Opinion
18 Civ. 0761 (PAE) (BCM)
2021-08-31
Oluseyi ADENIJI, Plaintiff, v. NEW YORK STATE OFFICE OF the STATE COMPTROLLER, Defendant.
Oluseyi Adeniji, Bronx, NY, Pro Se. Jaclyn Danielle Saffir, Mark Eliott Klein, NYS Office of the Attorney General, New York, NY, for Defendant.
Oluseyi Adeniji, Bronx, NY, Pro Se.
Jaclyn Danielle Saffir, Mark Eliott Klein, NYS Office of the Attorney General, New York, NY, for Defendant.
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge:
Plaintiff Oluseyi Adeniji, proceeding pro se, brings this action for race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Adeniji alleges that the New York State Office of the State Comptroller ("OSC") failed to hire him for the position of State Program Examiner 1 because of his race.
On October 9, 2020, OSC moved for summary judgment, Dkt. 84, on Adeniji's Amended Complaint, Dkt. 18 ("AC"). On July 21, 2021, the Hon. Barbara C. Moses, Magistrate Judge, issued a Report and Recommendation to this Court, recommending that the motion for summary judgment be granted. Dkt. 114 (the "Report"). On August 4, 2021, Adeniji filed a memorandum of law setting forth his objections to the Report. Dkt. 115 ("Objections"). On August 11, 2021, OSC filed an opposition to Adeniji's objections. Dkt. 116 ("Opp'n").
For the following reasons, the Court adopts the Report in its entirety.
I. Background
A. Factual Background
The Court adopts the Report's detailed account of the facts and procedural history, to which no party objects. The following summary captures the limited facts necessary for an assessment of the issues presented.
The summary is drawn primarily from the parties’ submissions in support of and in opposition to OSC's motion for summary judgment, including OSC's Rule 56.1 Statement, Dkt. 93 ("OSC 56.1"), Adeniji's response to OSC's Rule 56.1 Statement, Dkt. 106 ("Adeniji 56.1"), and the Declarations (some with accompanying exhibits) of Ingrid M. Otto, Dkt. 86 ("Otto Decl."), Kara Deiana, Dkt. 87 ("Deiana Decl."), Courtney E. Bernard, Dkt. 88 ("Bernard Decl."), Randy J. Hotaling, Dkt. 89 ("Hotaling Decl."), Mary Eileen Barret, Dkt. 90 ("Barret Decl."), and Mark E. Klein, Dkt. 91 ("Klein Decl."), and the reply declarations of Courtney E. Bernard, Dkt. 110 ("Bernard Reply Decl.") and Mark E. Klein, Dkt. 111 ("Klein Reply Decl.").
Citations to a party's Rule 56.1 statement incorporate by reference the documents cited therein. Where facts stated in a party's Rule 56.1 statement are supported by testimonial or documentary evidence, and are denied by a conclusory statement by the other party without citation to conflicting testimonial or documentary evidence, the Court finds such facts true. See S.D.N.Y. Local Rule 56.1(c) ("Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party."); id. at 56.1(d) ("Each statement by the movant or opponent ... controverting any statement of material fact[ ] must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).").
Adeniji is an African-American man. OSC 56.1 ¶ 1; Adeniji 56.1 ¶ 1. On September 22, 2016, he applied for a position as a State Program Examiner ("SPE") with OSC. OSC 56.1 ¶ 3; Adeniji 56.1 ¶ 3. OSC "is an agency of the State of New York which, among other things, conducts financial audits of local governments, schools and state agencies." OSC 56.1 ¶ 2; Adeniji 56.1 ¶ 2. Applicants for the position—the duties of which involved assisting in financial performance audits of state departments and agencies—were required to have an advanced degree in economics and/or accounting, and two years of qualifying professional accounting and/or auditing expertise. Report at 2–3; Klein Reply Decl. Ex. A, at 1–2.
If an applicant for the position met minimum requirements, the applicant would complete an "education and experience questionnaire," after which a score would be generated for the applicant. Klein Reply Decl. Ex. A, at 3. The score is based on, inter alia, overall grade point average and grade point average within the applicant's major; "other relevant coursework;" professional activities; and qualifying work experience. Id. Applicants are notified via the application form that the information they provide will be verified by OSC's Division of Human Resources ("HR"), Id.; OSC 56.1 ¶ 5 ("The initial scoring of an applicant's exam is ... based solely on information provided by the applicant .... It is not unusual, however, for an applicant's exam score to change (usually downward) once HR has gone through the process of verifying the score." (emphasis in original) (citing Bernard Decl. ¶ 6)). Pursuant to the New York State Department of Civil Service's ("Civil Service") "Rule of Three," an applicant can be eligible for hiring only if (1) the applicant has a verified score of 100, or (2) all interested applicants who scored 100 must have declined the position to be eligible for hiring. OSC 56.1 ¶ 8; Report at 4. "Thus, it is rare for an applicant who has scored less than 100 to be hired off of the Civil Service list for an SPE position." Report at 4.
After applying for the SPE position and completing the questionnaire, Adeniji communicated regarding the position with Ingrid M. Otto, an Auditor 2 (Municipal) in OSC's Local Official Training Unit. Otto Decl. ¶¶ 2, 5–6; OSC 56.1 ¶¶ 11–17; Adeniji 56.1 ¶¶ 11–15; Report at 5–6, On October 6, 2016, Adeniji interviewed for the job with Otto and Kara Deiana, a Supervising Accountant in OSC's Division of Payroll, Bureau of Accounting and Revenue Services. Deiana Decl. ¶ 4. See OSC 56.1 ¶¶ 20, 21; Adeniji 56.1 ¶¶ 20, 21. "Otto and Deiana decided not to recommend [Adeniji] for a second interview." Report at 7 (citing OSC 56.1 ¶ 21; Otto Decl. Ex. H, at 3; Adeniji 56.1 ¶ 21). Otto and Deiana attest that they made their decision "based on [Adeniji's] application, the two versions of his resume, his responses to the questions they asked him at his interview, and his writing sample." Report at 7 (citing OSC 56.1 ¶ 21, Otto Decl. ¶ 15, and Deiana Decl. ¶ 8); see also OSC 56.1 ¶¶ 23–30.
Adeniji, however, argues that he was not hired because of racial discrimination. Adeniji states: "I was not recommended for the interview because of my race. As I entered the location, I could feel the rejection based on their body language. They were looking for a white candidate because of [sic] the assigned location, Newburgh, is a predominantly white neighborhood." Adeniji 56.1 ¶ 21; Report at 9.
In so casting his racial discrimination claim, Adeniji, as the Report perceptively observes, "appears to have abandoned the more specific claim, alleged in his pleading, that his interviewers made two unprompted comments about race during the October 6, 2016 interview." Report at 25. In his amended complaint, Adeniji had alleged that one employee who interviewed him had stated that Newburgh, New York, where the position was to be based, was "a predominantly white neighborhood," and "commented that they were surprised that [Adeniji] was not of Japanese descent, as [Adeniji] is atypical Japanese surname." Dkt. 18 ¶¶ 6, 8. However, Adeniji "does not mention the alleged remarks in his summary judgment papers." Report at 25. The Report therefore appropriately treated the claims as abandoned, See id.
In April 2017, Adeniji's score was adjusted downwards, from his initial score of 100, to a verified score of 90 following HR's investigation of his qualifications, making him ineligible to be hired from the Civil Service list. OSC 56.1 ¶¶ 7, 36; see Adeniji 56.1 ¶ 36 (contesting downward score adjustment and arguing that he should have been hired for the position even with a score of 90); Report at 4 n.4. Adeniji exhausted his administrative remedies and filed this suit. See Report at 14.
B. Procedural History
1. Adeniji's Claims and OSC's Summary Judgment Motion
On January 26, 2018, Adeniji filed his original complaint in this action, alleging race and age discrimination under Title VII, two other federal statutes, and state law. Dkt. 2 at 3–5. On July 30, 2018, the Court referred the case to Magistrate Judge Moses for general pretrial management and a report and recommendation on dispositive motions. Dkt. 6. On November 5, 2018, OSC filed its first motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Adeniji's Title VII claim should be dismissed because he failed to allege facts sufficient to show that he was qualified for the position or that OSC's failure to hire him was motivated by discriminatory intent, and that his remaining claims were barred by the Eleventh Amendment. Dkt. 14.
On November 6, 2018, Judge Moses gave Adeniji an opportunity to amend his complaint. Dkt. 15. On November 26, 2018, Adeniji filed his amended complaint, asserting a single claim against OSC, under Title VII, for race discrimination. Dkt. 18. On January 11, 2019, OSC again moved to dismiss. Dkt. 22. On July 31, 2019, Judge Moses issued a report recommending that OSC's motion to dismiss be denied because Adeniji had met the minimal pleading burden. Dkt. 33. On September 3, 2019, the Court denied the motion. Dkt. 35.
On October 17, 2019, OSC filed an answer. Dkt. 43. On October 9, 2020, after discovery, OSC filed its motion for summary judgment, Dkt. 84, associated declarations, Dkts. 86–91, and its Rule 56.1 statement, Dkt. 93. On January 5, 2021, Adeniji filed his Response to OSC's Rule 56.1 Statement and supporting declaration, Dkt. 106, but did not submit a separate legal brief. On January 22, 2021, OSC submitted its reply. Dkts. 112, 113.
2. The Report and Recommendation
On July 21, 2021, Judge Moses issued the Report. Dkt. 114. She recommended that the Court grant OSC's motion for summary judgment on three grounds.
First, Adeniji could not establish a prima facie case for discrimination under Title VII because he could not show he was eligible for the SPE position. Id. at 20. Adeniji's verified score was 90, and under Civil Service's "Rule of Three," he "could not have been hired" with that score. Id. at 21. On that basis alone, OSC was entitled to summary judgment, Id. at 22.
Second, Adeniji failed to raise an inference of discrimination. Id. at 22–23. "[T]here is no evidence that similarly situated applicants who were not African-American were treated more favorably than [Adeniji]," id. at 23, based on the evidence OSC presented about its hiring, id. at 24. Nor did Adeniji present any admissible evidence of Otto's or Deiana's discriminatory animus. Id. Instead, he had "speculative beliefs and gut feelings," id. at 25 (quoting Adeniji v. Admin. For Children Servs., 43 F. Supp. 2d 407, 424 (S.D.N.Y. 1999) (internal citation omitted)), had abandoned his earlier claim that comments about his race had been made during the evaluation process, id. at 25–26, and presented only "vague and skimpy" evidence about such comments, id. at 26. The absence of such evidence, Judge Moses noted, was reinforced by the investigation by the New York State Division of Human Rights ("SDHR"), which did not find any evidence that OSC had been motivated by discriminatory animus. Id. at 27.
Third, Adeniji failed to counter OSC's legitimate, non-discriminatory reasons for not hiring Adeniji: "his history of frequent job changes, the significant inconsistencies between the two versions of his resume submitted to OSC, and his poor writing sample." Id. at 29. As a result of Adeniji's application's "striking deficiencies" for a job that required "lengthy training, careful attention to detail," and writing skills, the Report concluded, "no rational juror could reject [OSC's] compelling explanation for its decision in favor of [Adeniji's] feelings and perceptions of being discriminated against." Id. (internal quotation marks omitted).
II. Discussion
A. Applicable Legal Standards
1. Standard of Review for a Report and Recommendation
1 In reviewing a Report and Recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When specific objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3) ; see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record," King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) (citing Wilds v. U.P.S., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) ); see also Edwards v. Fischer, 414 F. Supp. 2d 342, 346–47 (S.D.N.Y. 2006).
2 To the extent that the objecting party makes only conclusory or general objections, or simply reiterates the original arguments, the court will review the Report and Recommendation strictly for clear error. See Dickerson v. Conway, No. 08 Civ. 8024 (PAE), 2013 WL 3199094, at *1 (S.D.N.Y. June 25, 2013) ; Kozlowski v. Hulihan, Nos. 09 Civ. 7583, 10 Civ. 0812 (RJH), 2012 WL 383667, at *3 (S.D.N.Y. Feb. 7, 2012). This is so even in the case of a pro se plaintiff. See Dickerson, 2013 WL 3199094, at *1 ; Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009).
2. Standards Governing Motions for Summary Judgment
To prevail on a motion for summary judgment, the movant must "show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed, R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts "in the light most favorable" to the non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by "citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A) ; see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," because "conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal citation omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law" will preclude a grant of summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether there are genuine issues of material fact, the Court is "required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) ).
3. Elements of Claims Under Title VII
34 Under Title VII, a plaintiff establishes "an unlawful employment practice ... when [he] demonstrates that ... race was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). In the absence of direct evidence of discrimination, discrimination claims under Title VII are guided by the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this analysis, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. To do so, the plaintiff must show "(1) that she was within the protected [class], (2) that she was qualified for the position, (3) that she experienced adverse employment action, and (4) that such action occurred under circumstances giving rise to an inference of discrimination." See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010). "This burden is not a heavy one." Id. A plaintiff cannot establish a prima facie case, however, based on "purely conclusory allegations of discrimination, absent any concrete particulars." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).
56 If the plaintiff can demonstrate a prima facie case, the burden of production shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the disparate treatment." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (internal quotation marks and citations omitted). "[I]f the defendant satisfies this burden of production, the plaintiff has the ultimate burden to prove that the employer's reason was merely a pretext for discrimination." Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996). A plaintiff is not "required to prove the prohibited motivation was the sole or even the principal factor in the decision, or that the employer's proffered reasons played no role in the employment decision." Finn v. N.Y. State Off. of Mental Health-Rockland Psychiatric Ctr., No. 08 Civ. 5142 (VB), 2011 WL 4639827, at *11 (S.D.N.Y. Oct. 6, 2011) (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 78 (2d Cir. 2001) ). Rather, the plaintiff "must show that those were not the only reasons and that [the] plaintiff's protected status contributed to the employer's decision." Id.
B. Application
Adeniji makes three objections to the Report—that he met his prima facie burden to show that OSC was motivated by discriminatory animus; that he presented sufficient evidence to show that OSC was motivated by discriminatory animus; and that the Report improperly relied on the conclusions of the SDHR investigation.
Adeniji does not object to Judge Moses's conclusion that OSC presented legitimate, non-discriminatory reasons for its hiring decision and that Adeniji failed to show that those reasons were pretextual. Accordingly, the Court reviews that conclusion only for clear error. Although Adeniji's objections are largely conclusory, based on new evidence, or reprise arguments already considered and rejected by Judge Moses, the Court, in an excess of caution, reviews those aspects of the Report de novo. The Court takes each of Adeniji's objections in turn.
1. Adeniji's Prima Facie Burden to Show Discriminatory Animus
Adeniji argues that he met his prima facie burden to show discriminatory animus because the Report inadequately considered the process by which OSC arrived at its hiring decision, which, he contends, was motivated by discriminatory animus. Objections at 3. First, Adeniji asserts that he "met all the qualifying requirements" on the Civil Service job announcement. Id. Second, Adeniji argues that he was only asked to do a writing sample as part of his interview because English is his second language. Id.
Adeniji claims in the course of this objection that he overheard one of his interviewers saying "that my assigned work location is white communities" and argues that "the interviewers were not expecting to see an African American because my name is synonymous to a Japanese name. ..." Objections at 4. He reiterates those claims as part of his second objection—that he did not present evidence permitting an inference of discriminatory motive. The Court addresses these arguments as part of the second objection.
Because both of these objections were addressed by Judge Moses, the Court need review them only for clear error. See Dickerson, 2013 WL 3199094, at *1. However, even reviewing the record de novo, the Court finds this objection unavailing.
7 First, although Adeniji claims to have "met all the qualifying requirements" on the Civil Service job announcement, Objections at 3, the Civil Service announcement stated that the applicant's answers would be verified, with the applicant's final score calculated post-verification. Klein Reply Decl. Ex. A. at 3. Because Adeniji's final score was calculated as under 100, he was not qualified for the position. See OSC 56.1 ¶ 34; Bernard Decl. ¶ 10 & Ex. E; see also Report at 10–11 (describing verification of Adeniji's score). Adeniji does not provide any non-conclusory basis to challenge the calculation of his score, let alone that any miscalculation was the product of racial discrimination. And because Adeniji could not prove that he was eligible for the position, he cannot establish a prima facie case under Title VII. See Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015).
8 Second, there is no evidentiary basis for Adeniji's assertion that he was asked to do a writing sample only because English is his second language. Judge Moses squarely addressed this claim, and, on the Court's own review of the record, correctly disposed of it. The Report explains that Adeniji lacked any basis for this claim "other than [a] selective quotation" from the Civil Service announcement that "[t]here will be no written test .... No written test or test date is involved." Report at 7 n.6 (citing Adeniji 56.1 ¶ 16 and Klein Decl. Reply Ex, A, at 3). But the announcement nowhere stated or implied that applicants would not be further screened. On the contrary, Adeniji was told in advance that a writing sample would be required, undermining his speculation that his interviewers acted with discriminatory motives in requiring one. Id. Nor was Adeniji singled out for a writing sample; each applicant hired in the Newburgh office between October 2016 and June 2017 supplied a writing sample as part of his or her application. Id. (citing OSC 56.1 ¶ 29; Barret Decl. ¶¶ 3–4).
The Court accordingly finds unsubstantiated Adeniji's objection that he carried his prima facie burden.
2. Adeniji's Evidence of Discriminatory Animus
Adeniji argues that he offered admissible evidence sufficient to permit an inference of discriminatory animus—specifically, that "[o]ne of the interviewers stated that they thought I was an Asia-Japanese origin [sic]. The interviewers went further to say that the location was white communities [sic]." Objections at 4.
9 At the threshold, the Court does not have any obligation to consider how these remarks could establish evidence of discriminatory animus because "[c]ourts generally do not consider new evidence raised in objections to a magistrate judge's report and recommendation." Ametepe v. Peak Time Parking, Corp., No. 18 Civ. 5384 (PAE) (SDA), 2021 WL 1172669, at *3 (S.D.N.Y. Mar. 29, 2021) (quoting Tavares v. City of New York, No. 08 Civ. 3782 (PAE), 2011 WL 5877548, at *2 (S.D.N.Y. Nov. 23, 2011) (collecting cases)) (alteration in original).
The Report properly treated these allegations, which had been made in Adeniji's Amended Complaint, as abandoned because Adeniji did not mention them in his summary judgment papers. Report at 25–26. The Report nonetheless analyzed Adeniji's claims as if the two alleged comments had been made and Adeniji had preserved his claims based on them. See id. at 26. It nonetheless found that the evidence, taken as a whole, would not permit a rational finder of fact to find a discriminatory motive. See id. at 27–28.
10 Even taking these comments into account, however, the Court finds Adeniji's objections unavailing. Adeniji's account of these comments was indistinct; he could not recall which of his two interviewers allegedly told him about the demographics of Newburgh being predominantly white or stated that they had been expecting to see a person of Asian or Japanese origin. Klein Decl. Ex. A., at 26–27, 172–73. And Adeniji does not elaborate on these comments, which both Otto and Deiana deny making, and whose meaning is, without more, elusive. Otto Decl. ¶¶ 14–15; Deiana Decl. ¶¶ 7–8. Taking all inferences in Adeniji's favor and crediting that comments along the lines alleged were made by an interviewer, a rational fact-finder could not find these unattributed and ambiguous comments—unaccompanied by other evidence of discriminatory animus—sufficient to establish such animus. Therefore, this objection fails.
Newburgh is 21.4% non-Hispanic white. See United States Census Bureau, QuickFacts, https://www.census.gov/quickfacts/newburghcitynewyork (last visited Aug. 26, 2021); see also Report at 26 n.23.
3. Role of SDHR Findings
Adeniji next argues that the Report improperly took into account the findings of the SDHR investigation, which found that OSC had not been motivated by discriminatory animus. He states that Judge Moses "improperly relied on the agency's findings," and that the SDHR investigation was "inconclusive" because Adeniji was never interviewed and SDHR "solely based their findings on documentation provided by [OSC]." Objections at 5. Adeniji's objection is not entirely clear as to whether he objects to the process by which the SDHR report was generated or Judge Moses's consideration of it. The Court treats Adeniji's objection as protesting that the Report improperly considered the results of the SDHR investigation, which concluded that OSC was not motivated by discriminatory animus.
A finding of no probable cause by the SDHR is appealable by the complainant to the New York State Supreme Court. See N.Y. Exec. L. § 298. There is no evidence that Adeniji appealed that finding here.
1112 That objection fails. Under Second Circuit law, it was proper for Judge Moses to consider the findings of the SDHR investigation, as one of multiple factors that undermined Adeniji's claim that OSC's decision not to hire him resulted from discriminatory animus. See Report at 27; see also Cortes v. MTA New York City Transit, 802 F.3d 226, 232 (2d Cir. 2015) ("The unreviewed findings of an agency are ... admissible as evidence under Fed. R. Evid. 803(8)(A)(iii) as ‘factual findings from a legally authorized investigation’ by a public office." (quoting Federal Rules of Evidence 803(8)(A)(iii) )). And Judge Moses did not give the findings of the investigation preclusive effect. Instead, she considered them as part of a broader assessment of the evidence bearing on this element. In finding insufficient evidence of discriminatory animus, she noted, too, the lack of any evidence that similarly situated applicants who were not African-American were treated more favorably than Adeniji, Report at 23; the statistical evidence about hiring at OSC, id. at 24; and Adeniji's failure to identify any admissible evidence of discriminatory animus by Otto or Deiana, id. at 24–25. She also observed that Adeniji had abandoned at summary judgment his earlier claim that the two racially suggestive comments had been made by one of his interviewers. Id. at 25–26. The SDHR's conclusions, Judge Moses noted, were consistent with the absence of evidence developed in discovery in this case of discriminatory animus. This observation was proper, and there was no error in Judge Moses's consideration of the SDHR's conclusions. This objection thus also fails.
4. OSC's Legitimate, Non-Pretextual Reasons for Not Hiring Adeniji
Critically, Adeniji does not object to the Report's conclusion that OSC presented legitimate, non-discriminatory reasons for its hiring decision and that Adeniji failed to show that those reasons were pretextual. Careful review of Judge Moses's well-reasoned analysis reveals no facial error in that conclusion, which independently would support a grant of summary judgment in OSC's favor, as the Report recommends.
CONCLUSION
For the foregoing reasons, the Court accepts and adopts Judge Moses's July 21, 2021 Report and Recommendation. OSC's motion for summary judgment is granted.
SO ORDERED.
REPORT AND RECOMMENDATION TO THE HONORABLE PAUL A. ENGELMAYER
BARBARA MOSES, United States Magistrate Judge
Plaintiff Oluseyi Adeniji, a frequent litigant in this Court,1 alleges that the New York Office of the State Comptroller (OSC) interviewed him for an accounting job on October 6, 2016, but failed to hire him because of his race. In his Amended Complaint (Am. Compl.) (Dkt. No. 18), plaintiff asserts a single claim of race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. Am. Compl. at ECF page 3. On October 9, 2020, after discovery, defendant moved for summary judgment. (Dkt. No. 84.) Because plaintiff has failed to show that he was qualified for the job he sought, has failed to raise an inference of discriminatory animus, and has failed to counter defendant's showing that his application was rejected for legitimate, non-discriminatory reasons, the motion should be granted.
I. BACKGROUND
A. Facts
The following facts, which are undisputed unless otherwise noted, are taken from (i) Defendant's Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 (Def. 56.1 St.) (Dkt. No. 93); (ii) the underlying evidentiary materials, including the declarations of Ingrid M. Otto (Otto Decl.) (Dkt. No. 86), Kara Deiana (Deiana Decl.) (Dkt. No. 87), Courtney E. Bernard (Bernard Decl.) (Dkt. No. 88), Randy Hotaling (Hotaling Decl.) (Dkt. No. 89), Mary E. Barret (Barret Decl.) (Dkt. No. 90), and Mark E. Klein (Klein Decl.) (Dkt. No. 91); (iii) Plaintiff's Response to Defendant's Local Civil Rule 56.1 Statement (Pl. 56.1 St.) (Dkt. No. 106); the declaration of Oluseyi Adeniji in opposition to defendant's motion (Pl. Decl.) (Dkt. No. 106); and (iv) the reply declarations of Courtney E. Bernard (Bernard Reply Decl.) (Dkt. No. 110) and Mark E. Klein (Klein Reply Decl.) (Dkt. No. 111).
Plaintiff is African-American. Def. 56.1 St. ¶ 1; Pl. 56.1 St. ¶ 1; Transcript of Deposition of Oluseyi Adeniji (Pl. Dep. Tr.) (Dkt. No. 91-1) at 15. OSC is an agency of the State of New York which, among other things, conducts financial audits of local governments, schools and state agencies. Def. 56.1 St. ¶ 2; Pl. 56.1 St. ¶ 2.
1. The Online SPE "Exam" and the OSC Application Process
On September 22, 2016, plaintiff applied for a position as a State Program Examiner (SPE) by completing the "online, continuous recruitment SPE exam" offered through the New York State Department of Civil Service (Civil Service) website. Def. 56.1 St. ¶ 3; Pl. 56.1 St. ¶ 3; Bernard Decl. ¶ 11(i) & Ex. F. The Civil Service announcement to which plaintiff responded, see Pl. 56.1 St. ¶ 4; Pl. Decl. ¶ 4; Klein Reply Decl. Ex. A, listed the "minimum qualifications" required of an applicant "[o]n or before the date of your application," including as relevant here, a bachelor's degree, including or supplemented by 24 credit hours in accounting and/or auditing, and two years of professional accounting and/or auditing experience (or, as an alternative to the experience requirement, a master's or doctoral degree in accounting or related subjects). Klein Reply Decl. Ex. A, at 1-2. Under "Subject of the Examination," the announcement explained that "[n]o written test or test date is involved." Id. at 3. Rather, candidates who met the "minimum qualifications" were invited to "complete an education and experience questionnaire online" and "forward [their] resume and college transcripts" to the OSC. Id. at 3. The results would be scored according to, among other things, the applicant's grade point average (GPA), both overall and in his or her major; internships and other campus or professional activities; and "qualifying work experience." Id. Applicants were warned that all of their "statements concerning education and experience are subject to verification" and that "false statements or lack of verification may result in termination of employment." Id. They were told that their "final score," after verification, "must be 70 or higher in order to pass," and that passing candidates "will have their names placed on the eligible list in the order of final scores." Id. at 3, 4.
In its summary judgment materials, OSC explains the application process in more detail. Despite its name, the SPE "exam" is not a written test, but rather an online education and experience questionnaire. Def. 56.1 St. ¶ 4; Bernard Decl. ¶ 6 & Ex. C.2 It is initially scored based on the applicant's questionnaire responses, in accordance with "Scoring Forms" issued by Civil Service. Def. 56.1 St. ¶ 4; Bernard Decl. ¶ 6. The self-reported information is then verified, pursuant to parameters set by Civil Service, by OSC's Division of Human Resources (HR), which is responsible for establishing the eligible list. It is not unusual for an applicant's exam score to change (usually downward) once HR has gone through the process of reviewing the applicant's transcripts and verifying the score. Def. 56.1 St. ¶ 5; Bernard Decl. ¶ 6.3
OSC receives, on average, approximately one hundred applications every month through the SPE exam. Each passing applicant remains on the eligible list for one year. Def. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7. However, pursuant to a Civil Service rule known as the "rule of three," in order to be eligible for hire off of the list, the applicant must have a score of 100 – once verified – or (if the applicant's score is less than 100), all interested applicants who scored 100 must have declined the position. Def. 56.1 St. ¶ 8; Bernard Decl. ¶ 8.4 Thus, it is rare for an applicant who has scored less than 100 to be hired off the Civil Service list for an SPE position. Courtney Bernard, OSC's Associate Director of HR, who started working at OSC in 2006, attests that she can only recall one instance where this occurred – when an SPE position at a remote OSC regional office attracted very few candidates, and where those who had scored 100 declined the position. Def. 56.1 St. ¶ 8; Bernard Decl. ¶ 8.
Plaintiff's initial score on the SPE exam, prior to verification, was 100. Def. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7. This was based solely on the responses he provided online, see Bernard Dec. Ex. F, including the names of the courses he took and the grades he received.
2. The October 6, 2016 Interview
Multiple program areas in OSC hire from the SPE exam list to fill various auditing positions, including OSC's Division of Local Government and School Accountability (LGSA). Def. 56.1 St. ¶ 6; Pl. 56.1 St. ¶ 6. When a position becomes available, HR generally verifies each applicant's score before that applicant is invited for an interview, to ensure that he or she could be hired off the Civil Service list. Def. 56.1 St. ¶ 6; Pl. 56.1 St. ¶ 6. However, on September 28, 2016 – before plaintiff's initial exam score was verified – Ingrid M. Otto, a member of LGSA's New Examiner Interview Team, contacted plaintiff by email to schedule a time for him to interview for the position of Examiner of Municipal Affairs, an "SPE 1" position, in OSC's Newburgh regional office. Def. 56.1 St. ¶ 10; Otto Decl. ¶¶ 3-4 & Ex. B. At that time, LGSA had "a pressing need to fill the Newburgh position" and for that reason was scheduling interviews before all of the applicants’ scores could be verified. Def. 56.1 St. ¶ 6; Bernard Decl. ¶ 7; Pl. 56.1 St. ¶ 6. Otto was given a copy of plaintiff's resume as submitted with his Civil Service online application. Def. 56.1 St. ¶ 10; Otto Decl. ¶ 4 & Ex. A; Pl. 56.1 St. ¶ 10. The interview was scheduled for October 6, 2016, in Albany. Def. 56.1 St. ¶ 12; Otto Decl. ¶ 6; Pl. 56.1 St. ¶ 12.
On September 29, 2016, Otto sent an email to plaintiff attaching copies of (i) OSC's written employment application for him to fill out and bring to the interview; (ii) the "job duties" for the position of Examiner of Municipal Affairs; and (iii) the "travel expectations" for LSGA examiners, with a map showing its regional offices. Def. 56.1 St. ¶ 13; Otto Decl. ¶¶ 6-7 & Ex. C; Pl. 56.1 St. ¶ 13. She also asked for a copy of plaintiff's most recent resume. Otto Decl. Ex. C. With regard to the application, Otto advised plaintiff to be "sure to complete each box" regarding his prior jobs, and to do so "for every current/former employer," attaching additional pages if necessary. Id. The statement of "job duties" made it clear that attention to detail and regard for accuracy were important qualities for the position. Id. ; Def. 56.1 St. ¶ 14; Pl. 56.1 St. ¶ 14. In addition, Examiners of Municipal Affairs were expected to "[p]repare written documents that are clear, concise, well organized, adequately summarized and use appropriate tone and grammar." Id. ; Otto Decl. Ex. C. The statement of "travel expectations" explained that examiners assigned to a regional office (like Newburgh) "are considered field examiners" and would "spend most of their time in travel status," that is, away from Newburgh. Id. (emphasis in the original). Finally, in her September 29 email, Otto informed plaintiff that "the interview will consist of an overview of our division, a question and answer period, as well as a brief writing sample," and advised him to allow "about two hours for the interview." Def. 56.1 St. ¶ 16; Otto Decl. Ex. C.
Later that same day, plaintiff acknowledged receipt of Otto's email, confirmed his availability for the interview, and attached "the requested resume." Def. 56.1 St. ¶ 17; Otto Decl. ¶ 11 & Ex. D.5 On October 6, 2016, plaintiff sat for an interview in Albany with Otto and her colleague, LGSA auditor Kara Deiana; submitted his employment application; and completed a writing sample. Def. 56.1 St. ¶¶ 18-19; Otto Decl. ¶¶ 12-13, 21; id. Ex. F (application); id . Ex. I (writing sample); Deiana Decl. ¶¶ 5-6; Pl. 56.1 St. ¶¶ 18-19.6 3. The Decision Not to Hire Plaintiff
LGSA personnel who conduct new hire interviews are required to ask applicants a specific list of questions and record the answers in a document referred to as an "Interview Q and A." Def. 56.1 St. ¶ 20; Deiana Decl. ¶ 9; Pl. 56.1 St. ¶ 20. In accordance with that practice, Otto and Deiana covered all the questions on the list during plaintiff's interview and recorded his responses. Def. 56.1 St. ¶ 20; Otto Decl. ¶ 16 & Ex. G (interview summary); Deiana Decl. ¶ 9; Pl. 56.1 St. ¶ 20. They also filled out an "Interview Grading Sheet," summarizing key parts of the interview (as well as the writing sample) and assigning numerical values to various key employment factors. Otto Decl. ¶ 17 & Ex. H (grading sheet). As reflected on the grading sheet, Otto and Deiana decided not to recommend plaintiff for a second interview. Def. 56.1 St. ¶ 21; Otto Decl. Ex. H, at 3; Pl. 56.1 St. ¶ 21. On October 12, 2016, OSC sent plaintiff a letter thanking him for interviewing and wishing him success should he seek other employment opportunities. Bernard Decl. ¶ 5 & Ex. B.
Otto and Deiana attest that they made their decision regarding plaintiff's candidacy based on his application, the two versions of his resume, his responses to the questions they asked him at his interview, and his writing sample – all of which were below par. Def. 56.1 St. ¶ 21; Otto Decl. ¶ 15; Deiana Decl. ¶ 8. They explain their three primary concerns:
First , both versions of plaintiff's resume showed that he held many previous jobs for less than one year. Otto Decl. Exs. A, E. His employment application, id. Ex. F, either gave no reason for leaving those jobs or stated, "Personal." When questioned about this at the interview, plaintiff again stated that he left those posts for "personal reasons." This was a red flag when hiring for a job that "requires a great amount of training," such that LGSA "is reluctant to invest that time and energy when it is questionable whether the applicant is committed to sticking with the job." Otto Decl. ¶¶ 17-18; Deiana Decl. ¶ 11.
Second , there were material inconsistencies between the two resumes that plaintiff submitted. Compare Otto Decl. Ex. A ("Resume 1") with id. Ex. E ("Resume 2"). These inconsistencies were "cause for concern," particularly given "the importance of attention to detail and accuracy to the job of being an auditor." Otto Decl. ¶¶ 19-20; Deiana Decl. ¶¶ 12-13.
For example:
i. Resume 1 stated that plaintiff worked for the NYC Department of Finance from August 2012 through July 2016, but Resume 2 stated that he worked there from August 2014 through July 2015.
ii. Resume 1 stated that plaintiff worked for the IRS from January 2010 through August 2012, but Resume 2 stated that he worked there from January 2014 through July 2014.
iii. Resume 1 stated that plaintiff worked for the NYC Department of Homeless Services from April 2007 through November 2009, but Resume 2 stated that he worked there from March 2011 through November 2013.
iv. Resume 2 stated that plaintiff worked for the NYC Department of Human Resources from January 2007 through September 2007, but Resume 1 did not list this employment at all.
v. Resume 1 stated that plaintiff worked for JP Morgan Chase Bank from March 2004 through March 2007, but Resume 2 did not list this employment at all.
vi. Resume 2 stated that plaintiff worked for the Department of Defense Contract Audit Agency from July 2005 through October 2006, but Resume 1 did not list this employment at all.
Third , plaintiff's writing sample contained multiple grammatical errors. This was also cause for concern, because "[b]eing able to communicate in writing clearly and effectively is an important part of an auditor's job at OSC." Otto Decl. ¶ 21; Deiana Decl. ¶ 14.
Plaintiff chose to write about "the most significant issues facing local Government today," which he identified as "(A) Funding (B) Skill Personnel (C) Proactive (D) Lack of Human Resources." Otto Decl. Ex. I. Plaintiff described, as an example, a recent case in which a child under the jurisdiction of the NYC Administration for Children's Services was strangled by "the child's live-in boyfriend." Plaintiff continued, "The agency could have gotten skill personnel such as Psycologist, Nurses and other skill professionals who works in tandem with children to assist on providing adequate care to households that falls into the category of ‘Live in Boyfriend.’ " Id. (spelling and grammar as in the original).
The grading sheet that Otto and Deiana filled out after plaintiff's October 6 interview summarized these issues as follows:
[Plaintiff] has worked in the accounting/auditing profession since he obtained his accounting degree. However, he has not stayed in a job for more than 1 year in any of his last 5 places of employment. When we inquired, the primary reasons for leaving the position was for personal reasons. We also noticed inconsistencies in employment dates between the resume submitted with his application and his updated resume he provided when scheduling his interview.
We found multiple grammatical errors in his writing sample. It took him approximately 1 hour to complete the sample.
Otto Decl. Ex. H, at 3.
Plaintiff attempts to dispute this account, asserting: "I was not recommended for the interview because of my race. As I entered the location, I could feel the rejection based on their body language. They were looking for a white candidate because of [sic] the assigned location, Newburgh, is a predominately white neighborhood. I fulfilled the requirements for the position and I was rejected primarily because of my race." Pl. 56.1 St. ¶ 21; Pl. Decl. ¶ 21. Plaintiff does not describe the body language he observed, nor explain how it denoted "rejection."
Similarly, plaintiff responds to each of the three reasons given by Otto and Deiana for their decision not to invite him for a second interview either by asserting that the problems they identified "did not affect my eligibility for the position," which in his view should have been determined based solely on his initial SPE exam score, see Pl. 56.1 St. ¶¶ 22, 24, 29, 30, or by claiming that the weaknesses in his resume were themselves caused by racism. See id. ¶ 23 ("As a colored educated man, I encounter a lot of adversaries and difficulty in the work environment because of my race."). Additionally, he repeats his claim that the inconsistencies in the two versions of his resume were his computer's fault, not his, and characterizes the interviewer's focus on those inconsistencies as "an attempt on their part to discredit me." Id. ¶ 25.
4. Verification of Plaintiff's Score
As noted above, when LGSA invited plaintiff to interview for the position of Examiner of Municipal Affairs, his score on the Civil Service exam had not yet been verified by HR. On October 5, 2016 (one day before his interview), HR employee Ryan Taratus advised plaintiff by email that his unverified score was 100 but that "all credentials, including grade point average and work experience, are subject to verification." Def. 56.1 St. ¶ 31; Bernard Decl. ¶ 9 Ex. D. Taratus asked plaintiff for his transcripts from City College and Baruch College, as well as the transcripts showing his grades in certain accounting courses, taken elsewhere, that he listed on his online questionnaire. Bernard Decl. Ex. D. Plaintiff initially failed to provide the requested information. HR followed up, sending emails on October 11 and October 26, 2016, and January 3, January 4, and February 10, 2017, in an effort to collect the necessary transcripts in legible form. Def. 56.1 St. ¶ 32; Bernard Decl. ¶ 9 & Ex. D.
Plaintiff does not deny receiving the October 5 email, but continues to insist that this was "not what the job required." Pl. 56.1 St. ¶ 31.
Plaintiff does not deny the existence or contents of these email communications, but complains that even after he submitted "the official transcript" to OSC "I was told that they wanted to further verify my documents." Pl. 56.1 St. ¶ 32; Pl. Decl. ¶ 32.
Notwithstanding LGSA's decision not to select plaintiff for the Examiner of Municipal Affairs position in Newburgh, plaintiff remained on the Civil Service list and, once his score was verified, was potentially eligible to interview for other positions at OSC. In December 2016, another OSC Division, the Division of State Government Accountability (SGA), requested that HR verify plaintiff's score. Def. 56.1 St. ¶ 33; Bernard Decl. ¶ 9. However, because plaintiff repeatedly failed to provide the information requested by HR (or provide it in legible form), the verification process was not completed until April 2017. Def. 56.1 St. ¶ 34; Bernard Decl. ¶ 10. By email dated April 12, 2017, enclosing a letter of the same date, HR advised plaintiff that it had completed its verification process and, as a result, had changed his score from 100 to 90 on the exams for SPE 1 Trainee (Fiscal) and SPE 1 (Fiscal) (exams 20724 and 20777), the "two SPE jobs for which LGSA has positions." Def. 56.1 St. ¶ 34; Bernard Decl. ¶ 10 & Ex. E.
Plaintiff does not dispute these facts, stating only, "I was never informed of this." Pl. 56.1 St. ¶ 33; Pl. Decl. ¶ 33.
The scoring changes that HR made were based on the following discrepancies between the information that plaintiff provided to Civil Service in his online application (Bernard Decl. Ex. F) and the information HR was eventually able to verify from his college transcripts (id. Ex. G):
i. Although plaintiff stated in his online application that his GPA for the highest-graded 24 credits he received in accounting courses was a 3.33, his transcripts showed that it was actually a 2.42.
ii. Although plaintiff claimed in his online application that he received six credits and a B+ in Auditing, his transcripts showed that he received only 4 credits and a B in that course.
iii. Although plaintiff claimed in his online application that he received five credits and a B+ in Intermediate Accounting, his transcripts showed that he received a C in Intermediate Accounting 1 and a B in Intermediate Accounting 2, each of which was three credits.
iv. Although plaintiff claimed in his online application that he received five credits and a B+ in Cost Accounting,
his transcripts showed that he received a C in Cost Accounting for three credits and a C in Cost Accounting II for two credits.
v. Although plaintiff claimed in his online application that he received a B+ in Advanced Accounting, his transcripts showed that he received a D+. In an effort to assist plaintiff, however, HR instead used his grade of B in Advanced Accounting Problems, which improved his score.
vi. Although plaintiff claimed in his online application that he received six credits and a B+ in Principles of Accounting 1 & 2, his transcripts do not list those courses. HR therefore looked to the next highest score he received in an accounting course, which was a three-credit course in Taxation, for which he received a D.
vii. Although plaintiff originally received 2 points for an internship he had listed in his online application as one for which he "received college credit," his transcripts showed that it took place while he was employed and was not for college credit.
Def. 56.1 St. ¶ 35; Bernard Decl. ¶ 11 & Exs. F, G.
Plaintiff does not dispute points (i), (iii), (iv), or (v), but quibbles with HR's remaining scoring decisions. See Pl. 56.1 St. ¶ 35. For example, he disputes point (ii) by asserting that he actually received six credits in Auditing, but concedes that he received a B (as HR determined), not a B+ (as originally reported by him). As to point (vii), plaintiff concedes that his internship "was not considered college credit at the time however, it counts as relevant coursework." Id.
As noted above, plaintiff needed a verified score of 100 to be eligible for hiring from the Civil Service list for LGSA's SPE positions. As result of the scoring changes that HR made in April 2017 – reducing his score to 90 for the relevant exams – plaintiff was not eligible to be hired for the LGSA SPE positions. Def. 56.1 St. ¶ 36; Bernard Decl. ¶ 10.
At deposition, plaintiff conceded that he understood that if his score was less than 100, OSC could not hire him. Pl. Dep. Tr. at 178. In his summary judgment papers, however, plaintiff takes issue with this point, writing, "Part of some documents I submitted to the court indicates that some applicants scored a 75 and they were hired." Pl. 56.1 St. ¶ 8. As Bernard explains in her reply declaration, the documents to which plaintiff refers (which he did not submit, but OSC did) did not concern the SPE 1 position for which plaintiff applied at LGSA. Rather, they showed that applicants whose names were on different eligible lists, for different positions (some of them at different agencies), were occasionally appointed (or promoted) with scores lower than 100 – and in one case, with a score of 75. Bernard Reply Decl. ¶¶ 3-4 & Ex. A. Plaintiff was not on any of the eligible lists from which the low-scoring applicants were appointed. Id. ¶ 5 & Ex. A.
Plaintiff responds, "I did obtain a score of 100," and adds that "even with the downgrade to a score of 90, I should have been hired for this position." Pl. 56.1 St. ¶ 36, Pl. Decl. ¶ 36.
On May 17, 2017, plaintiff requested an appeal of his score, by email, complaining, inaccurately, that his score "was lowered from 100 to 70." Bernard Decl. Ex. H. On May 22, 2017, HR responded, explaining, in relevant part, that his score was "not changed to a 70," and reminding him that since he had taken the exam more than six months ago, he was eligible to retest. Id . Ex. I.
5. Plaintiff's Administrative Complaint
On or about July 6, 2017, plaintiff filed a timely complaint with the New York State Division of Human Rights (SDHR), alleging that he was discriminated against on the basis of his race/color, creed, disability, marital status, national origin, sex, and age when OSC failed to hire him for the position of Examiner of Municipal Affairs after his October 6, 2016 interview. Def. 56.1 St. ¶ 37; Bernard Decl. ¶ 3 & Ex. A; Pl. 56.1 St. ¶ 37. OSC answered on August 10, 2017, describing the basis on which it had scored plaintiff's exams after verifying his answers and setting forth the reasons given by Otto and Deiana for their decision not to recommend plaintiff for a second interview. Def. 56.1 St. ¶ 38; Bernard Decl. ¶ 14 &Ex. J; Pl. 56.1 St. ¶ 38.
As a precondition to suit, a Title VII employment discrimination claim "must be filed with the Equal Employment Opportunity Commission (‘EEOC’) or New York State Division of Human Rights (‘SDHR’) within 300 days of the alleged unlawful practice." Cetina v. Longworth , 583 F. App'x 1, 2 (2d Cir. 2014) (summary order).
Thereafter, in response to SDHR's request for statistical information, OSC produced documentation reflecting that, from January 2016 to May 2017, OSC hired 26 African-American applicants for auditing positions similar to the position for which plaintiff had interviewed in October 2016. Def. 56.1 St. ¶ 40; Bernard Decl. ¶ 15 & Ex. K. During the same period, OSC hired a total of 128 people for those positions. Id. ¶ 15. Following the submission of OSC's answer and information, SDHR questioned Otto and Deiana, the two LGSA employees who had interviewed plaintiff. Def. 56.1 St. ¶ 41; Bernard Decl. ¶ 17; Otto Decl. ¶ 23 n.4; Deiana Decl. ¶ 16 n.3. On December 17, 2017, SDHR issued its Determination and Order After Investigation, concluding that "there is NO PROBABLE CAUSE to believe that [OSC] has engaged in or is engaging in the unlawful discriminatory practice complained of[ ]," and dismissed plaintiff's SDHR complaint in its entirety. Def. 56.1 St. ¶ 42; Bernard Decl. ¶ 17 & Ex. L.
Plaintiff responds: "Not aware of this." Pl. 56.1 St. ¶ 40. However, he cited the same figure in his pleading. See Am. Compl. at ECF page 12, ¶ 20.
Plaintiff does not dispute the fact or content of the SDHR decision, but disagrees with its conclusions. Pl. 56.1 St. ¶ 42.
B. Procedural History
Having exhausted his administrative remedies, plaintiff filed this action on January 26, 2018, alleging race and age discrimination under Title VII, two other federal statutes, and state law. Compl. (Dkt. No. 2) at 3-5. On July 30, 2018, Your Honor referred the case to me for general pretrial management and report and recommendation on dispositive motions. (Dkt. No. 6.)
On November 5, 2018, OSC filed its first motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), arguing that plaintiff's Title VII claim should be dismissed because he failed to allege facts sufficient to show that he was qualified for the position or that OSC's failure to hire him was motivated by discriminatory intent, and that his remaining claims were barred by the Eleventh Amendment. (Dkt. No. 14.) The following day, "[i]n order to conserve judicial resources and prevent multiple rounds of motion practice," I offered plaintiff an opportunity to amend his complaint (Dkt. No. 15), which he did on November 16, 2018, asserting a single claim against OSC for race discrimination in violation of Title VII. Am. Compl. at ECF page 3. In a 23-paragraph attachment, plaintiff provided additional factual allegations concerning his qualifications, the application process, and his interview. Id. at ECF pages 10-12.
On January 11, 2019, OSC moved to dismiss the Amended Complaint (Dkt. No. 22.) On July 31, 2019, I recommended that the defendant's motion to dismiss be denied because plaintiff met the "minimal pleading burden necessary to sustain a Title VII claim for failure to hire," and on September 3, 2019, Your Honor agreed, and denied the motion. See Adeniji v. New York State Off. of State Comptroller , 2019 WL 6831381, at *8 (S.D.N.Y. July 31, 2019), report and recommendation adopted , 2019 WL 4171033 (S.D.N.Y. Sept. 3, 2019).
On October 17, 2019, defendant filed an answer (Dkt. No. 43), and on October 9, 2020, after discovery, it filed the instant motion for summary judgment. Defendant principally argues that "plaintiff cannot establish the elements of his prima facie case for discrimination under Title VII because (a) "plaintiff was not qualified for the position for which he interviewed," Def. Mem. (Dkt. No. 92) at 10; and (b) "there exist no circumstances giving rise to an inference that OSC discriminated against plaintiff," id. at 13. In fact, defendant contends, it has "presented undisputed facts negating any possible claim of racial animus." Id. at 17. Additionally, defendant argues, "OSC had legitimate non-discriminatory reasons for not hiring plaintiff." Id. at 21.
On January 5, 2021, plaintiff filed his Response to Defendant's Rule 56.1 Statement and supporting declaration. In his Rule 56.1 response, plaintiff identifies each paragraph in defendant's Rule 56.1 statement that he contends to be disputed. However, as to most of them, plaintiff does not point to any admissible evidence contradicting the facts asserted by defendants. Instead, relying on the online Civil Service announcement to which he responded, he insists that he should not have been required to produce a writing sample (because the announcement stated, "there will be no written test") and that his exam should not have been verified and re-scored (because the announcement said that his "answers to the questionnaire will be the only basis for evaluating [his] education and experience"). Pl. 56.1 St. ¶¶ 4, 5, 16, 29, 30, 31, 42. Additionally, as noted above, plaintiff speculates about his interviewers’ motivations based on their body language, id. ¶¶ 16, 21; notes that applicants who scored lower than he did were sometimes hired (into different positions, some at different agencies), id. ¶¶ 8, 33, 36; provides a series of after-the-fact excuses for the deficiencies in his application materials, id. ¶¶ 17; 23, 25; and, as to many of those deficiencies, argues that they should not have been considered because they did not affect his "eligibility for the position" (an apparent reference to the "minimum qualifications" required to take the SPE exam). Id. ¶¶ 22, 24, 29, 31, 35(v), 42. Plaintiff did not submit any separate legal brief.
On January 22, 2021, defendants submitted their reply papers, including a reply brief arguing again that plaintiff has failed to establish a prima facie case of hiring discrimination in that he (a) "fails to identify a genuine issue of fact disputing OSC's showing that he was not qualified for the position for which he interviewed," Def. Reply Mem. (Dkt. No. 113) at 4; (b) "fails to identify a genuine issue of fact disputing OSC's showing that there is no inference of discrimination," id. at 6; and (3) "has failed to offer any admissible evidence that OSC's reasons for not hiring him were pretextual." Id. at 8.
II. LEGAL STANDARDS
A. Summary Judgment
A court may grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Holt v. KMI-Cont'l, Inc. , 95 F.3d 123, 128-29 (2d Cir. 1996). The moving party bears the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine dispute as to any material fact. Fed. R. Civ. P. 56(c) ; Celotex , 477 U.S. at 322, 106 S.Ct. 2548 ; Koch v. Town of Brattleboro , 287 F.3d 162, 165 (2d Cir. 2002). In evaluating the record, the court must construe the evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the non-moving party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; In re "Agent Orange" Prod. Liab. Litig. , 517 F.3d 76, 87 (2d Cir. 2008). "In applying this standard, the court should not weigh evidence or assess the credibility of witnesses. These determinations are within the sole province of the jury." Frost v. New York City Police Dep't , 980 F.3d 231, 242 (2d Cir. 2020) (quoting Hayes v. New York City Dep't of Corr. , 84 F.3d 614, 619 (2d Cir. 1996) ).
If the moving party meets its initial burden, the burden shifts to the non-moving party to establish a genuine dispute of material fact. Celotex, 477 U.S. at 322, 106 S.Ct. 2548 ; Beard v. Banks , 548 U.S. 521, 529, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) ; Santos v. Murdock , 243 F.3d 681, 683 (2d Cir. 2001). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To defeat summary judgment, he must present specific, admissible evidence in support of his contention that there is a genuine dispute as to the material facts. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ; see also Jeffreys v. City of New York , 426 F.3d 549, 553-54 (2d Cir. 2005) ; D'Amico v. City of New York , 132 F.3d 145, 149 (2d Cir. 1998) (nonmoving party must offer "some hard evidence showing that its version of the events is not wholly fanciful"). Furthermore, the evidence must be sufficient to permit a reasonable jury to return a verdict in the non-moving party's favor. Anderson, 477 U.S. at 242, 248, 106 S.Ct. 2505 ; Nick's Garage, Inc. v. Progressive Casualty Ins. Co. , 875 F.3d 107, 113 (2d Cir. 2017) ("A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.") (internal quotation marks omitted). Thus, "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York , 88 F.3d 63, 71 (2d Cir. 1996).
B. Local Civil Rule 56.1
In the Southern District of New York, the moving party must submit a "short and concise statement, in numbered paragraphs," of the material facts that it contends to be undisputed, with citations to the underlying evidence. Local Civil Rule 56.1(a). The non-moving party must then respond in kind, with numbered paragraphs that correspond "to each numbered paragraph in the statement of the moving party." Local Civ. R. 56.1(b). To the extent not "specifically controverted" by the non-moving party, the statement of material facts submitted by the moving party may be "deemed to be admitted for purposes of the motion." Local Civ. R. 56.1(c) ; see also Giannullo v. City of New York , 322 F.3d 139, 140 (2d Cir. 2003) ("If the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.").
C. Pro Se Parties
Where, as here, the party opposing summary judgment is proceeding pro se , the court should read his papers "liberally," and "interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994). While "pro se litigants are ‘not excused from meeting the requirements of Local Rule 56.1,’ " Diggs v. Volpe , 2013 WL 4015758, at *1 n.1 (S.D.N.Y. Aug. 7, 2013) (quoting Wali v. One Source Co. , 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) ), the court has "broad discretion" to "overlook a [pro se] party's failure to comply with local court rules," and may exercise that discretion to "conduct an assiduous review of the record" even where the pro se party has failed entirely to file a statement complying with Local Civil Rule 56.1(b). Holtz v. Rockefeller & Co. , 258 F.3d 62, 73 (2d Cir. 2001) (quoting Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir. 2000) ); accord Feelings v. Stukes , 2017 WL 3601241, at *5 n.1 (S.D.N.Y. Aug. 21, 2017).
Plaintiff was represented by volunteer pro bono attorneys at several key junctures in this action, including his deposition. (See Dkt. No. 73.) The Court is grateful to the New York Legal Assistance Group for providing this invaluable service.
The court is not obligated, however, to accept a pro se litigant's factual assertions where they contradict his own previous statements or are otherwise "beyond belief." Shabazz v. Pico , 994 F. Supp. 460, 470 (S.D.N.Y. 1998) (Sotomayor, D.J.) (quoting Dawes v. Coughlin, 964 F. Supp. 652, 657 (N.D.N.Y. 1997) ), vacated on other grounds by 205 F.3d 1324 (2d Cir. 2000).
D. Title VII
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer ... to fail or refuse to hire ... any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e–2(a)(1). Failure-to-hire claims under Title VII are analyzed in accordance with the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that test:
[A] plaintiff complaining of a discriminatory failure to hire must first make out a prima facie case of discrimination by showing that (1) he is a member of a protected class, (2) he was qualified for the job for which he applied, (3) he was denied the job, and (4) the denial occurred under circumstances that give rise to an inference of invidious discrimination. Once the plaintiff has made such a prima facie showing, the burden shifts to the employer to come forward with a nondiscriminatory reason for the decision not to hire the plaintiff. If the employer articulates such a reason, the plaintiff is given an opportunity to adduce admissible evidence that would be sufficient to permit a rational finder of fact to infer that the employer's proffered reason is pretext for an impermissible motivation.
Vivenzio v. City of Syracuse , 611 F.3d 98, 106 (2d Cir. 2010) (internal quotation marks and citations omitted). "In the context of a motion for summary judgment," the fourth element of the prima facie test requires the plaintiff to " ‘proffer admissible evidence [that] shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive.’ " Coger v. Connecticut Dep't of Pub. Safety , 143 F. App'x 372, 374 (2d Cir. 2005) (summary order) (quoting Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 38 (2d Cir. 1994) ).
"The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Vivenzio , 611 F.3d at 106 (quoting Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ). Thus, once the employer has produced evidence of nondiscriminatory reasons for its hiring decision, the presumption of discrimination raised by the prima facie case "completely drops out of the picture," James v. N.Y. Racing Ass'n , 233 F.3d 149, 154 (2d Cir. 2000), and the plaintiff must prove, by a preponderance of the evidence, both that reasons offered by the employer were false, "and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis in the original).
III. DISCUSSION
Defendant does not dispute that plaintiff is a member of a protected class, nor that it rejected him for the position of Examiner of Municipal Affairs in OSC's Newburgh regional office, for which he interviewed. Def. Mem. at 10. Defendant does argue – and I agree – that plaintiff cannot establish a prima facie failure-to-hire claim because he was not qualified for the position. Id. at 10-13. Nor has he proffered admissible evidence of circumstances that would permit a rational finder of fact to infer a discriminatory motive. Id. at 13-17.
A. Plaintiff Was Not Qualified
Under the McDonnell Douglas framework, a "plaintiff must prove by a preponderance of the evidence that [he] applied for an available position for which [he] was qualified." Burdine , 450 U.S. at 253, 101 S.Ct. 1089. A plaintiff who cannot show that he was eligible for the position sought cannot establish a prima facie case under Title VII. See Velez v. SES Operating Corp. , 2009 WL 3817461, at *8 (S.D.N.Y. Nov. 12, 2009) ("the plaintiff [must] establish basic eligibility for the position at issue" in order to make out a prima facie case of discrimination) (internal quotation marks omitted); Coger , 143 F. App'x at 374 (upholding grant of summary judgment to defendant where plaintiff "failed the 1995 oral exam," which was "a necessary qualification to being hired for the position of Trooper Trainee"); Nguyen , 169 F. Supp. 3d at 387 ("Where a plaintiff cannot show that he was eligible for the position sought, he fails to make a prima facie case under Title VII."); Williams v. R.H. Donnelley Inc. , 199 F. Supp. 2d 172, 177 (S.D.N.Y. 2002) (granting summary judgment where the plaintiff "was not qualified for the promotion"), aff'd , 368 F.3d 123 (2d Cir. 2004).
The Second Circuit has held that, "in determining whether a plaintiff has met his prima facie burden of demonstrating he was qualified for a position, ‘being ‘qualified’ refers to the criteria the employer has specified for the positions, and a plaintiff's subjective belief he is qualified will not suffice." Workneh v. Pall Corp. , 897 F. Supp. 2d 121, 131 (E.D.N.Y. 2012) (quoting Williams v. R.H. Donnelley Corp., 368 F.3d 123, 127 (2d Cir. 2004) ) (cleaned up). In the context of a New York State civil service position, the criteria specified by the employer includes the "rule of three," which mandates that "a candidate with a score below those of the three highest-scoring applicants cannot be selected as long as one of the top three scorers accepts the position." Nguyen , 169 F. Supp. 3d at 387 (granting summary judgment to Department of Corrections and Community Service because plaintiff's civil service exam score was not among the top three scores of those applying for the position).
In this case, it is undisputed that plaintiff's verified score on the SPE exam was a 90, and that, under the "rule of three," he was not "reachable," Nguyen , 169 F. Supp. 3d at 387 (that is, he could not have been hired for the Examiner of Municipal Affairs position) with that score. See Bernard Decl. ¶ 8 ("In practical terms, in order for Mr. Adeniji to have been eligible to be hired off the Civil Service list for a SPE position, his verified score on the SPE exam would have had to be at least 100."); Pl. Dep. Tr. at 177-78 (acknowledging his understanding that "if your score was less than a 100, the State Comptroller's Office could not hire you"); Bernard Reply Decl. ¶ 5 ("[O]nly applicants with a score of 100 or greater were hired for the SPE 1 position for which Mr. Adeniji applied."). The fact that plaintiff met the "minimum qualifications" to take the SPE exam, see Klein Reply Decl. Ex. A, at 1, does not mean that he was "qualified" for a position into which he could not have been hired without a top score on that exam. Similarly, the fact that a candidate with a score of 90 on a different civil service list might have been reachable for a different job, see Bernard Reply Decl. ¶¶ 3-5, is irrelevant to the question presented here, which is whether plaintiff was qualified for the job for which he interviewed. Since he was not, plaintiff "cannot establish a prima facie case of discrimination" with respect to the Examiner of Municipal Affairs job, Nguyen , 169 F. Supp. 3d at 387 (citing Orlando v. Dep't of Transp., Comm'r , 459 F. App'x 8, 9 (2d Cir. 2012) (summary order)), and defendant is entitled to summary judgment on this basis alone.
In this case, unlike Nguyen , plaintiff's exam score had not yet been verified in October 2016, when OSC declined to hire him, and hence the agency did not know whether plaintiff was "reachable" for the job. Although neither party raised the issue, I have considered whether plaintiff's verified score should be treated as "after-acquired evidence," inadmissible as to liability, because the verification process was not completed until April 2017. See McKennon v. Nashville Banner Publ'g Co. , 513 U.S. 352, 362-63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) (holding that an employer in a discrimination case may limit damages with after-acquired evidence of employee wrongdoing that would have furnished a nondiscriminatory reason for plaintiff's termination, but may not rely on that evidence to insulate itself from liability). Although the issue is not free from doubt, see Whalley v. Reliance Grp. Holdings, Inc. , 2001 WL 55726, at *4 n.1 (S.D.N.Y. Jan. 22, 2001) (suggesting that evidence unknown to the employer at the time of its hiring decision cannot be used to show that the plaintiff was not qualified for the position), in my view, McKennon does not neatly apply where, as here, the employer seeks to use new evidence in the first step of the McDonnell Douglas analysis, to show that the plaintiff cannot satisfy his prima facie case, rather than the second step, to show that it had a nondiscriminatory reason for its decision. As the Supreme Court explained in McKennon , an employer's use of after-acquired evidence to meet its step two burden is problematic because it "could not have been motivated by the knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason." 513 U.S. at 360, 115 S.Ct. 879. Here, OSC does not claim to have been "motivated" by plaintiff's verified score when it rejected his application. Rather, as Otto and Deiana explain, even if they had recommended plaintiff for a second interview, "OSC could not have made an employment offer to Mr. Adeniji," because "after OSC was finally able to verify the information Mr. Adeniji provided in his application, he did not score high enough on the New York Civil Service exam to qualify for the position at issue." Otto Decl. ¶ 23; Deiana Decl. ¶ 16. Consequently, the after-acquired evidence rule does not render plaintiff's verified score inadmissible with respect to the issue of his qualifications.
B. Plaintiff Fails to Raise an Inference of Discrimination
"[T]here is no unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision" Chertkova v. Conn. Gen. Life Ins. Co. , 92 F.3d 81, 91 (2d Cir. 1996). A plaintiff can support such an inference by (a) "demonstrating that similarly situated employees of a different race or national origin were treated more favorably," (b) "showing that there were remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus," or (c) "proving that there were other circumstances giving rise to an inference of discrimination on the basis of [the] plaintiff's race or national origin." Gelin v. Geithner , 2009 WL 804144, at *15 (S.D.N.Y. Mar. 26, 2009) (citations and internal quotation marks omitted), aff'd , 376 F. App'x 127 (2d Cir. 2010). However, "[c]onclusory and speculative allegations will not suffice to demonstrate discriminatory intent." Nguyen , 169 F. Supp. 3d at 388 ; see also Goenaga v. March of Dimes Birth Defects Found. , 51 F.3d 14, 18 (2d Cir. 1995) (a discrimination plaintiff "may not rely simply on conclusory statements").
Nor may a plaintiff rely on his subjective "feelings and perceptions of being discriminated against" to defeat summary judgment. Ya-Chen Chen v. City Univ. of New York , 805 F.3d 59, 75 (2d Cir. 2015) ; see also Rosario v. Hilton Worldwide, Inc. , 2011 WL 336394, at *4 (E.D.N.Y. Jan. 24, 2011) (granting summary judgment to employer because plaintiff's "gut feelings, however genuine, do not allow for an inference of discrimination to be drawn"), aff'd sub nom. Rosario v. Hilton Hotels Corp. , 476 F. App'x 900 (2d Cir. 2012) (summary order); Adeniji v. Admin. for Child. Servs., NYC , 43 F. Supp. 2d 407, 424 (S.D.N.Y. 1999) ("plaintiff cannot satisfy his burden of proof by offers of speculative beliefs and gut feelings" (quoting Burrell v. Bentsen, 1993 WL 535076 at *10 (S.D.N.Y. Dec. 21, 1993) )), aff'd mem., 50 F.3d 3 (2d Cir. 1995). Though the burden of establishing a prima facie case is often described as "de minimis," a plaintiff must nonetheless show, through admissible evidence, "circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." Chambers , 43 F.3d at 38.
Plaintiff Adeniji has failed to do so. First, there is no evidence that similarly situated applicants who were not African-American were treated more favorably than plaintiff. To the contrary: it is undisputed that from January 2016 through May 2017, OSC hired 26 African-American applicants for auditing positions similar to the position for which plaintiff interviewed in October 2016. Def. 56.1 St. ¶ 40; Bernard Decl. ¶ 15 & Ex. K. In his Amended Complaint, plaintiff alleged that this figure "illustrates discriminatory animus towards African Americans in the hiring process," because OSC had "thousands" of employees. Am. Compl. at ECF page 12, ¶ 21. However, the total number of new hires into those auditing positions during the same 16 months was 128, Def. 56.1 St. ¶ 40; Bernard Decl. ¶ 15 & Ex. K, meaning that 20.3% of the new hires were African-American. Similarly, of the seven applicants who were offered and accepted employment as Examiners of Municipal Affairs from October 2016 through June 2017 – the precise position for which plaintiff applied – two (28.5%) were African-American. Def. 56.1 St. ¶ 44; Hotaling Decl. ¶ 4. The statistical evidence thus undermines any suggestion of invidious discrimination in hiring at OSC. See Wright v. Jewish Child Care Ass'n of N.Y. , 68 F. Supp. 3d 520, 527 (S.D.N.Y. 2014) ("Courts have found that a showing that a workplace contains ‘substantial racial diversity among the employees comparable to Plaintiff [can] negate any inference of discrimination that otherwise might have been created.’ " (quoting Liburd v. Bronx Lebanon Hosp. Ctr., 2009 WL 900739, at *5 (S.D.N.Y. Apr. 3, 2009) aff'd, 372 F. App'x 137 (2d Cir. 2010) (summary order))).
One of the successful candidates was Hispanic, one was Asian-American, and three were Caucasian. Hotaling Decl. ¶ 4. Plaintiff makes no showing that he was better-qualified or presented a stronger candidacy than any of them. See Cincotta v. Hempstead Union Free Sch. Dist. , 313 F. Supp. 3d 386, 411-12 (E.D.N.Y. 2018) ("[t]he fourth element requires the plaintiff to ‘show [ ]he was similarly situated in all material respects to the individuals with whom [ ]he seeks to compare h[im]self’ ") (quoting Graham v. Long Island R.R. , 230 F.3d 34, 39 (2d Cir. 2000) ).
Second, in his summary judgment papers, plaintiff identifies no admissible evidence of discriminatory animus on the part of Otto or Deiana. Rather, he advances the "bald assertion," Perez v. de la Cruz , 2013 WL 2641432, at *7 (S.D.N.Y. June 12, 2013), that he "was not recommended for [a second] interview because of [his] race," Def. 56.1 St. ¶ 21, backed only by his claim that he could "feel the rejection based on their body language" before any words were exchanged in the interview room, and his supposition that they were "looking for a white candidate" because Newburgh "is a predominately white neighborhood." Id. These statements, in which plaintiff offers his "speculative beliefs and gut feelings" in place of admissible evidence, Adeniji v. Admin. for Child. Servs. , 43 F. Supp. 2d at 424, are "not sufficient to overcome ... a motion for summary judgment." Nguyen , 169 F. Supp. 3d at 384 (quoting Perez , 2013 WL 2641432, at *7 ).
Significantly, plaintiff appears to have abandoned the more specific claim, alleged in his pleading, that his interviewers made two unprompted comments about race during the October 6, 2016 interview. See Am. Compl. at 10 ¶¶ 6-8 (alleging that "one of the employees" who interviewed plaintiff (i) stated that Newburgh "was a predominately white neighborhood" and (ii) commented that she was "surprised" that plaintiff was not Japanese because he had "a typical Japanese surname"). When considering defendant's motion to dismiss the Amended Complaint, I concluded – and Your Honor agreed – that "dismissal at this early stage" was "unwarranted" because these comments, if made, "may be indicative of discriminatory animus in the hiring process." Adeniji v. New York State Off. of State Comptroller , 2019 WL 4171033, at *4. However, plaintiff does not mention the alleged remarks in his summary judgment papers. The Court may therefore deem the claim abandoned. See Turner v. Sidorowicz , 2016 WL 3938344, at *4 (S.D.N.Y. July 18, 2016) (deeming claim abandoned where pro se plaintiff, who had shown that he was "capable of opposing motions, submitting evidence, and communicating issues with the Court," did not address it in his papers opposing summary judgment); Hayes v. Cty. of Sullivan , 853 F. Supp. 2d 400, 418 (S.D.N.Y. 2012) (where pro se plaintiff alleged that he was scalded by a jail shower in his complaint, but failed to "address this claim in either of his affidavits in response to Defendants’ motions for summary judgment, the Court deems him to have abandoned the claim"); Smith v. New York City Dep't of Educ. , 2011 WL 5118797, at *6 n.8 (S.D.N.Y. Oct. 28, 2011) (concluding that pro se plaintiff, who "only argues against the dismissal of [his] First Amendment claim," had "thereby abandoned the remainder of his claims," entitling defendants to summary judgment); Cobian v. City of New York , 2006 WL 212292, at *3 (S.D.N.Y. Jan. 24, 2006) (where pro se Title VII plaintiff "focus[ed] her opposition to summary judgment exclusively on her termination and fail[ed] to articulate the facts relevant to any other potential claims," she "has abandoned" her other claims, entitling defendants to summary judgment).
Plaintiff's responding Rule 56.1 statement includes a section entitled, "Additional Material Facts Supported by Admissible Evidence." However, the only evidence he identifies in that section is the online SPE exam announcement that he quotes throughout his papers. Pl. 56.1 St. at 22.
Even if the two alleged remarks are not wholly disregarded, the evidence concerning them is both vague and skimpy. At deposition, although plaintiff could describe both of his interviewers, he could not identify which of them made the comments, see Pl. Dep. Tr. at 26-27, and offered no further details as to the comments themselves. Both Otto and Deiana attest that they did not make those remarks, "or anything even approximating them," adding that they were not "personally familiar" with Newburgh's demographics and so "had no basis or reason to comment on them." Otto Decl. ¶ 15; Deiana Decl. ¶ 8. Moreover, although plaintiff speculated at deposition that "the two interviewer people keep going back and forth to the HR" to lower his exam score, id. at 178; see also Bernard Decl. Ex. A, at 6 (alleging that the interviewers "manipulated my record from 100 to 70") he ultimately conceded, under oath, that he had "no idea" whether either of them had any role in scoring his exam. Pl. Dep. Tr. at 179. They did not. Otto Decl. ¶ 23; Deiana Decl. ¶ 15.
According to the United States Census, Newburgh is 50.3% "Hispanic or Latino," 24.5% "Black or African American, alone," 21.4% "White alone, not Hispanic or Latino," and 4.9% "Two or More Races." See https://www.census.gov/quickfacts/newburghcitynewyork (last visited July 21, 2021).
Third, any inference of discriminatory animus is further undercut by the findings of the SDHR, which, although "not binding on a trier of fact," are "admissible as evidence under Fed. R. Evid. 803(8)(A)(iii) as ‘factual findings from a legally authorized investigation’ by a public office." Cortes v. MTA New York City Transit , 802 F.3d 226, 232 (2d Cir. 2015) ; see also Olsen v. Stark Homes, Inc. , 759 F.3d 140, 158 (2d Cir. 2014) (noting that Rule 803(8) "renders presumptively admissible not merely ... factual determinations in the narrow sense, but also ... conclusions or opinions that are based upon a factual investigation") (quoting Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir. 2000) ); Orellana v. Reiss Wholesale Hardware Co. , 2016 WL 4480720, at *1 n.3 (E.D.N.Y. June 8, 2016) (relying on findings of City Commission on Human Rights as admissible evidence in support of summary judgment), report and recommendation adopted, 2016 WL 4480962 (E.D.N.Y. Aug. 23, 2016). Here, the SDHR investigation established, to the agency's satisfaction, that "[plaintiff] was not selected for advancement in the interview process for an SPE position based on his application materials and interview performance," that his exam scores were later lowered "for legitimate nondiscriminatory reasons," and that there was "no evidence" that OSC's actions "were motivated by a discriminatory animus." Bernard Decl. Ex. L., at 1-2.
At the summary judgment stage, the fourth prima facie factor requires the court to consider all of the proffered evidence bearing on the presence – or absence – of a discriminatory motive, and to determine whether that evidence, taken as a whole, shows "circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." Cronin v. Aetna Life Ins. Co. , 46 F.3d 196, 204 (2d Cir. 1995) (quoting Chambers , 43 F.3d at 38 ); see also, e.g. , Liburd , 2009 WL 900739, at *5 (granting summary judgment in race and sex discrimination case where, even though plaintiff's supervisor referred to her with the epithet "black ass," his conduct did not "raise an inference of discrimination" when considered in light of all of the "circumstances surrounding plaintiff's termination," including the "good relationship" between plaintiff and that supervisor over a number of years and undisputed evidence showing that "the demographic makeup of Defendants’ workforce is overwhelmingly racially diverse"); Nguyen , 169 F. Supp. 3d at 388 (remarks made during plaintiff's job interview concerning the Vietnamese language and Vietnamese cooking did not raise an inference of anti-Vietnamese discrimination, so as to defeat summary judgment, where, among other things, plaintiff failed to show that he was more qualified than the successful (non-Asian) candidates); Hodge v. Columbia Univ. in City of New York , 2008 WL 2686684, at *18 (S.D.N.Y. July 2, 2008) (concluding that, given "the paucity of Hodge's evidence" and the admissibility of a prior arbitration decision that went against the plaintiff, "no rational jury could find that he has satisfied the elements required for a claim under ... Title VII").
Here, as in Liburd , there is undisputed evidence of substantial racial diversity among OSC's SPEs, including those hired during the period of plaintiff's application. In addition, the Court now has the findings and conclusions of the SDHR, as well as undisputed evidence that the two LGSA auditors who interviewed plaintiff had no involvement with the verification of his exam scores. Taken as whole – with or without plaintiff's disputed testimony that one of his interviewers thought his name was Japanese and described Newburgh (inaccurately) as "predominately white" – the evidence now before the Court would not permit a "rational finder of fact" to discern a discriminatory motive behind OSC's failure to hire plaintiff. For this reason as well, plaintiff "cannot establish a prima facie case of discrimination," Nguyen , 169 F. Supp. 3d at 387, entitling defendant to summary judgment.
C. Defendant Has Presented Legitimate, Non-Discriminatory Reasons for its Hiring Decision, Which Plaintiff Has Failed to Counter
Even if plaintiff had carried his burden with respect to all four prongs of the prima facie case analysis, defendant would be entitled to summary judgment, because it has proffered three legitimate, non-discriminatory reasons for its decision not to hire plaintiff: his history of frequent job changes, the significant inconsistencies between the two versions of his resume submitted to OSC, and his poor writing sample. Otto Decl. ¶¶ 15-22; Deiana Decl. ¶¶ 11-15.
In response, plaintiff is unable to identify any evidence tending to show that those reasons were pretextual, nor that "the real reason" was racial discrimination. Hicks , 509 U.S. at 515, 113 S.Ct. 2742. Instead, he admits that he had difficulty holding a job (blaming his chequered work history on racism), Pl. 56.1 St. ¶ 24; admits that the two resumes he submitted to OSC showed wildly differing dates for some of his prior jobs (blaming the inconsistencies on his computer), id. ¶ 25; and admits that his writing sample was poor (arguing that his academic degrees should be sufficient "qualifications for the position" and that "[a] writing test should not override" those qualifications). Id. ¶ 29. Given the striking deficiencies in plaintiff's application materials – for a professional position requiring lengthy training, careful attention to detail, and the ability to "[p]repare written documents that are clear, concise, well organized, adequately summarized and use appropriate tone and grammar," Otto Decl. Ex. C – I conclude that no rational juror could reject defendant's compelling explanation for its decision in favor of plaintiff's "feelings and perceptions of being discriminated against." Ya-Chen Chen , 805 F.3d at 75. In short, even if plaintiff could establish a prima facie case of discrimination, defendant has effectively rebutted it, requiring plaintiff to prove that the decision not to hire him was "more likely than not based on discrimination." Orellana , 2016 WL 4480720, at *8. Because there is no evidence in the record from which he could do so, defendant is – for this reason as well – entitled to summary judgment. IV. CONCLUSION
After an assiduous review of the record, which I have construed in the light most favorable to plaintiff Adeniji, I have been unable to identify any admissible evidence that would enable a rational fact-finder to conclude either that plaintiff was "qualified for the job for which he applied" or that "the denial occurred under circumstances that give rise to an inference of invidious discrimination." Vivenzio , 611 F.3d at 106. Nor has plaintiff adduced any admissible evidence "sufficient to permit a rational finder of fact to infer that the employer's proffered reason[s] [are] pretext for an impermissible motivation." Id . I therefore recommend, respectfully, that defendant's summary judgment motion be GRANTED and that this action be DISMISSED.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Lewis A. Kaplan at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Kaplan. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review . See Thomas v. Arn , 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Frydman v. Experian Info. Sols., Inc. , 743 F. App'x 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C. , 596 F.3d 84, 92 (2d Cir. 2010).