Opinion
99-CV-7289
August 6, 2002
Zenous Whaley, Brooklyn, NY, Plaintiff pro se.
Michael A. Cordozo, Corporation Counsel, Kay M. Fredricks, Asst. Corp. Counsel, City of New York, New York, NY, for defendant.
MEMORANDUM AND ORDER
Plaintiff pro se Zenous Whaley brings this action alleging that defendant New York City Parks Department ("the Department") discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621et. seq., when it failed to promote him in 1997. Defendant now moves for summary judgment, arguing that the proffered facts fail to establish a prima facie case of age discrimination. For the following reasons, defendant's motion is granted.
Facts
The record is closes the following uncontested facts. Whaley worked for the Department from 1982 until he retired in 2000. During that time, he held different civil service job titles, including" Park Service Worker" and" City Park Worker." In 1991, Whaley took the Civil Service exam for promotion to Associate Park Service Worker ("APSW "), and was assigned number 241 on the promotions list.
By 1995, the Department had reached number 152 on the list, but the list expired that year, before the Department could promote any further workers. In April 1997, the Department was authorized to promote five workers, one in each borough, to the APSW position in the absence of a civil service list. The Department advertised city-wide for the promotion, and approximately 300 people applied. Whaley timely submitted a resume for this promotion. A committee of senior Department officials from Brooklyn screened the resumes and selected five candidates to be interviewed. The names and ages (in April 1997) of the candidates were John Bernard, 58; Vernon Scott, 49; Michael Whitley, 42; Jose Cifuentes, 35; and Claude Ormsby, 27.
In May of 1997, the committee selected Whitley for the promotion. Whaley was not selected for an interview, nor was he properly informed that he had not been selected. After some period of uncertainty, Whaley learned in May of 1998 that the committee had selected someone else for the promotion. In August of that year, he filed a complaint with the EEOC, alleging that the failure to promote him constitutes age discrimination. On November 8, 1999, Whaley filed this action; he filed an amended complaint on June 16, 2000.
Discussion
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment" if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case identifies the facts that are material, and" only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if" the evidence is such that are as on able jury could not return a verdict for the nonmoving party." Id.
Moreover," the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the moving party has met its burden, the opposing party" must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 586-87 (quoting Fed.R.Civ.P. 56(e)).
I note at the outset that, although he appeared at oral argument, Whaley did not file any papers in opposition to the Department's motion. Therefore, the only evidence in the record to support his allegations is the transcript of his August 15, 2001 deposition (" Dep.").
Claims brought under the ADEA are subject to the same burden-shifting analysis established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for Title VII discrimination claims. Se e Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997). A plaintiff must first proffer evidence to establish a prima facie case of discrimination. Once the plaintiff has done so, the burden of production shifts to the defendant to come for ward and proffer a legitimate, non-discriminatory reason for the complained-of employment action. If the employer meets its burden, the burden of production shifts back to the plaintiff to proffer evidence that indicates that the asserted reasons are a mere pretext for the employer's true, discriminatory reasons. See McDonnell Douglas, 411 U.S. at 802.
In order to establish a prima facie case, Whaley must show four things: (1) he was with in a protected group, (2) he was qualified for the position at issue, (3) he suffered an adverse employment action, and (4) that the position was ultimately filled by a person not in the protected class. Se e Raskin, 125 F.3d at 64; Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc). Although the burden of establishing a prima facie case has been frequently described as" minimal," Scaria v. Rubin, 117 F.3d 65 2, 654 (2d Cir. 1997), Whaley cannot carry it here. The candidate the committee ultimately selected, Michael Whitley, was forty-two and thus a member of the class protected by the ADEA at the time he was hired. Even under the more general language of the line of cases that require a showing that the adverse employment action" arose in circumstances that give rise to an inference of discrimination," see e.g., Graham v. Long Island Rail Road, 230 F.3d 34, 38 (2d Cir. 2000), Whaley cannot make the required showing. His deposition recounts vague allegations that co-workers joked with him about" getting old," Dep. at 110-11, but there is no allegation that any of the members of the decision-making committee ever said any thing about Whaley's age. Furthermore, the deposition reveals no other facts that could give rise to such an inference. Finally, the fact that three of the five candidates chosen for interviews were over forty, and thus part of the class protected by the ADEA, undercuts any inference of discrimination.
Whaley's primary basis for inferring discrimination appears to be the Department's failure to promptly in form him that he had not been selected for an interview. See Dep. at 110-11. Although such carelessness on the part of the Department is not commendable, the Department's personnel director has represented that the failure to notify was accidental, and affected a group of applicants, not just Whaley alone.See Decl. of David Terhune, at ¶ 24. Whaley has offered no evidence to dispute this assertion. Therefore, the failure to notify, although it reflects poorly on the Department, cannot give rise to an inference of discrimination.
Finally, although Whaley's failure to state a prima facie case renders further inquiry moot, I will note that defendant has proffered several non-discriminatory reasons for the challenged action, and the record is bare as to any facts that would support a finding that the reasons are mere pretexts for discrimination. Therefore, even if Whaley could make a prima facie case on these facts, summary judgment for the Department would still be appropriate.
Conclusion
For the foregoing reasons, defendant's motion for summary judgment is granted, and the complaint is dismissed. The Clerk is directed to close the cads.
So ordered.