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granting summary judgment where, although plaintiff established prima facie case in part by demonstrating that she was replaced by a significantly younger employee, plaintiff had "failed to show either that [defendant's proffered] reasons [we]re illegitimate or that they were pretexts"
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04 Civ. 9629 (SAS).
October 10, 2006
Philip R. Michael, Esq. TROUTMAN SANDERS LLP New York, New York, For Plaintiff.
Terri L. Chase, Esq. Shanna Green, Esq. McDERMOTT WILL EMERY LLP New York, New York, For Defendant.
OPINION AND ORDER
I. INTRODUCTION
Blanche McFadden claims that Memorial Sloan-Kettering Cancer Center ("MSK") violated the Age Discrimination in Employment Act ("ADEA") by terminating her employment as a result of her age. She also claims that MSK retaliated against her after she filed a discrimination charge by failing to hire her for positions she sought, in violation of the ADEA and Title VII of the Civil Rights Act of 1964 ("Title VII"). On July 20, 2006, MSK filed a motion for summary judgment as to all claims. For the reasons explained below, defendant's motion is granted in part and denied in part.
See 29 U.S.C. §§ 621- 634.
See 42 U.S.C. § 2000e et seq.
II. BACKGROUND
McFadden, a black female born on April 30, 1945, was hired by MSK as a Patient Escort Service Aide on March 22, 1982. About six years later, McFadden accepted a position as an "Off-Line Equipment Operator" in the Center's Laboratory Computer Operations Department, where she reported to Michael Gladstone. Gladstone's annual evaluations of McFadden's performance consistently reflected that she "M[et] Expectations," with comments on tardiness in some years but almost perfect attendance in recent years. By 2003, there were five non-managerial employees in McFadden's department, three of whom were Off-Line Equipment Operators — McFadden, Annette Henry, and Derrick Sage. Henry is thirteen years younger than McFadden, and Sage is the youngest of the three. All three reported to Gladstone, who in turn reported to Elizabeth Russell, the administrator for a number of departments in MSK's clinical laboratories.
See Defendant's Statement in Compliance with Rule 56.1 ("Def. 56.1") ¶ 5; Plaintiff's Statement in Compliance with Rule 56.1 ("Pl.56.1") ¶ 5.
See Def. 56.1 ¶¶ 6-7; Pl. 56.1 ¶¶ 6-7.
See Def. 56.1 ¶ 9; Pl. 56.1 ¶¶ 9, 62; Defendant's Reply to Plaintiff's Statement of Purported Material Disputed Facts ("Reply 56.1") ¶ 62.
See Def. 56.1 ¶ 11; Pl. 56.1 ¶ 11.
See Def. 56.1 ¶¶ 22-23; Pl. 56.1 ¶¶ 22-23.
See Def. 56.1 ¶ 10; Pl. 56.1 ¶ 10.
By late 2003, the hospital's computer software had enabled patient reports to be produced electronically, and the Clinical Information System Department determined that paper copies of patient lab results were no longer necessary. Russell was asked to determine the impact this would have on staffing, and she found the workload would decrease by an amount equivalent to 1.5 Full-Time Equivalent ("FTE") employees. Russell was directed to implement the staffing reduction in the Off-Line Equipment Operator position. She contacted the Manager of Employee Relations, Lori Pruno, to inquire about how to select among employees in that position.
See Def. 56.1 ¶ 13; Pl. 56.1 ¶ 13.
See Def. 56.1 ¶ 14; Pl. 56.1 ¶ 14.
See Def. 56.1 ¶ 15; Pl. 56.1 ¶ 15.
See Def. 56.1 ¶ 16; Pl. 56.1 ¶ 16. Plaintiff's counsel asserts that "the two competing employees were Plaintiff Blanche McFadden and Anita Henry," but does not support this assertion with a citation to the record. See Pl. 56.1 ¶ 58. Russell and Pruno testified that there were three employees considered for layoff: McFadden, Henry, and Sage. See Deposition of Elizabeth Russell ("Russell Dep."), Ex. 8 to Affidavit of Terri L. Chase, Esq., Counsel to Defendant ("Chase Aff.") at 63-64; Affidavit of Lori Pruno ("Pruno Aff.") ¶¶ 6, 9-11.
MSK's Involuntary Termination Policy describes the following procedure:
1.1.2 If the Center, in its sole discretion, believes it is desirable to reduce the number of employees in a specific job title in a cost center, the order of lay off will be determined first by the employee's ability to meet the needs of the department/laboratory. . . . If the employees' abilities to meet the needs of the department/laboratory are not a determining factor, lay off shall be based on the following criteria:
(1) first, employees who have failed to meet performance expectations . . .; and if this criterion does not apply to any employee in the job title affected or its application doesn't fully satisfy the reduction requirements,
(2) then, except in cases of clearly outstanding performance, employees with less than 12 months of Center service will be laid off next . . .; and if this criterion does not apply to any employee in the job title affected or its application doesn't fully satisfy the reduction requirements,
(3) then, the employee(s) with the least favorable job performance will be laid off next; and if employee performance is not a determining factor for lay off,
(4) then, employees with the least amount of continuous Center seniority will be laid off; and if employee Center seniority is equal,
(5) then, employees with the least amount of cumulative job seniority will be laid off.
MSK Personnel Policy and Procedure Manual on Involuntary Termination ("Personnel Manual"), Ex. 2 to Pruno Aff., at 1-3.
In assisting Russell with the implementation of this policy, Pruno requested the names and performance ratings of the three employees. McFadden's score was 3.0, Henry's score was 2.9, and Sage's score was 3,36. According to Pruno, "the way the policy was administered the numbers weren't so significant as were the categories," and all three of the scores fell within the "meets expectations" category (which includes scores from 2.5 to 3.4). Thus, noting that Henry had the most seniority, Pruno and Russell chose McFadden and Sage to be laid off.
See Pl. 56.1 ¶ 68; Reply 56.1 ¶ 68; Russell Dep. at 61.
See Pl. 56.1 ¶ 69; Reply 56.1 ¶ 69; Pruno Dep. at 16. The performance ratings went from a high of 5 downward to 1. See Deposition of Lori Pruno ("Pruno Dep."), Ex. 7 to Plaintiff's Memorandum of Law in Opposition to Motion for Summary Judgment ("Pl. Mem."), at 15.
Pruno Dep. at 16. Accord id. at 17, 55, 57, 70; Pruno Aff. ¶¶ 9-10; Russell Dep. at 77-78.
See Def. 56.1 ¶ 21. Cf. Pl. 56.1 ¶ 21 (stating that "[i]nclusion of Sage is irrelevant; as a part-time employee, he was controlled by a rule different from subparagraph (3) of 1.1.2," but not supporting this assertion or indicating which rule allegedly did apply to Sage).
On or about January 7, 2004, Gladstone and Russell told McFadden that she was being laid off and that the decision was based on seniority. They gave her a letter that explained the benefits that would be provided, including severance pay and the help of the Employment Department, which assists employees who are about to be laid off in attempting to find another position at MSK. Under MSK's policy, laid off employees are not guaranteed placement, but the Employment Department does help them by eliminating the application process and scheduling interviews. The Employment Department's obligation to laid off employees ends when they separate from employment at the conclusion of the "notice period."
See Def. 56.1 ¶ 24; Pl. 56.1 ¶ 24.
See Def. 56.1 ¶¶ 24-25; Pl. 56.1 ¶¶ 24-25.
See Def. 56.1 ¶¶ 26-27; Pl. 56.1 ¶¶ 26-27.
Def. 56.1 ¶ 30. Accord Pl. 56.1 ¶ 30.
In accordance with the general practices of the Employment Department, its Manager Shaun Smith met with McFadden to explain the interview process and discuss her resume and skills. The Employment Department then scheduled McFadden for interviews for full-time positions that were available during her eight week notice period. Russell called two of the hiring managers who were to interview McFadden and told them to "give her every consideration."
See Def. 56.1 ¶¶ 28-29; Pl. 56.1 ¶¶ 28-29.
See Def. 56.1 ¶ 30; Pl. 56.1 ¶ 30.
Def. 56.1 ¶ 31. Accord Pl. 56.1 ¶ 31.
In late January or early February 2004, McFadden had an interview with Gloria Gunn for an office assistant position in the Development Department. Gunn states that she "determined that [McFadden] did not have the requisite word processing skills for this position." She subsequently hired a candidate who had prior experience with word processing.
See Deposition of Blanche McFadden ("McFadden Dep."), Ex. 5 to Chase Aff., at 103. At McFadden's deposition, she was asked "Do you recall if it was in the month of February 2004?" and she answered "It could have been late January or early February." Id. at 107. Accord id. at 108-09.
Affidavit of Gloria Gunn ("Gunn Aff.") ¶ 4.
See Def. 56.1 ¶ 35; Pl. 56.1 ¶ 35.
On February 24, 2004, McFadden interviewed with Barbara Reilly and Eileen Walsh for a position as a Registrar in the Donor Room of the Blood Bank. During the interview, Reilly and McFadden primarily discussed the responsibilities and expectations of the position, which involved making appointments and serving as a customer service employee for blood donors. Reilly states that she found McFadden's style of communicating to be "abrupt and truculent," and that she "didn't come across as a pleasant person in her verbal communication." Reilly subsequently hired someone who had prior experience in a customer service role and was, in Reilly's words, "bright and bouncy and friendly and well spoken. And she was used to working phones and making appointments in her previous position."
See Donor Room Interview Activity Record, Ex. 11 to Pl. Mem.
See Def. 56.1 ¶¶ 38, 40; Pl. 56.1 ¶¶ 38, 40.
Deposition of Barbara Reilly ("Reilly Dep."), Ex. 7 to Chase Aff., at 27.
Id. at 49.
On April 14, 2004, after McFadden's notice period had ended and she had separated from employment at MSK, she interviewed for a position as a Lab Clerk. Carlotta Eisen, Manager of the Clinical Chemistry Department, conducted the interview, which largely consisted of a discussion of the position. Eisen states that she decided not to hire McFadden because McFadden arrived late for the interview, Eisen had previously seen her arrive late to work, and Eisen considered it "absolutely imperative that people are on time." Eisen subsequently hired a qualified candidate who had prior experience with the specific work of the laboratory.
See Def. 56.1 ¶ 45; Pl. 56.1 ¶ 45.
See Def. 56.1 ¶¶ 45, 47; Pl. 56.1 ¶¶ 45, 47.
Def. 56.1 ¶ 48. McFadden testified that she did not remember if she was late to the interview. See McFadden Dep. at 133.
See Def. 56.1 ¶ 50; Pl. 56.1 ¶ 50.
After this interview, McFadden did not apply for any other full-time positions at MSK. Months later, however, Smith contacted McFadden to inquire as to whether she would be interested in temporary positions, with the hope of getting her back into MSK and improving her computer skills. When McFadden expressed interest in this, Smith hired her into the temporary pool and sent her out on two temporary assignments at MSK.
See Def. 56.1 ¶ 54; Pl. 56.1 ¶ 54.
See Def. 56.1 ¶ 54; Pl. 56.1 ¶ 54.
McFadden filed a charge with the Equal Employment Opportunity Commission (EEOC) in early March, 2004. She filed her complaint in the instant case on December 8, 2004. After full discovery, MSK filed its motion for summary judgment on July 20, 2006.
See Pl. Mem. at 19.
III. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate if the record "show[s] 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." An issue of fact is genuine if "the evidence is such that a jury could return a verdict for the nonmoving party." A fact is material when it "`might affect the outcome of the suit under the governing law.'" The movant has the burden of demonstrating that no genuine issue of material fact exists.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Accord Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006).
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (quoting Anderson, 477 U.S. at 248).
See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)).
In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact that does "`not rely on conclusory allegations or unsubstantiated speculation.'" To do so, it must do more than show that there is "`metaphysical doubt as to the material facts.'" In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party's favor.
B. Wrongful Termination
Jeffreys, 426 F.3d at 554 (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2002)).
Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
See Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 201 (2d Cir. 2004).
Under the ADEA, it is "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." The statute protects the class of people aged forty or older.
See id. § 631.
"To withstand a motion for summary judgment, a discrimination plaintiff must withstand the three-part burden-shifting laid out by McDonnell Douglas Corp. v. Green." "[T]he initial burden rests with the plaintiff to establish a prima facie case of discrimination." A plaintiff meets this burden by showing that "(i) at the relevant time the plaintiff was a member of the protected class; (ii) the plaintiff was qualified for the job; (iii) the plaintiff suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination, such as the fact that the plaintiff was replaced by someone `substantially younger.'" The Second Circuit has "characterized the evidence necessary to satisfy this initial burden as `minimal' and `de minimis.'"
McPherson v. New York City Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Woodman, 411 F.3d at 76 (applying McDonnell Douglas framework to age discrimination claim)).
Cross v. New York City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005).
Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (quoting O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996)).
Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (citations omitted). Accord Woodman, 411 F.3d at 76.
"A plaintiff's establishment of a prima facie case gives rise to a presumption of unlawful discrimination that shifts the burden of production to the defendant, who must proffer a `legitimate, nondiscriminatory reason' for the challenged employment action." "If the defendant articulates such a reason, `the presumption of discrimination drops out,' and the plaintiff must `prove that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" At this final stage of analysis, courts must "examin[e] 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.'" In other words, plaintiff is left with the final burden of "`proving that [her] age was the real reason' for any adverse employment action."
Woodman, 411 F.3d at 76 (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001)) (citations omitted).
Id. (quoting Roge, 257 F.3d at 168).
Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000)).
Cross, 417 F.3d at 248 (quoting Schnabel, 232 F.3d at 87).
C. Retaliation
The ADEA and Title VII prohibit an employer from material retaliation against an employee who has complained of discrimination. Claims of discriminatory retaliation are evaluated under a three-step burden-shifting analysis. For refusal to hire claims arising under either Title VII or the ADEA, a plaintiff may establish a prima facie case by showing: (1) membership in a protected class; (2) qualification for the position sought, (3) a materially adverse employment action, and (4) circumstances giving rise to an inference of discrimination.
See 29 U.S.C. § 623(d); 42 U.S.C. § 2000e-3(a). See also Burlington Northern Santa Fe Ry. Co. v. White, ___ U.S. ___, 126 S. Ct. 2405, 2408 (2006).
See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005).
Pasha v. William M. Mercer Consulting, Inc., No. 00 Civ. 8362, 2004 WL 188077, at *3 (S.D.N.Y. Feb. 2, 2004), aff'd, 135 Fed. Appx. 489 (2d Cir. 2005), cert. denied, ___ U.S. ___, 126 S. Ct. 1148 (2006). Retaliatory acts and harms satisfy the "adverse employment action" requirement regardless of whether they occur within the workplace or are directly employment-related. See Burlington Northern Santa Fe Ry. Co., 126 S. Ct. at 2414. I add "materially" to the standard laid out in Pasha based on the Supreme Court's recent decision that "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." Id. at 2415 (quotation marks and citations omitted).
Pleading a prima facie case creates a presumption of retaliation and the "defendant then has the burden of pointing to evidence that there was a legitimate, non-retaliatory reason for the complained-of action." "If the defendant bears its burden of production, the presumption drops out of the analysis and the defendant `will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.'" At that point, "the test for summary judgment is whether the evidence can reasonably support a verdict in the plaintiff's favor."
Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998). Accord Jute, 420 F.3d at 173.
Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (quoting James v. New York Racing Ass'n., 233 F.3d 149, 154 (2d Cir. 2000)) (ellipsis in original).
James, 233 F.3d at 157.
A plaintiff may attempt to prove retaliation "`by showing that the employer's proffered explanation is unworthy of credence.'" However, "rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff . . . and proof that `the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason is correct.'" Furthermore, "the final burden rests on the plaintiff to prove not only that the proffered nondiscriminatory reason was pretextual but also that defendant [retaliated] against the plaintiff."
Reeves, 530 U.S. at 143 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Id. at 146 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)) (emphasis and ellipsis in original).
Slattery, 248 F.3d at 91.
IV. DISCUSSION
A. Wrongful Termination
The record demonstrates that McFadden has satisfied the first three elements of a prima facie case of age discrimination. She was born in April of 1945 and laid off in January of 2004, at fifty-nine years of age. In addition, her work record demonstrates that she was qualified to serve as an Off-Line Equipment Officer and her reviews consistently reported that she met the expectations associated with that post. Finally, McFadden's termination after twenty-two years of employment was clearly an "adverse employment action."
See Defendant Memorial Sloan-Kettering Cancer Center's Memorandum of Law in Support of Its Motion for Summary Judgment ("Def. Mem.") at 13 (only discussing the fourth element of the prima facie case).
See Def. 56.1 ¶ 9.
Woodman, 411 F.3d at 76.
The fourth element of a prima facie case is that the adverse employment action must have occurred under circumstances giving rise to an inference of discrimination. MSK argues that McFadden failed to establish a prima facie case, because "there is simply no evidence to support an inference of discrimination where a reduction in force was conducted on the basis of seniority, such that those employees with the least seniority are laid off." Also, McFadden has testified that no decision-maker she interacted with at the Center ever made a discriminatory comment regarding her age. However, the Second Circuit has "characterized the evidence necessary to satisfy plaintiff's burden to establish a prima facie case as `minimal' and `de minimis.'" For example, the "decision to replace an older worker with a significantly younger one can support an inference of intentional age discrimination even when both persons are ADEA class members." Here, McFadden was laid off and a woman thirteen years younger with a similar performance rating was retained for the same position. This is enough to satisfy the "de minimis" burden associated with a prima facie case of age discrimination.
See, e.g., Roge, 257 F.3d at 168.
Def. Mem. at 13 (citing Dugan v. CBS Broad., Inc., No. 00 Civ. 8908, 2002 WL 338142, at *8 (S.D.N.Y. Feb. 28, 2002) (plaintiff did not "meet even the minimal burden of showing a prima facie case of race discrimination" where the layoffs were conducted according to seniority)).
See Def. 56.1 ¶ 55; Pl. 56.1 ¶ 55.
Zimmermann, 251 F.3d at 381.
Woodman, 411 F.3d at 78-79 (citing O'Connor, 517 U.S. at 312-13 and Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001)).
Next, the burden shifts to the defendant to proffer a "`legitimate, nondiscriminatory reason' for the challenged employment action." A business-justified reduction in force does qualify as a legitimate non-discriminatory reason for termination, and the reason MSK supplies for selecting McFadden is also legitimate. Pruno and Russell relied on the "Involuntary Termination" procedure in the Personnel Manual, and found the initial criteria listed there to be inconclusive — there was no one who had failed to meet performance expectations, no one with less than twelve months of service to MSK, and all three employees had "met expectations" as demonstrated by their job performance evaluations. Thus, Russell and Pruno applied section 1.1.2(4), which states that "employees with the least amount of continuous Center seniority will be laid off." Because Sage and McFadden had less seniority than Henry, Sage and McFadden were laid off.
Id. at 76 (quoting Slattery, 248 F.3d at 91).
See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 718 (2d Cir. 1994). See also Meng v. Ipanema Shoe Corp., 72 F. Supp. 2d 392, 398 (S.D.N.Y. 1998) ("Courts in this circuit have generally recognized reduction-in-force as sufficient evidence to rebut plaintiff's prima facie showing.").
Personnel Manual at 2 (citation omitted).
McFadden argues that this explanation is pretextual because the policy in the Personnel Manual should have been applied differently. McFadden's view of the process is that MSK decided to terminate Sage because he was a parttime employee. She then argues that in deciding whether to lay off McFadden or Henry, MSK should have decided that Henry's performance rating of 2.9 (compared to McFadden's 3.0) was the determining factor. This focus on the numerical score is certainly a viable interpretation of section 1.1.2(3) of the Personnel Manual, but McFadden has proffered no evidence to show that it is the interpretation actually applied by MSK staff.
See Pl. 56.1 ¶ 21 (not supporting this assertion by reference to evidence).
See Pl. Mem. at 2 ("Henry had the `least favorable job performance,' compared to McFadden.").
Instead, the MSK decision-makers consistently testified that Sage, Henry and McFadden were all rated within the "meets expectation" category, and that "pursuant to the Center's own interpretation of its own Layoff Policy, the performance of the three employees was indistinguishable" for purpose of the application of section 1.1.2(3). In other words, the evidence demonstrates that this section of the Layoff Policy was applied by focusing on performance categories and not distinguishing between employees whose performance scores were only a tenth of a point different. McFadden criticizes this approach by noting that the reliance on categories instead of scores was not a written policy, and by pointing to superficial inconsistencies in the testimony of MSK decisionmakers. McFadden speculates that her one-tenth point superiority to Henry in performance rating implies pretext, but "speculation alone is insufficient to defeat a motion for summary judgment."
Def. 56.1 ¶ 60. Accord Pruno Dep. at 16-18; Pruno Aff. ¶¶ 9-10; Russell Dep. at 78-79.
See Pruno Dep. at 90-92; Pruno Aff. ¶ 10; Russell Dep. at 77-78.
See Pruno Dep. at 57.
McFadden admits that the "most significant MSK witness on the charge of age discrimination whose testimony and action, in Plaintiff's view, calls [sic] for denial of summary judgment on that allegation, is Lori Pruno." Pl. Mem. at 2. But the only issues of fact raised with respect to Pruno's testimony concern whether she correctly and consistently applies section 1.1.2 of the Personnel Manual. A review of the underlying deposition and affidavit reveals that Pruno's interpretation of the policy, while different from plaintiff's, is entirely defensible.
McPherson, 457 F.3d at 215 n. 4 (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993)).
The Supreme Court has noted that "there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory," and summary judgment for defendant is appropriate. Here, McFadden has not even offered sufficient evidence to rebut defendant's explanation. As a result, summary judgment for defendant is the only proper outcome. This is a case in which "[defendant]'s proffered reasons for firing [plaintiff] are both non-discriminatory and responsive to legitimate institutional concerns. [Plaintiff] has failed to show either that these reasons are illegitimate or that they were pretexts."
Reeves, 530 U.S. at 148 (emphasis added).
McPherson, 457 F.3d at 216 (upholding grant of summary judgment to defendant in a case in which plaintiff alleged violation of the ADEA).
B. Retaliation
McFadden claims that the failure of several MSK employees to rehire her constituted unlawful retaliation in view of the discrimination charge she filed with the EEOC. Again, a prima facie case requires "circumstances giving rise to an inference of discrimination." Therefore, any hiring decision made before McFadden had even filed her charge with the EEOC cannot sustain a prima facie case of retaliation. There are two such decisions.
McFadden never stated or implied that any MSK employee knew that her EEOC charge would be filed in advance of the filing date.
First, plaintiff's undisputed testimony is that the interview with Gunn was held in late January or early February 2004. Also, Gunn's undisputed testimony is that during an interview with another candidate on February 25, 2004, Gunn made her decision to hire that candidate, who she found to be the most qualified for the position. Thus, the adverse employment decision was made before McFadden's EEOC charge was filed in early March. In addition, Gunn stated that she did not learn of McFadden's claims against MSK until the spring of 2006, and McFadden was unable to call this testimony into question. Second, Reilly interviewed McFadden on February 24, 2006. McFadden testified that Reilly offered her a job during the interview and then withdrew the offer abruptly: "The next day, when I called her back, everything had changed. They were very cold, nobody knew anything, and I kept calling, couldn't get them. It was a big difference from the day before." Once again, the alleged retaliation occurred before the EEOC charge was filed, and therefore cannot give rise to an inference of discrimination. In addition, Reilly testified without contradiction that she was not aware McFadden had filed a discrimination complaint when she eventually made the hiring decision for the position in question.
See McFadden Dep. at 107-09.
See Gunn Aff. ¶¶ 4-6.
See id. Plaintiff does assert that "Gloria Gunn was aware of McFadden's EEOC complaint prior to denying her a new job." Pl. 56.1 ¶ 82. But this statement is entirely unsupported by any relevant citation to the record.
According to McFadden, her impression that Reilly was offering her a job was based solely on the fact that Reilly "told [McFadden] to get in contact with Shaun Smith and find out the money part of it and get back to her." McFadden Dep. at 117.
Id. at 114-15.
See Reilly Dep. at 48. McFadden cites Reilly's testimony that at some point Russell had informed Reilly that a lawsuit (not an administrative charge) had been filed. See Pl. 56.1 ¶ 79. But Reilly stated that the conversation with Russell had happened months or "perhaps a year" after McFadden's interview. Reilly Dep. at 35.
However, there is one remaining interview to consider. This interview occurred on April 14, 2004, with Eisen, the Manager of the Clinical Chemistry Department. I turn to the elements of McFadden's prima facie case of retaliation. First, McFadden was a member of a protected class (having filed a discrimination complaint with the EEOC in early March). Second, she did qualify for the position as Lab Clerk, which was a "clerical position" that required "a high school diploma," a minimum of one or two years experience in a hospital environment, and "basic computer skills." When Eisen interviewed McFadden, Eisein was aware that McFadden worked in the lab computer room, and that McFadden had twenty years of experience in the hospital environment. Third, a material adverse employment action was taken against McFadden — someone else was hired and McFadden was not.
Deposition of Carlotta Eisen ("Eisen Dep."), Ex. 4 to Pl. Mem., at 27-28.
See id. at 9.
Finally, McFadden has also produced evidence of circumstances giving rise to an inference of discrimination. The interview with Eisen occurred on April 14, 2004, more than a month after the EEOC charge was filed. The person who was hired instead of McFadden was a twenty-four year old who had not filed a charge with the EEOC. Given these facts and McFadden's clear qualification for the position, I find that she has met the "de minimis" standard of establishing a prima facie case.
Eisen says that she did not know of the charge at the time she decided not to hire McFadden. See id. at 50. She also said that she did not discuss the EEOC complaint that McFadden brought with Gladstone. See id. at 52. But Gladstone remembers a conversation in which Eisen stated she did know about McFadden's "suit," and he could not remember when this conversation occurred. See Deposition of Michael Gladstone ("Gladstone Dep."), Ex. 2 to Pl. Mem., at 124-25.
Interview Activity Record, Ex. 9 to Pl. Mem.
The burden therefore shifts to MSK to produce evidence of a legitimate, non-retaliatory reason for Eisen's decision. Eisen's explanation is that McFadden arrived ten minutes late to the interview and that this behavior was "unacceptable." She also testified that she thought McFadden "had a history of lateness," and that punctuality was important to the job in question.
Eisen Dep. at 31.
Id. at 33. Although Eisen did not emphasize this as the reason for her refusal to hire McFadden, I also note that the person she subsequently hired was said to have more experience in the "accessioning" or "specimen processing" portion of the job. Id. at 37.
But McFadden notes some countervailing facts, that, along with her qualification for the position, raise the possibility of pretext. With respect to the ten minute tardiness, Eisen testified that she was aware that McFadden had undergone a hip replacement operation, and that as a consequence, she had to find parking in the vicinity of the hospital because she had problems walking. The interview lasted about thirty minutes, no one else was present, and Eisen took no notes. Eisen never asked Gladstone, McFadden's former employer, about McFadden or her punctuality. Eisen also said she never discussed McFadden with Eisen's own supervisor, Russell. But Russell testified that she told Eisen to given McFadden "every consideration." Finally, Eisen never reviewed any of McFadden's performance evaluations, which would have demonstrated high marks for reliability and availability in recent years. Finally, McFadden testified that based on Eisen's demeanor during the interview, McFadden felt certain that Eisen knew about the complaint filed with the EEOC. McFadden attributes importance to a comment Eisen made during the interview to the effect of, "[T]hat's between Mike [Gladstone], Ms. Russell and you." McFadden's interpretation was that "at that time, [Eisen] knew that I had filed with the EEOC people and that's when she brought that up."
See id. at 52.
See id. at 30-31.
See id. at 18.
See id. at 18-19.
Russell Dep. at 101.
See Eisen Dep. at 19. Eisen stated during her deposition that if she knew McFadden had received high ratings for availability through the course of the last several years, that would not have had any influence on her judgment given that she was ten minutes late to the interview. See id. at 37.
See McFadden Dep. at 130 ("I told her that I needed the job. And she said other people needs the job too. And she was very nasty to me."). I note that Eisen did not recall this alleged exchange. See Eisen Dep. at 48-49.
McFadden Dep. at 131.
Id. at 131-32.
MSK and its employees are entitled to make business judgments that favor hiring one person over another, and Eisen was not required to give McFadden preferential treatment based on her prior employment with the hospital. But construing all of the above evidence in the light most favorable to McFadden and drawing all justifiable inferences in her favor, I find that a reasonable juror could decide McFadden suffered impermissible retaliation when she was denied the lab clerk position in the Clinical Chemistry Department. The issues of material fact outlined above and the accompanying need for credibility determinations make it impossible to grant summary judgment to defendant on plaintiff's retaliation claim.
V. CONCLUSION
For the foregoing reasons, MSK's motion for summary judgment is granted in part and denied in part. The Clerk of the Court is directed to close this motion [No. 38 on the Docket Sheet]. The Clerk is also directed to close the motion to dismiss filed on March 7, 2006 [No. 17 on the Docket Sheet], in accordance with the Court's order filed on March 26, 2006. A conference is scheduled in this matter for October 30, 2006 at 4:30 p.m.
SO ORDERED.