Opinion
00-CV-0258E(Sc)
July 17, 2002
MEMORANDUM and ORDER
Plaintiff ("Bagdasarian"), a former employee of the United States Customs Service ("USCS"), brought this action against the then Secretary of the Treasury Lawrence H. Summers (the "Secretary") for alleged violation of, inter alia, the Age Discrimination in Employment Act, 29 U.S.C. § 633a ("ADEA"). The Secretary seeks a summary judgment of dismissal. For the reasons stated hereinafter, such motion will be granted.
USCS is part of the Dkepartment of the Treasury.
In January 1998 U.S.C.S's Office of Human Resources ("OHR") in Washington, D.C. announced a vacancy for the position of Supervisory Customs Inspector ("Chief Inspector") at the Port of Buffalo. Wilson Decl., at ¶ 5. Bagdasarian was one of eight candidates who applied for this position. Compl., at ¶ 6. The Port Director for Buffalo, Joseph J. Wilson, was the decision-maker responsible for filling this position. Id. at ¶¶ 1, 4. The application requirements and the criteria by which applicants would be evaluated were set forth in the vacancy notice, which originated with the OHR. Id. at ¶¶ 5-6. The OHR reviewed the applications for the position and determined which applicants were basically eligible under the Agency's Merit Promotion Plan ("MPP"). Id. at ¶¶ 6-7. OHR sent Wilson a list of eight applicants from which he could, pursuant to the MPP, select any candidate. Id. at ¶ 9. Rather than selecting a candidate himself from the list provided by OHR, Wilson requested the East Great Lakes Customs Management Center (the "Center") to convene an evaluation board to rank the eight candidates. Wilson Decl., at ¶ 10. In convening the requested evaluation board, the Center asked Wilson to provide the names of three managers to comprise the board. Id. at ¶ 11. Wilson provided the names of Chief Inspector Steven Loffredo, Supervisory Operations Analyst James Collingwood and Entry Branch Chief Marilyn Nemeth (collectively the "Evaluation Board"). Id. at ¶¶ 12-13. Wilson states that he never discussed the rating or selection process with any member of the Evaluation Board and that no such member ever consulted him. Id. at ¶¶ 14, 18-19. On March 6, 1998 Wilson received the ranked list of candidates from the Evaluation Board. Id. at ¶ 15. According to his general practice, Wilson selected the top-ranked candidate, who was Mark L. MacVittie. Id. at ¶ 16. Bagdasarian was not selected because he had been ranked fourth. Id. at ¶ 17.
Bagdasarian was employed by the USCS from June 21, 1964 until he retired on December 30, 2000. Def.'s Statement of Material Facts, at ¶ 1; Bagdasarian Aff., at ¶ 2. Plaintiff was born on May 8, 1938. Id.
Mr. Wilson was born in 1949.
Steven Loffredo (age 47 at the time of the panel) was a Chief Inspector, GS-13. Def.'s Statement, at ¶ 16. Marilyn Nemeth (age 43 at the time of the panel) was Chief of the Entry Branch, GS-13. Ibid. James Collingwood (age 54 at the time of the panel) was the Supervisory Operations Analyst, GS-13. Ibid. Subsequently and at the age of 57, Collingwood was promoted by Wilson to Assistant Port Director, GS-14. Def.'s Reply Mem., at 3-4 fn. 1.
Preliminarily, this Court must once again review the requirements of the Local Rules of Civil Procedure ("LRCvP"). LRCvP 56 provides:
"In any motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, there shall be annexed to the notice of motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party. The motion for summary judgment may be denied if the movant fails to annex the statement required by this rule."(Emphasis added).
In other words, the moving party must set forth the material facts that he contends are not in dispute, whereas the non-moving party must then set forth the material facts that he contends are in dispute (i.e., material facts as to which he contends that there is a genuine issue). Bagdasarian, however, submitted a responding statement ("Responding Statement") that failed to specifically controvert the defendant's Statement Of Material Facts in many respects. Although plaintiff's Responding Statement sets forth some facts that appear to somewhat contradict defendant's Statement Of Material Facts, it nonetheless includes facts that are contained in defendant's Statement Of Material Facts — i.e., facts about which there is no disagreement and that create no genuine issue of material fact. Consequently, plaintiff's Responding Statement fails to specifically set forth which facts create a genuine issue of material fact — as opposed to a recitation of all the alleged facts. As this Court held in Kuchar v. Kenmore Mercy Hosp., No. 97-CV-0756E(Sc), 2000 WL 210199, "[w]hile the consequence of this miscue is minimal given the general consensus between the parties as to the constituent facts of this case, where a discrepancy exists this Court is obligated to and will `deem admitted' the [moving party's] version of the facts *** [although] the Court is [also] obligated to and will believe the [non-moving party's] evidence and all justifiable inferences will be drawn in [his] favor." Although this Court has reviewed plaintiff's Responding Statement, it will not attempt to do what the plaintiff himself did not see fit to do — viz., determine which facts set forth in defendant's Statement Of Material Facts are controverted by plaintiff.
Such failure to abide by LRCvP 56 does not "streamline the consideration of summary judgment motions by freeing [this Court] from the need to hunt through voluminous records without guidance from the parties." Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001) (discussing Rule 56.1 of the Local Rules of Civil Procedure for the Southern and Eastern Districts of New York which is essentially the same as LRCvP 56).
See Holtz — see footnote 6 — at 73-74 ("A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules"); cf. Covelli v. Nat'l Fuel Gas Distrib. Corp., No. 99-CV-0500E(M), 2001 WL 1823584, at *1 (W.D.N.Y. Dec. 6, 2001) (holding that the district court "may, but is not required to, search the record for evidence which the party opposing summary judgment fails to point to in his LRCvP 56 statement. Inasmuch as the citations to the record in defendant's Statement support its factual assertions, this Court declines to search the record in an attempt to find evidence contradicting such when plaintiff has failed to do so ***.") (citations omitted).
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 shall be entered "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 plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.")
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). In other words, summary judgment is improper if there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party. Ibid. 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). Nonetheless, summary judgment is appropriate in discrimination cases. Holtz, at 69.
District courts must be "especially chary in handing out summary judgment in discrimination cases, 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 8, supra.
See footnote 6.
Turning to the governing substantive law, Bagdasarian alleges that the USCS discriminated against him on the basis of age by promoting a less-qualified 31-year-old instead of himself to Chief Inspector in violation of the ADEA and the NYHRL. Compl., at ¶¶ 6-8. Section 633a(a) of the ADEA, which governs agencies of the federal government, provides in relevant part that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age *** shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a).
Inasmuch as "[a]ge discrimination claims brought under the New York State Human Rights Law *** are governed by the same standards as those brought under the ADEA" — Wanamaker v. Columbian Rope Co., 108 F.3d 462, 467 (2d Cir. 1997), — the undersigned considers plaintiff's age-based claims in tandem. Moreover, "[c]laims under the ADEA and the NYSHRL receive the same analysis as claims under Title VII." Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997).
See generally Stevens v. Dep't of the Treasury, 500 U.S. 1, 5-6 (1991) (discussing section 633a of the ADEA); Wishnoff v. Rubin, 93-CV-0017E(F), 1995 WL 591143, at *1-2 (W.D.N.Y. Sept. 11, 1995) (same); Knoll v. Kemp, No. 92 Civ. 4697(JGK), 1996 WL 437937, at *4-5 (S.D.N.Y. Aug. 2, 1996) (same). The record does not disclose whether Bagdasarian met with an Equal Opportunity Employment counselor within 45 days of the date of the alleged discrimination — March 9, 1998. If such oversight were part of the record, Bagdasarian could be precluded from bringing his ADEA claims for having failed to exhaust his administrative remedies. See Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001) (noting that the EEOC regulations governing in an ADEA action require the aggrieved employee to, inter alia, consult with an EEO counselor within 45 days of the alleged discriminatory act) (citing 29 C.F.R. § 1614.105(a)(1)). However, inasmuch as the defendant does not raise this issue, it is waived and the Court does not address it.
ADEA claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny for Title VII cases. Holtz, at 76; Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). In order to show discriminatory treatment, "plaintiff must [first] establish a prima facie case of discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Defendant concedes for purposes of this motion that Bagdasarian has established a prima facie case of discrimination. Def.'s Mem. of Law, at 7. Accordingly, the burden of production shifts to the defendant, who must articulate a "legitimate, clear, specific and non-discriminatory reason" for not promoting Bagdasarian. Alaimo v. SUNY et al., No. 97-CV-0285E(H), 1998 WL 214743, at *2 (W.D.N.Y. Apr. 27, 1998) (citing Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996), cert. denied, 520 U.S. 1228 (1997)); see also Reeves, at 142 (same). Defendant satisfies this burden when he proffers that he promoted MacVittie over Bagdasarian because MacVittie was ranked first out of eight applicants by the Evaluation Board, whereas Bagdasarian was ranked fourth. Wilson Decl., at ¶¶ 16-17; cf. Ward v. Kennard, 133 F. Supp.2d 54, 58 (D.D.C. 2001) (finding that the defendant satisfied its burden of production under McDonnell Douglas where the federal agency selected a person from a list of "best qualified" candidates rather than selecting plaintiff from the list of "highly qualified" candidates). Another district court has held that,
See also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff"); 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).
A prima facie case of discrimination in a "failure to promote" case in violation of the ADEA would require Bagdasarian to show that (1) he was at least forty years of age; (2) he was qualified for the position for which he applied; (3) he was not promoted; and (4) he was disadvantaged in favor of a younger applicant. Forman v. Small, 271 F.3d 285, 292 (D.C. Cir. 2001) (construing section 633a of the ADEA).
"In other words, the defendant need not persuade the Court that it was motivated by the stated reasons; rather it need only explain what it has done." Kuchar, at *4 (citing Fisher v. Vassar College, 114 F.3d 1332, 1335-1336 (2d Cir. 1997), cert. denied, 522 U.S. 1075 (1998).
Plaintiff fails to offer any evidence that the Evaluation Board was tainted with Wilson's alleged discriminatory animus. Indeed, plaintiff produces no evidence showing that Wilson ever discussed the ranking of candidates with any member of the Evaluation Board. Bagdasarian Dep., at 84, 93-94; but see Wilson Decl., at ¶¶ 14, 18-19. Moreover, plaintiff's bald allegation that the Evaluation Board was biased with respect to age is undermined by the fact that one member, Collingwood, was 54 at the relevant time. Def.'s Statement, at ¶ 16.
"[i]n a promotion case, the employer need not prove that the person selected was the most qualified candidate; an employer has discretion to choose among equally qualified candidates `provided the decision is not based upon unlawful criteria.'" Strong v. Defense Logistics Agency, No. 86 Civ. 2480 (PKL), 1987 WL 13734, at *5 (S.D.N.Y. July 8, 1987) (quoting Burdine, at 259).
It is not the function of this Court to act as a "`super personnel department' that second guesses employers' business judgments." Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) (citation omitted). Employers are not required to make wise employment decisions, they are merely prohibited from making discriminatory ones. Buompane v. Citibank, No. 00 Civ. 7998(DLC), 2002 WL 603036, at *14 (S.D.N.Y. Apr. 18, 2002) (citing Byrnie); Hines v. Hillside Children's Ctr., 73 F. Supp.2d 308, 320 (W.D.N.Y. 1999).
Inasmuch as the defendant has satisfied its burden of production, "`the McDonnell Douglas framework *** disappear[s] and the sole remaining issue *** [is] discrimination vel non.'" Holtz, at 77 (quoting Reeves, at 142-143). Accordingly, the presumption of discrimination disappears and Bagdasarian must show that age was one of the motivating factors in the defendant's decision not to promote him. Holtz, at 78-79 (citing Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)).
The plaintiff has the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." Schnabel, at 90 (quoting Reeves, at 143).
Having run the gamut of McDonnell-Douglas, this Court must now determine whether the record is such that Bagdasarian has created a genuine issue of material fact as to whether age was one of the motivating factors in the defendant's decision not to promote Bagdasarian. Cf. Schnabel, at 91; Ward, at 58-59. To survive defendant's motion for summary judgment Bagdasarian must produce "sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not, [discrimination] was the real reason for the [adverse employment action]." Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (citations omitted). Bagdasarian, however, fails to proffer sufficient evidence that would allow a rational trier of fact to conclude that age was a motivating factor behind Wilson's decision not to promote plaintiff.
In an attempt to show that Wilson discriminated against him, Bagdasarian proffers the testimony of former USCS employee William D. Dietzel concerning a conversation between Dietzel and Wilson wherein Wilson allegedly called Bagdasarian an "old fart" and stated that "I already got two old farts that don't do anything anyway, what do I need another one for." Pl.'s Responding Statement, at ¶ 6. These statements, however, are irrelevant because they are alleged to have been made in January 1997 — over one year before Bagdasarian was passed over for promotion in March 1998 and without any continuing age comments. Pl.'s Responding Statement, at Ex. N. Accordingly, "[u]nless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of a discriminatory [decision]." Layaou v. Xerox Corp., 999 F. Supp. 426, 433 (W.D.N.Y. 1998) (citing McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir. 1996)); Williams v. Dictaphone, 112 F. Supp.2d 267, 283 (W.D.N.Y. 2000) (finding that the stray remark by a supervisor that he "didn't realize [that plaintiff was] that old" — which was made one year before plaintiff was terminated — failed to raise a genuine issue of material fact as to the supervisor's alleged discriminatory intent); Spence v. Maryland Cas. Co., 803 F. Supp. 649, 668 (W.D.N.Y.), aff'd in part, 995 F.2d 1147 (2d Cir. 1993) (holding that stray remarks made one year before demotion were insufficient "to demonstrate that the employer relied on illegitimate criteria" in making employment decision); Schnabel, at 88 n. 4.
Bagdasarian also submits the affidavits of former USCS employees Wilburn E. Stringer and Leonard Hejza. These affidavits, however, are unrelated to the employment decision that Bagdasarian challenges and are thus irrelevant. See Haskell v. Kaman Corp., 743 F.2d 113, 121-122 (2d Cir. 1984). Accordingly, unrelated instances of alleged discrimination that do not involve the promotional system challenged by plaintiff fail to create a genuine issue of material fact as to whether Wilson's decision to not promote Bagdasarian was discriminatory.
Finally, Bagdasarian compares himself with MacVittie in an attempt to demonstrate that Wilson discriminated against him. Plaintiff's subjective belief in his superiority over MacVittie, however, is insufficient to create a genuine issue of material fact as to whether Wilson discriminated against Bagdasarian. As the Second Circuit Court of Appeals has held, "[a]n employee's subjective opinion about whose qualifications are superior is not dispositive [because where] *** an employer uses objective or verifiable standards and makes selections in a nondiscriminatory fashion, he or she can decide which employee is most qualified." Campbell v. Daytop Village, Inc., No. 99-7673, 1999 WL 1295343, at *3 (2d Cir. Dec. 23, 1999) (citing Holt, at 130 and Ibrahim v. New York State Dep't of Health, 904 F.2d 161, 167 (2d Cir. 1990)); Byrnie, at 103 ("When a plaintiff seeks to prevent summary judgment on the strength of a discrepancy in qualifications ignored by an employer, that discrepancy must bear the entire burden of allowing a reasonable trier of fact to not only conclude the employer's explanation was pretextual, but that the pretext served to mask unlawful discrimination. In effect, the plaintiff's credentials would have to be so superior to the credentials of the person selected for the job that `no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.'"). Consequently, bare assertions of discrimination provide no evidence from which a jury might infer that Wilson's selection of the highest rated candidate was pretextual. See Ward, at 59.
Accordingly, it is hereby ORDERED that the defendant's motion for summary judgment is granted and that this action shall be closed.