Meyer, M.D. v. Mcdonald

MOTION for Summary Judgment

E.D.N.Y.July 29, 2016

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JILL S. MEYER, M.D., Plaintiff, v. ROBERT McDONALD, Secretary, Department of Veterans Affairs, Defendant. Civil Action No. 15-CV-1496 (Weinstein, J.) (Bloom, M.J.) NOTICE OF MOTION Return Date: September 26, 2016, 10:00 a.m. PLEASE TAKE NOTICE that, on September 26, 2016 at 10:00 a.m. or as soon thereafter as counsel may be heard, upon the pleadings filed in this action and the accompanying Memorandum of Law, Declaration of Assistant U.S. Attorney Rukhsanah L. Singh, with exhibits annexed thereto, Defendant, by his attorney, Robert L. Capers, United States Attorney for the Eastern District of New York, Rukhsanah L. Singh, Assistant United States Attorney, of counsel, will move this Court before the Honorable Jack B. Weinstein, United States District Judge, United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York 11201, for the entry of an Order granting summary judgment in Defendant’s favor pursuant to Rule 56 of the Federal Rules of Civil Procedure. Case 1:15-cv-01496-JBW-LB Document 21 Filed 07/29/16 Page 1 of 2 PageID #: 132 2 PLEASE TAKE FURTHER NOTICE that, absent further order of the Court directing otherwise, any and all papers in opposition to this motion must be served on the undersigned by August 29, 2016, and reply papers, if any, must be served on Plaintiff by September 19, 2016. Dated: Brooklyn, New York July 29, 2016 ROBERT L. CAPERS United States Attorney Eastern District of New York Attorney for Defendant 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 By: s/Rukhsanah L. Singh RUKHSANAH L. SINGH Assistant United States Attorney (718) 254-6498 TO: Alan E. Wolin, Esq. 420 Jericho Turnpike, Suite 215 Jericho, New York 11753 Attorney for Plaintiff Case 1:15-cv-01496-JBW-LB Document 21 Filed 07/29/16 Page 2 of 2 PageID #: 133 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JILL S. MEYER, M.D., Plaintiff, v. ROBERT McDONALD, Secretary, Department of Veterans Affairs, Defendant. Civil Action No.: 15-cv-1496 (Weinstein, J.) (Bloom, M.J.) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ROBERT L. CAPERS United States Attorney Eastern District of New York Attorney for Defendant 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 RUKHSANAH L. SINGH Assistant United States Attorney (Of Counsel) Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 1 of 19 PageID #: 134 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ...............................................................................................1 STATEMENT OF FACTS ........................................................................................................2 APPLICABLE STANDARDS OF REVIEW ............................................................................2 I. Standard for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 ............2 II. Applicable Law Under the ADEA .......................................................................................3 III. Burdens Of Proof In Employment Discrimination Cases ....................................................4 ARGUMENT .............................................................................................................................5 I. Plaintiff Cannot Establish A Claim Of Age Discrimination Under The ADEA .................5 II. Plaintiff Cannot Establish a Prima Facie Case of Retaliation .............................................7 A. Plaintiff’s Protected Activity Under the ADEA ..............................................................8 B. There Is No Causal Connection Between Plaintiff’s Prior Activity Protected Under the ADEA and Her Non-Selection for the Psychiatrist Position at the NJ VA ...................................................................................................................................9 III. Defendant Had a Legitimate Non-Discriminatory and Non-Retaliatory Reason for Not Selecting Plaintiff........................................................................................................11 IV. Plaintiff Cannot Show that Defendant’s Legitimate Preference for Board Certification is a Mere Pretext ...........................................................................................14 CONCLUSION ........................................................................................................................15 Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 2 of 19 PageID #: 135 i TABLE OF AUTHORITIES Page Cases Aiossa v. Bank of Am., N.A., No. 10-CV-1275, 2012 WL 4344183 (E.D.N.Y. Sept. 21, 2012) ...........................................................................................................................11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 2 Andretta v. Napolitano, 922 F. Supp. 2d 411 (E.D.N.Y. 2013)................................................ 3, 12 Antunes v. Putnam/N. Westchester Bd. of Co-op. Educ. Servs., No. 09-CV-3063, 2011 WL 1990872 (S.D.N.Y. May 19, 2011), aff'd, 482 F. App’x 661 (2d Cir. 2012) .....................13 Brierly v. Deer Park Union Free Sch. Dist., 359 F. Supp. 2d 275 (E.D.N.Y. 2005) ................... 12 Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119 (2d Cir. 2012) ........................... 3, 5 Burlington N. and Santa Fe Rail Co. v. White, 548 U.S. 53 (2006) ............................................... 8 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................... 3 Chan v. Donahoe, 63 F. Supp. 3d 271 (E.D.N.Y. 2014) .......................................................... 8, 14 Chang v. Horizons, 254 F. App’x 838 (2d Cir. 2007) .............................................................. 8, 11 Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) ................................................................. 10 Dixon v. Int’l Fed. of Accountants, 416 F. App’x 107 (2d Cir. 2011) .......................................... 11 Drummond v. IPC Intern Inc., 400 F. Supp. 2d 521 (E.D.N.Y. 2005) ................................... 5, 6, 7 El Sayed v. Hilton Hotels Corp., 627 F.3d 931 (2d Cir. 2010) ............................................... 14, 15 Garrett v. Garden City Hotel, Inc., No. 05-CV-0962, 2007 WL 1174891 (E.D.N.Y. Apr. 19, 2007) ............................................................................................................................10 Gomez-Perez v. Potter, 553 U.S. 474 (2008) ............................................................................. 4, 8 Gordon v. New York City Bd. of Educ., 232 F.3d 111 (2d Cir. 2000) .......................................... 10 Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) ............................................................ 3, 9, 13 Hicks v. Baines, 593 F.3d 159 (2d Cir. 2010) ................................................................................. 8 Kessler v. Westchester County Dep’t of Social Serv., 461 F.3d 199 (2d Cir. 2006) ....................... 4 Kwan v Andalex Group LLC, 737 F.3d 834 (2d Cir. 2013) .......................................................... 11 Leibowitz v. Cornell Univ., 584 F.3d 487 (2d Cir. 2009) ............................................................... 3 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ....................................................................... 3 Mathirampuzha v. Potter, 548 F.3d 70 (2d Cir. 2008) ................................................................... 4 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ............................................ 4, 6, 12, 14 Meckenberg v. New York City Off-Track Betting, 42 F. Supp. 2d 359 (S.D.N.Y. 1999) ............... 5 Nelson v. Hernandez, 524 F. Supp. 2d 212 (E.D.N.Y. 2007) ......................................................... 3 Nicastro v. Runyon, 60 F. Supp. 2d 181 (S.D.N.Y. 1999) ............................................................ 11 Paul v. Theda Med. Ctr., Inc., 465 F.3d 790 (7th Cir. 2006) .............................................. 6, 13, 14 Quarles v. GM Corp., 758 F.2d 839 (2d Cir. 1985) ....................................................................... 2 Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000) .................................................. 4 Restani v. HHS, No. 01-CV-1394, 2004 WL 437462 (N.D.N.Y. Feb. 9, 2004), aff'd, 144 F. App’x 197 (2d Cir. 2005) ...............................................................................................13 Robles v. Cox and Co., 987 F. Supp. 2d 199 (E.D.N.Y. 2013)............................................... 14, 15 Rothenberger v. New York City Police Dep’t, No. 06-CV-868, 2008 WL 2435563 (E.D.N.Y. June 16, 2008) ........................................................................................................5, 8 Shumway v. United Parcel Serv., Inc., 118 F.3d 60 (2d Cir. 1997) ................................................ 6 Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) .............................................................................. 3 Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 3 of 19 PageID #: 136 ii Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ............................................. passim Univ. of Texas Sw. Med. Ctr. v. Nassar, --- U.S. ---, 133 S. Ct. 2517 (2013) ................................ 9 Vazquez v. Southside United Hous. Dev. Fund Corp., No. 06-CV-5997, 2009 WL 2596490 (E.D.N.Y. 2009) ..........................................................................................................14 Williams v. Brooklyn Union Gas Co., 819 F. Supp. 2d 214 (E.D.N.Y. 1993)............................ 5, 6 Statutes 29 U.S.C. § 633a ..................................................................................................................... 1, 3, 4 Rules Fed. R. Civ. P. 56 ........................................................................................................................ 1, 2 Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 4 of 19 PageID #: 137 1 PRELIMINARY STATEMENT Defendant Ronald McDonald, Secretary, Department of Veterans Affairs (“VA”), (“Defendant”) by his attorney, Robert L. Capers, United States Attorney for the Eastern District of New York, Rukhsanah L. Singh, Assistant United States Attorney, of counsel, respectfully submits this memorandum of law in support of his motion for the entry of summary judgment in his favor pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Jill Susan Meyer, M.D. (“Plaintiff”) brings this action pursuant to the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 633a, alleging that she was subjected to age discrimination and retaliation for alleged prior protected activity. (See Dkt. No. 8 (Amended Complaint)). Plaintiff’s claims arise from her non-selection for a position of staff psychiatrist at the VA New Jersey Health Care System (“NJ VA”) under Vacancy ID No. 517141, which was announced through Vacancy Announcements JL-11-3559, JL-12-3559, and BH-12-JLI-517141-MHC (collectively, the “Vacancy Announcements). (See Dkt. No. 8). Plaintiff previously had worked as a psychiatrist with the NJ VA from December 1994 to February 2004, when she resigned. Defendant did not select her for a psychiatrist position in 2012 because Defendant had a preference to interview and hire candidates who were board certified in psychiatry, Plaintiff is not board certified, and other qualified candidates who were board certified applied for the same position. As set forth below, Plaintiff cannot meet her minimal burden of establishing a prima facie case of discrimination or retaliation as a matter of law. Simply, Plaintiff’s non-selection did not occur under circumstances giving rise to an inference of age discrimination, and there is no evidence that could demonstrate a discriminatory or retaliatory animus behind the challenged agency action. Furthermore, Plaintiff’s claims of retaliation fail as a matter of law because there Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 5 of 19 PageID #: 138 2 is no evidence to support a finding of a causal connection between Plaintiff’s protected activity and the adverse employment action. Indeed, Defendant had a legitimate, nondiscriminatory, non pretextual motive for not selecting Plaintiff—namely, to hire individuals who are board certified in psychiatry—which was motivated by Defendant’s interest in providing the highest level of care to veterans and which was completely unrelated to Plaintiff’s age or prior protected activity. Accordingly, Plaintiff’s claims of discrimination and retaliation under the ADEA fail as a matter of law. Defendant, therefore, respectfully requests that this Court enter judgment in favor of Defendant and dismiss all claims asserted against him in Plaintiff’s Amended Complaint. STATEMENT OF FACTS For a complete statement of the facts material to the arguments presented in this Memorandum, Defendant respectfully refers the Court to Defendant’s Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (“56.1 Stmt.”) and the Declaration of Assistant U.S. Attorney Rukhsanah L. Singh (“Singh Decl.”), with exhibits annexed thereto. In the interest of brevity, the facts are not repeated here. APPLICABLE STANDARDS OF REVIEW I. Standard for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 A court will grant summary judgment where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court may enter summary judgment in the defendant’s favor if the plaintiff proffers evidence that is merely “colorable” or “not significantly probative.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). “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.” Id. at 252. The existence of factual disputes that are not material will not preclude the entry of summary judgment. See Quarles v. GM Corp., 758 F.2d 839, 840 (2d Cir. 1985). Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 6 of 19 PageID #: 139 3 As a result, a plaintiff “must make a sufficient showing on the essential elements of his case for which he bears the burden of proof at trial.” Nelson v. Hernandez, 524 F. Supp. 2d 212, 219 (E.D.N.Y. 2007) (Gershon, J.) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 884 (1990); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). II. Applicable Law Under the ADEA In her Amended Complaint, Plaintiff asserts claims of age discrimination and retaliation under the ADEA based on her non-selection as a psychiatrist at the NJ VA. The ADEA prohibits discrimination in employment on the basis of age against persons aged 40 years or older. 29 U.S.C. § 633a. For a claim of age discrimination, Plaintiff must establish a prima facie case, showing that she: (1) belonged to a class protected by the statute; (2) was qualified for the position; (3) was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See, e.g., Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012); Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009); Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003). Further, to establish a failure to select claim under the ADEA, Plaintiff must show that her age was the “but-for” cause of Defendant’s decision not to hire her; Plaintiff’s age cannot be “merely a contributing or motivating factor.” Andretta v. Napolitano, 922 F. Supp. 2d 411, 418 (E.D.N.Y. 2013) (Kuntz, J.); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). Even if Plaintiff can produce some evidence that age was a motivating factor in an adverse decision, the burden of persuasion does not shift to Defendant to show that he would have taken the action regardless of the age. See Andretta, 922 F. Supp. 2d at 418. The Supreme Court of the United States has found that the ADEA, as applied to federal agencies, also “prohibits retaliation against a federal employee who complains of age Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 7 of 19 PageID #: 140 4 discrimination.” Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008).1 The Supreme Court’s holding, however, limited any retaliation claim under the federal-sector ADEA to be one based on complaints or oppositions to age discrimination. See id.; Mathirampuzha v. Potter, 548 F.3d 70, 74 n.3 (2d Cir. 2008) (“The Supreme Court recently clarified that the federal-sector provision of the [ADEA], 29 U.S.C. § 633a(a), prohibits retaliation based on the filing of an age discrimination complaint[.]”). To establish a prima facie case of retaliation under the ADEA, Plaintiff must show that: (1) she participated in a protected activity under the ADEA; (2) Defendant was aware of this activity; (3) Defendant took an adverse employment action against her; and (3) there was a causal connection between the protected activity and the adverse employment action. Kessler v. Westchester County Dep’t of Social Serv., 461 F.3d 199, 205-06 (2d Cir. 2006). III. Burdens Of Proof In Employment Discrimination Cases In evaluating discrimination claims brought under the ADEA, courts apply the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000) (applying McDonnell Douglas analysis to ADEA claim). McDonnell Douglas provides the following analysis. At step one, Plaintiff bears “the burden of proving by the preponderance of the evidence a prima facie case of discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If Plaintiff meets that burden, then, at step two, the burden of proof shifts to Defendant to “articulate some legitimate, nondiscriminatory reason for” the adverse employment action. Id. at 253 (internal quotation marks and citation omitted). If Defendant meets that burden, then, at step 1 Although the Supreme Court’s holding in Gomez-Perez was limited to alleged retaliation of a “federal employee,” for purposes of this motion only, Defendant does not contest that the holding would apply to an applicant for federal employment, such as Plaintiff. Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 8 of 19 PageID #: 141 5 three, the burden shifts back to Plaintiff who must then prove by a preponderance of the evidence that the articulated reason is a mere pretext. Id. Although the burden of proof shifts under the McDonnell Douglas analysis, Plaintiff bears, at all times, the burden of persuasion. Id. at 253. ARGUMENT I. Plaintiff Cannot Establish A Claim Of Age Discrimination Under The ADEA There is no genuine dispute of material fact that Plaintiff was not selected for the vacancy at issue because Defendant preferred board certified psychiatrists to fill the position and Plaintiff was not board certified. Plaintiff simply cannot show that her non-selection “occurred under circumstances giving rise to an inference of [age] discrimination[,]” as required by the fourth prong of the prima facie case for a claim of age discrimination. Bucalo, 691 F.3d at 129. Indeed, “[t]he ‘mere fact’ that plaintiff is over the age of forty does not establish discriminatory intent.” Rothenberger v. New York City Police Dep’t, No. 06-CV-868, 2008 WL 2435563, at *11 (E.D.N.Y. June 16, 2008) (Garaufis, J.) (adopting report and recommendation (Bloom, M.J.)) (citing Meckenberg v. New York City Off-Track Betting, 42 F. Supp. 2d 359, 373 (S.D.N.Y. 1999)). Significantly, there is an inference against discrimination “where the person who participated in the allegedly adverse decision is also a member of the same protected class.” Drummond v. IPC Intern Inc., 400 F .Supp. 2d 521, 532 (E.D.N.Y. 2005) (Hurley, J.) (finding that because the 61 year-old selecting official was in the same age class as the 52-year-old plaintiff, there was an inference of no discrimination where a 29-year-old employee replaced the plaintiff); see also Williams v. Brooklyn Union Gas Co., 819 F. Supp. 2d 214, 227, 231 (E.D.N.Y. 1993) (Glasser J.) (dismissing age discrimination claims where responsible managing officials were older or approximately the same age as the plaintiff). Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 9 of 19 PageID #: 142 6 Here, Plaintiff identifies three officials allegedly responsible for her non-selection: Miklos Losonczy, M.D., the individual ultimately responsible with deciding which individuals would be hired to fill the vacancies; and Maureen Kaune, M.D., and Saila Donepudi, M.D., the individuals who performed the screening and interviews of potential candidates. See 56.1 Stmt. ¶¶ 24-25. All three of these individuals were in the same age class protected by the ADEA as Plaintiff at the time of Plaintiff’s non-selection. See 56.1 Stmt. ¶¶ 1, 43-45. Indeed, Drs. Losonczy, Kaune, and Donepudi were all above the age of forty at the time the alleged discriminatory action took place. See 56.1 Stmt. ¶¶ 43-45. Because the individuals involved in the hiring process were members of the same protected age group as Plaintiff, there is an inference against discrimination as to Plaintiff’s non-selection as a staff psychiatrist at the NJ VA. See Drummond, 400 F.Supp.2d at 532; see also Williams, 819 F. Supp. 2d at 227, 231. In addition, Plaintiff was not treated differently from “similarly situated” individuals outside of her protected classes. See, e.g., Burdine, 450 U.S. at 258; Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63-64 (2d Cir. 1997). To be ‘similarly situated,’ the individuals with whom [the plaintiff] attempts to compare [herself] must be similarly situated in all material aspects.” Shumway, 118 F.3d at 64. Although Defendant ultimately hired two individuals who were younger than Plaintiff for the psychiatrist positions at the NJ VA in 2012, those individuals are not similarly situated to Plaintiff “in all material aspects.” Shumway, 118 F.3d at 64; see also Burdine, 450 U.S. at 258 (“McDonnell Douglas teaches that it is the plaintiff’s task to demonstrate that similarly situated employees were not treated equally.”). Both of the candidates ultimately hired had the qualification of being board certified in their profession; Plaintiff is not. 56.1 Stmt. ¶ 40; see, e.g., Paul v. Theda Med. Ctr., Inc., 465 F.3d 790, 795 (7th Cir. 2006) (finding plaintiff failed to show that health facility treated other non-board certified Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 10 of 19 PageID #: 143 7 neurosurgeons who were not within plaintiff’s protected class more favorably where plaintiff was not board certified and other neurosurgeons at health facility were board certified). This is a material and significant distinction. A psychiatrist could become board certified after attending a program accredited by the Accreditation Council for Graduate Medical Education and only after passing an examination administered by the American Board of Psychiatry and Neurology (“ABPN”). See Singh Decl. Ex. P at 98:8-99:13. As described by Dr. Kaune: “It’s a very rigorous examination process. And at the end, if you pass, you get your ABPN board certification and you are recognized as one of those experts in your filed.” Singh Decl. Ex. P at 99:10-13). Because Plaintiff was not board certified, and the candidates ultimately selected were board certified, the selected individuals do not serve as true comparators to invoke an inference of discrimination. Further, even assuming, which is not the case here, that Plaintiff were board certified or otherwise equally qualified as the selected individuals, an “employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria.” Burdine, 450 U.S. at 259. Accordingly, Plaintiff has not, and cannot, point to any other factor or circumstance that would indicate an inference of age discrimination, as required to show a prima facie case of age discrimination. The Court, therefore, should dismiss Plaintiff’s claims of age discrimination. See Drummond, 400 F. Supp. 2d at 532. II. Plaintiff Cannot Establish a Prima Facie Case of Retaliation Plaintiff cannot establish that Defendant retaliated against her in violation of the ADEA. Here, Plaintiff bears the burden of proving a prima facie case of retaliation by showing that: (1) she participated in a protected activity under the ADEA; (2) Defendant knew of the protected activity; (3) she was subjected to an adverse employment action; and (4) there is a “causal connection between the protected activity and the adverse employment action.” Hicks v. Baines, Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 11 of 19 PageID #: 144 8 593 F.3d 159, 164 (2d Cir. 2010) (internal quotation marks and citation omitted). “[T]o prevail on a claim for retaliation, ‘a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Rothenberger, 2008 WL 2435563 at *12 (quoting Burlington N. and Santa Fe Rail Co. v. White, 548 U.S. 53 (2006)). A. Plaintiff’s Protected Activity Under the ADEA Defendant does not dispute that Plaintiff engaged in prior protected activity under the ADEA. See Chan v. Donahoe, 63 F. Supp. 3d 271, 295 (E.D.N.Y. 2014) (Weinstein, J.) (“Filing a formal complaint of discrimination with an administrative agency is protected activity.”). However, because a retaliation claim under the federal-sector provision of the ADEA is limited to retaliation for prior complaints of age discrimination, Plaintiff’s alleged protected activity that does not fall within the scope of the ADEA is not relevant to this case or motion. See Gomez- Perez, 553 U.S. at 491. Even if the Court were to consider Plaintiff’s other alleged protected activity, such activity occurred years before the challenged agency action here and Plaintiff cannot show any causal connection between that activity and her non-selection for the same reasons discussed herein. See Chang v. Horizons, 254 F. App’x 838, 839 (2d Cir. 2007) (finding that a one year gap was insufficient to establish causal connection). Nevertheless, prior to filing the formal EEO Complaint on May 10, 2012 for the claim underlying this action, Plaintiff had twice previously asserted claims of age discrimination against the VA. 56.1 Stmt. ¶¶ 11-18. First, through initial contact with the EEO on September 2, 2003, Plaintiff previously alleged harassment and a hostile work environment during her prior employment with the VA based on her religion, gender, and age, and an alleged violation of the Equal Pay Act (EEO complaint identification number 200H-0561-2003104255). 56.1 Stmt. Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 12 of 19 PageID #: 145 9 ¶ 11. After Plaintiff filed a formal EEO complaint on October 13, 2003, Plaintiff and the VA settled that EEO matter. 56.1 Stmt. ¶¶ 12-13. Second, on April 23, 2009, Plaintiff made initial contact with the VA EEO and alleged that her non-selection for a vacancy at a Syracuse VA Medical Center (“Syracuse VA”) was the result of discrimination based on her age, national origin, and religion and retaliation (EEO complaint identification number 200H-0670- 2009102705). 56.1 Stmt. ¶ 14. Following the filing of a formal complaint on June 3, 2009, the VA issued a Final Agency Decision on March 23, 2012, which was affirmed on October 4, 2012.2 56.1 Stmt. ¶¶ 15-17. B. There Is No Causal Connection Between Plaintiff’s Prior Activity Protected under the ADEA and Her Non-Selection for the Psychiatrist Position at the NJ VA Plaintiff cannot establish that there is a causal connection between her non-selection in 2012 and her prior allegations of age discrimination in 2003 and 2009. The “causal connection” requirement “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, --- U.S. ---, 133 S. Ct. 2517, 2533 (2013); see also Gross, 557 U.S. at 177-78 (requiring but-for causation for a claim of retaliation under the ADEA). A plaintiff may prove causation by either: (1) direct evidence, through evidence of the defendant’s retaliatory animus towards the plaintiff; or (2) indirect evidence, through circumstantial evidence of disparate treatment of other employees who engaged in similar conduct or through a showing that discriminatory treatment closely followed protected activity. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 2 On December 26, 2012—after Plaintiff’s non-selection for the NJ VA position at issue here—Plaintiff filed a Complaint in this District, alleging that her non-selection for a position at the Syracuse VA was the result of discrimination based on her age and religion as well as retaliation for prior protected activity. See 56.1 Stmt. ¶ 18; Meyer v. Shinseki, No. 12-CV-6337 (Irizarry, C.J.) (Tiscione, M.J.). In that action, defendant’s fully briefed motion for summary judgment is pending before the Court. Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 13 of 19 PageID #: 146 10 (2d Cir. 2000). As the Supreme Court has directed, if a plaintiff relies on temporal proximity as circumstantial evidence of causality, then the “temporal proximity must be very close.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (internal quotation marks and citations omitted). Here, Plaintiff has failed to establish, by any direct evidence, causality between her protected activities under the ADEA and the alleged retaliatory action of her non-selection for a vacancy at the NJ VA. Rather, the uncontested evidence establishes that Plaintiff was not selected because she did not have the qualification of being board certified. At the same time, there were other qualified psychiatrists who applied for the NJ VA vacancy and who were board certified. 56.1 Stmt. ¶ 30. Thus, based on the evidence in this case, Plaintiff simply cannot establish direct evidence of retaliatory animus. Nor is there indirect, or circumstantial, evidence of any retaliatory animus. First, Plaintiff has not, and cannot, show disparate treatment of fellow employees who engaged in similar protected conduct. See Gordon, 232 F.3d at 117. Second, Plaintiff cannot establish the required “causal connection” between the protected activity and her non-selection through circumstantial evidence of temporal proximity. Indeed, the Supreme Court has made clear that, if temporal proximity is to be used as circumstantial evidence establishing retaliatory animus, it must be close in time. See Clark, 532 U.S. at 273. As a result, courts have repeatedly determined that establishing a causal connection between a plaintiff’s protected activity and an alleged retaliatory act requires the retaliatory act occur less than two or three months after the protected activity. Garrett v. Garden City Hotel, Inc., No. 05-CV-0962, 2007 WL 1174891, at *21 (E.D.N.Y. Apr. 19, 2007) (Bianco, J.) (“[D]istrict courts in this Circuit have consistently held that a passage of more than two months between the protected activity and the adverse employment action does Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 14 of 19 PageID #: 147 11 not allow for an inference of causation.” (listing cases)); see also Chang, 254 F. App’x at 839 (finding a one-year gap insufficient to establish a “causal nexus based on temporal proximity”); Aiossa v. Bank of Am., N.A., No. 10-CV-1275, 2012 WL 4344183, at *5 (E.D.N.Y. Sept. 21, 2012) (Seybert, J.) (finding four month gap between complaint and termination of employment did not create a triable issue as to retaliatory intent); Nicastro v. Runyon, 60 F. Supp. 2d 181, 185 (S.D.N.Y. 1999) (“Claims of retaliation are routinely dismissed when as few as three months elapse between the protected EEO activity and the alleged act of retaliation.”); cf. Kwan v Andalex Group LLC, 737 F.3d 834, 845 (2d Cir. 2013) (finding three weeks sufficient temporal proximity to meet prima facie standard). Significantly, the Second Circuit has found that a gap as short as four months is insufficient to establish temporal proximity. Dixon v. Int’l Fed. of Accountants, 416 F. App’x 107, 110 (2d Cir. 2011). Here, there is an almost three-year gap between Plaintiff’s protected activity under the ADEA and Defendant’s alleged adverse employment action (the non-selection). Under controlling Second Circuit law, such a gap is too large to allow for any inference of causation based on temporal proximity. See id.; Chang, 254 F. App’x at 839. Accordingly, because Plaintiff cannot establish a prima facie claim of retaliation under the ADEA, either through direct or circumstantial evidence, this Court should dismiss Plaintiff’s retaliation claim in its entirety. III. Defendant Had a Legitimate Non-Discriminatory and Non-Retaliatory Reason for Not Selecting Plaintiff Even if Plaintiff could meet her burden of establishing a prima facie case of age discrimination or retaliation under the ADEA—which she cannot—Defendant had a legitimate, non-discriminatory and non-retaliatory reason for not selecting Plaintiff for the position of staff psychiatrist at the NJ VA: she was not board certified, which was a preferred qualification for the Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 15 of 19 PageID #: 148 12 position. See McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 253. To establish that there is a legitimate, non-discriminatory and non-retaliatory reason for the agency’s employment action, Defendant need only clearly set forth the reasons for Plaintiff’s non-selection. Burdine, 450 U.S. at 254-55; see also Brierly v. Deer Park Union Free Sch. Dist., 359 F. Supp. 2d 275, 291 (E.D.N.Y. 2005) (Hurley, J.) (granting summary judgment in failure to select case and finding the court “may not sit as super personnel departments, assessing the merit – or even the rationality – of employers’ non-discriminatory business decisions”). Simply put, in this case, Defendant did not select Plaintiff for the position of staff psychiatrist at the NJ VA because Defendant preferred to fill the vacant positions with board certified candidates. 56.1 Stmt. ¶¶ 26-28. Although board certification was not a qualification listed in the vacancy announcement, the selecting officials could make hiring decisions based on preferences in qualifications, such as board certification. See 56.1 Stmt. ¶¶ 26-28; Singh Decl. Ex. DD (listing basic qualifications). Defendant preferred board certification because it indicated that the psychiatrist had passed a “very rigorous examination process” and was recognized as an expert in his or her field. 56.1 Stmt. ¶ 28; Singh Decl. Ex. P at 99:10-13. All psychiatrists that were interviewed and ultimately selected for the vacancies at issue here were board certified. 56.1 Stmt. ¶¶ 36-37, 40-41. Here, Plaintiff does not dispute that she lacked the preferred qualification of board certification. See 56.1 Stmt. ¶ 5. At the same time, other qualified candidates who were board certified applied for the vacant positions. 56.1 Stmt. ¶ 30. The decision not to select Plaintiff was completely unrelated to Plaintiff’s age or her prior complaints of alleged age discrimination. See 56.1 Stmt. ¶¶ 26-30, 33-35; Singh Decl. Ex. P at 99:15-21; Andretta, 922 F. Supp. 2d at 420 (“By presenting evidence of a legitimate, merit-based review process, Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 16 of 19 PageID #: 149 13 which resulted in the selection of three well qualified candidates, Defendant has satisfied its burden in the second phase of the McDonnell test.”). Courts have consistently found that an employer’s preference to hire candidates with specific qualifications is considered a legitimate non-discriminatory and non-retaliatory reason and is sufficient to overcome Plaintiff’s prima facie case of discrimination. See Burdine, 450 U.S. at 253; Restani v. HHS, No. 01-CV-1394, 2004 WL 437462, at *3 (N.D.N.Y. Feb. 9, 2004), aff'd, 144 F. App’x 197 (2d Cir. 2005) (granting defendant’s summary judgment motion where defendant did not select plaintiff because other applicants were more qualified); see also Antunes v. Putnam/N. Westchester Bd. of Co-op. Educ. Servs., No. 09-CV-3063, 2011 WL 1990872, at *7 (S.D.N.Y. May 19, 2011), aff'd, 482 F. App’x 661 (2d Cir. 2012) (finding that employer’s preference for filling custodial vacancies with part-time cleaners was a legitimate, non- discriminatory preference reason for the challenged employment action). At least one Court of Appeals has found that board certification—the criteria that caused Defendant to select candidates other than Plaintiff for the positions at issue here—is a legitimate and non- discriminatory reason for employment actions. See Paul, 465 F.3d at 795 (“Theda Clark’s requirement that a neurosurgeon with active staff membership be board certified is a legitimate and non-discriminatory reason for denying [plaintiff] active status.”). Plaintiff can offer no evidence (because there is none) that her age was the “but-for” cause of the agency’s decision not to select her as a psychiatrist at the NJ VA.3 See Gross, 557 U.S. at 177 (finding plaintiff asserting ADEA claim must establish that age was the but- for cause for alleged adverse employment action). As a result, Defendant’s non-selection of 3 In addition, Plaintiff cannot cite to any admissible evidence to establish that Defendant was aware of the selected individuals’ respective ages prior to their selection for the vacancies at the NJ VA. Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 17 of 19 PageID #: 150 14 Plaintiff because she was not board certified is a legitimate, non-discriminatory and non- retaliatory reason. See Paul, 465 F.3d at 795. IV. Plaintiff Cannot Show that Defendant’s Legitimate Preference for Board Certification is a Mere Pretext There is no evidence that would show that Defendant’s hiring preference for board certified candidates is mere pretext. Once Defendant has articulated a legitimate, non- discriminatory reason for the challenged employment action, the burden shifts to Plaintiff, who must then show that Defendant’s proffered reason is pretextual. See McDonnell Douglas, 411 U.S. at 804. To withstand the entry of summary judgment, Plaintiff “must establish a genuine issue of material fact either through direct, statistical or circumstantial evidence as to whether the [agency’s] reason for the [challenged agency action] is false and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse decision.” See Vazquez v. Southside United Hous. Dev. Fund Corp., No. 06-CV-5997, 2009 WL 2596490, at *8 (E.D.N.Y. 2009) (Garaufis, J.) (internal quotation marks and citation omitted); see also Robles v. Cox and Co., 987 F. Supp. 2d 199, 206 (E.D.N.Y. 2013) (Spatt, J.) (“A reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that the discrimination was the real reason.” (internal quotation marks and citation omitted)). In addition, while “temporal proximity of events may give rise to an inference of retaliation . . ., such temporal proximity is insufficient to satisfy [Plaintiff’s] burden to bring forward some evidence of pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010). Rather, to establish pretext on a retaliation claim, “[r]etaliation must be shown as the ‘but-for’ cause of the adverse action.” Chan, 63 F. Supp. 3d at 297. Here, Plaintiff can point to no evidence to support a contention that Defendant’s reason for not selecting her was false, nor is there any evidence to support a finding that it is more likely Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 18 of 19 PageID #: 151 15 that Plaintiff’s age or prior activity protected by the ADEA was the motivation for Plaintiff’s non-selection. See, e.g., Robles, 987 F. Supp. 2d at 206. Significantly, although Plaintiff claims that Defendant has hired non-board certified psychiatrists at the NJ VA, the record evidence clearly establishes that Defendant hires such individuals when there are no board certified applicants for the position. See 56.1 Stmt. ¶ 29. Here, in 2012, Defendant received applications from board certified applicants, which Defendant legitimately preferred. See 56.1 Stmt. ¶¶ 26- 2830. Accordingly, this Court should grant summary judgment in favor of Defendant. See El Sayed, 627 F.3d at 933 (affirming summary judgment in favor of employer where plaintiff offered no evidence of pretext). CONCLUSION For the foregoing reasons, Defendant respectfully requests that this Court grant summary judgment in his favor, dismiss Plaintiff’s Amended Complaint and all claims asserted against him therein in their entirety, and grant Defendant any such other and further relief as this Court may deem proper and just. Dated: Brooklyn, New York July 29, 2016 Respectfully submitted, ROBERT L. CAPERS United States Attorney Eastern District of New York 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 By: s/Rukhsanah L. Singh RUKHSANAH L. SINGH Assistant United States Attorney (718) 254-6498 rukhsanah.singh@usdoj.gov Case 1:15-cv-01496-JBW-LB Document 21-1 Filed 07/29/16 Page 19 of 19 PageID #: 152 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JILL S. MEYER, M.D., Plaintiff, v. ROBERT McDONALD, Secretary, Department of Veterans Affairs, Defendant. Civil Action No.: 15-CV-1496 (Weinstein, J.) (Bloom, M.J.) DEFENDANT’S STATEMENT OF UNDISPUTED MATERIAL FACTS PURSUANT TO LOCAL CIVIL RULE 56.1 Pursuant to Rule 56.1 of the Local Civil Rules of the United States District Court for the Southern and Eastern Districts of New York, Defendant Robert McDonald, Secretary, Department of Veterans Affairs (“VA”), by his attorney, Robert L. Capers, United States Attorney for the Eastern District of New York, Rukhsanah L. Singh, Assistant United States Attorney, of counsel, respectfully submits this Statement of Undisputed Material Facts, with each fact individually numbered below, as follows: I. Plaintiff’s Background and Qualifications 1. Plaintiff Jill S. Meyer, M.D., (“Plaintiff”) was born in February 1953. (Declaration of Assistant U.S. Attorney Rukhsanah L. Singh (“Singh Decl.”) Ex. L at 8:25-9:2). 2. Plaintiff attended New York University, Syracuse University, and Indiana University for her undergraduate education, but did not receive an undergraduate degree. (Singh Decl. Ex. L at 17:12-18:2; Ex. B at p. 1). 3. In 1981, Plaintiff received a medical doctor degree from the University of Dominica (Ross University) in Portsmouth, Dominica. (Singh Decl. Ex. B at p. 1). Case 1:15-cv-01496-JBW-LB Document 21-2 Filed 07/29/16 Page 1 of 8 PageID #: 153 2 4. Plaintiff is licensed to practice medicine in the States of New York, New Jersey, Nebraska, and Maryland, as well as the Commonwealth of Pennsylvania. (Singh Decl. Ex. L at 21:15-18). 5. Plaintiff is not board certified in any area of medicine. (Singh Decl. Ex. L at 22:17- 18). II. Plaintiff’s Prior Employment with the VA New Jersey Health Care System and Application for a Position with a VA facility in Syracuse, New York 6. From December 1994 until February 2004, Plaintiff was employed as a staff psychiatrist by the VA New Jersey Health Care System (“NJ VA”). (Singh Decl. Ex. L at 46:13-17). 7. Maureen Kaune, M.D., supervised Plaintiff while she worked at the NJ VA until Plaintiff was transferred to another supervisor after she made threatening remarks to Dr. Kaune. (Singh Decl. Ex. R ¶ 12). 8. In February 2004, Plaintiff resigned from the NJ VA. (Singh Decl. Ex. AA). 9. In 2009, Plaintiff applied for a psychiatrist position at the VA Medical Center in Syracuse, New York (“Syracuse VA”). (Singh Decl. Ex. BB at Plaintiff-477). 10. Plaintiff ultimately was not selected for the position at the Syracuse VAMC. (Singh Decl. Ex. L at 59:19-60:2, Ex. BB at Plaintiff-477 to Plaintiff-478). III. Plaintiff’s Prior Protected Activity 11. On September 2, 2003, while employed by the NJ VA, Plaintiff made initial EEO contact on a complaint of alleged harassment and a hostile work environment based on her religion, gender, and age, and an alleged violation of the Equal Pay Act (bearing EEO complaint identification number 200H-0561-2003104255). (Singh Decl. Ex. T at MEYER_VANJHCS_000498). Case 1:15-cv-01496-JBW-LB Document 21-2 Filed 07/29/16 Page 2 of 8 PageID #: 154 3 12. On October 13, 2003, Plaintiff filed a formal EEO complaint in EEO number 200H- 0561-2003104255. (Singh Decl. Ex. T at MEYER_VANJHCS_000498). 13. Plaintiff and the VA settled the claims asserted in EEO number 200H-0561- 2003104255. (Singh Decl. Ex. T at MEYER_VANJHCS_000498). 14. On April 23, 2009, Plaintiff made initial contact with the EEO and alleged that her non-selection for a vacancy at the Syracuse VA was the result of discrimination based on her age, national origin, and religion and retaliation (bearing EEO complaint identification number 200H-0670-2009102705). (Singh Decl. Ex. T ¶ 8, Ex. BB at Plaintiff-471). 15. On June 3, 2009, Plaintiff filed a formal EEO complaint in EEO number 200H-0670- 2009102705. (Singh Decl. Ex. T, Ex. BB at Plaintiff-471). 16. On March 23, 2012, the VA issued a Final Agency Decision in EEO number 200H- 0670-2009102705. (Singh Decl. Ex. T, Ex. BB at Plaintiff-461). 17. On October 4, 2012, the EEO in Washington, D.C. affirmed the VA’s Final Agency Decision. (Singh Decl. Ex. CC). 18. On December 26, 2012, Plaintiff filed a Complaint in this District against Defendant, alleging that her non-selection for a position at the Syracuse VA was the result of discrimination based on her age and religion as well as retaliation for prior protected activity. See Meyer v. Shinseki, No. 12-CV-6337 (Irizarry, C.J.) (Tiscione, M.J.), Dkt. No. 1 (Complaint). IV. The NJ VA Vacancy Announcements and Plaintiff’s Application 19. In 2011 and 2012, the NJ VA had a vacancy for a staff psychiatrist, which was listed under Vacancy ID No. 517141. (Singh Decl. Ex. A, Ex. R ¶¶ 2, 8). Case 1:15-cv-01496-JBW-LB Document 21-2 Filed 07/29/16 Page 3 of 8 PageID #: 155 4 20. The vacancy was announced under two vacancy announcements: first, Vacancy Announcement JL-11-3559 and, then, Vacancy Announcement JL-12-3559, which included a second vacancy for a staff psychiatrist position. (Singh Decl. Ex. A, Ex. R ¶¶ 7-8). 21. Vacancy Announcement JL-12-3559 was later renamed as Vacancy Announcement VH-12-JLI-517141-NHC. (Singh Decl. Ex. S at 5:18-7:2). 22. Accordingly, in 2012, the NJ VA sought to hire two staff psychiatrists to fill Vacancy ID No. 517141 pursuant to Title 38 of the United States Code. (Singh Decl. Ex. A, Ex. R ¶¶ 7-8, Ex. S at 5:11-17, 7:3-8:4, Ex. DD). 23. A Title 38 position does not need to be filled from applications sent for a specific vacancy announcement; an applicant could apply for one position and have her application roll over into the selection process for an identical yet different listing. (Singh Decl. Ex. O ¶ 14, Ex. R ¶ 10, Ex. DD, Ex. S at 6:15-7:2). 24. Miklos Losonczy, M.D., who was the Associate Chief of Staff for Mental Health at the NJ VA in 2012, was the selecting official for the NJ VA staff psychiatrist vacancies. (Singh Decl. Ex. M at 27:7-10, 28:5-11, 35:4-24, Ex. S at 8:5-8). 25. Dr. Losonczy directed Saila Donepudi, M.D., and Maureen Kaune, M.D., to form a selection panel to review and interview candidates for Vacancy ID No. 517141. (Singh Decl. Ex. R ¶ 2, Ex. O ¶ 4, Ex. M at 41:17-43:10). 26. Drs. Donepudi and Kaune determined prior to reviewing applications that board certified psychiatrists would be preferred for the position, although it was not a requirement. (Singh Decl. Ex. R ¶ 3, Ex. O ¶ 6, Ex. N at 31:20-32:2, 35:24-36:6, 37:4- 10, Ex. P at 41:2-12). Case 1:15-cv-01496-JBW-LB Document 21-2 Filed 07/29/16 Page 4 of 8 PageID #: 156 5 27. Dr. Losonczy also determined that board certification was a preference for the position because it indicated that the “candidates are better qualified.” (Singh Decl. Ex. M at 38:19-24). 28. When making their selection, the panel’s initial criteria was board certification because board certified applicants are considered to have superior qualifications. (Singh Decl. Ex. N at 31:20-21, Ex. P at 41:4-9, 43:18-20, 44:17-21, 47:13-15, Ex. M at 38:19-24). 29. There have been occasions when the NJ VA hired psychiatrists who were not board certified because on those occasions no board certified psychiatrists applied for those particular vacancies. (Singh Decl. Ex. M at 38:24-39:6, 39:7-16, Ex. P at 45:25-46:17, 47:23-48:7, Ex. N at 30:2-10). 30. For the vacancy at issue in this case, in response to the announcement for Vacancy ID 517141, both board certified and non-board certified psychiatrists applied for the position of psychiatrist at the NJ VA. (Singh Decl. Ex. P at 43:11-44:21, 46:20-24, Ex. N at 31:9-12). 31. In September 2011, in response to Vacancy Announcement, JL-11-3559, Plaintiff submitted an application to the NJ VA for the vacant psychiatrist position via email and the internet. (Singh Decl. Ex. C, Ex. D, Ex. E, Ex. L at 66:13-17, 70:11-21). 32. Plaintiff’s application for the vacant position announced in Vacancy Announcement JL-11-3559 at the NJ VA rolled over into the selection pool for the two vacancies announced in Vacancy Announcement JL-12-3559, for which Plaintiff submitted additional information in 2012. (Singh Decl. Ex. D, Ex. S at 6:22-7:2, Ex. L at 66:3- 10). Case 1:15-cv-01496-JBW-LB Document 21-2 Filed 07/29/16 Page 5 of 8 PageID #: 157 6 33. The panel, consisting of Drs. Kaune and Donepudi, decided not to select Plaintiff, as well as certain other candidates, for an interview because their applications indicated that they were not board certified. (Singh Decl. Ex. O ¶ 7; Ex. R ¶ 4, Ex. N at 25:16-23, 26:20-27:9, Ex. P at 63:3-8). 34. Dr. Kaune did not consider Plaintiff’s age or prior activity with the Equal Employment Office (“EEO”) in not selecting Plaintiff for an interview. (Singh Decl. Ex. P at 99:15- 23, Ex. R ¶ 15). 35. Dr. Donepudi did not consider Plaintiff’s age or prior EEO activity, of which she was personally unaware, in not selecting Plaintiff for an interview. (Singh Decl. Ex. N at 50:13-22, 51:16-11, 57:5-7, Ex. O ¶ 15). 36. The panel interviewed three board certified applicants: Dr. M.P., born in 1972; Dr. K.B., born in 1957; and Dr. R.B., born in 1964. (Singh Decl. Ex. O ¶ 9, Ex. R ¶ 5, Ex. P at 64:25-65:6). 37. The panel recommended, and Dr. Losonczy chose, Dr. M.P., who was board certified. (Singh Decl. Ex. O ¶ 10, Ex. R ¶ 6, Ex. N at 42:9-13, Ex. P at 65:7-20, 66:2-5, 67:3-9). 38. Dr. M.P. ultimately declined an offer for the position for an unknown reason shortly before she was to begin working at the NJ VA. (Singh Decl. Ex. O ¶ 10, Ex. R ¶ 6, Ex. N at 42:9-18, Ex. P at 76:17-77:18). 39. After recommending Dr. M.P., neither Dr. Kaune nor Dr. Donepudi were further involved in the selection process. (Singh Decl. Ex. O ¶ 13, Ex. R ¶ 9, Ex. N at 43:13- 45:12, 54:18-55:10, Ex. P at 77:19-25, 79:7-8, 80:21-81:11, 81:18-82:8). Case 1:15-cv-01496-JBW-LB Document 21-2 Filed 07/29/16 Page 6 of 8 PageID #: 158 7 40. In 2012, Dr. Losonczy independently selected two board certified psychiatrists to fill the two vacancies at NJ VA. (Singh Decl. Ex. H, Ex. J, Ex. O ¶ 14, Ex. R ¶ 10, Ex. N at 54:18-55:10). 41. The two individuals hired by Defendant were: Dr. Y.A., who was 31 years of age at the time of selection in 2012; and Dr. T.N.B.C., who was 38 years of age at the time of selection in 2012. (Singh Decl. Ex. H, Ex. I, Ex. J, Ex. K). 42. Plaintiff was not selected to fill the staff psychiatrist vacancy at the NJ VA. (Singh Decl. Ex. F, Ex. G). V. The Responsible Managing Officials Were Over the Age of 40 in 2012 43. Dr. Kaune was born in May 1961. (Singh Decl. Ex. P at 13:16-17). 44. Dr. Donepudi was born in December 1966. (Singh Decl. Ex. N at 9:21-22). 45. Dr. Losonczy was born in June 1946. (Singh Decl. Ex. M at 15:6-8). VI. The Underlying Administrative Proceedings 46. On May 10, 2012, Plaintiff filed a formal Complaint of Employment Discrimination (“EEO Complaint”) with the VA, regarding her non-selection for the position of psychiatrist under Vacancy Announcement JL-12-3559 in or about March 2012. (Singh Decl. Ex. U). 47. On June 5, 2012, Plaintiff sought to “add” to her May 10, 2012 EEO Complaint the claim that she was not selected for the position of psychiatrist under Vacancy Announcement BH-12-JLI-517141-MHC (the renamed Vacancy Announcement JL- 12-3559). (Singh Decl. Ex. V). Case 1:15-cv-01496-JBW-LB Document 21-2 Filed 07/29/16 Page 7 of 8 PageID #: 159 8 48. On July 5, 2012, the VA EEO sent Plaintiff’s counsel a Notice of Acceptance and Amendment of the EEO Complaint filed May 10, 2012, accepting Plaintiff’s claims for investigation. (Singh Decl. Ex. W). 49. On February 14, 2014, the VA EEO issued an Order Entering Judgment in favor of the VA. (Singh Decl. Ex. X). 50. On March 20, 2014, the VA transmitted its Final Agency Order. (Singh Decl. Ex. Y). 51. Following an appeal by Plaintiff, on December 24, 2014, the VA EEO affirmed the VA’s Final Order. (Singh Decl. Ex. Z). 52. On March 23, 2015, Plaintiff filed a Complaint initiating this action. (Dkt. No. 1). 53. On June 25, 2015, Plaintiff filed an Amended Complaint in this action. (Dkt. No. 8). Dated: Brooklyn, New York July 29, 2016 Respectfully submitted, ROBERT L. CAPERS United States Attorney Eastern District of New York Attorney for Defendant 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 By: s/Rukhsanah L. Singh RUKHSANAH L. SINGH Assistant United States Attorney (718) 254-6498 rukhsanah.singh@usdoj.gov Case 1:15-cv-01496-JBW-LB Document 21-2 Filed 07/29/16 Page 8 of 8 PageID #: 160