holding that although a "[v]iolation of an organization's internal procedures alone is insufficient to create an inference of discrimination . . . [f]ailure to follow internal procedures can . . . be evidence of pretext"Summary of this case from Moore v. New York State Division of Parole
95 Civ. 9872 (DAB)
March 4, 2002
LAURA SAGER, Washington Square Legal Services, Inc., New York, New York, ATTORNEY FOR PLAINTIFF.
BETTINA QUINTAS, RICHARD SCHOOLMAN, PAULETTE THOMPSON, New York City Transit Authority, Office of the General Counsel, Brooklyn, New York, ATTORNEYS FOR DEFENDANT.
MEMORANDUM AND ORDER
Joan Petrovits ("Plaintiff") brings this action for injunctive relief and damages pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Human Rights Law of the State of New York (N.Y. Executive Law § 296 et seq.). Plaintiff alleges that Defendant, the New York City Transit Authority ("NYCTA"), discriminated against her by failing to promote her on the basis of her gender. Defendant now moves for summary judgment pursuant to Fed.R.Civ.P. 56. For the following reasons, the Defendant's motion is denied.
Plaintiff's initial Complaint also claimed violations under 42 U.S.C. § 1981 et seq.. However, Plaintiff's Nov. 14, 1997 letter to the Court made clear that all claims pursuant to 42 U.S.C. § 1981 et seq. have been dropped. Moreover, while Plaintiff initially appeared pro se, she did retain counsel during the course of these proceedings. For the purposes of this Order, therefore, Plaintiff's initial papers submitted pro se will be read liberally. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d. Cir. 1994)). Plaintiff's 56.1 Statement, however, was submitted by counsel.
The NYCTA spends about $1.5 billion every year to maintain the City's subway and bus system in a state of good repair. (Schiebel Decl. ¶ 5.) Specifically, the NYCTA's Department of Capital Program Management ("CPM") is responsible for the planning and oversight of its ongoing capital program work, which can consist of about 500 active capital projects at any given time. (Schiebel Decl. ¶¶ 3,5.) CPM has approximately 1800 employees, and its constituent Cost Estimating Control Division ("Division") has 50 employees. (Id. ¶ 3.) Plaintiff, a woman, has been employed by Defendant NYCTA as an electrical estimator within the Division since 1986. (Def.'s 56.1 Stmt. ¶¶ 2, 6.)
The basic engineering disciplines involved in the Division are civil, mechanical, electrical and communication. (Id.) The Division's principal function is to prepare construction bid cost estimates. (Pl.'s Counterstmt. ¶ I:2.) Senior Project Coordinators are responsible for producing discipline-based estimates. (Kildare Dep. at 15, 13-19.) Administrative Project Coordinators ("Admin PCs") are responsible for the entire estimate related to a particular construction project and involving all of the engineering disciplines. (Kildare Dep. at 15, 13-19.) To receive an Admin PC promotion, an estimator "must develop and demonstrate proficiency in estimating the work of multiple disciplines." (Kildare Dep. at 21, 12-14.) In 1994, approximately 25 out of 50 Cost Estimating positions budgeted were for Admin PC positions while 16 were for the lower titles of Senior Estimator and Senior Project Coordinator. (Schiebel Decl. ¶ 4.)
Plaintiff's Revised Statement of Material Facts includes three sections: 1) a factual background section ("Pl.'s Counterstmt. ¶ I"); 2) Plaintiff's 56.1 statement; and 3) a statement of contested facts ("Pl.'s Counterstmt. ¶ III").
Plaintiff has been employed at NYCTA within the Division since 1986. (Schiebel Decl. ¶ 3.) In 1987, Plaintiff was promoted from Estimator to Project Coordinator and, in 1989, was promoted again to her current position as Senior Project Coordinator. (Pl.'s EEOC Addendum ¶ 1; Kildare Dep. at 133-34.) During the course of her employment, Plaintiff sought promotions to Admin PC. (Pl.'s EEOC Addendum ¶ 2; Kildare Dep. at 138-39.) The NYCTA was aware of Plaintiff's interest in such a promotion. (Def.'s 56.1 Stmt. ¶ 10; Pl.'s EEOC Addendum ¶ 3.)
"Senior Project Coordinator" is a supervisory/managerial civil service title. (Kildare Dep. at 137; Pl.'s Counterstmt. ¶ I:25.)
The required civil service qualifications for the Admin PC position are: (1) a Bachelors Degree from an accredited school in administration, architecture, engineering, or another appropriate field and five years of full-time, paid experience in planning and expediting major engineering designs and/or construction programs, or in coordinating the administration of a single organizational segment of a large corporation or government agency, with at least two of those five years with managerial experience; or (2) a combination of education and experience which is equivalent to (1) above. (Quintas Decl., Ex. C.) Plaintiff has an A.A.S. degree, but not a Bachelors degree. (Quintas Decl., Ex. H.) Nevertheless, Defendant acknowledged that Plaintiff met the civil service requirements (Quintas Rep. Decl., Ex. H; Pl.'s Counterstmt. ¶ I:25; Pl.'s Ex. 5 (Kildare Arb. Tr. at 150) (acknowledging in May 1993 Plaintiff "met the requirements of the [Manager] job to be interviewed"); Def. Ex. 14 (DeSimone Flow Data Report); Kildare Dep. at 90-91 (stating applicants not meeting civil service requirements were not interviewed)) and they have hired individuals for the Admin PC position who did not have a Bachelors degree. (Kildare Dep. at 91.)
A. Promotion Procedures
Importantly, there are two methods for granting promotions at NYCTA: job vacancy notices and in-place promotions. (Kildare Dep. at 50, 78-79, 123.)
1. Job Vacancy Notices ("JVNs")
JVNs are posted by NYCTA management to advertise available positions and set forth the necessary level of experience and education required for those positions. (Kildare Dep. at 78-9, 90.) Applicants submit resumes that are reviewed to assure that candidates for a particular position meet the basic requirements. (Id. at 90-1.) Experience may be factored into the evaluation of the applicant. (Id. at 91.) Interviews are contingent on the needs of the division looking to fill a position. (Id. at 90.)
NYCTA has instituted Equal Employment Opportunity ("EEO") policies to insure that all "qualified applicants have equal access to opportunities." (Pl.'s Counterstmt. ¶ III:1(a).) Accordingly, when an applicant is selected for a JVN position, NYCTA's Human Resource Division ("H.R.") requires that an Applicant Flow Data Report ("AFD Report") be submitted. (Leslie Dep. at 140.) The AFD Report shows the number of candidates interviewed, listed by gender and ethnicity. (Quintas Decl., Ex. I.) EEO review of the AFD Report is noted by a signature. (Id.) NYCTA's guidelines also state that an explanation must be attached to the AFD Report if there are no women or minorities among the candidates interviewed. (Id.)
In or about March, 1994, NYCTA posted a JVN to fill an Admin PC position in the "scope" unit ("JVN 93-649"). (Def.'s 56.1 Stmt. ¶ 19.) Mr. Michael Ebiaru was one of three men who received a promotion to Admin PC pursuant to JVN 93-649, a promotion which Plaintiff challenges. (Id.) The AFD Report for the position awarded to Mr. Ebiaru was not signed by an EEO representative or accompanied by an explanation. (Quintas Decl., Ex. I.) Mr. Ebiaru had nine years experience as an estimator, overseeing multi-discipline work and supervising personnel, when he took the Admin PC position. (Def.'s 56.1 Stmt. ¶ 19.)
Thomas O'Keefe and Andrew Morabito were also given promotions pursuant to JVN 93-649, but Plaintiff does not challenge these promotions. (Pl.'s 56.1 Stmt. ¶ 19; Def.'s 56.1 Stmt. ¶ 19.)
At the time of the JVN 93-649 posting, Plaintiff had worked for NYCTA approximately eight years. (Id. ¶¶ 2, 19.) Plaintiff possessed design skills and construction experience dating back to 1980. (Quintas Decl., Ex. H.)
2. In-Place Promotions
The second method for granting promotions involves in-place promotions. (Kildare Dep. at 123.) An in-place promotion is an upgrade of an employee's salary and title without a JVN or competitive process. (Kildare Dep. at 123-24.) NYCTA grants in-place promotions ". . . to a limited number of employees." (Id. at 123.) Supervisors present the list of recommended candidates to management. (Id. at 124.) Higher management selects candidates for this promotion, though the number of in-place promotions is capped at a certain percentage of the organization and each department is given a quota of such promotions that can be considered. (Id. at 123-24; Pl.'s Rule 56.1 Stmt. at 7, ¶ 19.)
Between 1992 and 1997, CPM granted in-place promotions to 277 employees, four of whom were within the Division. (Gweon Decl., Ex. 8.) NYCTA asserts that, unlike for CPM, there was "no specific quota" for in-place promotions for the Division. (Id.) Only men were granted in-place promotions in the Division between 1992 and 1997. (Id.)
B. Right to Sue Letter
Plaintiff filed a charge of discrimination on the basis of sex with the Equal Employment Opportunity Commission ("EEOC") on March 17, 1995. (Quintas Decl. ¶ 2; Compl. ¶ 8.) EEOC issued a right to sue letter on September 6, 1995. (Compl. ¶ j9.)
Plaintiff asserts that Defendant discriminatorily denied her one specific position given to Michael Ebiaru in 1993. (Pl.'s Mem. at 6.) She also claims, more generally, that the NYCTA discriminated in not giving her an in-place promotion during the period from 1992 to the present. (Id. at 7.)
While Parties quibble in their submissions regarding the exact time frames at issue due to the availability of in-place promotions, the record is clear that the dates at issue include November 22, 1992 to the present, with the exception of the year that parties agree in-place promotions was unavailable (1995). It is clear that Plaintiff's claim is one of a continuing denial of a promotion in-place, and Plaintiff's pro se complaint, which was drafted based upon the information known to her of the Division's hiring policies at the time, will not bar the adjudication of all of her claims here. See Pl.'s 56.1 Stmt. at ¶ 22 ("Prior to discovery in this case, Plaintiff did not know that it was possible for an employee to be promoted in place.").
In its motion for summary judgment, Defendant argues that Plaintiff's claims are time-barred. (Def.'s Mem. at 3-5.) Alternatively, Defendant argues that Plaintiff's lack of qualifications represents a legitimate, non-discriminatory business reason for failing to promote Plaintiff to an Admin PC promotion. (Id. at 15.)
A. Summary Judgment Standard
The principles applicable to summary judgment are familiar and well-settled. Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Corselli v. Coughlin, 842 F.2d 23, 25 (2d Cir. 1988). A material fact is one whose resolution would "affect the outcome of the suit under governing law." Anderson, 477 U.S. at 248; Corselli, 842 F.2d at 25. Thus, "[t]he plain language of Rule 56(c) mandates the entry of summary judgment, . . . 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).
As a general rule, all ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion, and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986); LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995).
As is often stated, "[v]iewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991); see also Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). Finally, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000) (citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990)).
The Title VII standard is also applicable to claims arising under the New York Human Rights Law ("HRL"). See Miller Brewing Co. v. State Div of Human Rts., 66 N.Y.2d 937 (1985); Kersul v. Skulls Angels, Inc., 130 Misc.2d 345 (Sup.Ct. Queens co. 1985). Accordingly, the Court shall address Plaintiff's Title VII and HRL claims simultaneously.
There is a well-settled framework for the presentation of proof in a Title VII case where a plaintiff alleges unlawful employment discrimination. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The plaintiff carries the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981) (citing McDonnell Douglas Corp., 411 U.S. at 802); see also Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997), abrogated on other grounds by Reeves, 530 U.S. 133 (2000). The burden of establishing a prima facie case is de minimis. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 provides in relevant part:
It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a)(1).
To establish a prima facie case of employment discrimination, the plaintiff must show: (1) membership in a protected class; (2) that she applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite her qualifications, she was rejected, representing an adverse employment action; and (4) that the adverse employment decision was made under circumstances giving rise to an inference of unlawful discrimination. Byrnie v. Town of Cromwell, 243 F.3d 93, 101 (2d Cir. 2001). The fourth prong of plaintiff's prima facie case can be satisfied by showing that a man similarly situated was treated differently. Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997). Importantly, the elements of a prima facie case are not meant to be rigid, but rather "to promote the general principle that a Title VII plaintiff must carry the initial burden of offering evidence adequate to raise an inference of discrimination." Meiri, 759 F.2d at 996 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
Once the plaintiff demonstrates these elements, a presumption of unlawful discrimination is created and the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the allegedly discriminatory acts. Burdine, 450 U.S. at 253-54 (quoting McDonnell Douglas Corp., 411 U.S. at 802) (the defendant's burden is one of production, not persuasion). If the defendant employer comes forward with such a reason, the burden then shifts back to the plaintiff to offer evidence that the defendant's stated non-discriminatory reason is merely a pretext for sex discrimination. Reeves, 530 U.S. at 148. The plaintiff maintains the ultimate burden of persuasion at all times. St Mary's Honor Ctr., 509 U.S. at 507-8; Burdine, 450 U.S. at 252-53.
Summary judgment may be granted in Title VII actions, but this remedy must be applied with caution. Chambers, 43 F.3d at 40; Gallo v. Prudential Residential Serv., 22 F.3d 1219, 1224 (2d Cir. 1994) ("a trial court must be cautious about granting summary judgment to an employer when . . . intent is at issue."). Specifically, summary judgment is ordinarily inappropriate in a Title VII action where a plaintiff has presented a prima facie case. Smith v. American Express Co., 853 F.2d 151, 154 (2d Cir. 1988). Moreover, direct evidence is usually lacking, so "affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Gallo, 22 F.3d at 1224.
Deciding whether a summary judgment is appropriate in a particular case depends upon a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy her "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves, 530 U.S. at 143).
C. Timeliness of Plaintiff's Claims
As a threshold matter, an aggrieved person in a civil action involving discrimination must have filed a charge with the EEOC within 300 days if the state has an agency with authority over such claims. 29 U.S.C. § 626(d). In Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), the Supreme Court determined that the timeliness of a discrimination claim is measured from the date the claimant receives notice of the allegedly discriminatory decision. See also Chardon v. Fernandez, 454 U.S. 6, 7-8 (1981) (holding that legally operative date for limitation purposes was when respondents received notification by letter of termination); Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992) (holding alleged discriminatory act occurred for limitations purposes when defendant informed student that she was terminated as candidate for master's degree). "Under federal law, a claim accrues when the plaintiff `knows or has reason to know' of the injury that is the basis of the action." Morse, 973 F.2d at 125 (2d Cir. 1992) (citing Cullen v. Margiotta, 811 F.2d 698, 725 (2d Cir.), cert. denied, 483 U.S. 1021 (1987)).
Defendant asserts that Plaintiff's claim regarding the Michael Ebiaru promotion is time-barred. See Def.'s Mem. at 3-5. Mr. Ebiaru was hired in March, 1994, but began work for NYCTA on or about May 23, 1994. See Def.'s 56.1 Stmt. ¶ 19a. Plaintiff filed a charge of discrimination on the basis of sex with the EEOC on March 17, 1995. See Quintas Decl. ¶ 2; Compl. ¶ 8.
Initially, there was a third claim regarding a specific promotion-in-place given to Mr. Lin Hsu. Defendant asserted that this claim was also time-barred. That issue is now moot as Plaintiff has since dropped this claim.
Plaintiff asserts that she did not know of the Ebiaru promotion until on or after May 23, 1994 when Mr. Ebiaru began work at NYCTA. See Gweon Decl. Ex. 9 ("Petrovits Dep.") at 72-73. Nothing in the record contradicts this assertion and Defendant offers no reason why Plaintiff should have known of the Ebiaru hiring before Mr. Ebiaru's start date. Construing all ambiguities in favor of the non-movant, this Court deems the legally operative date to be May 23, 1994. Thus, Plaintiff's claim is not time-barred because less than 300 days passed between Mr. Ebiaru's May 23, 1994 start date and the Plaintiff's March 17, 1995 filing date.
Precisely 298 days passed from May 23, 1994 to March 17, 1995.
D. Plaintiff's Prima Facie Case
In the instant case, Plaintiff alleges that NYCTA failed to promote her from a Senior Estimator to an Admin PC on the basis of her gender, thus discriminating against her in violation of Title VII. In particular, Plaintiff asserts, first, that she should have received a promotion instead of Mr. Michael Ebiaru and, second, that she should have been granted a promotion-in-place between 1992 and present. It is in light of these two claims that the Court must assess the Plaintiff's prima facie case, principally the second prong.
It is undisputed that Plaintiff, a woman, is a member of a class statutorily protected from discrimination and, thus, satisfies the first prong of a prima facie case. See Def.'s 56.1 Stmt. ¶ 2; Pl.'s 56.1 Stmt. ¶ 2. In addition, as a threshold matter, the third prong is satisfied because a failure to promote constitutes an adverse employment action as contemplated by Title VII. See, e.g., Smith v. American Express Company, 853 F.2d 151 (2d Cir. 1988).
As to the second prong, Plaintiff satisfies this burden with respect to the Ebiaru claim because she applied for the Admin PC position and met the civil service qualifications. See Quintas Rep. Decl., Ex. H; Pl.'s Counterstmt. ¶ I:25; see also Pl.'s Ex. 5 (Kildare Arb. Tr. at 150) (acknowledging Plaintiff was interviewed for previous Admin PC position), Kildare Dep. at 90-91 (stating applicants not meeting civil service requirements were not interviewed). Moreover, it is undisputed that NYCTA was aware of Plaintiff's continuing interest in such a promotion. See Schiebel Decl. ¶ 3; Pl.'s EEOC Addendum ¶ 3; Def.'s 56.1 Stmt. ¶ 10.
As for the promotion-in-place claim, in order to satisfy the second prong, it is the general rule that the employee is required to apply for a position to maintain a claim. McDonnell Douglas Corp., 411 U.S. at 802; Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998). This rule, however, "is subject to modification where the facts of a particular case make an allegation of a specific application a quixotic requirement." Brown, 163 F.3d at 710; see also McDonnell Douglas Corp., 411 U.S. at 802, n. 13. The requirement does not apply, for example, when an employer refuses to accept applications for a position or handpicks individuals for promotion to a position without considering applicants. Brown, 163 F.3d at 710.
This is in accordance with the principal that elements of a prima facie case are not meant to be rigid. See, e.g., Meiri, 759 F.2d at 996.
Plaintiff asserts that she should have received an in-place promotion at some point between 1992 and present. NYCTA grants in-place promotions in certain years to a limited number of employees. See Kildare Dep. at 123-24. Candidates for this promotion are selected by higher management, unlike standard job vacancies for which a posting occurs and interested employees submit resumes. Id.
Plaintiff acknowledges that Defendant instituted a "hiring freeze" in 1995, such that there is no claim for a promotion-in-place that could be maintained for that year.
Plaintiff claims that she was unaware of the existence of in-place promotions and that Defendant did not accept applications for such promotions. See Pl.'s 56.1 Stmt. ¶ 22. For those reasons, Plaintiff asserts that the Brown exceptions should apply in the present case. Brown, 163 F.3d at 710. In light of the applicability of Brown to these circumstances, the Court finds that Plaintiff's failure to apply for an in-place promotion is not dispositive regarding her prima facie case.
Finally, Plaintiff has met her de minimus burden to establish the fourth prong of the prima facie case because non-class members, i.e. males, exclusively received promotions instead of Plaintiff. In fact, out of the total CPM Department staff of 579 working in July 1994, 24 were female. See Harleston Aff. ¶ 2(b). This circumstance gives rise to a prima facie inference of unlawful discrimination. See Reeves, 530 U.S. at 142 (finding prima facie case met where defendant filled position with individuals not from plaintiff's protected class).
Accordingly, Plaintiff has established her initial, de minimis burden of making a prima facie case for discrimination. Because Plaintiff cannot offer direct evidence of NYCTA's improper bias, she must defeat summary judgment on the strength of her prima facie case combined with circumstantial evidence that NYCTA's stated reasons for failing to promote Petrovits is pretext.
Thus, whether summary judgment is appropriate in this case depends upon "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered." Reeves, 530 U.S. at 148-49.
E. Defendant's Legitimate, Nondiscriminatory Reasons Pretext
Defendant asserts that Plaintiff did not receive a promotion because she was not as qualified as Mr. Ebiaru and, generally, was not qualified for an in-place promotion.
In the present case, there are a number of material facts in dispute regarding whether Defendant's reason is false and merely pretext and include, inter alia, Plaintiff's qualifications for an Admin PC position and whether NYCTA followed its own internal procedures with respect to goals for increasing minority representation in the organization.
It is well-settled that Plaintiff may not rest on denials of the defendant's factual assertions to successfully oppose a summary judgment motion. Fed.R.Civ.P. 56(e). Moreover, Plaintiff's subjective belief that she possesses superior qualifications does not by itself support an inference of discrimination. Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996). Plaintiff here, however, has done more than make mere allegations; her assertions are arguably supported by aspects of the factual record.
As previously stated, Plaintiff claims she satisfied the basic civil service qualifications for the Admin PC position awarded pursuant to JVN 93-649. See Pl.'s 56.1 Stmt. ¶ 25. Defendant argues that Mr. Ebiaru was the most qualified candidate for the JVN 93-649 promotion. See Def.'s Mem. at 10. In particular, Defendant points to Mr. Ebiaru's qualifications, including his "fifteen years experience in construction and engineering and his previous position as a manager estimating all disciplines of a multi-million dollar school construction project involving civil, mechanical and electrical work." See Def.'s Mem. at 18. Defendant also notes Mr. Ebiaru's experience overseeing multi-disciplined work. Id.
Plaintiff then points to her own employment record at NYCTA. See Pl.'s Mem. at 13. Plaintiff also asserts that she satisfied the additional requirement for the position, i.e., being multi-disciplined. See Pl.'s 56.1 Stmt. ¶ 10. Plaintiff notes that between 1991 and 1993 she was lead estimator on three projects with a total value of $18.3 million. Pl.'s 56.1 Stmt. ¶ 12(c). All three projects allegedly involved mechanical, electrical, and civil estimating skills. Def.'s 56.1 Stmt. ¶ 11; Pl.'s 56.1 Stmt. ¶ 12(c). Further, there is no evidence in the record that Mr. Ebiaru, unlike the Plaintiff, had any experience in the scope unit in which the Admin PC position was available.
It is not clear from the record how many engineering disciplines an estimator must be proficient in to be classified as "multi-disciplined." Kildare Dep. at 21; Pl.'s 56.1 Stmt. ¶ 10.
On the instant record, the trier of fact could find that Plaintiff was as or more qualified than Mr. Ebiaru, such that NYCTA's proffered explanation is deemed pretext and discrimination can be inferred. See Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997).
Plaintiff also relies on her qualifications to claim that NYCTA should have granted her a promotion-in-place to Admin PC. See Pl.'s Mem. at 18-19. Defendant refutes this assertion by claiming that Plaintiff's work was not satisfactory and, thus, she did not deserve such a promotion. See Def.'s Mem. at 11. However, Defendant puts forth no objective contemporaneous evidence that Plaintiff's work was unsatisfactory, with the exception of a single project which, by Defendant's own admission, was assigned for training purposes and under unusually tight time constraints. See Pl.'s Rule 56.1 Stmt. at 16, ¶ 11; Karwasky Dep. at 22. Accordingly, a reasonable trier of fact could find Defendant's proffered explanations to be pretext for discriminating against Plaintiff based on her sex.
Finally, Defendant states that "there seems to be no evidence that a promotion-in-place was available, as a matter of quota allocable to the Division, during that period." Def.'s Mem. at 14. Plaintiff, however, points to Defendant's contradictory response to Plaintiff's fourth set of interrogatories to assert that in-place promotions were available and granted during the relevant period. See Pl.'s Mem. at 8-9; Gweon Decl., Ex. 8.
Based on the record, it is clear that summary judgment is precluded by the genuine dispute of material facts regarding Plaintiff's qualifications for an Admin PC promotion and the availability of promotion-in-place positions.
2. Internal Procedures
Violation of an organization's internal procedures alone is insufficient to create an inference of discrimination. See also Gibbs v. Consolidated Edison of New York, Inc., 714 F. Supp. 85, 92 (S.D.N.Y. 1989). Failure to follow internal procedures can, however, "be evidence of pretext." Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997). Whether or not such a failure occurred here is in dispute.
Plaintiff asserts that NYCTA failed to follow its own EEO procedures in selecting Mr. Ebiaru for the Admin PC position. See Pl.'s Mem. at 19-20; Pl.'s 56.1 Stmt. at 34, ¶ 19(a). AFD Reports required by the Defendant's Human Resource Division ("H.R.") should be completed and submitted to H.R. to show the number of candidates interviewed, listed by gender and ethnicity. See Pl.'s 56.1 Stmt. at 34, ¶ 19(a); Quintas Reply Decl. Ex. I A signature notes EEO review of the AFD Report. Id. Notably, the signature line of the AFD Report for Mr. Ebiaru's promotion was blank (Def's Ex. 15), although Defendant asserts the omission is not significant. See Def.'s Reply Mem. at 6.
Accordingly, a combination of factors provide sufficient evidence to allow a reasonable jury to conclude that NYCTA's explanation for failing to promote Petrovits was a pretext for impermissible discrimination.
For the above reasons, the Defendant's motion for summary judgment is hereby DENIED.
Parties are to submit a Joint Pre-trial Order, Requests to Charge and Proposed Voir Dire no later than April 30, 2002. Memoranda of Law addressing those issues raised in the JPTO shall be submitted by April 30, 2002. Responses to the Memoranda shall be submitted by May 15, 2002. There shall be no replies.