Summary
noting that there is no bright line defining the outer limits beyond which temporal proximity is too attenuated, but holding that in any event eleven months is too long
Summary of this case from DOUGLAS v. HIP CENTRALIZED LABORATORY SERVICES, INC.Opinion
01-CV-0546E(Sc)
February 2, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff commenced this action July 31, 2001 pursuant to, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination In Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), alleging that various defendants had (1) discriminated against him because of his race and age and (2) retaliated against him for complaining to the Equal Employment Opportunity Commission ("EEOC"). Defendant Potter now moves for summary judgment dismissing plaintiff's Complaint. For the reasons stated hereinbelow, defendant's motion will be granted.
Plaintiff subsequently stipulated to a withdrawal of all of the defendants in this action except John E. Potter who is the Postmaster General of the United States Postal Service. In addition, plaintiff withdrew all of his causes of action except for his Title VII and ADEA claims.
The following facts, construed in plaintiff's favor, are undisputed unless otherwise noted. Plaintiff, an African American, was hired by the United States Postal Service ("USPS") in May 1985 to work as a letter carrier. Plaintiff, who is now sixty-three years old, was hired by the USPS to work out of its Buffalo, N.Y. General Mail Facility. In 1996, the USPS implemented a program for training new supervisors known as the Associate Supervisor Program ("ASP"). In March 1997, the USPS issued a Vacancy Announcement for an Associate Supervisor in the Buffalo Facility. The position was open to "all qualified career employees who work or reside within 50 miles of the Buffalo [office], with one year of continuous service." Def.'s Ex. A-2. An employee applying for the Associate Supervisor position had to, inter alia, submit, along with an application, an essay pertaining to six different skill types, known as knowledge, skills and abilities essays ("KSAs"). In addition, employees competing for the position had to submit supervisor evaluation forms and take math and reasoning examinations. Plaintiff applied for the Associate Supervisor position in March 1997 by completing all the necessary forms and subsequently taking the applicable examinations. Plaintiff's tests, as well as the tests of all the other candidates, were scored by the National Test Administration Center in Washington. The KSAs were scored by a local review committee ("the Committee"), which consisted of various supervisory employees. In scoring the KSAs, the Committee was instructed to use a booklet entitled Associate Supervisor Review Committee Guidelines for All Applicants ("Guidelines"). These Guidelines provided scoring benchmarks for ratings of strong, minimally qualified or not qualified for each candidate. Each KSA essay was graded on a scale from 0-3. Applicants' KSAs were graded separately by each Committee member. A final rating on each individual KSA was then determined by averaging the five separate scores. After the KSAs were graded and tabulated, each candidate was given an overall rating of strong, minimally qualified or not qualified according to the Guidelines. Only those candidates that received at least a strong rating and passed the applicable examinations were preliminarily considered for an interview. The Committee initially rated plaintiff as strong. In addition, plaintiff passed the reasoning and math examinations. The Committee further scrutinized plaintiff's application, as well as the other remaining candidates who survived the initial competitive phase, by evaluating his "suitability criteria." In facilitating such an evaluation, Donna M. Chichester, who was manager of customer services for the USPS in Rochester, N.Y. and ASP Coordinator for Western New York, stapled to the back of each candidate's application a record of each candidate's sick leave balance, labor relations file and safety record. An applicant's safety record was evaluated according to the number and frequency of accidents with which he had been involved and whether any such accidents had cost the USPS money. In accordance, an accident history template was developed and created to interpret each candidate's safety history. Plaintiff's final rating was reduced from strong to "minimally qualified" based on his safety record. Chichester Aff. ¶¶ 23-24. Plaintiff's accident history template showed that he had three reportable industrial accidents — i.e., accidents that resulted in costs to the USPS — in the previous five years. Def.'s Ex. A-9. The Committee subsequently informed plaintiff, on June 10, 1997, that he was not selected for an interview. Out of a total of ninety-eight candidates, twenty-four were selected for interviews. Of those selected, eleven were at least forty years of age. Pl's Ex. 2. None of the twenty-four candidates who were selected for an interview had three or more reportable accidents.
Such skills were Leadership, Decision-Making, Human Relations, Communications, Safety and Labor Relations. Def.'s Ex. A-3.
The Committee comprised David Patterson, Margaret Barkowski, Christopher Stewart, Anthony Mazurkiewicz and Anthony Pacella.
A score of 0, 1, 2 and 3 corresponded with rating of, respectively, "no demonstration," "minimal demonstration," "strong" and "excellent."
Defendant has submitted a summary of the Committee's individual ratings for each applicant. Def.'s Ex. A-4.
Defendant has submitted a list of each candidate's final ratings as determined by the Committee. Def.'s Ex. A-5.
The suitability criteria were developed by the Committee and consisted of an evaluation of each candidate's labor relations history, sick leave balance and safety record for the previous five years.
A labor relations file indicated whether a candidate had ever been disciplined.
Such costs being measured in terms of whether an accident caused the employee to either be restricted to limited duty or lose time from work.
As opposed to a non-reportable accident, a reportable accident is one which results in an employee being limited in his duties because he is either no longer able to perform the full functions of his job or he is rendered disabled, thereby receiving workers' compensation benefits.
Plaintiff disputes that he had three reportable accidents during the relevant time period. Plaintiff asserts that, although there are three such accidents listed on the safety report template, one such accident was actually a recurrence of an injury that occurred from a previous accident. Pl's Statement of Facts 12; Jones Aff. ¶ 11. However, an examination of the evidence shows that plaintiff had completed three separate accident reports. See Def.'s Exs. B-2, 3, 4 and 5.
Plaintiff asserts that only eight of the twenty-four were "over the age of forty." Pl's Statement ¶ 1. The Court can only speculate that the source of plaintiffs confusion is due to defendant's use of the phrase, "over the age of forty," and the fact that two of the selectees had been forty years of age at the relevant time. However, an examination of plaintiff's own evidence reveals that eleven of the employees were at least forty years of age. Pl's Ex. 2.
Plaintiff subsequently filed a July 21, 1997 Information for Precomplaint Counseling with the USPS's EEO Office asserting that defendant had discriminated against him because of his race and age and that defendant had retaliated against him for his previous EEO activity by not selecting him to interview for the Associate Supervisor position. Def.'s Ex. C-5. Plaintiff subsequently filed a formal EEO complaint on September 29, 1997. After an administrative hearing, the ALJ ruled that plaintiff had not shown that his nonselection for an interview was based on discriminatory criteria. Def.'s Ex. C-7. Plaintiff received a Right to Sue letter on May 2, 2001.
Plaintiff had previously filed two EEO complaints. On October 29, 1991 plaintiff filed an EEO complaint alleging that defendant discriminated against him because of his race and age after he was not selected for another supervisory position. A hearing was held before an EEOC Administrative Law Judge ("ALJ") who found that plaintiff had failed to establish such claims. Def.'s Ex. C-l. The USPS adopted the findings of the EEOC and subsequently issued a final decision that plaintiff had not been discriminated against. Def.'s Ex. C-2. Plaintiff filed a second EEO complaint, on July 19, 1996, alleging that defendant discriminated against him because of his race, age and disability. Def.'s Ex. C-3. The USPS subsequently issued a final decision, wherein it was found that plaintiff had not proven his claims of discrimination. Def.'s Ex. C-4.
Plaintiff subsequently commenced the present action alleging that defendant had failed to interview him for the ASP because of his age and race and in retaliation for his previous EEO complaints. In addition, plaintiff alleges that the USPS engaged in a pattern and practice of discrimination because the criteria for selecting candidates for the ASP effectively excludes minorities and employees who are over the age of forty. Compl. ¶¶ 36-37.
FRCvP 56(c) provides that summary judgment shall be entered where the movant demonstrates 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate, this Court must draw all factual inferences in favor of the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzerv. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("Conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact."). Furthermore, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, at 322.
Of course, the summary judgment standard applies with equal force to discrimination cases as it does in other cases. See Ashton v. Pall Corp., 32 F. Supp.2d 82, 87 (E.D.N.Y. 1999) ("[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation."). However, courts must be aware of the fact that evidence of discrimination is rarely overt. See Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999) ("[E]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law."). In addition, courts must "also carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Ibid. Thus, the issue for the court is "whether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances." Ibid.
ADEA and Title VII claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. Terry v. Ashcroft, 336 F.3d 128, 137-138 (2d Cir. 2003). Under the McDonnell Douglas framework,
Section 633a(a), which govern agencies of the federal government, provides in relevant part that "[a]ll personnel actions affecting employees *** who are at least 40 years of age *** shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a).
See also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff"); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 n. 3 (1993) (discussing the burden-shifting analysis established in McDonnell Douglas and construed in Burdine).
See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying McDonnell Douglas framework in ADEA context); Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (same); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (same).
"a plaintiff must first establish a prima facie case of age [or race] discrimination. Once the plaintiff has made out a prima facie case, the employer is required to offer a legitimate, nondiscriminatory business rationale for its actions. If the employer articulates such a reason, the presumption of *** discrimination dissolves, and the burden shifts back to the plaintiff to prove that the employer's stated reasons are merely pretextual and that age [or race] discrimination was the true reason for the adverse employment action." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citations omitted).
In establishing a prima facie case of age discrimination, Jones must show that "(1) he is a member of the protected class; (2) he is qualified for his position; (3) he has suffered an adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of age discrimination." Id. at 466-467 (citing McDonnell Douglas, at 802). Similarly, to establish a prima facie case of race discrimination, plaintiff must show that "(1) he belonged to a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Terry, at 138. Plaintiff's burden in establishing each respective prim a facie case is de minimis. Abdu-Brisson, at 467. Under either statute, once the defendant has articulated a nondiscriminatory reason for the complained of action, "to defeat summary judgment the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Terry, at 138 (quotation marks and citation omitted).
In discussing plaintiff's age discrimination claim, defendant erroneously contends that the fourth prong "may be satisfied by `a showing that the plaintiff's position remained open after he was discharged, or that he was replaced by someone outside his protected class.'" Def.'s Mem. of Law, at 8 (quoting Tarshis v. Riese Org., 211 F.3d 30, 36 (2d Cir. 2000)). Whether plaintiff was replaced by someone outside the protected class is irrelevant with regard to plaintiff's prima facie ADEA claim. See O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996) (discussing the reasons why "the fact that an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case"). Furthermore, the quoted language from Tarshis is from the Court of Appeals' discussion regarding a Title VII claim rather than an ADEA claim.
Defendant concedes that plaintiff can show the first three prongs of both claims but argues that he cannot satisfy the fourth prong of either his race or his age discrimination claim. To satisfy the fourth prong, plaintiff must show that his non-selection for the ASP occurred under circumstances that give rise to an inference of age or race discrimination.
The Court will first address plaintiff's ADEA claim. Plaintiff has satisfied his minimal burden in establishing a prima facie case of age discrimination. Defendant argues that plaintiff has failed to satisfy the fourth prong of his age discrimination claim "because half of those selected for an ASP interview were over the age of 40 ***." Def.'s Mem. of Law, at 9. However, defendant's differentiation among employees who were at least forty years old and those who were not is of little probative value. Plaintiff need not show that he was denied promotion in favor of someone who is not within the protected class — i.e., someone who is less than forty years of age — to establish a prima facie case of age discrimination. Plaintiff need only show that such a denial was due to his age and the fact that an employee, or a group of employees as in this case, were significantly younger than him may serve evidence in support of such a claim. See O'Connor, supra note 19, at 312 ("The fact that one person in the protected class has lost out to another person in the protected class is *** irrelevant, so long as he has lost out because of his age"). Plaintiff has satisfied the fourth prong of his prima facie age discrimination claim because the average age of those chosen for an interview was thirty-eight. In comparison, plaintiff was fifty-six years of age at the time and was the oldest among all of the candidates. Such evidence is enough to show circumstances that give rise to an inference of age discrimination. See Tarshis, supra note 19, at 38 (holding that sixty-seven year old plaintiff had satisfied the fourth element of his ADEA claim by showing that he was replaced by a person who was eight years younger), abrogated on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); see also Hollander v. Am. Cyanamid Co., 172 E3d 192, 199 (2d Cir. 1999) (holding that the replacement of plaintiff by two others — one eleven years younger and the other eight months younger — satisfied the fourth element of plaintiff's prima facie case under the ADEA).
The evidence shows that only eleven out of the twenty-four selected candidates were forty years of age or older. See Pl's Statement of Facts, Ex. 2.
Plaintiff has also satisfied the fourth prong of his prima facie race discrimination claim under Title VII. The fourth prong of plaintiff's Title VII claim may be satisfied by his showing that defendant "treated him less favorably than a similarly situated employee outside his protected group." Graham v. Long Island R.R., 230 E3d 34, 39 (2d Cir. 2000). The comparable employee must be similarly situated "in all material respects." Shum way v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). Plaintiff contends that Michael Schneider was a similarly situated white applicant who was treated more favorably than himself. Plaintiff asserts that Schneider was selected for an interview for the ASP despite the fact that, like himself, he had had three accidents within the previous five-year period on his safety record. Defendant argues that plaintiff was not similarly situated to Schneider because plaintiff had three reportable accidents resulting in costs to the USPS while Schneider had had no accidents which resulted in costs to the USPS. Def.'s Mem. of Law, at 16.
"[I]n order to be similarly situated, other employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff's, without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it." Visco. v. Cmty. Health Plan, 957 F. Supp. 381, 389 (N.D.N.Y. 1997).
The Court finds that plaintiff has shown that he was similarly situated to Schneider for purposes of establishing his prima facie case. Both plaintiff and Schneider had had three accidents that were listed on their safety reports. The only difference between the two candidates that defendant can identify is the fact that all three of plaintiff's accidents resulted in limited duty or lost time — thereby costing the USPS money — while Schneider's accidents resulted in no such lost time or costs. Such a differentiation however is more relevant to the issue of the credibility of defendant's legitimate, non-discriminatory reason for selecting Schneider instead of plaintiff rather than the issue of whether the two were similarly situated. In addition, plaintiff has arguably satisfied the fourth prong merely by the fact that Schneider was selected for an interview while he was not. See Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (citing Tarshis, at 36) (holding that preference for "someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis"). Thus, the Court finds plaintiff has satisfied his de minimis burden in establishing a prima facie case of race discrimination. Plaintiff however cannot survive defendant's summary judgment motion because he cannot show that defendant's legitimate, non-discriminatory reason for not selecting him for an interview was pretextual.
See note 19.
Defendant has offered a legitimate, nondiscriminatory reason for not selecting plaintiff for an interview for the ASP Defendant asserts that plaintiff was not selected for an interview because of his poor safety record, which consisted of three reportable accidents in the previous five-year period. Plaintiff has not raised any genuine issues of material fact showing either that such a reason was pretextual or due to his age or race.
Plaintiff offers the following evidence that purportedly shows that defendant's stated nondiscriminatory reason is pretextual and that his non-selection for an interview fo the ASP position was due to his age and race. First, plaintiff argues that the suitability criteria used by the Committee to disqualify him from consideration for an interview was wholly subjective. Pl's Mem. of Law, at 7-8. Plaintiff argues that the use of such subjective criteria by the Committee as a determinative factor in selecting candidates for promotion is indicia of pretextual discrimination. Second, plaintiff points to the fact that he was selected as a Safety Captain in March 1998, which was less than one year after he was not selected for an interview based on his purportedly poor safety record. Id. at 8-9. Third, plaintiff contends that he was more qualified than some of the applicants who were selected for an interview. Id. at 9-10. Fourth, plaintiff asserts that although he "applied for approximately 50 promotions in 12 years of service with the USPS *** [he] was never selected for promotion." Id. at 10. Finally, plaintiff alleges that sometime in 1991 his former supervisor, Gilbert Verrastro, told him that "Pacella made the statement that I would never get promoted to supervisor as long as Pacella was a selecting official." Jones Aff. ¶ 17. Plaintiff argues that all of the above-mentioned evidence is sufficient to raise a genuine issues of material fact that defendant's proffered reason for not selecting him for an interview is false and that the real reason was due to his age or race. The Court disagrees.
See also Jones Dep. — Pl's Ex. 10 —, at 144-145 (testifying that Verrastro said that "because of who you are, you're never going to get promoted to a supervisor position because Tony [Pacella] *** does not like African-Americans"). Plaintiff also stated that he was told by Verrastro that he would never be selected to be a supervisor as long as Tony Pacella was responsible for making such selections. Ibid.
To begin, the Committee's evaluation and use of the suitability criteria was not wholly subjective. The suitability criteria, including each candidate's safety record, was evaluated according to objective criteria — viz., the number and frequency of accidents and whether such accidents cost the Postal Service money. Such criteria are objectively quantifiable. The subjective component to the Committee's evaluation is the fact that it apparently had no set, or predetermined, numbers regarding each candidate's frequency of accidents or costs to the USPS. Thus, the Committee can point to no set of guidelines for differentiating a poor versus a good safety record. In any event, the Committee had determined that plaintiff's rating should be downgraded because he had three reportable accidents in the previous five years. Thus, the Committee's reason may be considered partially subjective inasmuch as it relied on objective data in downgrading plaintiff's rating to minimally qualified. However, assuming such subjectivity, plaintiff has failed to offer any credible evidence that plaintiff's reliance on plaintiff's safety record was pretextual. Plaintiff has failed to show that the criteria were applied inconsistently among the candidates. In addition, plaintiff cannot solely rely on the fact that the Committee's decision to downgrade his rating was based in part on subjective criteria. "[T]here is nothing unlawful about an employer's basing its hiring decision on subjective criteria," so long as the employer's explanation of its reasons are "clear and specific in order to afford the employee a full and fair opportunity to demonstrate pretext." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104-105 (2d Cir. 2001) (quotation marks and citation omitted); see also id. at 105 ("Where an employer's explanation, offered in clear and specific terms, is reasonably attributable to an honest even though partially subjective evaluation of qualifications, no inference of discrimination can be drawn.") (punctuation marks and citation omitted). Defendant has clearly and specifically stated his reason why plaintiff was not selected for an interview and plaintiff has failed to provide evidence or offer some plausible reason why defendant's stated reason is not worthy of credence. Second, plaintiff's evidence, which consists of his belief that he had better qualifications than other candidates who were selected for an interview and the fact that he had been selected for the position of Safety Captain, is insufficient to show pretext. Plaintiff bases his assertion that he was more qualified than any other of the selected candidates on the fact that none had as much supervisory experience as himself. However, selection for the ASP program was not based simply on experience but a variety of factors. In any event, plaintiff's subjective belief and assertion that he was more qualified for the position of Associate Supervisor does little to support an inference that defendant's decision not to select him for an interview was due to his age or race. See Hines v. Hillside Children's Ctr., 73 F. Supp.2d 308, 320 (W.D.N.Y. 1999) ("[A]n employee's opinion about his own qualifications does not suffice to give rise to an issue of fact about whether he was discriminated against, and that is particularly true where the employer's decision whether to promote plaintiff did not depend simply on whether he was qualified, but on whether he was the best candidate for the job.") (quotation marks and citation omitted). Moreover, although plaintiff was selected as a Safety Captain, he has failed to show that such a selection was based on the same, or even similar criteria, as the selection for the Associate Supervisor position. Third, plaintiff's assertion that he was never promoted by defendant despite his fifty applications during his twelve years of service is insufficient to raise an genuine issue of material fact that his non-selection in this instance was based on impermissible discrimination. There is no evidence that the Committee had any control in such decisions. Fourth, the 1991 Verrastro statement is not sufficient to support a reasonable inference that plaintiff was not selected for an ASP interview because of his race. Assuming the truth of such a statement, it was made six years prior to the relevant selection process. In addition, even if the Court construed such statement as evidence of racial animus by Pacella, there is no indication that he directly controlled whether plaintiff was selected for an interview. In fact, Pacella was one of five committee members and plaintiff has not alleged that any of the four other members of the Committee displayed any racial animus toward him. Finally, plaintiff's evidence is insufficient to raise an issue of triable fact regarding his disparate treatment claim because he cannot show that defendant's reason for selecting Schneider instead of him for an interview was pretextual. Plaintiff does not dispute that none of Schneider's three reported accidents resulted in limited duty or lost time from work and he has offered nothing credible to show that defendant's reliance on such a reason is pretextual. In addition, plaintiff cannot simply rely on the fact that Schneider was selected for an interview while he was not to show that the Committee's decision regarding plaintiff was based on race. In sum, plaintiff has failed to show that defendant's reliance on plaintiff's purportedly poor safety record — a legitimate, non-discriminatory reason for not selecting him for an ASP interview — was a pretext for either age or race discrimination.
Plaintiff does not refute defendant's contention that plaintiff volunteered for the position with any tangible evidence. Plaintiff merely asserts that he submitted his name for consideration and that was selected for the position without any explanation of the selection process. Plaintiff offers the names of no other employees who were also considered for the position and fails to show that the qualifications needed for the Safety Captain position were similar to the qualifications needed for the Associate Supervisor position.
Turning to plaintiff's retaliation claim, in order to establish a prima facie case, he must show "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging [him]; and (3) a causal connection between the protected activity and the adverse employment action." Terry, at 141 (quotation marks and citation omitted). Plaintiff contends that he was not selected for an interview in retaliation for filing previous EEO complaints. However, plaintiff cannot satisfy the third prong of his prima facie case because he not shown a causal connection between his EEO complaints and the defendant's decision not to select him for an ASP interview. Plaintiff may establish a causal connection either "indirectly by showing that the protected activity was followed by discriminatory treatment *** or directly through evidence of retaliatory animus." Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993) (quotation marks and citation omitted). The only purported direct evidence of discriminatory animus is Pacella's alleged statement that he made in 1991. However, such evidence does not support a causal connection between the Committee's decision to not select plaintiff for an interview and his prior EEO complaints. As discussed supra, the five-member Committee, rather than Pacella himself, caused plaintiff's rating to be downgraded. A causal connection may be "established indirectly by showing that the protected activity was closely followed in time by the adverse action." Reed v. A.W.Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996). Plaintiff's last EEO complaint was filed on July 19, 1996. The decision not to select plaintiff for an interview occurred in June 1997. While there is no bright-line rule defining the outer limits beyond which the temporal proximity is too attenuated for a plaintiff to establish a causal connection, the Court finds that the eleven-month period between the filing of plaintiff's last EEO complaint and the adverse employment action is too long to satisfy the applicable showing. See Nicastro v. Runyon, 60 E Supp.2d 181, 185 (S.D.N.Y. 1999) (citing cases for the proposition that "[c]laims of retaliation are routinely dismissed when as few as three months elapse between the protected EEO activity and the alleged act of retaliation"); James v. Newsweek, 1999 WL 796173, at *15 (S.D.N.Y. 1999) (holding that a gap of four months between the protected activity and the adverse actions was "insufficient to establish causation") (citing Hollander, at 84-85; Hollander, at 85-86 (finding a three-month period of time too long to establish a causal connection); Lambert v. N.Y. Office of Mental Health, 2000 WL 574193, at *13 (E.D.N.Y. 2000) (finding a five-month period of time too great to establish causation), aff'd, 2001 WL 1511777 (2d Cir. 2001); but see Suggs v. Port Auth. of N.Y. and N.J., 1999 WL 269905, at *6 (S.D.N.Y. 1999) (finding six-month period of time sufficient to raise an inference of retaliation); Stephens v. State Univ. of N.Y. at Buffalo, 11 F. Supp.2d 242, 250 (W.D.N.Y. 1998) (holding that a seven-month period of time was sufficient). Furthermore, plaintiff cannot show, for the reasons stated above, that defendant's legitimate, non-discriminatory reason for not selecting him for an interview was false and that retaliation was more likely than not the real reason for the adverse employment action. See Stephens, at 250 ("[T]o defeat the [summary judgment] motion plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not retaliation was the real reason for [the adverse employment action].") (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir 1996).
Plaintiff's citation to Bernhardt v. Interbank of New York, 18 F. Supp.2d 218, 226 (E.D.N.Y. 1998), in support of his argument that he has indirectly shown a causal connection is misplaced. In Bernhardt, the Court held that it could not declare as a matter of law that the eleven-month period that had elapsed between plaintiff's protected activity and defendant's adverse action was too long to show a causal connection. However, in doing so, the Court based its decision on the unique circumstances of that case. See id. at 226 (holding that the retaliatory action may have been delayed due to the nature of the employer's business). In any event, the Court also stated the eleven-month period of time "strongly" suggested the absence of a causal link. Ibid.
Finally, plaintiff's pattern and practice claim is without any evidentiary support. Plaintiff has failed to produce any evidence to show "systemic disparate treatment — that is, that intentional racial discrimination is the standard operating procedure of the defendant, not merely that there have been isolated, sporadic acts of disparate treatment." Lopez v. Metro. Life Ins. Co., 930 F.2d 157, 160 (2d Cir. 1991) (citing Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977)). Consequently, summary judgment will be granted with regard to plaintiff's pattern and practice claim.
Accordingly, it is hereby ORDERED that the defendant's motion for summary judgment is granted and that the Clerk of this Court shall close this case.