Opinion
22-CV-4066(GHW) (RWL)
06-17-2024
DONALD RACKLEY, Plaintiff, v. CONSTELLIS, LLC; CONSTELLIS HOLDINGS, LLC; and CENTERRA GROUP, LLC, Defendants.
REPORT AND RECOMMENDATION TO HON. GREGORY H. WOODS: MOTION FOR SUMMARY JUDGMENT
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff Donald Rackley (“Rackley” or “Plaintiff”) brought this action against Defendants Constellis LLC, Constellis Holdings, LLC, and Centerra Group, LLC (“Centerra”) (collectively, “Defendants”), asserting claims for race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981 (“Section 1981”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”), as well as claims for whistleblower retaliation in violation of New York Labor Law § 740 (“NYLL Section 740”) and 41 U.S.C. § 4712 (“Section 4712”). Rackley is a former employee of Defendants, who contract with the United States Marshals Service (“USMS”) to provide courthouse security services. Rackley alleges that while he worked as a court security officer, Defendants discriminated against him based on his race and retaliated against him after he made complaints about the USMS's firearms safety standards. He alleges that Defendants discriminated and retaliated against him by failing to promote him, denying him email account access, forcing him to work overnight shifts alone, and removing him from his position as Lead Firearms Instructor. Defendants have moved for summary judgment to dismiss all claims. For the reasons set forth below, the Court recommends that Defendants' motion be DENIED in part and GRANTED in part.
The facts are drawn from Defendants' Statement Of Undisputed Material Facts Pursuant To Local Civil Rule 56.1 (“Def. 56.1,” Dkt. 54); Plaintiff's Response To Defendants' Statement Of Undisputed Material Facts Pursuant To Local Civil Rule 56.1 And Counterstatement Of Material Facts (“Pl. 56.1 Response,” Dkt. 59); Defendants' Reply In Opposition To Plaintiff's Rule 56.1 Counter Statement Of Undisputed Material Facts (“Def. 56.1 Reply,” Dkt. 62); Declaration of Ryan C. Chapoteau (“Chapoteau Decl.”), filed Oct. 2, 2023 at Dkt. 52; Declaration of Eric Dinnocenzo (“Dinnocenzo Decl.”), filed Dec. 20, 2023 at Dkt. 61; Declaration of John Drago (“Drago Decl.”), filed Oct. 2, 2023 at Dkt. 53; Decl. of Donald Rackley (“Rackley Decl.”), filed Nov. 29, 2023 at Dkt. 58; Deposition of Donald Rackley (“Rackley Dep.”), filed Nov. 29, 2023 (Dkt. 52-1) (duplicated without exhibits at Dkt. 60-1). The facts are undisputed unless otherwise noted.
A. The Parties
Defendants contract with the United States Government to provide Court Security Officers (“CSOs”) and related services to the USMS for federal courts in the Second Circuit. (Def. 56.1 ¶ 4-5.) Centerra began its contract with the USMS in the Second Circuit on January 1, 2020, and hired Rackley, who was an incumbent employee from the predecessor contractor. (Id. ¶ 6.) Rackley, a Black man, worked for Defendants as a Lead Court Security Officer (“LCSO”). (Pl. 56.1 Response at ECF 2 ¶ 7.) As an LCSO, Rackley provided security services inside the Second Circuit's federal courthouses and was assigned to the overnight shift at the Bankruptcy Court for the Southern District of New York (“SDNY”). (Id. at ECF 3 ¶ 13; Def. Reply 56.1 at ECF 88 ¶ 1.)
Centerra is part of a family of companies that operates under Defendants Constellis, LLC and Constellis Holdings, LLC (collectively, “Constellis”). Any reference to Centerra effectively includes all Defendants.
B. Rackley's Qualifications
Before working for Defendants, Rackley had a four-decade-long career in protective and security facility management services, including with the USMS, where he ultimately rose to the position of Chief Deputy U.S. Marshal and then acting U.S. Marshal in the District of New Jersey. (Rackley Resume, attached as Ex. C to Dinnocenzo Decl., Dkt. 60-3.) After retiring from the USMS in 2012, Rackley worked for prison contractor GEO Group, Inc. as the Warden of D. Ray James Federal Detention Center in Georgia. (Id.) In 2014, he began work as a LCSO in the SDNY and remained in that position when Centerra assumed the contract with the USMS in the Second Circuit in 2020. (Pl. 56.1 Response at ECF 2 ¶ 6.) Rackley does not possess a Bachelor's degree but completed 90 out of 120 college credits toward a Bachelor's degree in Criminal Justice. (Id. at ECF 54 ¶ 103.)
C. Firearms Instruction And Safety Complaints
All CSOs and LCSOs in the SDNY are required to pass an annual weapons qualifications test to operate a USMS-issued service weapon and remain on the USMS contract. (Id. at ECF 6 ¶ 30.) The weapons qualification tests are administered by certified firearms Instructors, who serve on a volunteer basis at firearms ranges rented out by Centerra for private testing. (Id. at ECF 6 ¶¶ 30-31.) In 2014, while working under a previous contractor as an LCSO, Rackley was made Lead Firearms Instructor. (Rackley Dep. 76:6-77:7.) When Defendants assumed the Second Circuit contract in 2020, Rackley remained a firearms instructor. (Pl. 56.1 Response ECF 8 ¶¶ 36-38.) Defendants dispute that Rackley was a “lead” instructor and assert that the title of “Lead Firearms Instructor” does not exist because there is no hierarchy among instructors. (Def. 56.1 ¶¶ 137, 140.) Defendants admit, however, that Rackley was a “Rangemaster” and the most senior LCSO Firearms Instructor at the April 2020 weapons qualification test. (Def. 56.1 ¶ 139.)
Rackley and two other LCSOs administered the April 2020 test from April 1-10, 2020. (Pl. 56.1 Response at ECF 8 ¶ 37.) Rackley testified that during that time, Rackley spoke with District Supervisor Efrain Perez each night by phone on his drives home from the firing range and told him “every day or almost every day” that there were a number of officers who were not proficient and who were not safely handling their weapons. (Rackley Decl. ¶ 7.) Rackley observed officers pointing weapons in the wrong direction, keeping fingers on the trigger when they were not supposed to, not following directions, and not being able to complete the test within the required time limit. (Id.)
Rackley also testified that during those conversations Perez did not directly tell Rackley to pass officers who were unable to pass the test, but said Perez “pressured” him to pass unsafe officers by asking, “Are you sure that's what he got? Can you help him out?” (Id. ¶ 7,14; Rackley Dep. 154:3-25, 161:9-24.) Rackley testified that there were instances during the April 2020 testing where Rackley would not pass an officer after one round, but then a different firearms instructor would administer the test and pass the same officer, even though Rackley “harbored serious doubts that he could pass the test.” (Rackley Decl. ¶ 7,11-12.) Additionally, Rackley told Perez that even when officers met the minimum score to pass the test, many nonetheless remained unable to safely handle their weapons. (Rackley Dep. 154:3-8.)
Rackley also discussed range safety with Contract Manager John Drago in November and December 2020. (Rackley Dep. 158:9-159:3; Dkt. 60-9). In November, he told Drago by phone that “you need to come to the range because we got issues with people and they are not conducting themselves safely.” (Rackley Dep. 158:9-159:3.) In December, Rackley left a voicemail for Drago in which he said, “Just left the range. If you get a chance, you should observe the qualifications. Just a suggestion.” (Rackley-Drago Emails, attached as Ex. I to Dinnocenzo Decl., Dkt. 60-9.) In an email responding to Rackley's voicemail, Drago wrote, “I also want to come by a fire qual to see how it goes. Thanks for the heads up.” (Id.) While Rackley characterizes his voicemail as a safety complaint, Defendants assert that Rackley's range references “were for Plaintiff to show off his abilities and not about any purported safety issues.” (Def. 56.1. ¶ 172-73.)
D. Rackley's Attempts To Obtain Promotion
Rackley alleges that from mid-2020 to mid-2021, Centerra denied him promotions to three positions in the SDNY because of his race and in retaliation for making complaints about firearms safety. (Amended Complaint (“Amended Compl.”), Dkt. 1 ¶¶ 1, 35; Pl. 56.1 Response at ECF 6 ¶ 30, ECF 9 ¶ 42.) The basic facts surrounding the hiring for each position are set forth below.
1. The Contract Manager Position
The first promotion Rackley applied for while employed by Defendants was the position of Contract Manager (“CM”). The CM manages approximately 600 CSOs and the security operations for all 29 facilities in the Second Circuit. (Pl. 56.1 Reply at ECF 21 ¶ 83.) Centerra announced the opening internally among Centerra employees, and Constellis Vice President John Bolen also posted the job announcement via Linkedin to a USMS Alumni Group. (Pl. 56.1 Response at ECF 13 ¶ 59.) The job description states that one of the requirements of the position is that the candidate “Possess a Bachelor's degree and course work and/or professional certifications relevant to contract management..” (Id.) (emphasis added). Rackley submitted his application on or before June 2020. Both Bolen and former Director of North American Operations Ronald Horch played a role in selecting a candidate to fill the CM role, though the parties dispute whether Bolen was a final decisionmaker or just sat in on interviews. (Pl. 56.1 Response ¶¶ 62-65.) Rackley was not selected for an interview, and Defendants filled the position with John Drago, who is White, on August 31, 2020. (Def. 56.1 ¶ 43.)
There is some dispute about whether Rackley submitted his application for the CM position on January 9, 2020 or on June 8, 2020. (See Def. 56.1 ¶¶ 49-50, 53, 58; Pl. 56.1 Response at ECF 10-13 ¶¶ 49-50, 53, 58.) That dispute is immaterial because there is no dispute that Rackley was considered for the CM position.
Drago possesses a Bachelor's degree from American University's School of Justice. (Pl. 56.1 ¶ 69.) His most recent professional experience was serving as the Director of Safety and Security at Buckley Country Day School. (Id. ¶ 70.) Prior to that, he served as Chief Inspector with the USMS, Judicial Security Inspector and Contracting Officer Technical Representative in the Eastern District of New York (“EDNY”), Inspector for the USMS, and as Deputy U.S. Marshal in Washington, D.C. (Def. 56.1 ¶¶ 69-83.) Drago has a certificate in security management as a Certified Protection Professional. (Id. ¶ 69.) Rackley testified that Drago worked underneath Rackley when Rackley was Chief Inspector, and Drago assumed the position of Chief Inspector when Rackley was promoted to become a Chief Deputy Marshal in New Jersey. (Rackley Decl. ¶ 3.) Unlike Rackley, Drago never reached the level of Chief Deputy or exceeded the paygrade of level GS-14. (Id.)
Defendants assert that Drago met the qualifications of the CM role because he possessed a Bachelor's degree, relevant coursework, certifications relevant to contract management, and business management experience. (Def. 56.1 ¶ 69-75.) Rackley admits he lacks a bachelor's degree but denies that he lacked relevant coursework, certifications and experience - and that Drago possessed them. (Pl. 56.1 Response at ECF 18-19 ¶¶ 74-77.) Rackley testified that all Chief Deputies had contract manager certification and that he was a contract manager certified by GEO, Inc. (Id. at ECF 18 ¶ 74; Rackley Dep. 202:15-205:9.) Rackley also asserts that Drago's Protection Professional certificate is not relevant to contract management. (Pl. 56.1 Response at ECF 16 ¶ 69.)
2. The First District Supervisor Position
The next promotion Rackley sought was the District Supervisor (“DS”) of CSOs in the SDNY. The DS is responsible for the administration, supervision, and management of CSOs and reports to the CM. (Id. at ECF 4-5 ¶¶ 15-22.) Centerra began seeking applicants for the position in September 2020. (Id. at ECF 22 ¶ 85.) Rackley submitted his application and was selected for an interview, which took place on November 6, 2020. (Id. at ECF 23 ¶ 92.) Horch and Drago were responsible for reviewing resumes and conducting the interviews. (Id. at ECF 23 ¶ 90-94.) Ultimately, Defendants filled the position with Stan Nanartowicz, who is White, in November 2020. (Id. at ECF 10 ¶ 46.)
The parties do not appear to dispute that Rackley met the minimum qualifications of the DS position. But the parties do dispute which candidate had the superior resume and interview performance. (Id. at ECF 23 ¶¶ 94-115.) Prior to working for Defendants, Nanartowicz had a career with the USMS, but it was not as long as Rackley's, nor did he reach the level of seniority Rackley did. (Compare Rackley Resume, Dkt. 60-3 with Nanartowicz Resume, attached as Ex. M to Dinnocenzo Decl., Dkt. 60-13.) Nanartowicz's experience includes police officer positions in New York State and positions with the USMS, the most senior of which was Chief Inspector - Northeast Region, which he held for two years. (Nanartowicz Resume, Dkt. 60-13) Prior to serving as a Chief Inspector, Nanartowicz was an Assistant Chief Inspector, a Supervisory Inspector, and a Deputy U.S. Marshal. (Id.) Like Rackley, Nanartowicz did not complete his Bachelor's degree. (Id.; District Supervisor Post Description, attached as Ex. R to Dinnocenzo Decl., Dkt. 60-18.) Unlike Rackley, Nanartowicz never reached the level of Chief Deputy or Acting U.S. Marshal. (Nanartowicz Resume, Dkt. 60-13)
Drago and Horch prepared 12 interview questions for each candidate and took notes during their interviews. (Pl. 56.1 Response at ECF 23 ¶ 93; Interview Notes, attached as Ex. J to Dinnocenzo Decl. Dkt. 60-10.) Drago testified that Nanartowicz gave clear answers with examples of experience that directly aligned to the requirements of the role. (Def. 56.1 ¶¶ 96-100.) Drago also testified that in contrast, Rackley failed to give specific examples of his experience, relied heavily on idioms, gave the impression that contract management was “outside of his comfort zone,” and was generally not as “professional” as Nanartowicz. (Id. ¶¶ 101-114.) In addition, Drago testified that Rackley's resume was “riddled” with formatting errors, though Rackley asserts that the resume Drago was referring to was not the one used to apply to the DS position. (Def. 56.1 ¶ 103.)
Horch and Drago's interview notes reflecting their interviews with Nanartowicz and Rackley are less than straightforward. Horch's notes for Rackley state “good answer” or “good” next to four questions, while Horch's notes for Nanartowicz state “good answer” next to three questions. (Interview Notes, Dkt. 60-10.) The words “not articulate” are underlined and written at the top of Horch's notes for Rackley. (Id.) Drago's notes reflect that for question 3, Nanartowicz “didn't answer the question” but that for question 3, Rackley had a “good explanation.” (Id.) Drago's notes also contain several positive remarks about both Nanartowicz and Rackley. Although Drago's notes do not contain explicitly negative remarks about Rackley, Drago interpreted his notes as reflecting a poor interview performance in his deposition. (See Deposition of John Drago (“Drago Dep.”), dated June 6, 2023, Dkt. 52-2, 77:8-102:21.)
Drago testified that while Nanartowicz was well regarded by his colleagues at the USMS, Drago had heard negative anecdotes about Rackley, including that he had threatened a court clerk in the District of New Jersey, that he had chastised a subordinate, and that he had confrontations with the Chief Administrator for the Second Circuit. (Def. 56.1 ¶¶ 110-113.) Rackley disputes those assertions, and there is nothing in the rest of the record to reflect that they took place. (Pl. 56.1 Response at ECF 27-28 ¶¶ 110-113.)
On December 11, 2020, Drago emailed Rackley that Centerra would not be moving forward with his application; Nanartowicz began work as the DS in January 2021. (Id. at ECF 29 ¶¶ 116-17.)
3. The Second District Supervisor Position
The third promotion Rackley sought while employed by Defendants was for another DS position, which opened up on March 5, 2021, when the incumbent DS of SSOs abruptly resigned without notice. (Def. 56.1 ¶ 123.) Defendants did not advertise the role, which they temporarily filled with LCSO Acevedo on March 8, 2021. (Id. ¶ 124.) Sometime during March 2021, Drago announced the incumbent DS's resignation during a weekly meeting of every DS in the Second Circuit. (Id. ¶ 125; Drago Decl. ¶ 32-33.) Immediately after that meeting, Kevin Chan, who was then a DS in the EDNY, requested that he be transferred into the DS role in SDNY. (Def. 56.1 ¶ 126.)
On April 2, 2021, Rackley emailed Drago expressing interest in “the SSO site supervisor job,” noting that it was the fifth time he applied and that he “had the support of the SDNY Chief.” (Pl. 56.1 Response at ECF 32 ¶ 130.) In response, Drago wrote on April 5, 2021: “It was a fast moving situation, and we filled the acting spot with Acevedo. It's likely another DS from a different district is transferring into the position. I will let you know if that changes.” (Id. ¶ 131; Drago Dep. ECF 92-93.) Also on April 5, 2021, Rackley left a message for Bolen stating, “John, there is an opportunity for acting Site supervisor SSO's again. I'm not being allowed to act in the position. Last time you deferred to [Flood] and [Horch], and I understand, but now Drago is giving someone else an opportunity. I sent him a request and did not receive a response. Why am I not being considered for these positions?” (Pl. 56.1 Response at ECF32 ¶ 131; Deposition of John Bolen (“Bolen Dep.”), dated June 7, 2023, Pl.'s Ex. 14, Dkt. 52-3 at ECF 45). Bolen responded on April 13, 2021 that the position was “almost assuredly going to be filled with a transfer-in of an existing DS.” (Pl. 56.1 Response at ECF ¶ 132.) He also noted that “[i]f that changes, I know you will be right in the mix. I have personally spoke to both Buzz and John Drago - everyone is fond of you and knows your experience. It is about the right opportunity and timing. I do not think this will be it as explained above with likely transfer, but encourage your continued pursuits.” (Id.)
No interviews were conducted, and Chan, who is Asian, was transferred into the DS role in SDNY in April 2021. (Pl. 56.1 Response at ECF 33 ¶ 133.) Aside from the emails described above, there is nothing else in the record suggesting Rackley formally applied to the second DS role. (Def. 56.1 ¶ 121.)
E. Additional Adverse Actions
In addition to his failure-to-promote claims, Rackley also alleges that he was discriminated and retaliated against by being removed as Lead Firearms Instructor, denied email account access, and forced to work shifts alone. (Amended Compl. ¶¶ 57-66.) The facts relevant to these alleged actions are set forth below.
Rackley also alleges for the first time in his opposition to Defendants' motion for summary judgment that he was removed as communications officer. (See Dkt. 57 at 13.) Because this allegation was not raised in the Amended Complaint, the Court does not consider it. See Southwick Clothing LLC v. GFT (USA) Corp., No. 99-CV-10452, 2004 WL 2914093, at *6 (S.D.N.Y. Dec. 15, 2004) (“A complaint cannot be amended merely by raising new facts and theories in plaintiffs' opposition papers, and hence such new allegations and claims should not be considered in resolving the [summary judgment] motion”); Beckham v. U.S. Postal Service, 79 F.Supp.2d 394, 407-8 (S.D.N.Y. 2000) (“Because a failure to assert a claim until the last minute will inevitably prejudice the defendant, courts in this District have consistently ruled that it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment”) (internal quotation marks omitted) (collecting cases).
1. Firearms Instructor
Rackley alleges that after he raised concerns about range safety in April 2020, Defendants removed him from his role as an instructor helping to administer Centerra's annual firearms qualifications test. In March 2020, when Perez and Rackley were creating the schedule for the April 2020 firearms qualifications test, Rackley told Perez via email “this will be my last year doing the range, my preference is to have Rick replace me, but whatever you come up with works for me.” (Rackley Dep. at ECF 48.) Rackley then oversaw the April 2020 qualifications test at the Blue Mountain Range (Pl. 56.1 Response ¶ 37), but he was not assigned to oversee any other firearms qualifications tests after April 2020. (Def. 56.1 Reply at ECF 108 ¶ 40.) Rackley asserts that his email notifying Perez it would be his “last year doing the range” referred to only the Blue Mountain Range but not other ranges Centerra used, including a Brooklyn location. (Pl. 56.1 Response at ECF 8 ¶ 41, ECF 35 ¶ 144.) Defendants assert that Rackley's email was a request to be removed as firearms instructor for all qualifications tests on all ranges. (Id.)
2. Email Address
Rackley also alleges that while he initially had access to his Centerra email account after Defendants assumed the Second Circuit contract on January 1, 2020, he no longer had access at time that roughly corresponded with the safety complaint he made in April 2020. (Rackley Dep. 17:2-18:6.) Rackley testified that after letting his password lapse, he requested access several times but never received it. (Id.) The record does not include any requests by Rackley to restore his email access, but Rackley asserts another employee emailed defendants to request access on his behalf. (Id. 193:16-194:16.). As a result of not having access, Rackley was not informed of daily events in the court facilities. (Id. 19:10-20:5.) Defendants assert that they did not deny Rackley access. Rather, Rackley was responsible for keeping his email account active, and he simply let his password lapse. (Pl. 56.1 Response at ECF 36 ¶ 147.) Even so, Rackley continued to work using his personal email address. (Id. at ECF 36 ¶ 148.)
3. Solo Shifts
Rackley also alleges that Defendants discriminated and retaliated against him by forcing him to work his night shifts at the SDNY bankruptcy court alone on at least 16 occasions, despite the requirement that every shift be staffed by two employees. (Pl. 56.1 Response at ECF 58 ¶ 141.) Rackley testified that when an officer scheduled to work cannot report for duty, Defendants usually make the effort to find a replacement by sending out emails in advance. (Rackley Dep. 20:10-21:13.) However, in his case, Rackley testified, “they never made an effort to get me anyone to work with me.” (Id.) Defendants state that it is the LCSO's responsibility to cover staffing on his shift and thus would have been Rackley's own responsibility. (Def. 56.1 ¶ 150.) In contrast, Rackley asserts it is the DS's responsibility to try to cover the shift if an employee is going to be out. (Rackley Decl. ¶ 23.)
Procedural Background
On July 13, 2021, Rackley filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”). (Pl. 56.1 Response at ECF 43 ¶ 177.) The EEOC issued a notice of right to sue on February 17, 2022. (Id. at ECF 43 ¶ 178.) On April 19, 2022, Rackley filed a whistleblower retaliation complaint pursuant to 41 U.S.C. ¶ 4712 with the United States Department of Justice (“DOJ”). (Id. at ECF 43 ¶ 179.) The DOJ did not take any action. (Id.). On May 18, 2022, Rackley filed his Complaint in this District (Dkt. 1); he filed the Amended Complaint on December 6, 2022. (Dkt. 21). Defendants answered the Amended Complaint on December 20, 2022. (Dkt. 22.) On October 2, 2023, Defendants moved for summary judgment. (Dkt. 50.) Rackley filed his opposition on November 29, 2023 (Dkt. 57), and Defendants replied on December 20, 2023. (Dkt. 61.) The motion has been referred to me for a report and recommendation. (Dkt. 6.)
Legal Standard
To obtain summary judgment under Federal Rule of Civil Procedure 56, the movant must show that there is no genuine dispute of material fact. Fed.R.Civ.P. 56(a). The Court may grant summary judgment “only if no reasonable trier of fact could find in favor of the nonmoving party.” Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Conversely, “[s]ummary judgment is improper if the evidence is such that a reasonable jury could return a verdict for a nonmoving party.” Banks v. General Motors, LLC, 81 F.4th 242, 258 (2d Cir. 2023) (internal quotation marks omitted).
The moving party bears the initial burden of identifying “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may demonstrate the absence of a genuine issue of material fact “in either of two ways: (1) by submitting evidence that negates an essential element of the non-moving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.” Nick's Garage, Inc. v. Progressive Casualty Insurance Co., 875 F.3d 107, 114 (2d Cir. 2017) (quoting Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988)).
The opposing party must then come forward with specific evidence establishing the existence of a genuine dispute; conclusory statements or mere allegations are not sufficient to defeat summary judgment. Anderson, 477 U.S. at 248; Geyer v. Choinski, 262 Fed.Appx. 318, 318 (2d Cir. 2008) (summary order). Where the nonmoving party “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,” summary judgment must be granted. Celotex, 477 U.S. at 322; accord El-Nahal v. Yassky, 835 F.3d 248, 252 (2d Cir. 2016); see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (finding that, if there is nothing more than a “metaphysical doubt as to the material facts,” summary judgment is proper).
In assessing the record to determine whether there is a genuine issue of material fact, the Court must “eschew credibility assessments,” Smith v. Barnesandnoble.com, LLC, 839 F.3d 163, 166 (2d Cir. 2016) (internal quotation marks omitted), and resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor”).
Discussion
I. Race Discrimination Claims
Rackley alleges that Defendants discriminated against him because he is Black. He alleges that this discrimination took multiple forms, including that Defendants denied him three promotions, removed him from his position as Lead Firearms Instructor, denied him access to email, and forced him to work his shifts alone. Rackley's race discrimination claim based on Defendants' failure to promote him to the two DS positions and his claim based on denial of email access survive summary judgment. However, Rackley's claims of race discrimination based on failure to promote him to the CM position, removal from the firearms training officer position, and being forced to work shifts alone should be dismissed as there is no genuinely disputed fact the resolution of which would entitle Rackley to relief with respect to those claims.
A. Legal Standards
Rackley brings causes of action under Title VII, Section 1981, the NYSHRL, and the NYCHRL. Discrimination claims under Section 1981, Title VII and the NYSHRL are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Walsh v. N.Y.C. Housing. Authority, 828 F.3d 70, 7475 (2d Cir. 2016) (“Claims of ... discrimination under Title VII and the NY[S]HRL are analyzed under the familiar burden-shifting framework established in McDonnell Douglas ....”); Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015) (“[The plaintiff's] disparate treatment claim under Title VII [and] § 1981 [are] subject to the burden-shifting evidentiary framework set forth in McDonnell Douglas.”); Ruiz v. County. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010) (“Both [Plaintiff's] Title VII claims and his claims for race and national origin discrimination under Section[ ] 1981 ... are analyzed under the burden-shifting framework set forth in McDonnell Douglas”).
Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. In general, to establish a prima facie case of race discrimination, a plaintiff must show: (1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. Ruiz, 609 F.3d at 492. The burden to make out a prima facie case is “minimal” and “not onerous.” See Texas Department of Community. Affairs. v. Burdine, 450 U.S. 248, 253 (1981) (“The burden of establishing a prima facie case of disparate treatment is not onerous”); Littlejohn, 795 F.3d at 308 (“The [Supreme] Court characterized this initial burden as ‘not onerous') (citing Burdine, 450 U.S. at 253 and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Once the plaintiff establishes a prima facie case, the burden shifts to Defendant to offer a legitimate, non-discriminatory reason for the adverse action. Ruiz, 609 F.3d. at 492. If defendants come forward with evidence of that, the burden shifts back to plaintiff to show that the asserted legitimate reason is not the true reason and is in fact pretext for intentional discrimination. Id.
Discrimination claims asserted under the NYCHRL are analyzed separately from their federal and state counterparts, though the Second Circuit has noted that it remains “unclear whether, and to what extent the McDonnell Douglas burden-shifting analysis has been modified for NYCHRL claims.” Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013). Nevertheless “what remains clear is that the NYCHRL has simplified the discrimination inquiry: the plaintiff need only show that her employer treated her less well [than other similarly situated employees], at least in part for discriminatory reasons.” E.E.O.C. v. Bloomberg L.P., 967 F.Supp.2d 816, 836 (S.D.N.Y. 2013) (internal citations omitted).
B. Failure-to-Promote
Rackley asserts he was denied three promotions because he is Black. According to Rackley, Defendants discriminated against him by denying him promotions to CM and twice to DS in favor of giving those jobs to less qualified employees who are not Black. The Court concludes that Rackley can meet his minimal burden to establish a prima facie case with respect to the two DS positions but not the CM position for which he was not qualified. In addition, there are genuinely disputed facts as to whether Defendants' proffered explanations for their failure to promote Rackley were pretextual.
1. Prima Facie Case
A plaintiff can establish a prima facie case of discrimination based on failure to promote by demonstrating (1) they are a member of a protected class, (2) they were qualified for the job for which she applied, (3) they were denied the job, and (4) the denial occurred under circumstances giving rise to an inference of discrimination. See Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000). Here, there is no dispute that Rackley is a member of a protected class and that he was not hired for the roles at issue. The parties disagree, however, whether he was qualified for the positions at issue and whether the denial of the promotions occurred under circumstances giving rise to an inference of discrimination. The Court concludes Rackley can satisfy his de minimis burden of establishing these elements of his prima facie case of discriminatory failure to promote with respect to two of the three positions he sought.
a. Whether Rackley Was Qualified For Promotion
Rackley can establish that he was qualified - or that at least there is a question of fact as to whether he was qualified - for two of the three promotions at issue. In the context of a promotion, the Second Circuit has held that “being ‘qualified' refers to the criteria the employer has specified for the position.” Bush v. Fordham University, 452 F.Supp.2d 394, 408 (S.D.N.Y. 2006) (citing Thornley v. Penton Publishing, Inc., 104 F.3d 26, 29 (2d Cir.1997)). “Unless plaintiff shows that the qualifications set by the employer were made in bad faith, an employer ‘is not compelled to submit the reasonableness of its employment criteria to the assessment of either judge or jury.'” Lopez v. Orrick, Herrington, & Sutcliffe, 97-CV-0357, 1998 WL 426795, at *3 (S.D.N.Y. July 27, 1998) (quoting Thornley, 104 F.3d at 29). The Second Circuit has stated that “the qualification prong must not ... be interpreted in such a way as to shift onto the plaintiff an obligation to anticipate and disprove, in his prima facie case, the employer's proffer of a legitimate, non-discriminatory basis for its decision. As we have repeatedly held, the qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal.” Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 92 (2d Cir. 2001), as amended (June 6, 2001) (quoting Owens v. New York City Housing Authority, 934 F.2d 405, 409 (2d Cir.1991).) Rackley has neither alleged nor presented any proof that Defendants exercised bad faith in setting their job qualifications. Accordingly, the Court looks to the criteria and qualifications specified by Defendants to determine whether Rackley is qualified for the promotional roles at issue.
i. Contract Manager Role
There is no dispute that Rackley failed to meet the minimum qualifications for the CM role. The CM job description provides in relevant part that a candidate must “possess a Bachelor's degree and course work and/or professional certifications relevant to contract management.” (Def. 56.1 ¶ 57.) In other words, to be qualified, a candidate had to have either (1) a Bachelor's Degree and course work relevant to contract management, or (2) a Bachelor's Degree and professional certifications relevant to contract management. Defendants argue that Rackley was not qualified to be CM because he possesses neither a Bachelor's Degree nor relevant course work or professional certificates. (Def. Mem. at 5.) While the parties dispute whether Rackley had relevant course work or professional certificates, Rackley offers no evidence to dispute that he does not possess a Bachelor's degree; to the contrary, he concedes that he completed only 90 of 120 credits needed for a Bachelor's Degree. (Pl. 56.1 Reply at ECF 54 ¶ 103.) Rackley states in conclusory fashion that a college degree “was unimportant for candidates at this stage of their career.” (Plaintiff's Memorandum Of Law In Opposition To Summary Judgment filed on Nov. 29, 2023 at Dkt. 57 (“Pl. Mem.”) at 16.) But Rackley's subjective belief that the position does not require a Bachelor's degree cannot trump the requirements in Defendants' job posting. See Cincotta v. Hempstead Union Free School District, 313 F.Supp.3d 386, 412 (E.D.N.Y. 2018) (“Plaintiff's own subjective assessment of the requirements ... are not sufficient to create a genuine issue of material fact”); Lopez, 1998 WL 426795, at *3.
“Def. Mem” refers to Defendants Memorandum Of Law In Support Of Defendants' Motion For Summary Judgment Pursuant to Federal Rule of Civil Procedure 56, filed Oct. 2, 2023 at Dkt. 51.
Rackley's evidence of his having relevant certifications is quite thin. He offers only his deposition testimony that he had a certification in contract management when he worked for GEO Group and that every Chief Deputy necessarily has a contract manager certification. (Def. 56.1 ¶¶ 74-75.) No certifications for Rackley are in the summary judgment record, and Rackley's CM application does not include information about potentially relevant certifications. (Id.)
Nonetheless, Rackley asserts that Defendants admitted he was qualified for the CM position, citing a January 21, 2020 email from Bolen to Rackley, which states, “I copy that you put in for both jobs. I concur that you are certainly qualified for both.” (Pl. Mem. at 16 (citing Rackley-Bolen Emails, attached as Ex. O to Dinnocenzo Decl., Dkt. 60-15).) There are factual disputes about the circumstances of the email and its relevance. For instance, the CM position for which Rackley applied in June 2020 did not become available until May 2020, four months after the email referenced by Rackley. On the other hand, there is evidence that Bolen's email was in response to an earlier application for the same CM position. (Compare January 2020 Contract Manager Email, Dkt. 60-17 with Rackley Dep., Def.'s Ex. R at ECF 162 (showing that the job description from the earlier application is identical to the job description for the CM position that opened up in May 2020).) There also is a dispute about the extent to which the author of the email, Bolen, actually reviewed Rackley's qualifications or was a relevant decision-maker. (See Pl. 56.1 Response at ECF 14 ¶ 62 (denying Defendants' assertion that Horch was the decision-maker for the CM role and citing Bolen's deposition testimony that Bolen was present at interviews for the position and had the power to overrule any decision); see also Bolen Dep., Pl.'s Ex. 13 at ECF 43 (Bolen announcing in a LinkedIn post that Centerra was actively seeking a new CM, stating that the CM role was “tailor made” for former USMS Chief Deputies and Judicial Security Inspectors, and stating “if interested, please contact me directly.”).) And there is a credibility issue as to whether Bolen genuinely agreed that Rackley was qualified or was dissembling for the purpose of merely trying to make Rackley feel good. (See Pl. 56.1 Response at ECF 21 ¶ 82.)
Regardless, the email is irrelevant. See Roberts v. Fruit Fresh Up, No. 08-CV-274, 2011 WL 2730946 (W.D.N.Y. July 12, 2011). In Roberts, the plaintiff failed to establish the qualifications prong of a prima facie case for failure to promote where he did not have a bachelor's degree or the requisite alternative experience but alleged he was told by a supervisor that he was qualified for the promotion and that he would be recommended for the job. 2011 WL 2730946, at *1. The job description stated that the candidate must have a college degree or the equivalent of 7-10 years of direct supervisor experience, and it was undisputed that the plaintiff did not have a degree, listed no prior management experience on his resume, and had at most two years of management experience with the defendant, while the candidate that the defendants chose did not have a degree but had 31 years of directly relevant supervisory experience. Id. at *1-2. To rebut plaintiff's statement that a supervisor told him he was qualified, the defendant submitted an affidavit from its corporate secretary stating that there were no recommendations from management in plaintiff's file and there was no other indication that a management employee had ever recommended him. Id. at *6. The court determined that regardless of what the plaintiff alleged he was told by his supervisor, no reasonable jury could find that plaintiff satisfied his prima facie burden. Id.
The same conclusion is required here. Even drawing all inferences in favor of Rackley, the CM job description plainly stated that a Bachelor's degree was required. Rackley does not have a Bachelor's degree. Under both the federal and state standards, as well as the NYCHRL, this is sufficient to show he was not qualified. See Williams v. MTA Bus Co., 44 F.4th 115, 121 (2d Cir. 2022) (“though the allocation of the burden of proof on this issue differed for Williams's claim under the NYCHRL, the result was the same because there was no genuine dispute of fact regarding Williams's lack of qualifications for the position”); Anderson v. New York City Health & Hospitals. Corp., No. 16-CV-1051, 2020 WL 2866960, at *18 (S.D.N.Y. March 2, 2020), R. & R. adopted, 2020 WL 1528101 (S.D.N.Y. March 31, 2020) (“plaintiff has failed to make his prima facie case of discrimination under both Title VII and the NYCHRL with respect to [his failure-to-promote] claim because he does not speak Spanish and was, thus, not qualified for the Senior Addiction Counselor position”). It remains undisputed that Rackley does not have a Bachelor's Degree, a requirement for the CM position. It is also undisputed that Drago, who ultimately filled the CM position, has a Bachelor's degree and a certification in professional protection. (Def. 56.1 Reply at ECF 137 ¶ 107.) Accordingly, Defendants are entitled to summary judgment on Rackley's discrimination claim with respect to failure to promote for the CM position.
ii. First District Supervisor Role
Rackley can satisfy his de minimis burden to show he was qualified for the first DS position. The parties do not appear to dispute that Rackley met the basic prerequisites stated in the description of the DS job (which was less senior than the CM position and did not require a Bachelor's degree), and Defendants interviewed Rackley for the role. (Def. 56.1 ¶ 91.) That is enough to satisfy Rackley's de minimis burden to establish the qualification element of Rackley's prima facie case. See Aspilaire v. Wyeth Pharmaceuticals, Inc., 612 F.Supp.2d 289, 306 (S.D.N.Y. 2009) (“plaintiff has made allegations sufficient to set forth a prima facie case of discriminatory failure to promote based on the following factors: ... she was qualified for the position of administrative assistant on the first shift, which is evident based on the fact that [the defendant] selected her from among a pool of applicants for an interview”); Mandel v. Champion International Corp., 361 F.Supp.2d 320, 326 (S.D.N.Y. 2005) (denying employer's summary judgment motion on a failure-to-promote claim where the plaintiff was interviewed despite not meeting the qualifications listed in the job description and stating that plaintiff “offered sufficient evidence to, at the very least, place this issue in dispute”).
Although Defendants do not assert that Rackley was unqualified for the DS position, they do assert that Rackley was less qualified than Nanartowicz, who ultimately filled the position, based on the candidates' resumes and interview performances. (See Def. Mem. at 10.) Whether Nanartowicz was more qualified than Rackley, however, goes to the second and third steps of the burden-shifting analysis discussed below.
iii. Second District Supervisor Role
Drawing all reasonable inferences in favor of Rackley, Rackley can also establish the qualification element of his prima facie case with respect to the second DS role. Defendants argue that Rackley cannot establish that he was qualified for the role because he never submitted an application for it and only expressed interest after Centerra was already moving forward with Chan's transfer. (See id. at 12.)
The qualifications prong of a prima facie case is sometimes articulated as requiring that the plaintiff “applied and was qualified for a job for which the employer was seeking applications.” See McDonnell Douglas, 411 U.S. at 802. Indeed, a failure to apply for a position is generally fatal to a claim for discriminatory failure to promote. See Brown v. Montefiore Medical Center., No. 18-CV-3861, 2019 WL 4454230, at *6 (S.D.N.Y. May 8, 2019), R. & R. adopted, 2019 WL 3282927 (S.D.N.Y. July 22, 2019). There is, however, an exception. A plaintiff need not show he formally applied for a specific position if “(1) the vacancy at issue was not posted, and (2) the employee either had (a) no knowledge of the vacancy before it was filled or (b) attempted to apply for it through informal procedures endorsed by the employer. Petrosino v. Bell Atlantic, 385 F.3d 210, 227 (2d Cir. 2004) (citing Brown v. Coach Stores, Inc., 163 F.3d 706 (2d Cir. 1998)); accord Mauro v. Southern New England Telecommunications, Inc., 208 F.3d 384, 387 (2d Cir. 2000) (“Although we held in Brown that a plaintiff alleging failure to promote ordinarily must show that he or she applied for the specific job or jobs at issue, that requirement does not apply where, as here, the plaintiff indicated to the employer an interest in being promoted to a particular class of positions, but was unaware of specific available positions because the employer never posted them”); Cf. Tulino v. City of New York, No. 15-CV-7106, 2016 WL 2967847, at *5 (S.D.N.Y. May 19, 2016) (“Because Plaintiff admits that she never applied for a known vacant position, and does not allege that any vacancy was filled without being posted, her failure-to-promote claims must be and are dismissed”).
Here, Rackley can satisfy both elements of the exception because (1) it is undisputed that the second DS vacancy was not posted (Def. 56.1 Reply at ECF 125 ¶ 79), and (2) Rackley attempted to apply for the position through informal procedures, including sending Drago an email on April 2, 2021 stating “I am interested in the SSO site supervisor job and would like to be the acting this [sic] the 5th time I applied...” (id. at ECF 126 ¶ 81), and also sending Bolen an email stating “there is an opportunity for acting Site supervisor SSO's again I'm not being allowed to act in the position.whyI [sic] am I not being considered for these position ....” (Id. at ECF 126 ¶ 82).
Defendants argue that the exception to the application requirement does not apply to Rackley, citing both Petrosino, 385 F.3d 210, and Green v. Harris Publications, Inc., 331 F.Supp.2d 180 (S.D.N.Y. 2004). (See Def. Reply at 6; Def. Mem. at 12-13.) Those cases are distinguishable. In Petrosino, the court held that even though the plaintiff satisfied the first prong of the exception by providing evidence that “employees often applied for jobs, at least in the first instance, by speaking informally with supervisors” and that plaintiff “could not reasonably have known about all available positions,” those facts “[did] not satisfy the second [prong] because they do not excuse [plaintiff's] failure to apply, at least informally, for the specific management positions that she knew were vacant in her department.” 385 F.2d at 287 (emphasis in original.) Unlike the plaintiff in Petrosino, who spoke generally with managers but did not specify the precise positions she was interested in applying for, Rackley specified that he was interested in the DS position - not only by applying for the first DS position in May 2020, but also by indicating the specific position he was interested in in his emails to Drago and Bolen in April 2021. (See Def. 56.1 Reply at ECF 126 ¶ 81-84.) And in Green, the court declined to apply the exception where the plaintiff only inquired about the position after it was filled. Green, 331 F.Supp.2d at 190. Here, Rackley inquired about the position after the temporary acting position was filled, but not when it was certain that the final position would be filled. (See Drago Dep. ECF 92-93 (“It was a fast moving situation, and we filled the acting spot with Acevedo. It's likely another DS from a different district is transferring into the position”).) Moreover, Defendants' assertion that Plaintiff “merely express[ing] interest in the DS role” cannot be construed as an application (Def. Mem. at 13) is belied by the fact that Defendants appear to have construed Chan's expression of interest as an application for the DS role. (Def. 56.1 Reply at ECF 63 ¶¶ 126-27.)
“Def. Reply” refers to "Defendants' Reply Memorandum Of Law In Further Support Of Their Motion For Summary Judgment filed on Dec. 12, 2023 at Dkt. 61.
In sum, Rackley's application for the second DS position, coupled with Rackley's emails to both Drago and Bolen, is sufficient to show he clearly indicated his interest in the second DS position. There is evidence, then, that Rackley was qualified for the second DS position and sufficiently expressed his interest in applying for it.
b. Inference Of Discrimination On Failure To Promote Claims
Rackley can establish an inference of discrimination with respect to his failure-to-promote claims for the two DS positions. An inference of discrimination can arise from circumstances including, but not limited to, “the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.” Littlejohn, 795 F.3d at 312 (citations omitted). Additionally, “when a plaintiff applies for and is denied a position, the fact that the position was filled by someone outside of the plaintiff's protected class is itself enough to give rise to such an inference.” Feliciano v. City of New York, No. 14-CV-6751, 2015 WL 4393163, at *4 (S.D.N.Y. July 15, 2015) (first citing Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (“the mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis”) and then citing Soderberg v. Gunther International, Inc., 124 Fed.Appx. 30, 31 (2d Cir. 2005) (summary order) (burden to establish a prima facie case of discrimination is de minimis, and filling of position by employee 20 years junior to plaintiff was enough to support an inference of age discrimination)); see also Diaz v. New York City Transit Authority, 98 Fed.Appx. 58, 59 (2d Cir. 2004) (summary order) (finding inference of discrimination when the Transit Authority hired two younger White men instead of the 48-year-old African-American plaintiff).
Here, the promotions Rackley sought were ultimately filled by candidates who were not in Rackley's protected class. Nanartowicz, who filled the first DS position, is White, and Chan, who filled the second DS position, is Asian or Asian-American. (Def. 56.1 Reply at ECF 113 ¶ 52, ECF 120 ¶ 68, and ECF 125 ¶ 77.) Accordingly, Rackley can satisfy his minimal burden to show an inference of discrimination at the prima facie stage.
Defendants assert as undisputed that “Mr. Chan self identifies as Asian and was 59 years old at the time Centerra took over the USMS Contract.” (Def. 56.1 ¶ 134.) Rackley denied the assertion, on the basis that “[t]he statement lacks proper foundation.” (Pl. 56.1 Response at ECF 33 ¶ 135.) Later in the counterstatement portion of the same filing, however, Rackley states “[t]he position was given to Kevin Chan, an Asian-American male.” (Id. at ECF 52 ¶ 77.) Because of Rackley's “denial” that Chan is Asian, Defendants ask the court to disregard Rackley's supplemental statement that Chan is Asian-American, “removing any alleged comparators in this action for the Second DS role.” (See Def. 56.1 Reply at ECF 125 ¶ 77.) That argument is too facile. The parties have admitted that Chan is either Asian or Asian-American. There is no genuine dispute that Chan is not Black.
In sum, under the standards governing Rackley's state and federal claims, Rackley can establish a prima facie case for two of the three promotions to which he applied. And because Rackley can establish a prima facie case under the stricter federal and state standards, he necessarily also establishes a prima facie case under the more liberal NYCHRL standards. Having found that Rackley can make out a prima facie case on his failure-to-promote claims with respect to the two DS positions but not the CM position, the Court turns next to whether Defendants have discharged their burden to articulate legitimate, non-discriminatory reasons denying Rackley the promotions.
2. Legitimate, Non-Discriminatory Reasons For Not Promoting Rackley
Having found that Rackley can establish a prima facie case with respect to his failure-to-promote claims, the burden of production shifts to Defendants to proffer legitimate, non-discriminatory reasons for not selecting Rackley. See McDonnell Douglas, 411 U.S. at 802. To satisfy that burden, “the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection.” Burdine, 450 U.S. at 255. The defendant need not persuade the court that it was actually motivated by the proffered reasons. Id. All that is required at this stage is that Defendants “introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” St. Mary's Honor Center, 509 U.S. at 509 (emphasis in original). Defendants have presented evidence to satisfy their burden.
For the first DS position, Defendants assert that Rackley was not selected because he was not the most qualified person for the job. (Def. 56.1 ¶ 94 (citing Drago Decl. ¶ 28; Drago Dep. 193:13-194:5; Interview Notes, Dkt. 52-2 at ECF 83).) Defendants assert that Nanartowicz, who was ultimately hired, had superior qualifications and that the interviewers “harbored serious concerns about Plaintiff's interview performance, qualifications, and the lack of professionalism he displayed both during the selection process and in anecdotes from his time working at the USMS.” (Def. 56.1 ¶ 114 (citing Drago Dep. 191-194).) This is enough to discharge Defendants' burden with respect to the first DS position. See Pierre v. City of New York, No. 17-CV-5782, 2020 WL 353538, at *8 (S.D.N.Y. Jan. 21, 2020), aff'd, 844 Fed.Appx. 411 (2d Cir. 2021) (“The defendants have articulated legitimate non-discriminatory reasons for not promoting the plaintiff; they state that both Brusgard and Goldband were given the promotions because they were better qualified and interviewed better than the plaintiff”); Mandell v. County of Suffolk, 316 F.3d 368, 380 (2d Cir. 2003) (Defendants discharged their burden to offer legitimate, non-discriminatory reason for failing to promote the plaintiff, where a defendant “testified that he attributed the decision not to promote plaintiff to the negative impression plaintiff made on him during a 1997 interview” and testified that he “relied heavily on the recommendations” from his superiors recommending the candidate who was ultimately chosen.)
With respect to the second DS position, Defendants assert that they did not hire Rackley because he did not apply, but “only expressed an interest” in the role after Centerra already began the process of transferring Mr. Chan into the role. (Def. 56.1 ¶¶ 119, 122, 133 (citing, inter alia, Drago Decl. ¶ 22-39; Drago Dep. 134:5-12.) Defendants contend that they did not seek any candidates for the second DS role because they just transferred Chan from the EDNY DS position to the SDNY DS position. (Def. 56.1 ¶ 122 (citing Drago Decl. ¶¶ 29-35).) Drago also testified that because “Chan was an excellent DS in the EDNY,” he recommended that Chan be transferred into the second DS role because “it was a critical position and we wanted somebody in there quickly.” (See Def. 56.1 ¶ 127 (citing Drago Decl. ¶ 34; Drago Dep. 134:8-12: 135:19-20.) This satisfies Defendants' burden at this stage. See Singh v. RXR 620 Master Lease, LLC, No. 21-1092-CV, 2022 WL 2187206, at *2 (2d Cir. June 17, 2022), cert. denied, 143 S.Ct. 1751 (2023) (“Securitas proffered a legitimate, non- discriminatory reason for not hiring Singh: he failed to timely apply for the job and, once he did apply, the job was already filled”); Watkins v. City of Waterbury Board of Education, No. 19-CV-00593, 2022 WL 3347218, at *20 (D. Conn. Aug. 12, 2022) (“Defendant states that it selected [the successful candidate] ... because he had experience serving in this position for the previous two summers. This constitutes a legitimate, nonretaliatory reason for not selecting Plaintiff”); Chambers-English v. Unisys Corp., No. 05-CIV-2976, 2007 WL 486681, at *1 (S.D.N.Y. Feb. 14, 2007), aff'd, 300 F. App'x. 61 (2d Cir. 2008) (Employer satisfied its burden to articulate legitimate, non-discriminatory reasons for not promoting the plaintiff where the position at issue was created to convert the successful candidate, who had been working as a contractor in that same position for two years, into a regular employee).
3. Pretext
Having found that Defendants satisfy their burden to advance facts supporting legitimate, non-discriminatory reasons for failing to promote Rackley, the Court turns to whether a reasonable jury could find that Defendants' stated reasons were pretext for a racially discriminatory decision. At this stage of the burden-shifting framework, the burden shifts back to the plaintiff to prove that the real reason for the adverse employment decision was discrimination. A plaintiff “may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256. The Second Circuit has stated that “[p]retext may be demonstrated either by the presentation of additional evidence showing that ‘the employer's proffered explanation is unworthy of credence,' Burdine, 450 U.S. At 256, 101, or by reliance on the evidence comprising the prima facie case, without more.” Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 38 (2d Cir. 1994). See also Primmer v. CBS Studios, Inc., 667 F.Supp.2d 248, 261 (S.D.N.Y. 2009) (“An employment discrimination plaintiff may also demonstrate pretext by showing such weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons”) (internal quotation marks omitted). To establish pretext, a “plaintiff is not required to prove that the employer's proffered reasons are false but only that they were not the only reasons and that race made a difference.” Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989).
Rackley's pretext evidence encompasses a number of factors. See Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93, 102 (2d Cir. 2001) (“A combination of factors, any of which judged on their own would be much less compelling, provide sufficient evidence to allow a reasonable jury to conclude that Cromwell's explanation for failing to hire Byrnie was a pretext for impermissible discrimination.”) Those factors include Rackley's comparative qualifications; Rackley's interview performance; discrepancies with Defendants' EEOC position statement; Defendants' reliance on unsubstantiated anecdotes about Rackley's “confrontational” behavior; and statistical evidence showing a lack of Black managers in Defendants' ranks. Rackley has raised sufficient evidence for which a reasonable jury could conclude that Defendants' failure to promote him was based, at least in part, on his race.
a. The First DS Position
Rackley can establish a genuine question of fact as to whether Defendants' stated reasons for denying Rackley the first DS position were pretext for race discrimination. The conflicting evidence includes Rackley's and Nanartowicz's qualifications on paper, their interview performances, inconsistencies between Defendants' stated reasons for choosing Nanartowicz over Rackley and the reasons Defendants previously provided to the EEOC, disputed anecdotes of Rackley's conduct, and statistics concerning the relative lack of Black employees in managerial positions.
i. Comparative Paper Qualifications
The parties genuinely dispute the relative significance of Rackley's qualifications as compared to Nanartowicz's. For his part, Rackley offers multiple reasons why he should be deemed more qualified than Nanartowicz. For instance, Rackley reached a higher rank in the USMS than Nanartowicz. (Compare Rackley Resume, Dkt. 60-3 with Nanartowicz Resume, Dkt. 60-13.) Defendants highlight Nanartowicz's experience as Chief Inspector but ignore that Rackley also held that position and was promoted out of it. (Id.; Def. 56.1 Reply at ECF 47 ¶ 99.) Additionally, Rackley arguably had more directly relevant experience with court security, having held the position of LCSO since 2014 (Rackley Resume, Dkt. 60-3), while Nanartowicz's role as Chief Inspector gave him only “peripheral” experience with courthouse security.” (See Drago Dep.106:9-107:21 (Drago testifying that Nanartowicz's experience with day-to-day operation of the courthouse was “peripheral” and that he did not know if Nanartowicz had any specific experience with the contract [for courthouse security in the Second Circuit]); Def. 56.1 Reply at ECF 119 ¶ 65 (Defendants admitting that “Chief Inspectors do not have a role in the operation of the CSO contract”).)
According to Rackley, “it is pretextual that defendants would place value on unrelated experiences like approving invoices for trial over real world experience with court security and familiarity with the contract.” (Pl. Mem. at 26.) A reasonable jury could so find. See Separ v. Nassau County. Department of Social Services, No. 11-CV-2668, 2014 WL 4437676, at *7 (E.D.N.Y. Sept. 9, 2014) (“the record before the Court does not preclude a reasonable fact finder from concluding that Defendants' proffered non-discriminatory reasons for promoting [the successful candidate] over Plaintiff are pretextual,” where the successful candidate “never worked in the relevant unit, had no prior family court experience, lacked adequate knowledge of the position and department, lacked relevant accounting experience, and had less overall experience than Plaintiff”).
For their part, Defendants argue that Rackley's examples are “sparse and cherrypicked” (Def. Reply at 4) and that Rackley fails to establish that he was so superior that no reasonable person would have chosen Nanartowicz over Rackley. See Santos v. Engelhard Corp., No. 05-CV-203, 2009 WL 2432736, at *11 (S.D.N.Y. Aug. 6, 2009) (“a plaintiff bears a heavy burden in seeking to defeat summary judgment on grounds that his or her qualifications were superior to those of a successful candidate”) (citing Byrnie, 243 F.3d at 103). Defendants assert that Rackley was not qualified due to his lack of attention to detail, as evidenced by the fact that he did not take the time to update his resume and submitted a resume that was “riddled with formatting errors.” (Def. 56.1 Reply at ECF 50 ¶¶ 103-04.) And, although Rackley asserts the resume Defendants refer to is not the one he submitted, Rackley did not produce resumes that were different than the ones in Defendants' records. (Id.) Defendants also assert that regardless of the job titles reflected on his resume, Rackley's qualifications were inferior because, unlike Nanartowicz, Rackley failed to give specific examples of his experience during his interview. (Def. 56.1 ¶ 101.)
Notwithstanding the competing evidence of Rackley and Nanartowicz's qualifications on paper, Defendants argue that it is not the Court's role to act as a superpersonnel department to second-guess an employer's judgment and that a “plaintiff cannot show pretext unless he shows his credentials were so superior to the successful candidate's credentials that no reasonable person could have chosen the candidate selected over plaintiff.” (Def. Mem. at 14 (citing Zenie v. College of Mount Saint Vincent, 2021 WL 6105373 (2d Cir. Dec. 21, 2021).) But that standard only applies where a plaintiff is arguing that the only evidence of pretext is the plaintiff's superior qualifications. See Byrnie, 243 F.3d at 103 (stating that “just because the discrepancy between [the plaintiff]'s and [the successful candidate]'s qualifications does not on its own have the strength to create a material issue of fact, that does not mean the discrepancy is stripped of all probative value.”) Therefore, while the examples of comparative qualifications on which Rackley relies alone may not be sufficient to establish pretext, that evidence is probative as part of the “aggregate evidence of pretext.” Medeiros v. Pratt & Whitney Power Systems, Inc., 272 Fed.Appx. 78, 81 (2d Cir. 2008).
ii. Interview Performance
Interview performance can be used as a valid explanation of an employer's hiring decision where it is “not so vague or conclusory as to disallow [the plaintiff] the possibility of demonstrating pretext.” Byrnie, 243 F.3d at 105. At the same time, the Second Circuit also has recognized that “poor interview performance ... can be concocted for litigation purposes and difficult to rebut.” Id. at 104-05. With respect to the first DS position, Defendants assert that Nanartowicz was chosen “namely because he performed significantly better in the interview than Plaintiff and his ‘hard and soft skills' were more closely aligned with the role than what Plaintiff portrayed.” (Def. Mem. at 14.) Rackley argues that there is mixed evidence as to both Nanartowicz's and Rackley's interview performance. (See Pl. Mem. at 19-22.) Indeed, there are inconsistencies in the evidence and arguments Defendants put forth that would allow a reasonable jury to find their justifications were pretextual.
For example, at deposition, Drago reviewed his interview notes and faulted Rackley for purportedly saying he never had any challenges in his career and for not answering the relevant question. (Drago Dep. 85:5-88:21; see also Def. Mem. at 11.) Indeed, after question number seven in Drago's interview notes, Drago wrote “No Challenges. When Bell Rings you got to go.” (Interview Notes, Dkt. 60-10.) But the interview questions show that question seven asked, “What challenges would you have working irregular hours (e.g., evenings / weekends)?” (Interview Questions, Dkt. 53-7.) Drago recorded none for Rackley and his “when the bell rings” comment. Drago's notes thus in fact demonstrate that Rackley answered the question. Meanwhile, Drago's notes about Nanartowicz's answer to question 7 are similar to Rackley's answer: “Always on call...” (Id.; Interview Notes, Dkt. 60-10.)
In reply, Defendants counter that Drago did not have the interview questions in front of him during his deposition. (Def. Reply at 5.) They also argue that “any minor inconsistency alone, even if true, is insufficient to establish pretext.” (Id. (citing Hernandez v. Office of Commissioner of Baseball, No. 18-CV-9035, 2021 WL 1226499, at *6 (S.D.N.Y. March 31, 2021) (employer's “slightly different explanations [of hiring criteria] are not genuinely inconsistent, but are a reflection of the subjective and multifaceted nature of this determination.”)).) As discussed below, however, there are multipole inconsistencies that at least create a genuine dispute of material fact.
Another example concerns Defendants' assertions that Rackley used too many idioms and communicated “unprofessionally,” which made Defendants “wary of Plaintiff's ability to maintain relationships and communicate with high-ranking federal officials.” (Def. 56.1 Reply at ECF 53 ¶ 107.) As Rackley observes, it is “illogical” that Defendants feared Rackley could not communicate with high-ranking officials, particularly because some of the high-ranking officials he would have communicated with if selected as DS were in positions such as Chief Deputy, which Rackley himself once held, though Drago and Nanartowicz never did. (See id.; Pl. Mem. at 22.) Drago's interview notes also once again potentially belie Defendants' proffered rationale. Drago's notes record Rackley as saying “I learned use the carrot first”; that note is followed by Drago's comment “love the quotes.” (Interview Notes, Dkt.52-2 at ECF 8485.) When asked if Drago found Rackley's use of quotes or anachronisms in his interview inappropriate, Drago testified “I wouldn't say inappropriate. I would say it would be a better way of doing it.” (Drago Dep. 99: 9-100:2.) Drago also testified that he did not find the use of quotes and anachronisms inappropriate in a business s context but appeared to take issue with the use of them “over and over again.” (Id.) A reasonable juror could draw the inference that Drago was being sarcastic when he wrote, “love the quotes,” but a reasonable juror could also find that Drago's comment shows that Drago actually liked Rackley's use of idioms. And, while citing Rackley's use of idioms as unprofessional, Defendants overlook Drago's comments about Nanartowicz that a reasonable juror could conclude were similar or worse. Specifically, Drago testified that during his interview Nanartowicz was sighing a lot and shuffling paper around. (Drago Dep.103:2-9 (Drago testifying that he wrote “I love the sighs” and that Nanartowicz was sighing and shuffling paper in front of the microphone).) Nothing in the record explains why use of idioms would be disqualifying while sighing and shuffling papers is not.
To take yet another example, Defendants assert that Nanartowicz gave “clear answers with examples demonstrating how his experience directly aligned to the requirements” while Rackley “left his interviewers to merely surmise about his responsibilities in prior positions rather than even attempting to articulate them.” (Def. Mem. at 10-12; Def. 56.1 Reply at ECF 45 ¶ 96, ECF 49 ¶ 101.) A reasonable juror could view that explanation as being at odds with Horch's interview notes, which reflect that both candidates gave “good answers” (Drago Dep. at ECF 86-87), as well as with Drago's interview notes, which include “Critique: Attention to details; Good answers” written at the top of Drago's notes for Rackley, as well as “Great idea” next to Rackley's answer to question six. (Id. at ECF 84-85.)
Put simply, the evidence of both candidates' interview performance, and Defendants' justification for their selection, is mixed and hardly undisputed. Whether Defendants' justifications were pretextual is an issue for the jury. Gallo v. Prudential Residential Services, Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994) (urging caution when granting summary judgment to an employer, where, as here, intent is at issue and stating that “the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them”).
Rackley also suggests that the assertions Rackley was a poor communicator “plays into the stereotype of the inarticulate Black person.” (Pl. Mem. at 22.) Defendants do not address the allegations of stereotyping in their reply. While “stereotyping may support the inference that an adverse action was due to a protected characteristic. ..courts finding the presence of such stereotyping have done so based on comments that refer explicitly to stereotypical assumptions.” Bergesen v. Manhattanville College, No. 20-CV-3689, 2021 WL 3115170, at *6 (S.D.N.Y. July 20, 2021); compare Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir. 2009) (“[Defendant's] alleged comment on the propensity of men to engage in sexual harassment . was sufficient to permit a jury to infer discriminatory intent”) with Joseph v. Marco Polo Network, Inc., No. 09-CV-1597, 2010 WL 4513298, at *11 (S.D.N.Y. Nov. 10, 2010) (finding that references to “image” or “background” were not related to invidious stereotypes regarding Muslims). Rackley does not identify any such comments. Similarly, while Rackley argues Drago had disdain for Rackley because Drago thought he was superior to Rackley, Rackley does not point to evidence linking that purported disdain to race. (See Pl. Mem. at 20 (citing Drago's deposition, in which he stated, “[s]o I know in my experience and I've done every place that I've gone and every chapter of my life far exceeds Don Rackley's [ranking of] GS-15”).)
iii. Discrepancies With Defendants' EEOC Statement
Rackley also points to inconsistencies between Defendants' summary judgment papers and Defendants' EEOC position statement as evidence of pretext. Defendants' summary judgment brief states that Nanartowicz was chosen “namely because he performed significantly better in the interview than Plaintiff.” (Def. Mem. at 14; Def. 56.1 Reply at ECF 44 ¶ 94.) Defendant's statement to the EEOC, however, asserts that Nanartowicz was more qualified than Rackley because Nanartowicz “held several senior positions and had superior qualifications, including acting as a Contracting Officer's Representative and Chief Inspector for the USMS.” (EEOC Statement, attached as Ex. D to Dinnocenzo Decl., Dkt. 60-4 at 5.) Defendants' EEOC statement does not mention the candidates' interview performance, though it states both were interviewed; nor does it reference Rackley's professionalism, ability to communicate, or reliance on idioms. (Dkt. 60-4 at 5.) And, while referencing Nanartowicz's previous position as a Chief Inspector for the USMS, the statement omits the fact that Rackley also held the position of Chief Inspector. (Id. at 4 n.8.) These discrepancies provide additional evidence of pretext. See Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 137 (2d Cir. 2000) (“The inconsistency between the justifications offered for [plaintiff's] dismissal raises a genuine issue of material fact with regard to the veracity of this non-discriminatory reason); Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441 (1st Cir. 2009) (fact issues existed as to whether employer's stated reasons for terminating employee were pretextual where employer gave different reasons to the EEOC than it gave during litigation)).
iv. Negative Anecdotes
Rackley also argues that Defendants' reliance on “negative anecdotes” to show that he was unprofessional and confrontational establishes pretext. (Pl. Mem. at 18, 25.) Specifically, Drago testified that while Nanartowicz was well-regarded by his colleagues at the USMS, Drago heard that Rackley physically threatened a clerk, that he chastised a subordinate, and that he “had confrontations” with the Chief Administrator for the Second Circuit. (Pl. 56.1 Response at ECF 28 ¶ 111-13.) Bolen testified that Rackley had a reputation for being “very confrontational.” (Bolen Dep. 46:13-16.) Rackley denies these allegations and notes that despite supposedly knowing of Rackley's “propensity towards confrontation,” Defendants nonetheless chose to interview him for the DS position and never asked him about the incidents.(Pl. 56.1 Response at ECF 28 ¶ 111-13; Pl. Mem. at 25.) Those competing facts provide further fodder for pretext.
Rackley also asserts that “these false stories play into yet another stereotype of the large, dangerous, and violent Black Male.” (Pl. Mem. at 25.)
v. Lack of Black Managers
Finally, Rackley points to statistical evidence of disparate treatment at Centerra and within the USMS generally as evidence that Defendants' stated reasons for their actions toward Rackley are pretextual. While statistical evidence cannot prove Rackley's claim it can be one piece of the aggregate evidence supporting it. See Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990) (“It is well-settled that an individual disparate treatment plaintiff may use statistical evidence regarding an employer's general practices at the pretext stage to help rebut the employer's purported nondiscriminatory explanation”). “Evidence of an employer's general practice of discrimination may be highly relevant to an individual disparate treatment ... claim.” Chin v. Port Authority of New York & New Jersey, 685 F.3d 135, 150 (2d Cir. 2012). Accordingly, even though Rackley cannot rely exclusively on statistics to establish pretext, statistics may nonetheless serve as probative circumstantial evidence of pretext.
Based on data produced by Defendants in discovery, Rackley contends that “there is a paucity of Black employees in management positions with Defendants.” (Pl. Mem. at 29.) Pointing to Drago's deposition testimony and data Centerra submitted to the EEOC, Rackley asserts that no Black Centerra employees hold management positions in the Second Circuit because there are no Black employees in CM or DS roles. (Def. 56.1 Reply at ECF 147 ¶¶ 132-33 (citing Drago Dep. 53:24-54:20 (Drago testifying that the hierarchy of Defendants' employees from lowest to highest is “court security officer, lead court security officer, district supervisor and then contract manager” and that CSOs and Lead CSOs are not in “management” positions) and (Dkt. 60-22) (EEO spreadsheets Defendants produced to Plaintiff in discovery).) Rackley also argues that in the three circuits and two districts in which Defendants have contracts, there have been no Black employees in the CM position and only two Black employees in the 38 DS positions. (See Def. 56.1 ¶¶ 134-35 (citing Dkts. 60-20, 6021, 60-22.).)
Defendants do not dispute Drago's testimony but ask the court to “disregard the section of this paragraph concerning the ‘CM and DS positions' as Plaintiff's reliance on Mr. Drago's cited testimony does not in fact support the proposition advanced.” (Def. 56.1 Reply ¶ 132). Defendants appear to take issue with whether the evidence supports the characterization of CM and DS positions as managerial. A reasonable inference can be made from Drago's testimony, however, that by calling out only CSO and LCSO positions as non-managerial, the hierarchically higher CM and DS positions are managerial. In any event, whether or not CM and DS positions are deemed managerial is immaterial; what matters is the extent to which Black employees may have been excluded from those positions.
Rackley also cites a Washington Post article discussing allegations of widespread discrimination against Black employees in the USMS and reporting on a recent settlement with the USMS in a racial discrimination class action suit. (Pl. Mem. at 1, 28.) Both the article, and the allegations recounted, are inadmissible hearsay. Accordingly, the Court disregards the article on this motion. See e.g., Allen v. City of New York, 480 F.Supp.2d 689, 720 (S.D.N.Y.2007) (finding that newspaper article reporting that inmates at Rikers Island had been routinely beaten and that correctional officers had taken steps to conceal these assaults was inadmissible hearsay and could not be used to demonstrate an unconstitutional policy, custom, or practice); Gonzalez v. City of New York, 354 F.Supp.2d 327, 347 n. 29 (S.D.N.Y.2005) (finding newspaper articles offered in support of plaintiffs' pattern and practice claims to be “inadmissible hearsay and unusable to defeat summary judgment”).
Defendants do not dispute that they have never employed a Black CM. (Def. 56.1 Reply at ECF 149 ¶ 134). They do dispute some of the other statistics because the race information was provided by individuals voluntarily and “there was one individual listed as a ‘District Supervisor' and whose Contract was listed as ‘USMS-NCA' and does not provide any details regarding who even applied for the position, the application process, the decisionmakers, or the decision-making process.” (Id. at ECF 148 ¶ 133.) At this juncture, Defendants have not demonstrated that their criticisms go to admissibility of the statistical evidence as opposed to its weight. The Court thus may consider it.
In a further rebuff to the statistical evidence, Defendants argue that “the law is settled that statistics themselves do not make an inference of discrimination.” (Def. Reply at 7 (citing Hussey v. New York State Department of Law, 933 F.Supp.2d 399 (E.D.N.Y. 2013)). Correct. But Rackley is not relying on statistics alone. Rather, statistics showing a lack of Black managers in Defendants' ranks are but one additional piece of evidence to add to others described above from which a reasonable jury could find that Defendants' proffered non-discriminatory explanations are pretextual. “Because employers rarely leave a paper trail - or ‘smoking gun' - attesting to a discriminatory intent, disparate treatment plaintiffs often must build their cases from pieces of circumstantial evidence which cumulatively undercut the credibility of the various explanations offered by the employer. Such determinations are, generally speaking, most competently and appropriately made by the trier of fact.” Hollander, 895 at 85.
Taking the competing evidence of Rackley's paper qualifications, together with the mixed evidence of his interview performance, Defendants' reliance on second-hand negative anecdotes, and the statistical evidence as to a lack of Black managers, a reasonable jury could find that Defendants' stated reasons for denying Rackley the DS position were pretext.
b. The Second DS Position
Rackley can also establish a genuinely disputed question of fact as to whether Defendants' stated reasons for denying Rackley the second DS position are pretext for discrimination.
i. Question Of Fact As To Timeline Of Filling The Position
Rackley argues that Defendants' assertion that Rackley never applied for the second DS role is pretext because he expressed his interest in emails to both Drago and Bolen before the full-time DS position was filled. (Rackley-Drago Emails, Dkt. 60-9, Rackley-Bolen Emails, Dkt. 60-15.) Indeed, as discussed above, a plaintiff alleging failure to promote may be excused from the requirement of formally applying to a position where “(1) the vacancy at issue was not posted, and (2) the employee either had (a) no knowledge of the vacancy before it was filled or (b) attempted to apply for it through informal procedures endorsed by the employer. Petrosino, 385 F.3d at 227. Rackley has satisfied these requirements and established at least a question of fact as to whether Defendants had truly filled the second DS position with Chan when Rackley expressed his interest. It is undisputed that Chan was transferred into the second DS role “in or around April 2021” (Def. 56.1 Reply at ECF 15 ¶ 43, ECF 16 ¶ 47), and it is also undisputed that Rackley expressed his interest in the second DS role on April 2, 2021. (Def. 56.1 Reply at ECF 66 ¶ 130.) However, because the precise timeline is unclear, whether Chan filled the role before Rackley expressed interest is a question of fact. Although the evidence is the same that Rackley puts forth to establish his prima facie case with respect to the second DS role, the Second Circuit has made clear that “[p]retext may be demonstrated either by the presentation of additional evidence showing that ‘the employer's proffered explanation is unworthy of credence,' Burdine, 450 U.S. at 256, or by reliance on the evidence comprising the prima facie case, without more.” Chambers, 43 F.3d at 38. In addition, while Defendants assert that they wanted to fill the DS role “as soon as possible” (Def. 56.1 Reply at ECF 64 ¶ 127), they do not explain why transferring in an employee from the EDNY would be any faster than hiring Rackley, who was already working in the SDNY. The evidence that Rackley made his interest in the second DS position known before it was filled undermines Defendants' explanations.
ii. Comparative Paper Qualifications
Rackley's evidence of pretext is also supported by the fact that Defendants “do not even attempt to argue [Chan] had superior qualifications to Rackley.” (Pl. Mem. at 28; Def. 56.1 Reply at ECF 125 ¶ 78.) Indeed, Defendants do not argue that point, and the record does not suggest Chan was more qualified than Rackley - except for the fact that Chan already held a DS position in the Eastern District of New York. (Chan Resume, Dkt. 60-14.) But Chan did not have the long history or high rank with the USMS that Rackley did, as prior to his beginning his career as a CSO in 2013, Chan was an Assistant Special Agent in Charge at the Office of the Inspector General in the Department of Housing and Urban Development. (Id.) And, while Defendants characterized Rackley's resume as “riddled” with errors (Def. 56.1 Reply at ECF 50 ¶ 103), Defendants ignored similar mistakes in Chan's resume. (Chan Resume, Dkt. 6014) (noting formatting, punctuation, and grammatical errors in Chan's resume).
As with the first DS position, the evidence of Rackley's and Chan's qualifications is insufficient by itself to establish that no reasonable person could select Chan over Rackley. But when viewed in conjunction with the evidence that Defendants were aware of Rackley's interest even before the position was filled, as well as the statistical evidence of a dearth of Black managers discussed above, there is sufficient evidence on which a reasonable jury could find that Defendants' asserted reasons for denying Rackley the second DS position were pretextual for race discrimination.
In sum, disputed issues of fact preclude granting summary judgment on Rackley's claims that Defendants discriminated against him by denying him promotion to both DS positions. And, because Rackley's failure-to-promote race discrimination claims survive summary judgment under the stricter federal and state law standards, summary judgment is also inappropriate under the NYCHRL's more liberal standards. See E.E.O.C., 967 F.Supp.2d at 850 (“Because the Court found that summary judgment was not appropriate under the stricter federal and state standard on Patricot's claims related to her demotion and because under the NYCHRL it views her other claims after her return from leave as stemming from this claim, Patricot's discrimination claims related to her return from maternity leave and arising under the NYCHRL survive”).
B. Race Discrimination Based On Other Employment Actions
1. Prima Facie Case
In addition to his failure-to-promote claims, Rackley alleges that Defendants committed three other discriminatory actions: removing him as lead firearms instructor, denying him access to his email account, and forcing him to work overnight shifts alone. Rackley's federal and state causes of action with respect to those allegations of discrimination are governed by the basic McDonnell Douglas disparate treatment framework: to establish a prima facie case, Rackley must show that he was (1) a member of a protected class; (2) qualified for his job; and (3) suffered an adverse employment action that (4) occurred under circumstances giving rise to an inference of discrimination. See Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (applying this formulation of the McDonnell Douglas standard to several allegedly discriminatory employment actions, including the failure to create a management position for plaintiff and a denial of a transfer request) (abrogated on other grounds by Muldrow v. City of St. Louis, Missouri, 144 S.Ct. 967 (2024)). Rackley's claims under the NYCHRL are governed by the broader NYCHRL standard requiring that Rackley demonstrate that he has been treated less well than other similarly situated employees, at least in part for discriminatory reasons. E.E.O.C., 967 F.Supp.2d at 836.
Rackley also alleges that these actions were retaliation for raising concerns about firearm safety. Those allegations are discussed below in the context of Rackley's whistleblower retaliation claims.
Defendants argue that Rackley cannot make out a prima facie case because (1) none of the conduct Rackley alleges constitutes an adverse employment action; and (2) even if it did, Rackley cannot establish an inference of race discrimination with respect to any of the adverse actions. (See Def. Mem. at 16.) Rackley argues that Defendants' conduct constitutes adverse actions that show he was treated less well than other employees who are not Black. (See Pl. Mem. at 29.) The Court concludes that there is at least a question of fact whether Rackley can establish a prima facie case of discrimination with respect to his loss of email access. However, Rackley cannot establish a prima facie case of discrimination with respect to his removal as firearms instructor and working night shifts alone because, even to the extent those actions are adverse, Rackley cannot show an inference of discrimination tying them to race.
Rackley argues that the alleged adverse actions must be considered both separately and in the aggregate. (Pl. Mem. at 29 (citing Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (observing, in a Title VII retaliation case, that “in determining whether conduct amounts to an adverse employment action, the alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently ‘substantial in gross' as to be actionable”). Hicks involved retaliation claims under Title VII, not disparate treatment claims, and “[i]t is not clear whether state and federal antidiscrimination laws permit the Court to aggregate individual discrete acts to attempt to satisfy the “adverse employment action” prong of Plaintiff's prima facie case” outside the retaliation context. Bowen-Hooks v. City of New York, 13 F.Supp.3d 179, 211 (E.D.N.Y. 2014). Some courts have expressly rejected this approach. See Kaur v. New York City Health & Hospitals Corp., 688 F.Supp.2d 317, 332 (S.D.N.Y. 2010) (“[T]here is no authority for the proposition that this Court should consider the cumulative effect of individually alleged adverse employment actions when evaluating Plaintiffs discrimination claim.”); Hill v. Rayboy-Brauestein, 467 F.Supp.2d 336, 356 n. 22 (S.D.N.Y.2006) (“Although ... Title VII hostile work environment claims and retaliation claims involve different findings regarding adverse employment actions, the Plaintiff cites no law, and the Court is aware of none, that supports the proposition that the Court can consider the cumulative effect of non-adverse employment actions when evaluating an intentional discrimination claim.”). On the other hand, many courts have assumed that adverse actions can be considered in the aggregate but have nonetheless held that combined actions did not constitute “adverse action” for the purposes of a disparate treatment claim. See, e.g., Cunningham v. New York State Department of Labor, 326 F. App'x. 617, 619 (2d Cir.2009) (addressing a “litany of actions” that, “according to plaintiff, constitute adverse employment action when ‘considered in their totality,'” and finding that “plaintiffs allegations are - each and together - nothing more than everyday workplace grievances” and not an adverse employment action for purposes of employment discrimination claim). Resolution of that issue is not material in the current context, however, because Rackley cannot establish an inference of discrimination with respect to either his removal as firearms instructor or having to work night shifts alone whether considered individually or together with other actions.
The Second Circuit has held that a plaintiff “sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment.” Vega v. Hempstead Union Free School District, 801 F.3d 72, 85 (2d Cir. 2015) (internal quotation marks and citation omitted). An adverse employment action is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). Examples of materially adverse changes include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.” Id. (internal quotation marks and citations omitted).
On April 17, 2024, however, the Supreme Court held that to establish the adverse action prong of a Title VII discrimination claim, a plaintiff alleging that she was discriminatorily transferred from one job to another only “must show some harm respecting an identifiable term or condition of employment.” Muldrow, 144 S.Ct. at 974. The Court went on to clarify that, “the transferee does not have to show ... that the harm incurred was significant ... or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” Id. Rackley suggests that Muldrow “brings Title VII in line with the NYCHRL” and “contrasts with Defendants' assertion that an adverse action must ‘have a detrimental effect on salary, title, or benefits.'” (See Dkt. 63 (quoting Def. Mem. at 17).) Defendants respond that Muldrow addressed an employee's burden specifically in connection with asserting a discriminatory job transfer, which Rackley does not allege here. (Dkt. 64.) Defendants also argue that Plaintiff cannot sufficiently demonstrate the alleged actions caused him any harm. (Id.)
It is uncertain whether the Supreme Court's "some" harm standard and overruling of the "material" harm standard applies to discrimination claims beyond the involuntary transfer context. The Court is not aware of any principled reason that would cabin the Court's holding to only transfers, particularly because the basis for the Muldrow decision is the express language of Section § 2000e-2(a)(1), which encompasses all discrimination claims, not just those based on job transfers. The Court need not resolve the issue here. The outcome is the same under either standard. In short, Rackley can establish at least a question of fact as to whether the other employment actions are adverse actions, whether that harm be “some” or “material”. But because he cannot demonstrate the requisite inference of discrimination as to his removal as firearms instructor and his working shifts alone, the only additional claim that remains actionable is his lack of email access.
Some courts have held that the “some harm” standard applies only in the context of involuntary transfers. See, e.g., Cavanaugh v. Wal-Mart Stores E., LP., No. 22-CV-1908, 2024 WL 2094010, at *4 (M.D. Pa. May 9, 2024) (“Muldrow involved an employee's involuntary job transfer, while the present case involves an employee's request for a voluntary job transfer. As such this new authority is not applicable to the present case and does not make the denial of Plaintiff's request an adverse employment action.”). Others have applied the “some harm” standard in other disparate treatment contexts. See, e.g., Anderson v. Amazon.com, Inc., No. 23-CV-8347, 2024 WL 2801986 (S.D.N.Y. May 31, 2024) (applying Muldrow's “some harm” standard to alleged adverse actions that included placing the plaintiff on a performance improvement plan and giving her a diminished role with “more and worse tasks”); Smith v. McDonough, No. CV 20-1321, 2024 WL 2804428, at *8 (D.N.M. May 31, 2024) (modifying the reasoning of the court's prior opinion, which had applied the preMuldrow standard and applying the “some harm” standard to alleged adverse actions that included being criticized, being counseled, being excluded from two meetings and an email chain, and being denied funding to attend a training.)
a. Removal As Firearms Instructor
Rackley alleges that he was involuntarily removed as “Lead Firearms Instructor” (Pl. Mem. at 6). Defendants argue his removal was not adverse for multiple reasons: (1) there was no position with the title of “Lead Firearms Instructor”; (2) the position was merely voluntary; and (3) Rackley explicitly asked to stop working at the range. (Def. Mem. at 17.) The Court concludes that there is at least a question of fact whether Rackley's removal as firearms instructor constitutes an adverse action. But regardless, Rackley is unable to advance a prima facie case of disparate treatment based on that adverse action because he fails to raise an inference of discrimination.
Each of Defendants' arguments that Rackley's removal as firearms instructor was not adverse do not stand up to scrutiny. First, Defendants' argument that there is no position of “Lead Firearms Instructor” is immaterial. While there is a dispute over Rackley's title, there is no dispute that he lost some sort of title (whether it was “Range Master” “Lead Firearms Instructor” or simply “Firearms Instructor”), and loss of a title constitutes an adverse action. Terry, 336 F.3d at 138. It is undisputed that Rackley was a firearms instructor and was listed as the “Range Master” on weapons qualifications test schedules. (Def. 56.1 Reply at ECF 91 ¶ 8.) It is also undisputed that after the April 2020 weapons qualifications test Rackley was not assigned to administer any other weapons qualifications tests. (Def. 56.1 Reply ECF 108 ¶ 40.) Accordingly, his precise title, and whether there was a hierarchy among firearms instructors, is irrelevant because there is no dispute that at some point Rackley lost his firearms instructor title.
Second, Defendants' argument that Rackley did not earn any additional compensation for his voluntary position and therefore did not suffer a decrease in salary or benefits is also immaterial. Even though Rackley did not suffer a decrease in salary, the loss of the title, responsibilities, and attendant recognition and status is sufficient to be adverse, regardless whether that standard is “some” or something higher. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008) (although transfer did not affect plaintiff's wages or benefits, it resulted in a “less distinguished title” and “significantly diminished material responsibilities,” and therefore constituted an adverse employment action); De la Cruz v. New York City Human Resources Administration Department of Social Services, 82 F.3d 16, 21 (2d Cir. 1996) (a lateral transfer was an adverse employment action even if the employee's salary did not decrease because the transfer involved diminished prestige, fewer advancement opportunities, and a change in responsibilities).
Defendants' third argument - that Rackley told his supervisor he no longer wanted to work at the range - is a closer call. Defendants point to the email Rackley sent to Perez before the April 2020 qualifications test, stating “this will be my last year doing the range...” as evidence that the decision to remove Rackley from his position was not made by Defendants, but rather by Rackley himself. (Dkt. 52-4 at ECF 48-51; Deposition of Efrain Perez (“Perez Dep.”), filed Nov. 29, 2023 (Dkt. 60-5) 79:22-80:15.) The meaning of that email is genuinely disputed. Rackley asserts that when he wrote, “the range” in that email, he only meant that he wished to stop working at the firearms range in upstate New York due to the commute - not the other closer ranges Centerra used for firearms qualifications tests. (Rackley Dep. 130:10-132:9; Rackley Decl. ¶ 17.) Rackley also testified that he spoke with Perez in April 2020 about not wanting to do the Blue Mountain range while remaining as an instructor at the Brooklyn range. (Rackley Dep. ¶ 131:6-132:13.) On the other hand, Perez testified that he understood Rackley's email to mean it would be his last year as an instructor overall. (Perez Dep. 79:22-80:15.) Perez also testified that he had an earlier verbal conversation with Rackley in which he understood from Rackley that it would be Rackley's last year as a firearms instructor overall. (Id.) The email is ambiguous as to its geographic reach. (Id.) Drawing all reasonable inferences in favor of Rackley, as the Court must on summary judgment, Rackley has established a genuine dispute as to whether his alleged removal from all range locations constituted an adverse action.
The April 2020 qualifications test was the last qualifications test of the fiscal year. (Def. 56.1 Reply at ECF 12 ¶ 35.) Another qualifications test took place in November 2020, as part of the 2021 fiscal year, and Rackley did not take part in it. (Id.)
Nonetheless, Defendants have met their burden to show that there is no evidence that can give rise to the inference that his removal as firearms instructor was due to discrimination. Rackley had not identified any similarly situated employees who replaced him - whether as “Lead Firearms Instructor” or “Range Master” - who are outside of his protected class. Nor has he identified any other evidence of discrimination related to his removal as firearms instructor, such as invidious comments related to his race, or that Defendants treated non-Black firearms instructors more favorably, or statistics concerning the comparative number of Black and non-Black firearms instructors. In short, Rackley does not allege any facts that bridge the gap between his removal as firearms instructor and his race, even under the NYCHRL standard. See Ochei v. Marry Manning Walsh Nursing Home Co., Inc., No. 10-CV-2548, 2013 WL 12615808, at *4 (S.D.N.Y. May 17, 2013) (“It is well settled that “I am; something bad happened to me at work; therefore it must have happened because I am” is insufficient at the summary judgment stage; Plaintiff must come forward with evidence demonstrating that her race played a part in her employment decisions.”). Accordingly, Rackley's allegation that his removal as firearms instructor was a discriminatory act does not survive summary judgment. Whether that allegation is sufficient to sustain his retaliation claims, however, is another matter, discussed below.
b. Loss Of Email Access
Rackley asserts that Defendants denied him access to his work email account by failing to restore his account access after he let his password lapse. It is undisputed that Rackley's password did lapse and that Defendants did not restore it. There are disputed issues of fact, however, as to whether that action was adverse or discriminatory for purposes of establishing Rackley's prima facie case.
Even before getting to those issues, however, Defendants argue that they cannot be liable with respect to the email access claim because Rackley never requested that the email address be restored, and Defendants cannot be deemed liable “for Plaintiff's own failures” in letting his password lapse. (Def. Mem. at 18.) But whether Rackley did or did not request restoration of his work email address is a disputed fact. Although Rackley did not make a direct request himself, he testified that another employee emailed Defendants on his behalf to request to restore access. (Rackley Dep. 192:3194:16.) Rackley has not identified any actual email in the record or other evidence corroborating his assertion. Nonetheless, his testimony, as thin an evidentiary showing as it may be, presents a credibility issue that cannot be determined on summary judgment. See Moll v. Telesector Resources Group, Inc., 94 F.4th 218, 227 (2d Cir. 2024) (“the summary judgment court may not discredit deposition testimony that is favorable to the party opposing summary judgment”) (internal quotation marks and citations omitted); Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 46 (2d Cir. 2019) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”) (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).)
Turning to the question of whether failure to restore Rackley's work email address qualifies as an adverse action, there is evidence that it does. Rackley concedes that he was able to use his personal email address “to work and communicate.” (Pl. 56.1 Response at ECF 36 ¶ 148.) At the same time, according to Rackley's unrebutted testimony, because of his lack of access to his work email, he was not apprised of significant issues and events, he was not included in emails sent to other LCSOs, and he was sometimes the only person on an email chain without a work email address. (Pl. Mem at 12; Pl 56.1 Response at ECF 130 ¶¶ 87-89.)
To be sure, courts have found that various forms of deprivation to accessing an aspect of work that does not prevent an employee from being able to do their work is not adverse, at least under the “materially adverse” standard. See Betterson v. HSBC Bank USA, N.A., 661 F. App'x. 87, 90 (2d Cir. 2016) (exclusion from certain meetings was not an adverse employment action for employee's Title VII discrimination claim where the plaintiff admitted “that she could still do her job and there is no evidence that she was disadvantaged by that exclusion”); Hill, 467 F.Supp.2d at 354 (“Plaintiff may feel that she has been treated differently by her supervisors because her key was not promptly replaced, and she was certainly inconvenienced by having to find other employees to let her into the laboratory. However, as a matter of law, the failure to promptly provide a replacement key did not cause a materially adverse change to Plaintiff's employment, particularly where the absence of a key did not prevent her from working.”). Courts thus have found that denial of access to telephones and email does not constitute an adverse action, at least a material one, for the purposes of disparate treatment claims under Federal, State, and New York City law. See, e.g., Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.1997) (finding that the loss of an office and a telephone, “standing alone, has never been held adverse action” absent some commensurate loss of status or diminution of authority); Cunningham, 2006 WL 842914, at * 18 (noting that “the loss of a phone, standing alone, is not an adverse employment action” and “[s]ince in the modern office environment e-mail serves essentially the same function as a phone, the loss of e-mail is also not an adverse employment action”).
Here, However, Rackley has provided testimony that the lack of email access interfered with his ability to properly do his job. (Rackley Dep. 19:10-22.) He has provided examples of how denial of email access left him worse off by not keeping him abreast of significant events at the courthouse that were relevant to his job, such as if there were demonstrations near the courthouse or individuals who were not supposed to attend court. (Def. 56.1 Reply at ECF 130 ¶ 88; Rackley Dep. 19:10-22.) He also testified that his supervisor did not keep him apprised of such events. (Rackley Dep. 16:8-19, 19:10-20:5.) As a result, he was deprived of information necessary to do his job. As Rackley put it, “if I don't know what's going on, if I'm not receiving any written or verbal communication in regards to the daily activities, that hinders me from performing my duty.” (Id. 19:22-20:5.) Even under the stricter “material harm” standard, Rackley's deprivation of email access qualifies as an adverse action; rather than just being an inconvenience, it negatively affected his ability to perform his job duties as an LCSO. See Kirkland-Hudson v. Mt. Vernon City School District, 665 F.Supp.3d 412, 451 (S.D.N.Y. 2023) (plaintiff sufficiently alleged an “adverse action” for purposes of a motion to dismiss where the plaintiff pled that her schedule resulted in a disproportionately heavy workload as compared to her non-Black coworkers and “negatively affected her ability to perform her job duties”); De La Pena v. Metropolitan Life Insurance Co., 953 F.Supp.2d 393, 412 (E.D.N.Y. 2013), aff'd, 552 Fed.Appx. 98 (2d Cir. 2014) (“depriving the Plaintiff of access to the computer system, which appears to have been needed to fully engage in his position, could easily fall into the category of “‘adverse employment action'”). The Court concludes that there is at least a dispute of material fact as to whether Rackley's lack of email access constituted an adverse action for the purposes of his prima facie claim.
Finally, Rackley has put forward evidence sufficient to give rise to an inference of discrimination. Specifically, he testified that there were only three LCSOs who “never fully had e-mail access,” and that those three employees, whom Rackley identified by name, were Black. (Rackley Dep. 192:6-15, 251:4-12.) That is consistent with Rackley's EEO statement, where he asserted that the three black LCSOs do not have email access and “are kept totally out of the loop.” (Dkt. 52-1 at ECF 196-97.) Defendants have not neutralized Rackley's testimony, leaving a credibility issue that the Court may not resolve on summary judgment.
c. Working Night Shifts Alone
Rackley also claims discrimination based on Defendants having sometimes forced him to work his night shift alone. He has not, however, pointed to other similarly situated employees outside of his protected class who were not forced to work alone when their coworkers called out sick. Nor has he adduced any other facts sufficient to give rise to an inference of discrimination with respect to this claimed adverse action. Accordingly, Rackley cannot establish a prima facie case of race discrimination based on his working night shifts alone.
Rackley's regular shift was the night shift. (Rackley Dep. 238:13-19.) Merely being assigned unfavorable working hours, such as the night shift, does not by itself constitute an adverse employment action. See Antonmarchi v. Consolidated Edison Company of New York, No. 03-CV-7735, 2008 WL 4444609, at *14 (S.D.N.Y. Sept. 29, 2008), aff'd, 514 Fed.Appx. 33 (2d Cir. 2013) (“Unfavorable hours do not constitute an adverse employment action for the purposes of Title VII ...Thus, Plaintiff being forced to work on the night shift cannot constitute an adverse employment action”) (internal citations omitted). That is not Rockley's claim. Rather, his claim is based on his having to sometimes work the nightshift alone.
There is no dispute that Rackley normally worked the night shift with a colleague. (Def. 56.1 Reply at ECF 88 ¶ 1; Drago Dep. 203:7-18.) It is also clear that Rackley was not assigned to be alone when he served night shift. His claim is that no employees were called in to replace other employees who were supposed to be on the night shift with Rackley when they called in sick. (Def. 56.1 Reply at ECF 132 ¶ 92.) The parties dispute who was responsible for finding replacement employees when they called in sick on the night shift. Rackley argues it was the DS's responsibility, i.e., Drago, while Defendants argue it was Rackley's responsibility as the other employee working the night shift. (Id. at ECF 133 ¶¶ 96-98.) Rackley testified that being forced to work alone at night created hardship for him and prevented him from taking scheduled meal or other breaks; alternatively, if he were to take breaks, then no one would be on duty. (Rackley Dep. 81: 7-14, 241:9-242:3.) Defendants have not identified any contrary evidence, instead questioning the import of Rackley's testimony. (See Def. 56.1 Reply at ECF 133 ¶ 95.)
But even assuming that Defendants were responsible for replacing officers who called out sick for the night shift and that Rackley's working alone could be considered an adverse action, Rackley cannot establish an inference of discrimination. He does not allege, let alone support with any facts, that employees outside of his protected class were not forced to work shifts alone when their coworkers called out sick. He does not allege that only Black employees were forced to work alone when employees called in sick. And, he does not cite to any other evidence that would tie Defendants' failure to find replacements to his race. To the contrary, Rackley acknowledges that the replacement issue was a matter of whether someone worked the day shift or night shift: the day shift has an “abundance of people, so if somebody doesn't come for 3 to 11 they hold somebody over ... The late shift no - they don't call anybody to come in and replace us ... we are basically on our own.” (Rackley Dep. 243:15-244:23.) Accordingly, even under the “more generous” NYCHRL standard, there are no facts by which Rackley can establish a prima facie claim of racial discrimination based on his working night shifts alone.See Rosario v. Hilton Worldwide, Inc., No. 09-CV-5336, 2011 WL 336394, at *5 (E.D.N.Y. Jan. 24, 2011) (even under the “NYCHRL's more generous standard, conclusory assertions that adverse employment action was due to gender or age are not sufficient to establish inference of discrimination”), aff'd sub nom., 476 F. App'x. 900 (2d Cir. 2012). Defendants are entitled to summary judgment on that claim.
For the same reason, even if Rackley could establish a prima facie case with respect to his claim of sometimes having to work the night shift alone, Rackley's admission would support Defendants' having a legitimate non-discriminatory reason that no reasonable juror could find pretextual.
In sum, Rackley cannot establish a prima facie case of discrimination with respect his removal as firearms instructor or being forced to work night shifts when others called in sick. The only non-promotion discrimination claim for which Rackley can establish a prima facie case is for lack of access to work email.
2. Legitimate, Non-Discriminatory Reasons For Denying Email Access
Defendants assert that their legitimate business reason for not restoring Rackley's account is that Rackley never requested access to his email account after he let his password lapse. (See Def. 56.1 Reply at ECF 75 ¶ 150.) As discussed above, whether Rackley requested access and whether Defendants ignored his request are disputed material facts. Rackley testified that “somebody sent an email for me” requesting access from IT (Rackley Dep.193:18-194:8), but, as Defendants note, there is nothing else in the record supporting that assertion. (See Def. 56.1 Reply at ECF 75 ¶ 150.) And Defendants rebut Rackley's testimony with Drago's declaration, in which Drago states that all Centerra employees are responsible for keeping their passwords current, and that Rackley failed to keep his account active and never followed up to have it reset. (Drago Decl. ¶ 17.) All Defendants must do at this stage is present reasons that, “taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” St. Mary's Honor Center, 509 U.S. at 509. For purposes of the instant motion, they have done so.
3. Pretext
Rackley's opposition does not identify any additional evidence of pretext with respect to his email claim beyond his testimony that Defendants ignored his request to restore his email access. However, because pretext can be shown using only evidence from his prima facie case, see Chambers 43 F.3d 29 at 38, Rackley's testimony that he made a request which was ignored, and his unrebutted testimony that the only LCSOs who did not have full email access were Black, is sufficient to establish a question of fact as to whether Defendants' reason for denying him email access is pretext for race discrimination. See Hazeldine v. Bev. Media, Ltd., 954 F.Supp. 697, 709 (S.D.N.Y. 1997) (denying summary judgment for employer where “although much of the evidence presented can be reduced to a “he said, she said” battle, it must be viewed in the light most favorable to plaintiff, with all reasonable inferences being drawn in her favor.”)
In sum, of the three additional adverse actions, only Rackley's email-related race discrimination claim survives summary judgment under state, federal, and city law, along with his discrimination claim based on failure to promote him to DS. The Court turns next to Rackley's whistleblower retaliation claims.
II. Whistleblower Retaliation Claims
Rackley alleges that Defendants retaliated against him after he complained about the safety issues with Defendants' firearms qualifications tests. He asserts that the employment actions described above - denying him promotions, removing him as firearms instructor, failing to restore his email access, and forcing him to work shifts alone - were not only a result of racial discrimination but also retaliation for whistleblower activity protected under both state and federal law. Rackley invokes two statutes barring retaliatory conduct: New York Labor Law § 740, which prohibits employers from retaliating against employees for disclosing certain practices, and 41 U.S.C. § 4712(a)(1), which prohibits retaliation specific to employees of government contractors. Rackley does not bring any retaliation claims under Title VII, and he does not allege under any law that Defendants retaliated against him for complaining of race discrimination. Nonetheless, Rackley has presented questions of fact that he engaged in protected activity and that Defendants retaliated for that activity in violation of both the state and federal law. His whistleblower claims under both state and federal law thus survive summary judgment.
Title VII's retaliation provision applies only to employees who oppose “any practice made unlawful by Title VII,” i.e., practices that discriminate based on race, color, religion, sex, or national origin. See 42 U.S.C.A. § 2000e-3. Rackley has not alleged that Defendants retaliated against him for complaining about any racially discriminatory practices; rather, he alleges that Defendants retaliated against him after he complained about unsafe firearms training practices.
A. Retaliation Under Section 740
NYLL § 740 was amended on January 26, 2022, “to alter the definition of retaliation and to expand the scope of the prohibition.” Pierce v. Better Holdco, Inc., No. 22-CV-4748, 2023 WL 6386920, at *4 (S.D.N.Y. Sept. 29, 2023). As amended, the statute provides:
“An employer shall not take any retaliatory action against an employee ... because such employee does any of the following: (a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.”NYLL § 740(2). Under the earlier version of the statute, a plaintiff was required to show that the policy or practice of the employer violated a law, rule, or regulation and that the alleged violation presented a substantial and specific danger to the public health or safety. See NYLL § 740 (McKinney 2022). Under the most recent amendment, however, a plaintiff need only show that they reasonably believe that the policy or practice of the employer violated the law or that they reasonably believe that the policy or practice poses a substantial and specific danger to public health or safety. NYLL § 740 (2024).
Given that the events alleged by Rackley took place before the statute's amendment, a threshold question for Rackley's state law claim is whether the current version of Section 740, which was effective before Rackley filed the action, applies retroactively. The Second Circuit has not yet ruled on retroactive application of the 2021 amendments, and the few courts that have considered the issue have been divided. See Callahan v. HSBC Securities (USA) Inc., No. 22-CV-8621, 2024 WL 1157075, at *6 (S.D.N.Y. March 18, 2024) (collecting cases). Two out of three courts in this Circuit have expressly found the amendments apply retroactively, observing that “the legislative history strongly supports the view that the 2021 amendments had a remedial purpose intended to correct the restrictive nature of the prior statutory requirements.” Id. (applying the 2021 amendments retroactively and citing Zhang v. Centene Management. Co., LLC, No. 21-CV-5313, 2023 WL 2969309, at *16 (E.D.N.Y. Feb. 2, 2023) (applying the amendments retroactively)); but see Zennamo v. County of Oneida, No. 21-CV-840, 2022 WL 4328346, at *9 (N.D.N.Y. Sept. 19, 2022) (applying the earlier version of §740 to a claim that pre-dated the 2021 amendments). The Court concurs with retroactive application of the statute. Accordingly, the Court applies the statute as amended.
To establish a claim under the amended version of Section 740, a plaintiff must first allege that she disclosed or threatened to disclose to a supervisor an activity, policy, or practice of the employer that the employee at least reasonably believed was illegal or posed a substantial specific danger to public health or safety. “The plaintiff must then point to a retaliatory adverse action taken by the employer in response to that complaint.” Thacker v. HSBC Bank USA, N.A., No. 22-CV-7120, 2023 WL 3061336, at *6 (S.D.N.Y. Apr. 24, 2023) (internal citations omitted). “To fall afoul of the statute, the adverse action must be taken ‘because' the employee engaged in protected activity. In other words, the whistleblower statute, like the anti-discrimination laws, requires some causal connection between an adverse personnel action and a report of dangerous activity.” Varughese v. Mount Sinai Medical Center., No. 12-CV-8812, 2015 WL 1499618, at *68 (S.D.N.Y. March 27, 2015), aff'd, 693 Fed.Appx. 41 (2d Cir. 2017).
1. Protected Activity
Defendants contend that Rackley never lodged a complaint about Centerra's policies or practices, and even if he had, the alleged violations did not affect public safety because (1) several people who failed the firearms test eventually resigned or were fired and (2) the alleged safety violations took place on a closed range as opposed to a public courthouse. (See Def. Mem. at 22-24.) Rackley counters that he made safety complaints that satisfy Section 740's requirements when he called Perez while driving home from the range to complain about the lack of safety during the April 2020 qualifications test and when he had a conversation with Drago about the range and sent a follow-up email in December 2020. (Pl. Mem. at 32.) Rackley further asserts that Defendants' argument that allegedly unsafe firearms practices at a closed range did not affect public safety fails because “the obvious safety concern is that security officers would be ill-prepared and incapable of handling a threat or security event at a federal courthouse.” (Id. at 32.) Based on the evidence presented of Rackley's conversations with Perez and Drago about range safety, there is at least a question of fact as to whether Rackley complained of a policy or practice that Rackley reasonably believed violated a law, rule or regulation or that presented a substantial danger to public safety.
The evidence of Rackley's complaints includes both phone calls and email. Rackley testified that he made numerous calls to Perez about safety standards “every time” he reported to Perez after working at the Blue Mountain range in April 2020. (Rackley Dep. 156:6-12; Rackley Decl. ¶ 7.) Additionally, Rackley testified that he had a telephone conversation with Drago in 2020 about range safety issues and that he called Drago a couple of times about other issues and would “just bring up the range also.” (Rackley Dep. 29:4-30:3; see also 42:18-43:5, 158:9-159:3.) Rackley also sent an email to Drago on December 8, 2020 suggesting that Drago observe the qualifications test at the range. (Drago Dep. at ECF 94.) Defendants aptly observe that the email Rackley cites does not expressly state that he is concerned about firearms safety at the range. Rather, the email vaguely states, “just left the range, if you get a chance you should observe the qualifications just a suggestion...” (Id.) But the fact, if established, that Rackley discussed the safety issue with Drago by telephone provides the necessary context. And, whether the conversations that Rackley describes with Drago and Perez actually took place is an issue for the jury. See Duarte v. St. Barnabas Hospital, 265 F.Supp.3d 325, 354-55 (S.D.N.Y. 2017) (finding that Section 740 plaintiff provided “evidence sufficient to raise a material issue of fact as to whether she made such complaints” where the defendant denied that the plaintiff ever complained about its practices, but the plaintiff testified that she complained to her supervisors and union representatives about the practices).
Defendants argue that Rackley's Section 740 claim can only survive if Rackley “has identified a specific statute he believed was being violated and that the employers' actions posed a substantial danger to public health or safety.” (Def. Mem. at 23 (emphasis added).) Defendants assert that even under the amended statute, Rackley's claim still fails because there is “still no violation of a law, rule, or regulation asserted.” (Id. at 22 n.12.) Under the amended version of Section 740, however, Rackley need only establish that he reasonably believed Defendants' conduct violated a law, rule or regulation or that he reasonably believed Defendants' conduct presented a substantial danger to public safety. N.Y.L.L. § 740. Accordingly, Rackley need not point to a specific law, rule or regulation he believed Defendants violated as long as he points to a policy or practice he reasonably believed presented a substantial danger to public safety.
With respect to identifying any law, rule, or regulation, Rackley does reference 28 U.S.C. § 566, which provides that the USMS is responsible for court security, together with the fact that the USMS sets firearms course requirements. (Pl. Mem. at 31.) However, § 566 does not mention a qualifications test, and Rackley does not identify any regulations promulgated pursuant to any federal, state or local statute or ordinance that do. Accordingly, for purposes of Section 740, he does not identify a law, rule, or regulation that he reasonably believed was violated. See HC2, Inc. v. Delaney, 510 F.Supp.3d 86, 98 (S.D.N.Y. 2020) (alleged violations of CDC and New York City COVID-19 guidance did not give rise to a Section 740 whistleblower claim where “neither the CDC Guidance nor the NYCDH Guidance was promulgated pursuant to the relevant administrative procedure act that govern federal and city regulations respectively”); see also Segarra v. Federal Reserve of New York, 17 F.Supp.3d 304, 313 (S.D.N.Y. 2014) (“A ‘central distinction' in administrative law is between those agency pronouncements that amount to substantive rules and those that are merely interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice ... and lack the force of law”). Regardless, as discussed above, Rackley satisfies the requirements of Section 740 because he can establish that he had a reasonable belief that the range safety practices posed a substantial and specific danger to public health or safety.
Defendants also cite Zhang v. Centene Management Company, No.21-CV-5313, 2023 WL 2969309, at *17 (E.D.N.Y. Feb. 2, 2023), for the proposition that “a whistleblower must do more in [sic] than allegedly report a policy or practice” and instead must identify the particular activities, policies or practices in which the employer allegedly engaged. (Def. Reply at 9.) Rackley does exactly that. He identifies the particular activities, policies and practices at issue in his complaint, deposition, and declaration. For example, his amended complaint identifies by name three CSOs about whom Rackley expressed concern to Perez and details the behavior they engaged in, including that they could not timely reload weapons, did not keep weapons pointed down range, improperly kept fingers on the trigger, and did not holster their weapons properly. (Dkt. 21 ¶ 39.) He identifies “the pressure applied to pass CSOs for their firearms test” as posing a threat to safety and states that other firearms instructors would pass CSOs whom Rackley believed were incapable of passing the test. (Id. ¶¶ 41-42). And, Rackley testified at deposition that Perez “pressured” him to pass CSOs that Rackley did not believe were safe. (Rackley Dep. 161:9-19; see also Rackley Dep. 148:4-7 (testifying Centerra did not follow some of the qualifications procedures described in the firearms qualifications manual); Rackley Decl. ¶¶ 7, 14 (identifying the unsafe firearm handling practices and conversations with Perez and indicating Perez “pressured” Rackley to pass deficient officers).)
Finally, Defendants' argument that any alleged safety violations did not pose a substantial danger to the public is specious. Defendants assert that three of the specific CSOs Rackley complained about for being unsafe were ultimately removed from the USMS contract. (Def. 56.1 Reply at ECF 82 ¶ 167; Drago Decl. ¶ 49; Dkt. 52-4 at ECF 35-37.) But it is undisputed that any such employee “was removed” after Rackley complained. Their subsequent departure does not detract from Rackley's reasonable belief that public safety was at stake at the time he complained. Moreover, the timing and circumstances of those departures are contested facts. Defendants assert that three CSOs “were immediately removed from the USMS Contract” after failing their tests. (Def. 56.1 Reply at ECF 82 ¶ 167.) Rackley admits that at least two of the three were removed from the force but also stated that they should have been removed earlier because they had been poor shooters and shown safety concerns for more than a year. (Rackley Dep. 169:12-17; Rackley Decl. ¶ 16.) For instance, according to Rackley, one employee was let go over a year after Rackley last worked the range with him and observed unsafe practices. (Rackley Dep. 183:13-24; Rackley Decl. ¶¶ 9-12, 15; Dkt. 52-4 at ECF 35-37.) Additionally, although he could not remember every name, Rackley testified that during each testing cycle there were “between five to ten people that either have safety concerns or they don't handle their weapon properly or they barely meet the standards.” (Rackley Dep. 169:18-24.) And, Defendants' assertion that public safety was not at issue because the testing occurred in closed range facilities strains credulity. That argument ignores the public threat posed by placing officers on public duty who were not capable of safely handling their weapons.
Rackley has sufficiently provided evidence that he disclosed a policy or practice of his employer that he reasonably believed posed a substantial and specific danger to the public health or safety sufficient to establish a Section 740 claim.
2. Retaliatory Adverse Action
Rackley also can establish that he suffered an adverse employment action, or that there is at least a dispute of material fact as to whether the employment actions -individually or viewed in the aggregate - are adverse actions for the purposes of his whistleblower retaliation claims. Defendants do not appear to dispute that failing to promote Rackley constitutes an adverse action, but they do assert that none of the other incidents Rackley alleges (removal as firearms instructor, denial of email access, and being forced to work alone) are adverse actions for purposes of Rackley's retaliation claims. (See Def. Mem. at 24 n.14.) Yet Defendants do not explain why the alleged employment actions cannot be considered adverse actions for purposes of Rackley's Section 740 retaliation claim. Rather, they merely contend in a footnote that Rackley's Section 740 claim fails because he cannot establish an adverse action for the same reasons Defendants argue he cannot establish an adverse action for purposes of his discrimination claims. (Id.)
To the contrary, having concluded that the alleged employment actions may be deemed adverse in the discrimination context (though in two instances lacking a basis to infer actual discrimination), the Court also concludes they are adverse for purposes of Section 740. “Retaliatory action” is defined in Section 740 as:
an adverse action taken by an employer or his or her agent to discharge, threaten, penalize, or in any other manner discriminate against any employer or former employee exercising his or her rights under this section, including (i)
adverse employment actions or threats to take such adverse employment actions against an employee in the terms of conditions of employment, including, but not limited to discharge, suspension, or demotion; ... [or] actions or threats to take such actions that would adversely impact a former employee's current or future employment.N.Y.L.L. § 740(1)(e). Courts analyzing Section 740 whistleblower claims have applied the Title VII retaliation standard to determine whether an employment action is adverse for purposes of a Section 740 claim. See, e.g., Callahan v. HSBC Securities (USA) Inc., No. 22-CV-8621, 2024 WL 1157075, at *7 (S.D.N.Y. March 18, 2024) (applying Title VII retaliation standard to Section 740 claim); Thacker, 2023 WL 3061336, at *7 (assuming without deciding that Title VII standard applied to analysis of retaliatory action under Section 740). That standard requires a plaintiff to “show that a reasonable employee would have found the challenged action materially adverse, which in [the retaliation context] means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006); see also Muldrow, 144 S.Ct. at 976 (distinguishing adverse employment actions in the context of Title VII disparate treatment claims from materially adverse employment actions in the context of Title VII retaliation claims and leaving the standards for assessing the latter intact.)
Courts have held that the adverse action standard for retaliation is broader than the adverse action standard for a discrimination claim. E.g., Vega, 801 F.3d at 90 (in the context of a Title VII retaliation claim, the definition of an adverse action “covers a broader range of conduct than does the adverse-action standard for claims of discrimination under Title VII”); Carpenter v. City of Mount Vernon, 198 F.Supp.3d 272, 283 (S.D.N.Y. 2016) (“[a]lthough Plaintiff must allege an adverse employment action to establish a retaliation claim under Title VII, the standard for an adverse employment action for retaliation claims ... is substantially lower than discrimination claims”). Accordingly, because the Court has already determined that each of the alleged actions are adverse for purposes of Rackley's discrimination claim, they are also adverse for purposes of his retaliation claim.
Moreover, adverse actions in the retaliation context are to be considered not just individually, but also in aggregate, which makes Rackley's alleged actions sufficiently substantial in gross to be actionable - even if they were not sufficiently adverse individually. See, e.g., Hicks, 593 F.3d at 165 (in the context of a Title VII retaliation claim, in determining whether conduct amounts to an adverse employment action, the alleged acts of retaliation need to be considered both separately and in the aggregate, as “even minor acts or retaliation can be sufficiently substantial in gross as to be actionable”) (citing Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 227 (2d Cir. 2006) (in the context of a first amendment retaliation claim, the Second Circuit's precedent “allows a combination of seemingly minor incidents to form the basis of a constitutional retaliation claim once they reach a critical mass”).)
The Court has found no authority suggesting that adverse actions should not also be considered in the aggregate under Section 740. To the contrary, at least two courts in this Circuit examining Section 740 claims have considered the plaintiff's alleged retaliatory actions in the aggregate. See Thacker, 2023 WL 3061336, at *8 (considering alleged adverse actions both individually and in aggregate but determining them to be no more than “petty slights or minor annoyances”); Murray v. United Parcels Service, Inc., No. 20-CV-1427, 2022 WL 4468295 (E.D.N.Y. Sept. 25, 2022) (employer's change to employees' schedule, subjection to “frivolous investigations,” and making employees work long, odd hours far from home, were sufficient to state a claim of retaliatory action under Section 740.)
When considered together, a reasonable juror could find that the actions allegedly taken against Rackley would have dissuaded a reasonable employee from complaining about the firearms training safety issues that Rackley raised. Drawing all inferences in favor of Rackley, Rackley has put forward evidence that he was twice not promoted to a position for which he was qualified; that his lack of email access did not enable him to properly perform his job (Rackley Dep. 19:22-20:5); that his working solo shifts required him to forego taking breaks (id. 81: 7-14, 241:10-242:3); and that his removal as firearms instructor caused him a loss of “recognition” that could “springboard” him to a higher position. (Id. 127:11:19.) Those actions are at least comparable to the various “punitive scheduling” and “workplace sabotage” actions that the Court found sufficient, taken together, to survive summary judgment on the plaintiff's retaliation claim in Hicks. See Hicks, 593 F.3d at 169. There, the plaintiffs' affidavits stated that working shifts as youth facility supervisors alone was “not only tedious but hazardous”; that being assigned mandatory training sessions shortened “off-duty time between work days”; and that purposely leaving a window ajar so that the plaintiff would be reprimanded for failing to properly secure the facility were sufficient evidence to enable plaintiffs' retaliation claims to survive summary judgment. Id. The court reasoned that “a reasonable employee in plaintiffs' position may well be dissuaded from participating in a discrimination investigation or proceeding if he knew that in retaliation, he would be disciplined ... and/or that his work schedule would be changed.” Id. at 170.
So too here. A reasonable employee in Rackley's position might well be dissuaded from making safety complaints if he knew that in retaliation, he would not be promoted, removed as firearms instructor, denied email access that prevented him from doing his job, and forced to work in conditions - solo night shifts - that alternatively deprived him of breaks or compromised safety if he took them.
3. Causal Connection Between Adverse Action And Protected Behavior
Finally, Rackley can establish at least a question of fact as to whether there is a causal connection between Rackley's complaints about firearms safety and his failure to be promoted, removal from the firearms instructor position, denial of email access, and his being forced to work night shifts alone. The Second Circuit has held that “a plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action.” Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001) (internal quotation marks and citations omitted); see also Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (explaining that the Second Circuit has “previously held that five months is not too long to find the causal relationship” in the retaliation context.)
Other courts have applied the same reasoning in the Section 740 context. See Goldberg v. Bespoke Real Est. LLC, No. 23-CV-5614, 2024 WL 1256006, at *10-11 (S.D.N.Y. March 25, 2024) (denying defendants' motion to retaliation claim under Section 740 because “drawing all inferences in favor of Plaintiff[], the Court concludes that the termination of [Plaintiff] and the non-payment of his commissions may be close enough in time to his protected activity to support an inference of retaliation”); Callahan, 2024 WL 1157075, at *5, *7 (finding sufficient causation to state a § 740 claim based in part on “allegations of temporal proximity” where the protected activity began two months before the alleged string of retaliatory actions began); Pierce v. Better Holdco, Inc., No. 22-CV-4748, 2023 WL 6386920, at *8 (S.D.N.Y. Sept. 29, 2023) (denying the employer's motion to dismiss the plaintiff's § 740 claim where plaintiff alleged retaliatory action two months after initially complaining about employer's alleged misconduct); Wooding v. Winthrop University Hospital, No. 16-CV-4477, 2017 WL 2559942, at *15 (E.D.N.Y. June 12, 2017) (stating that “a period of four months is sufficient temporal proximity to plausibly find a causal connection” between protected activity and alleged retaliation with respect to a §740 claim, and denying Defendant's motion to dismiss § 740 claim).
Here, the temporal proximity between Rackley's complaints and the adverse actions suggests a possible causal relationship. Rackley raised his concerns about range safety to Drago just three days before Drago rejected Rackley for the first DS position and four months before he was rejected for the second DS position. After complaining to Perez about range safety on his drives home from the firearms qualifications test in April 2020, Perez never scheduled Rackley to administer another firearms qualifications test. And, there is evidence that Rackley was first forced to work alone on his shift beginning on June 11, 2020, just two months after Rackley raised his firearms safety complaints to Drago and Perez. (Rackley Decl ¶ 23.) Rackley also testified that he lost access to his Centerra email account a “few months” after Centerra took over the contract in January 2020, which would have been around the time Rackley participated in the April 2020 qualifications test. (Rackley Dep. 191:9-19.)
Drawing all inferences in Rackley's favor, a reasonable jury could find the requisite causal connection. Accordingly, summary judgment should be denied on Rackley's Section 740 retaliation claim.
B. Retaliation Under 41 U.S.C. § 4712(a)(1)
For the same reasons that Rackley can establish a prima facie case of retaliation under Section 740, he can do the same under 41 U.S.C. § 4712. Under the statute, an employee of a federal contractor or subcontractor “may not be discharged, demoted, or otherwise discriminated against as reprisal for disclosing ... information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule or regulation related to a Federal contract.” 41 U.S.C. § 4712(a)(1). An employee can bring a claim under the statute if the disclosure is made to a “management official or other employee of the contractor [or] subcontractor . who has the responsibility to investigate, discover, or address misconduct.”Id. § 4712(a)(2)(G).
To bring a Section 4712 claim, the employee must first exhaust administrative remedies. 41 U.S.C. §712(c)(2). Rackley did so by first filing a complaint with the DOJ. (See Def. 56.1 Reply at ECF 86 ¶ 180.)
Section 4712 provides that the legal burdens of proof set forth in 5 U.S.C. § 1221(e) “shall be controlling for the purposes of any . judicial or administrative proceeding to determine whether discrimination prohibited under this section occurred.” Section 1221 provides, in turn, that:
The employee may demonstrate that the disclosure of protected activity was a contributing factor in the personnel
action through circumstantial evidence, such as evidence that (A) the official taking the personnel action knew of the disclosure or protected activity; and (B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action.5 U.S.C. § 1221(e). If the employee meets their burden to establish a prima facie case, the employer need not take any corrective action if it presents “clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.” Id.
In short, to prevail on a § 4712 claim, a plaintiff must establish that “(1) she was an employee of a government contractor, (2) she disclosed information that she reasonably believed was evidence of a rule violation related to a federal contract to the required person and (3) her disclosure was a contributing factor in the action taken against her.” Wykosky v. ATCS, PLLC, No. 22-CV-01881, 2023 WL 4547992, at *3 (D.D.C. July 14, 2023) (denying employer's motion to dismiss plaintiff's § 4712(c)(2) claim where plaintiff plausibly alleged a causal connection between reporting waste and non-compliance in administering a FEMA contract to the Office of the Inspector General and being denied reimbursement for work expenses as a result of this protected activity); accord Monden v. Consolidated Nuclear Security, L.L.C., No. 23-10553, 2024 WL 1007458, at *2 (5th Cir. March 8, 2024) (“Section 4712 of the NDAA “prohibits any recipient of federal dollars from retaliating against whistleblowers who report an abuse of that money.... The statute further incorporates 5 U.S.C. § 1221(e), which requires a plaintiff to prove: (1) while he or she was employed by a government contractor, he or she disclosed information that he or she reasonably believed was evidence of “gross mismanagement” of a federal contract or grant to someone with responsibility to investigate, discover, or address misconduct; and (2) the protected disclosure was a “contributing factor” to the adverse employment action”).
Here, Rackley can satisfy the requirements of Section 4712 and the legal burdens as laid out in Section 1221. First, there is no dispute that Rackley was an employee of a government contractor given that he was employed by Centerra, who contracted with the USMS in the Second Circuit. Second, as discussed above, there is at least a genuinely disputed fact as to whether Rackley disclosed his concerns about firearms safety to Drago, the Contract Manager of the entire Second Circuit, and Perez, a District Supervisor in the SDNY, both of whom are indisputably management officials who have “the responsibility to investigate, discover, or address misconduct.” See 4712(a)(2)(G). Evidence supports that Rackley reasonably believed the safety issues of which he complained violated a rule or affected public safety because court security officers were being allowed to remain in their jobs and handle weapons despite being unable to safely handle them. (Rackley Decl. ¶ 14; Rackley Dep. 169:12-170:21.) Allowing officers to continue unsafely handling their weapons is hardly a run-of-the mill policy dispute that would otherwise be unactionable. See Fuerst v. Housing Authority of City of Atlanta, Georgia, 38 F.4th 860, 873 (11th Cir. 2022) (§ 4712(a) is limited to “disclosures about particularly egregious conduct, not run-of-the-mill policy disputes between managers and employees”).
Third, as discussed above in the context of Rackley's retaliation claim under state law, evidence shows that the adverse actions occurred within a relatively brief timeframe after Rackley raised concerns about firearms safety to Perez and Drago. Drago denied Rackley the promotion to the first DS role only three days after receiving Rackley's email suggesting he observe the qualifications test. (Def. 56.1 Reply at ECF 11 ¶¶ 47-48). Perez did not schedule Rackley for any more stints as a firearms instructor after April 2020 when Rackley raised complaints to Perez. Rackley began working night shifts alone two months after raising his complaints to Perez on his way home from the April 2020 qualifications test. (Def. 56.1 Reply at ECF 152 ¶ 141.) Those facts, if proven, are “such that a reasonable person could conclude Rackley's complaint was at least a contributing factor in the personnel action.” 5 U.S.C. § 1221(e); see, e.g., Wykosky v. ATCS, PLLC, No. 22-CV-01881, 2023 WL 4547992, at *4 (D.D.C. July 14, 2023) (“period of less than two months is sufficient at the pleading stage to establish a plausible causal connection between protected activity and adverse action” under § 4712); Omwenga v. United Nations Foundation, No. 15-CV-786, 2019 WL 4860818, at *13 (D.D.C. Sept. 30, 2019), on reconsideration in part, 2020 WL 5798428 (D.D.C. Sept. 29, 2020) (denying summary judgment to employer on § 4712 claim because “a reasonable factfinder could conclude that [plaintiff] was fired for reporting what she believed to be gross mismanagement of a federal contract” where plaintiff brought concerns to her supervisor on February 4 and was terminated on February 18); Wondercheck v. Maxim Healthcare Servs., Inc., 495 F.Supp.3d 472, 484 (W.D. Tex. 2020) (denying summary judgment to an employer on § 4712 claim where adverse employment actions occurred within only weeks of protected conduct and all decision makers had knowledge of the protected activity).
In opposition, Defendants reiterate the arguments they made with respect to Rackley's state whistleblower claims, i.e., that Rackley never made any safety complaints about violations of law or policies and practices that affected public safety, and that Defendants did not take any adverse employment action. As explained above, those arguments are unavailing. Defendants further argue that they would have taken the same personnel action “regardless of any purported disclosures,” but as discussed above in the context of Rackley's discrimination claims, that is a disputed question of fact. Defendants have not provided undisputed clear and convincing evidence that they would have taken the same personnel actions in the absence of such disclosure.
Accordingly, summary judgment should be denied as to both Rackley's state retaliation claim and his federal retaliation claim.
Conclusion
To the extent not discussed herein, the Court has considered all of the parties' arguments and determined them to be either moot or without merit. For the foregoing reasons, I recommend the Defendants' motion be DENIED in part and GRANTED in part. Specifically: summary judgment as to Rackley's failure-to-promote claims with respect to the two District Supervisor positions should be denied; summary judgment as to Rackley's discrimination claims based on denial of email access should be denied; summary judgment as to Rackley's discrimination claims based on failure to promote to Contract Manager, removal as firearms instructor, and working solo shifts should be granted; and summary judgment as to Rackley's whistleblower claims should be denied.
Deadline For Filing Objections And Preserving Appeal
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Gregory H. Woods, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge Woods. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.