintiff's claim using the three-step McDonnell Douglas burden-shifting analysis. See Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1993) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973)) (other citation omitted). Under this analysis, an employee can establish aprima facie case by showing that 1) she was a member of the protected age group; 2) she was qualified for the position that she sought; 3) she was subjected to a material adverse employment action; and 4) the circumstances of the adverse employment action give rise to an inference of discriminatory intent. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (citations omitted).
Once the plaintiff has successfully demonstrated a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for taking the adverse action. See Jackson v. Lyons Falls Pulp Paper, Inc., 865 F. Supp. 87, 96 (N.D.N.Y. 1994) (citation omitted). If a defendant can offer a legitimate, non-discriminatory reason, the plaintiff must then show that the employer's reason was a pretext for age discrimination. See Gallo, 22 F.3d at 1224-25 (citation omitted).
Plaintiff began her employment with the SSA in 1987 as a hearing clerk floater. Thereafter, she was promoted to hearing clerk (GS-6). Plaintiff was forty-six years old at the time of the first alleged instance of discrimination (1996-97) and therefore was a member of the ADEA's protected class at all times relevant to this action. Plaintiff's claim of discrimination largely centers on two instances in which Defendant denied her promotions for which she applied. Plaintiff did not receive a promotion to a legal assistant position in 1997, and she was also rejected for a promotion to a case assistant position in 2000. With regard to the second element of the prima facie case, that Plaintiff show that she was qualified for the position she sought, Defendant acknowledges that Plaintiff was on a "well-qualified" list for both of the positions. Furthermore, Defendant largely does not dispute that the failures-to-promote constitute material adverse employment actions. Therefore, Plaintiff has met the first three elements of her prima facie case. The issue then is whether the circumstances of the adverse employment actions are such that they give rise to an inference of discriminatory intent. 1. 1997 Promotion Denial
A "well-qualified" list is a list of candidates prepared by the Social Security Administration personnel office in New York City, that the office has determined to have met the necessary qualifications for an open position.
In April 1997, shortly after a permanent legal assistant position opened, OHA Office Manager Carol Kaiser, Supervisor Yvonne Kent, and Supervisor Karen Paradiso jointly selected three individuals from the well-qualified list for permanent assignment as legal assistants at OHA: Susan Vaeth, Mary Jo Maleski, and Jill Sullivan. All three successful candidates were younger than Plaintiff and none was within the protected class. Plaintiff contends that she was more qualified and had more seniority than each of the three successful candidates.
The parties dispute Ms. Sullivan's age. As is necessary for this motion for summary judgment, the Court has assumed that Plaintiff's assertions are correct.
As support for her assertion that she was more qualified than the other three candidates, Plaintiff contends that in addition to nine years of experience as a hearing clerk, she received a paralegal certificate from LeMoyne College, took several college level courses, and received awards for her performance at her job. Plaintiff has not submitted any other evidence that she was more qualified or that her failure to be selected occurred under such circumstances as to give rise to an inference of discrimination.
In its Reply Memorandum of Law, Defendant asserts that Plaintiff has misrepresented that she earned a paralegal certification from LeMoyne College. According to Defendant, Plaintiff actually attended the American Institute for Paralegal Studies, which used classroom space at LeMoyne. Since this is a motion for summary judgment, the Court treated Plaintiff's claim that she received her paralegal certificate from LeMoyne as true for the purposes of this motion.
As Defendant points out, Plaintiff acknowledged that at least one of the successful candidates had more seniority than she did and had actually served as her supervisor in the past. Although Plaintiff stated in her submissions that her time as a hearing clerk qualified her for the position, such an assertion does not make her "more qualified," because the successful candidates also worked as hearing clerks. Furthermore, according to Ms. Kent's notes, Plaintiff did not understand aspects of case preparation and needed improvement in organization, planning and communication. More importantly, two other SSA employees, Karen Paradiso and Brenda Shearer, whom Plaintiff has not accused of discrimination, corroborated Ms. Kent's assertions regarding Plaintiff's performance. Ms. Paradiso, one of the three supervisors involved in choosing the three candidates for the legal assistant positions, testified that, when she worked with Plaintiff, Plaintiff frequently erred or lost interest in preparing cases. Ms. Shearer, a legal assistant, testified that Plaintiff communicated poorly and was unable to answer certain straightforward questions about the Social Security program. In addition, Plaintiff has not pointed to any specific deficiencies in the qualifications of the other candidates. See, e.g., Diaz v. New York City Transit Auth., No. 99 Civ. 9528, 2003 U.S. Dist. LEXIS 18084, * 15-* 17 (S.D.N.Y. Oct. 10, 2003) (comparing qualifications of competing candidates and finding no inference of discrimination).
Lastly, as Defendant points out, the "same actor interference" rule further undermines Plaintiff's claim of discrimination. Since Ms. Kaiser hired Plaintiff when Plaintiff was over 40, and between 1995 and 1997, Ms. Kaiser chose age-protected candidates for six of nine positions she filled, it is unlikely that Ms. Kaiser harbored animus toward older workers.
The same actor interference rule holds that, where the same individual both hired and fired an age-protected claimant, a presumption of age discrimination is defeated. Plaintiff correctly notes that the same actor interference rule becomes less relevant over the course of a long employment because, over time, it becomes possible for a supervisor to develop a prejudice against older workers. See Plaintiff's Memorandum of Law at 15 n. 2 (citing Carlton v. Mystic Transp., 202 F.3d 129, 137-138 (2d Cir. 2000)). Plaintiff also notes that she was employed at HHS for nine years, a substantial period of time. See Carlton, 202 F.3d at 138 ("seven years. . . . significantly weakens the same actor interference"). However, as Defendant points out, Ms. Kaiser also gave Plaintiff commendations as well as raises during her employment. Therefore, the Court has accorded some weight to the same actor interference rule.
Plaintiff also claimed that Defendant deliberately assigned her to work with Judge Tyminski because he was "difficult to work for and would judge her performance more harshly." See Plaintiff's Response Statement of Material Facts at ¶ 8. However, she admits that Judge Tyminsky reviewed her favorably in a letter of recommendation. See Plaintiff's Amended Complaint at ¶ 12(c). Therefore, Plaintiff's claim that Defendant attempted to undermine her success by assigning her to Judge Tyminski makes no sense.
Even assuming a prima facie case, Defendant, has met its McDonnell Douglas burden of providing a legitimate, non-discriminatory reason for choosing to hire other candidates for the positions: Plaintiff was less qualified than other candidates.
In 1997, before three permanent legal assistant positions opened, OHA assigned hearing clerks to the higher-paid legal assistant positions temporarily. The assignment, termed a "detail," also served as a training period for candidates, as Ms. Kent worked with each of the detailees, including Plaintiff, to train them. Plaintiff argues that even if the Court found that she was less qualified than the other candidates as a matter of law, her deficiencies stemmed from Ms. Kent's discriminatory treatment of her during her detail. According to Plaintiff, Ms. Kent deliberately trained her less thoroughly during her detail and then assigned cases to the three successful candidates — Ms. Sullivan, Ms. Vaeth, and Ms. Maleski, that Ms. Kent had already worked on, thereby allowing the three to appear to be more efficient than Plaintiff. Such an argument, though marginal, might be sufficient to allow Plaintiff to meet a prima facie case, of discrimination; however, Plaintiff has provided no evidence that Ms. Kent trained her insufficiently. She has offered the affidavits of Ms. DeSalvo and Ms. Howe; however, neither affidavit sets forth a single specific instance of discrimination, and Plaintiff offered no other specific facts to support her allegation. In any event, Plaintiff has clearly not carried her burden with respect to her claim of discrimination by Defendant's "failing to promote" her.
Accordingly, the Court grants summary judgment to Defendant with regard to the 1997 promotion denial.
2. 2000 Promotion Denial
In late 1999, Plaintiff applied for one of two positions as a senior case technician. Defendant denied her the promotion and instead chose Debra Warder and Sharon Lee Little for the positions. To show that the 2000 promotion denial occurred under circumstances giving rise to an inference of discrimination, Plaintiff largely relies on the same evidence that she offered with regard to the 1997 promotion denial. She also claims that Ms. Warder (then age 27) was not within the protected class and that the other successful candidate, Ms. Little (then age 50), was an inferior candidate who received a demotion after she was appointed senior case technician.
After a 1999 reorganization, the position of "legal assistant" was re-named "senior case technician."
Plaintiff seems to claim that the 2000 promotion denial constituted an instance of age discrimination as well as a retaliatory act in response to Plaintiff's Equal Employment Opportunity Commission ("EEOC") complaint. Therefore, in reading the submissions in the light most favorable to Plaintiff, the Court has treated Plaintiff's submissions as alleging that the 2000 promotion denial was an independent act of age discrimination as well as an act of retaliation for Plaintiff's complaints. The retaliation claim is discussed infra.
Here, too, assuming that Plaintiff has made a prima facie case, Defendant has rebutted Plaintiff's attempt to show discriminatory motive by providing facts that illustrate the strengths of the successful candidates. Both Ms. Warder and Ms. Little received excellent evaluations from their supervisors. Ms. Warder's former supervisor, Karen Paradiso, whom Plaintiff has not accused of discrimination, highly recommended her for the promotion. See Affidavit of Carol A. Kaiser, Exhibit 5, Social Security Administration Report of Investigation, Attachment B to Defendant's Memorandum of Law. Ms. Kaiser, the selecting official for the promotion, and Administrative Law Judge ("ALJ") Tarrant, the concurring official for the promotion, offered concrete reasons for deciding not to award the position to Plaintiff. ALJ Tarrant testified that Ms. Warder and Ms. Little were both more motivated and knowledgeable in the program than Plaintiff; he also testified that he ranked Plaintiff below two other unsuccessful candidates with regard to her ability to perform in the new role. See Plaintiff's Response to Defendant's Statement of Material Facts at ¶ 36. Ms. Kaiser testified that Plaintiff's decision-making abilities were somewhat weak. See id. at ¶ 35. Therefore, Defendant has successfully shifted the burden to Plaintiff to show that Defendant's reasons are pretextual. Plaintiff's only response to Defendant's proffered reasons is her conclusory statement that she was a superior candidate to Ms. Warder. With regard to Ms. Little, Plaintiff argues that she was the superior candidate because Ms. Little was ultimately "relegated to the lesser position of Chief Docketing Clerk until she retired." See id. at ¶ 34. However, even if Plaintiff was a superior candidate, she may only seek redress under the ADEA where an employer's preferences stem from discrimination against older candidates, not where an employer simply prefers another individual.
Even if Plaintiff's bare assertion could suffice to show that Defendant's reasons for not promoting her were based on something other than merit, the Second Circuit has noted that "`[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory.'" James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (quoting Reeves, 120 S.Ct. at 2108-09). This case, where Plaintiff has not alleged any facts at all to show that discrimination was a motivating factor in Defendant's decision, fits squarely into that category. Plaintiff admits that Ms. Little was age 50 at the time of the promotion and therefore well within the protected class. Had age discrimination motivated its decision, Defendant likely would not have hired Ms. Little.
As Plaintiff has provided no facts that would show directly or indirectly that the denial of promotion in 2000 resulted from impermissible age discrimination, the Court grants summary judgment as to the claim of discrimination.
C. Plaintiff's Claim of Retaliation
Plaintiff also claims that the 2000 denial of promotion and a series of other more minor incidents were in retaliation for a series of complaints that she made to the EEO and testimony that she gave in an undisclosed proceeding in 1999.
In an affidavit, Plaintiff alleges several additional incidents that she categorizes as retaliatory. First, Plaintiff contends that in September of 1998, Melanie Brace, another hearing clerk, once spoke to her in a loud voice. That same day, Ms. Kent called Plaintiff to her desk and inquired about the incident; Plaintiff stated in her affidavit that she believed that the inquiry was an inappropriate personal attack. Moreover, sometime after she filed her complaint with the EEO, Ms. Kaiser once spoke to Plaintiff in a hostile manner, inquiring as to why she had brought certain files to Ms. Kaiser's desk, and "[t]he environment in the Syracuse OHA became more hostile than ever." See Affidavit of Sandra Restani, sworn to Feb. 26, 2003, at ¶ 20. With regard to each instance of alleged retaliation, except the denial of promotion, Plaintiff has fallen short of showing a materially adverse change in her working conditions. Employer inquiries and negative evaluations do not amount to a materially adverse change in working conditions. See Lee v. New York State Dep't of Health, No. 98 Civ. 5714, No. 99 Civ. 4859, 2001 U.S. Dist. LEXIS 11287, *35-*39 (S.D.N.Y. Mar. 21, 2001).
To establish a prima facie case of retaliation under the ADEA, a plaintiff must show that (1) she engaged in a protected activity; (2) her employer was aware of that activity; (3) her employer took adverse action against her; and (4) a causal connection exists between the protected activity and the adverse action. See Terry, 336 F.3d at 141. Protected activity includes a range of activities such as formal complaints to an employer or agency such as the Equal Employment Opportunity Commission ("EEOC") and informal complaints to management. See Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d Cir. 1992).
Defendant does not contest most of Plaintiff's assertions that she engaged in protected activity at the various times alleged. And again, Defendant does not dispute that a denial of promotion constitutes an adverse action. Therefore, only the fourth element of the prima facie case — the existence of a causal connection between the protected activity and the adverse action-is in dispute.
Although neither party has provided any significant detail as to the substance of the May, 1999 matter, it is clear that the matter was unrelated to this case. Since on this motion the Court must draw all inferences in Plaintiff's favor, the Court assumes that Plaintiff engaged in some type of protected activity when she testified in that matter.
As in a discrimination claim, once a plaintiff has established her prima facie case of retaliation by a preponderance of the evidence, the burden shifts to her employer to articulate a legitimate, non-discriminatory reason for the employment decision. See id. at 77 (citing [McDonnell Douglas Corp. v. Green, 411 U.S. 792] at 802-03).
Again, assuming arguendo that Plaintiff has met her prima facie case, Plaintiff is unable to rebut Defendant's proffered nondiscriminatory reasons for declining to award her a promotion. Plaintiff asserts, with no factual support, that a causal connection exists between her April 1997 and June 1998 contacts with the EEOC, the protected activity in 1999, and the 2000 promotion denial. However, as Defendant points out, the denial occurred in January 2000, nearly two years after the 1997 and 1998 contacts with the EEOC and seven months after the alleged protected activity in 1999. The Court finds that the 1997/1998 contacts with the EEOC are too remote in time to raise a presumption of retaliation. Even assuming that the several-month gap from the 1999 activity is sufficiently close in time to raise a presumption of discrimination, Defendant has successfully rebutted any presumption of retaliation by (1) showing that another employee who participated in the same investigation and gave similar testimony received a promotion shortly thereafter; see Declaration of Carol A. Kaiser, sworn to March 12, 2003 at ¶ 5; and (2) offering specific testimony from Ms. Kaiser and ALJ Tarrant, both of whom testified to Plaintiff's deficiencies as compared to the other candidates.
The Supreme Court has noted that, in cases in which a plaintiff relies on temporal proximity to show a causal connection between protected activity and the alleged retaliation, Title VII requires that temporal proximity "be very close." Clark County Sch. Dist. v. Breeden 532 U.S. 268, 273 (2001) (citations omitted). Although the several-month gap likely does not meet this requirement, the Court assumes, arguendo, that Plaintiff met the causal connection prong of her prima facie case.
Accordingly, the Court grants Defendant's motion for summary judgment with respect to the retaliation claim.
IV. CONCLUSION
After carefully considering the file in this matter and the parties' submissions, as well as the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Defendant's motion for summary judgment is GRANTED in its entirety; and the Court further
ORDERS that the Clerk of the Court enter judgment in favor of Defendant and close this case.
IT IS SO ORDERED.