Vidal et al v. Metro-North Commuter Railroad Company
Filing
121
ORDER. For the reasons stated herein, Defendant's 108 Motion for Summary Judgment is GRANTED. The Clerk is directed to close the case. Signed by Judge Michael P. Shea on 8/6/2014. (Pomeroy, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROBERT VIDAL and HOLGER OCANA,
No. 3:12-cv-00248 (MPS)
Plaintiffs,
v.
METRO-NORTH COMMUTER RAILROAD
COMPANY,
Defendant.
MEMORANDUM OF DECISION
On February 17, 2012, Plaintiffs Holger Ocana and Robert Vidal (“Plaintiffs”) filed a
complaint against Defendant Metro-North Commuter Railroad Co. (“Defendant”) for violation
of Title VII of the Civil Rights Act of 1964, alleging disparate impact and disparate treatment on
the basis of color, ethnicity, and/or national origin.
Defendant has moved for summary
judgment. Because I find that Plaintiffs have abandoned their disparate impact claim, and have
failed to establish pretext in support of their disparate treatment claim, I GRANT Defendant’s
Motion for Summary Judgment and do not consider Defendant’s alternative argument for
summary judgment based on the doctrine of laches.
BACKGROUND
Plaintiff Ocana began working for Defendant in February 2001 as an electrician in the
Maintenance of Equipment Department. His national origin is Ecuadorian and his ethnicity is
Hispanic or Latin American. (Compl., ¶ 4.) Plaintiff Vidal began working for Defendant in
August 1999, also as an electrician in the Maintenance of Equipment Department. His national
origin is Dominican and he is black of color. (Id., ¶ 5.)
Defendant offers a Foreman-in-Training (“FIT”) program to employees who are
interested in being promoted to the position of foreman. (L.R. 56(a)1, ¶ 11; L.R. 56(a)2, ¶ 11.)
Plaintiffs’ Title VII claims focus on the selection process for the FIT program in 2006. To be
eligible for promotion to the FIT program, applicants were required to have a certain amount of
specific work experience. (Id.) Additional selection criteria included a review of past job
experience, attendance records, disciplinary history, and safety history, a written test to evaluate
basic knowledge, a structured panel interview, and performance appraisals from two types of
supervisors. (L.R. 56(a)1, ¶ 12; L.R. 56(a)2, ¶ 12; Promotion to Foreman Flyer (Def. Ex. 5).)
There is no cap on the number of applicants who can be admitted to the FIT program during any
given selection cycle. (L.R. 56(a)1, ¶ 19; L.R. 56(a)2, ¶ 19.)
Plaintiff Ocana had previously applied and been denied acceptance into the FIT program
in 2003, 2004, and both sessions that took place in 2005. (Pls. Opp. Mem. at 6.) Plaintiff Vidal
had previously applied and been denied acceptance into the FIT program in 2003, and one
session that took place in 2005.1 (Id. at 7.) In 2006, Plaintiffs each applied to the program and,
after passing the preliminary requirements, were allowed to proceed to the interview stage of the
process. (See L.R. 56(a)1, ¶¶ 14, 30, 45; L.R. 56(a)2, ¶¶ 14, 30, 45.) After Plaintiffs were
interviewed, and after the interviewers met together as a “consensus committee,” both Plaintiffs
were denied acceptance into the FIT program. (See L.R. 56(a)1, ¶¶ 80, 86; L.R. 56(a)2, ¶¶ 80,
86.) On June 22, 2006, Plaintiffs dual filed charges of discrimination against Defendant with the
Connecticut Commission on Human Rights and Opportunities (“CHRO”) and the Equal
Employment Opportunity Commission (“EEOC”).
(See Pls. Ex. 39 at 2; Compl., ¶ 8.)
Additional facts are set forth below in the Discussion section.
1
Plaintiff Vidal withdrew his February 2005 application before the interview stage. (Pls. Opp.
Mem. at 7.)
2
STANDARD
Under Fed. R. Civ. P. 56(a), a “court shall grant 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.” “While the court must view the inferences to be drawn from the facts in the light
most favorable to the party opposing the motion, 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.”
Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (internal quotation marks and citations
omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
DISCUSSION
In their complaint, Plaintiffs allege two different theories of employment discrimination
under Title VII of the Civil Rights Act – disparate impact and disparate treatment. (Compl.,
Count One at ¶ 26, Count Two at ¶ 27; Pls. Opp. Mem. at 2.) A “disparate impact” theory of
discrimination is separate from a “disparate treatment” theory of discrimination:
Th[e] [Supreme] Court has consistently recognized a distinction between claims
of discrimination based on disparate treatment and claims of discrimination based
on disparate impact. . . . [D]isparate treatment is the most easily understood type
of discrimination. The employer simply treats some people less favorably than
others because of their race, color, religion, sex, or other protected characteristic.
Liability in a disparate-treatment case depends on whether the protected trait
actually motivated the employer’s decision. By contrast, disparate-impact claims
involve employment practices that are facially neutral in their treatment of
different groups but that in fact fall more harshly on one group than another and
cannot be justified by business necessity. Under a disparate-impact theory of
discrimination, a facially neutral employment practice may be deemed illegally
discriminatory without evidence of the employer’s subjective intent to
discriminate that is required in a disparate-treatment case.
3
Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (internal quotation marks and citations
omitted).
Plaintiffs have waived their disparate impact claim. In their brief in response to the
motion for summary judgment, they included no analysis of disparate impact as a distinct claim,
treating the statistical data evidence they marshalled instead as part of their disparate treatment
claim.2 (Pls. Opp. Mem. at 25-26.) At the July 24, 2014 oral argument, Plaintiffs’ counsel
confirmed that he was asking the Court to consider Plaintiffs’ statistical evidence only in the
context of Plaintiffs’ disparate treatment claim.3 I therefore turn to consideration of Plaintiffs’
claim for disparate treatment, and will consider the statistical evidence in that context in Section
2
A disparate impact claim follows an analytical framework distinct from a disparate treatment
claim. Compare Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001),
abrogated on other grounds by Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) (disparate
impact claims subject to burden-shifting analysis requiring plaintiff to establish a prima facie
case, which often requires statistical proof that an identified practice or policy has resulted in a
disparity, and then requiring defendant to rebut plaintiff’s statistical proof or demonstrate that the
challenged practice or policy is consistent with business necessity; if defendant opts for the latter
option, then the burden shifts back to plaintiff to show the existence of an alternative that would
achieve the same business objective without a disparate impact), with McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973) (disparate treatment claims subject to three-step burden-shifting
analysis requiring plaintiff to establish prima facie case, then requiring defendant to put forth
legitimate, non-discriminatory reason, then requiring plaintiff to show pretext).
3
“THE COURT: Let’s move on to another issue. Are you making a disparate impact claim in
this case? ATTORNEY: Yes, your Honor. THE COURT: You didn't brief it from what I could
see. You talked about the issue of statistics only in the context of trying to show pretext, right?
ATTORNEY: Yes, your Honor. I think the idea was to tie that into the disparate impact
allegation of the complaint. THE COURT: Well, but disparate impact and disparate treatment
are two separate theories, as I’m sure you know. And you analyzed the statistics in connection
with the pretext argument which is part of a disparate treatment analysis, right? ATTORNEY:
Yes. THE COURT: I didn’t see anything in your brief analyzing a distinct disparate impact
claim. ATTORNEY: I’m not going to disagree with you on that, your Honor. . . . THE COURT:
I think you’re correct if what you’re saying is, look, you can consider statistics in the treatment
part. I think that’s right. Is that what you’re asking me to do? ATTORNEY: Yes, your Honor.
THE COURT: You’re not asking me to do a separate disparate impact analysis? ATTORNEY:
No.”
4
III.C. below. See Vuona v. Merrill Lynch & Co., Inc., 919 F. Supp. 2d 359, 374 (S.D.N.Y. 2013)
(in certain circumstances, statistics may be used to support a claim for disparate treatment).
A disparate treatment claim alleging a discriminatory failure to promote under Title VII
is analyzed using the McDonnell Douglas burden shifting framework, which first requires that
Plaintiffs establish a prima facie case. Aulicino v. New York City Dep’t of Homeless Servs., 580
F.3d 73, 80 (2d Cir. 2009). In the event that Plaintiffs meet that burden, the burden shifts to
Defendant to offer a legitimate, non-discriminatory reason for its actions. Id. If Defendant
meets that burden, Plaintiffs must “show circumstances that would 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.” Id. “The ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
I.
Prima Facie Case
“A plaintiff asserting a Title VII discrimination claim based on a failure to promote
establishes a prima facie case by showing that at the relevant time: (i) the plaintiff was a member
of a protected class; (ii) the plaintiff applied for and was qualified for the job; (iii) the plaintiff
was rejected for the position; and (iv) the rejection of the plaintiff’s application occurred under
circumstances giving rise to an inference of discrimination.” Lomotey v. Connecticut-Dep’t of
Transp., 355 F. App’x 478, 480 (2d Cir. 2009). Defendant does not dispute that Plaintiffs have
each satisfied the first and third prongs necessary to establish a prima facie case. (Def. Summ. J.
Mem. at 8.)
With respect to the second prong, “McDonnell Douglas requires only a minimal showing
of qualification to establish a prima facie claim” and a plaintiff “only needs to demonstrate that
5
[]he possesses the basic skills necessary for performance of the job.” Owens v. New York City
Hous. Auth., 934 F.2d 405, 409 (2d Cir. 1991) (internal quotations marks and citations omitted).
The Second Circuit has underscored the minimal nature of this showing:
[W]e have long emphasized that the qualification prong must not be interpreted in
such a way as to shift into the plaintiff’s prima facie case an obligation to
anticipate and disprove the employer’s proffer of a legitimate, non-discriminatory
basis for its decision. To show qualification sufficiently to shift the burden of
providing some explanation for discharge to the employer, the plaintiff need not
show perfect performance or even average performance. . . . The role of the
qualification prong is simple to help eliminate the most common
nondiscriminatory reasons for the plaintiff’s rejection.
Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) (internal quotations marks and citations
omitted); see also Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001)
(“[A]ll that is required is that the plaintiff establish basic eligibility for the position at issue, and
not the greater showing that he satisfies the employer. The qualification prong must not . . . be
interpreted in such a way as to shift onto the plaintiff an obligation to anticipate and disprove, in
his prima facie case, the employer’s proffer of a legitimate, non-discriminatory basis for its
decision.”)
There is no dispute that both Plaintiffs met the preliminary requirements for selection to
interview for the FIT program. (Def. Summ. J. Mem. at 8.) These preliminary requirements
included a review of Plaintiffs’ respective attendance records, disciplinary history, and safety
history, satisfactory completion of a written test, submission of an acceptable writing sample,
and completion of a personality test. (Promotion to Foreman Flyer (Def. Ex. 5); Kenwood Dep.
(Def. Ex 6) at 17-19.) Defendant argues that both Plaintiffs failed the interview portion of the
selection process, and were therefore unqualified for promotion to the FIT program. (Def.
Summ. J. Mem. at 9-13.) In doing so, Defendant attempts impermissibly to require Plaintiffs to
disprove Defendant’s proffered legitimate, non-discriminatory reasons as part of Plaintiffs’
6
prima facie case. Because Plaintiffs’ disparate treatment claim focuses on discrimination that
allegedly took place during the interview process, Defendant cannot use Plaintiffs’ poor
performance in that same interview process as the basis for disputing that Plaintiffs have
established a prima facie case. That Plaintiffs met the preliminary requirements for the FIT
interview demonstrates, almost in and of itself, that Plaintiffs had the basic skills necessary to
perform the job. A review of the record, including Plaintiffs’ statements during the interviews,
does not reveal anything that would disqualify Plaintiffs for the position. Compare Marlow v.
Office of Court Admin. of State of N.Y., 820 F. Supp. 753, 755 (S.D.N.Y. 1993) (plaintiff failed
to meet the qualification prong of a prima facie case due to “hostile and belligerent demeanor
during the interviews, his inappropriate dress of dirty, casual clothes, and comments which his
interviewers interpreted as racist”). Plaintiffs therefore satisfy the second prong of a prima facie
case.
As with the second prong, Plaintiffs need only make a minimal showing to establish the
fourth prong of a prima facie case:
Plaintiff’s burden in showing an inference of discrimination is de minimis. A
rational trier of fact need only to be able to infer that the decision was based in
part on discrimination. . . . Therefore, the admissible evidence need only be
sufficient enough to permit a jury to infer a discriminatory motive. This includes
circumstantial evidence. Evidence that a person outside of Plaintiff’s protected
class was offered the desired position is sufficient for a jury to infer a
discriminatory motive.
Johnson v. Connecticut, 798 F. Supp. 2d 379, 386-87 (D. Conn. 2011) (internal quotation marks
and citations omitted) (emphasis in original); see also Ellis v. Century 21 Dep’t Stores, 975 F.
Supp. 2d 244, 271 (E.D.N.Y. 2013) (fourth prong satisfied where female plaintiff provided
evidence that the promotion was offered to a man, an individual outside of her protected class).
Because all four of the individuals who were accepted to the FIT program in 2006 were
7
Caucasian and thus not part of Plaintiffs’ protected classes, Plaintiffs have satisfied the fourth
and final prong of their prima facie case. (See M of E Promotion to Foreman Program Data (Pls.
Ex. 36).)
II.
Legitimate, Non-discriminatory Reasons
Because Plaintiffs have each established a prima facie case, Defendant must offer a
legitimate, non-discriminatory reason for its decision not to promote Plaintiffs to the FIT
program. “The employer need not persuade the court that it was motivated by the reason it
provides; rather, it must simply articulate an explanation that, if true, would connote lawful
behavior.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). Defendant
proffers that it did not recommend either Plaintiff to the FIT program due to poor interview
performance and average performance evaluations.
(See Def. Summ. J. Mem. at 18-19.)
Plaintiffs concede that Defendant has set forth legitimate, non-discriminatory reasons for its
decision that are sufficient to shift the burden back to Plaintiffs to show pretext. (Pls. Opp.
Mem. at 24 (“In the instant case, the Defendant alleges that the Plaintiffs’ rejections resulted
from their interview performance, and to a lesser extent, the performance valuation scores they
received from superiors. Thus, the burden now falls to the Plaintiffs to demonstrate that this
proffered reason is merely pretext for illegal discrimination.”)
III.
Pretext
A. Relevant Legal Principles
In order to survive summary judgment, Plaintiffs must present some evidence that, when
viewed in the light most favorable to Plaintiffs, suggests that the stated non-discriminatory
reasons for Defendant’s decision not to accept Plaintiffs into the FIT program were “pretext” for
acting in a discriminatory manner; mere speculation or disagreement with those reasons is
8
insufficient. See Crawford-Mulley v. Corning Inc., 194 F.Supp.2d 212, 220 (W.D.N.Y. 2002).
More specifically, the Second Circuit has described the “pretext” showing as follows:
The plaintiff must produce not simply some evidence, but sufficient evidence to
support a rational finding that the legitimate, non-discriminatory reasons proffered
by the defendant were false, and that more likely than not discrimination was the
real reason for the employment action. In short, the question becomes whether
the evidence, taken as a whole, supports a sufficient rational inference of
discrimination. To get to the jury, “[i]t is not enough . . . to disbelieve the
employer; the factfinder must [also] believe the plaintiff’s explanation of
intentional discrimination.”
Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (quoting St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993)); see also Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 156-57
(2d Cir. 2010) (“In proving a case under Title VII, following the defendant’s proffer of a
justification, a plaintiff need only show that the defendant was in fact motivated at least in part
by the prohibited discriminatory animus. . . . [The] reference to the falsity of the employer’s
asserted justification [in Supreme Court opinions does not mean] intent to deceive, but
inaccuracy or incompleteness resulting from the failure to include the fact of the discriminatory
motivation.”).
It is undisputed in this case that, once an applicant reached the interview stage, as both
Plaintiffs did, advancement to the FIT program was based on subjective qualifications, namely
performance during a panel interview and the consensus committee’s review of performance
evaluations. (See L.R. 56(a)1, ¶¶ 63, 64, 76.) It is also undisputed that both Plaintiffs received
lower ratings through this process than the successful Caucasian candidates. (See Stagnaro Aff.
(Def. Ex. 7) at ¶ 28.) Thus, whether Plaintiffs can raise a genuine issue of material fact regarding
pretext turns on whether a reasonable juror could find that the ratings given to each applicant
through the Defendant’s interview and subsequent “consensus committee” process were not
credible, such that they masked other, discriminatory reasons for Defendant’s failure to accept
9
Plaintiffs into the FIT program. To demonstrate pretext, Plaintiffs must point to evidence that
their ratings were not credible or did not accurately reflect their performance.
To evaluate credibility, it is necessary to review carefully the evidence supporting the
reasons for the ratings given by the interviewers and consensus committee:
Courts have recognized that an employer’s disregard or misjudgment of a
plaintiff’s job qualifications may undermine the credibility of an employer’s
stated justification for an employment decision. See Fischbach v. D.C. Dep’t of
Corr., 86 F.3d 1180, 1183 (D.C.Cir.1996) (“Evidence indicating that an employer
misjudged an employee’s performance or qualifications is, of course, relevant to
the question whether its stated reason is a pretext masking prohibited
discrimination.”); Tyler v. Re/Max Mountain States, Inc., 232 F.3d 808, 814 (10th
Cir.2000) (quoting Fischbach); Alexander v. Fulton County, Ga., 207 F.3d 1303,
1340 (11th Cir.) (noting that “evidence showing an employer hired a less
qualified applicant over the plaintiff may be probative of whether the employer’s
proffered reason for not promoting plaintiff was pretextual”), reh’g and reh’g in
banc denied, 218 F.3d 749 (11th Cir. 2000).
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001). The focus of this
scrutiny is credibility, not the substance of the criteria employed or the wisdom of the
employer’s decisions:
At the same time, “the court must respect the employer’s unfettered discretion to
choose among qualified candidates.” Fischbach, 86 F.3d at 1183; see also Simms
v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d
1321, 1330 (10th Cir.) (“Our role is to prevent unlawful hiring practices, not to
act as a ‘super personnel department’ that second guesses employers’ business
judgments.”) (citations omitted), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145
L.Ed.2d 46 (1999).
Id. And where a discrepancy in qualifications is the sole evidence the plaintiff offers at the
pretext stage, that discrepancy must be dramatic:
When a plaintiff seeks to prevent summary judgment on the strength of a
discrepancy in qualifications ignored by an employer, that discrepancy must bear
the entire burden of allowing a reasonable trier of fact to not only conclude the
employer’s explanation was pretextual, but that the pretext served to mask
unlawful discrimination. In effect, the plaintiff’s credentials would have to be so
superior to the credentials of the person selected for the job that no reasonable
10
person, in the exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff for the job in question.
Id.
It is also important to keep in mind that Title VII does not prohibit employers from using
subjective criteria for hiring or promotion, as long as the process is transparent and the
explanations for the employer’s decisions specific and clear:
There is nothing unlawful about an employer’s basing its hiring decision on
subjective criteria, such as the impression an individual makes during an
interview. . . . [A]n employer’s explanation of its reasons must be clear and
specific in order to afford the employee a full and fair opportunity to demonstrate
pretext. 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.
Id. at 104-05 (internal quotation marks and citations omitted); see also Rouse v. City of New
York, No. 08-cv-7419, 2009 WL 1532054, at *8 n.9 (S.D.N.Y. June 2, 2009) (when relying on
subjective criteria, “an employer’s explanation must be clear, specific and honest”). Relying
heavily on subjective criteria is permissible where, as here, an employee is being considered for
a supervisory position.
Robertson v. Sikorsky Aircraft Corp., No. 397-cv-1216, 2000 WL
33381019, at *3 (D. Conn. July 5, 2001) (“Subjective criteria necessarily and legitimately enter
into personnel decisions involving supervisory positions.” (citation omitted)); Allen v. City of
Yonkers, 803 F. Supp. 679, 704 (S.D.N.Y. 1992) (“Where an employee is in a supervisory
position, however, the employer may rely on subjective criteria to a greater extent.”). This Court
has adopted the Eleventh Circuit’s observation that:
[S]ubjective evaluations of a job candidate are often critical to the decision[]making process, and if anything, are becoming more so in our increasingly
service-oriented economy. Personal qualities factor heavily into employment
decisions concerning supervisory or professional positions. Traits such as
common sense, good judgment, originality, ambition, loyalty, and tact often must
be assessed primarily in a subjective fashion, yet they are essential to an
individual’s success in a supervisory or professional position. It is inconceivable
11
that Congress intended anti-discrimination statutes to deprive an employer of the
ability to rely on important criteria in its employment decisions merely because
those criteria are only capable of subjective evaluation.
Robertson, 2000 WL 33381019, at *3-4 (quoting Denney v. City of Albany, 247 F.3d 1172,
1185-86 (11th Cir.2001)).
B. Interview Process
Defendant employed a “structured interview” process to evaluate candidates for the FIT
program. Applicants knew in advance that they would be questioned by a panel. (Promotion to
Foreman Flyer (Def. Ex. 5).) Each applicant was interviewed by a three-person panel made up
of representatives from Human Resources, the Maintenance of Equipment Department, and
Training Department, and all applicants were asked the same set of sixteen questions. (L.R.
56(a)1, ¶ 15; L.R. 56(a)2, ¶ 15.) The last three questions were situation-based “supervisory
questions.” (See Ocana and Vidal Interview Sheets (Pls. Exs. 15, 19).) At the bottom of the
page for each supervisory question, the interviewer was instructed to “look for a ‘take charge’
attitude,” and given sample content of what should be included in the answer. (See id.)
Each member of the interview panel took notes of the applicant’s answers and evaluated
the applicant by assigning one of three ratings – “do not consider further,” “some reservations
about considering further,” or “recommend applicant for promotion to foreman” – based on the
interviewer’s overall impression of the applicant’s performance during the interview. (L.R.
56(a)1, ¶ 16; L.R. 56(a)2, ¶ 16; see also Interview Sheets (Ex. A. of Def. Ex. 7).) Each
interviewer was instructed to rate the applicants independently: “Make independent judgment; do
not discuss interview until after you make your decision. Include clear comments below such
as answer to specific questions, to justify your recommendation.
Do not use vague
statements.” (Interview Sheets (Ex. A. of Def. Ex. 7) (emphasis in original).)
12
After the
interview, the consensus committee would assign a numerical rating of 0 through 2 to correspond
with the recommendation of each interviewer.
A rating of “do not consider further” was
assigned a 0; “some reservations about considering further” was assigned a 1; “recommend
applicant for promotion to foreman” was assigned a 2. (Stagnaro Aff. (Def. Ex. 7) at ¶ 27.)
After their interviews, Plaintiffs Ocana and Vidal had a numerical rating of “000” and
“110,” respectively. Because four Caucasian applicants were interviewed in 2006, all of whom
were accepted into the FIT program, there are four possible comparators: John Murman, with an
interview numerical rating of “222;” Edward Bownas, with an interview numerical rating of
“222;” David Garnot, with an interview numerical rating of “211;” and Robert Grehl, with an
interview numerical rating of “111.” (Id at ¶ 28.) Plaintiffs and Messrs. Grehl and Murman
were interviewed by Dan Miller, John Stagnaro, and Linda Kenwood, while Messrs. Bownas and
Garnot were interviewed by a different panel. (See Local Rule 56(a)(2), ¶¶ 37, 52.) Given the
significantly better interview ratings of Messrs. Murman, Bownas, and Garnot, and the different
interview panel for Messrs. Bownas and Garnot, Mr. Grehl is the closest comparator to Plaintiffs.
Because each Plaintiff’s performance in the interview process was distinct, I will analyze
the evidence concerning that performance separately for each Plaintiff.
1. Plaintiff Ocana
In his 2006 interview, Plaintiff Ocana received the least successful rating of “do not
consider further” from all three interviewers. (Pls. Ex. 15.) Interviewer Miller provided the
following comments in support of his “do not consider further” rating of Plaintiff Ocana: “Does
not take charge. Looking for boss to handle out of the ordinary situations. Reluctant to make
decisions. Obvious actions were not suggested in situational questions.” (Id.) In support of his
“do not consider further” rating of Plaintiff Ocana, Interviewer Stagnaro reported: “Poor answers
13
to situation questions. *no decision making ability – ‘push upward.’ Lack of understanding of
supervisor responsibilities and safety concepts.” (Id.) Interviewer Kenwood, who also gave
Plaintiff Ocana a “do not consider further” rating, explained: “language barrier – had difficulty
understanding. Not strong answers on situational questions. Weak answers to 1 and 2. Doesn’t
want to take resp[onsibility] for employees – wants upper [management] to handle. Not sure of
safety audit/brief – should have better knowledge.” (Id.)
These comments by the interviewers are “clear and specific,” satisfying the requirement
of transparency imposed in Byrnie for subjective hiring and promotion processes and
undercutting Plaintiffs’ vague claim that the subjectivity of the interview process was itself
evidence of discriminatory intent. Further, none of the comments or ratings themselves betrayed
discriminatory intent – including the comment made by a single reviewer about Plaintiff Ocana’s
“language barrier,” which is addressed below. All of the comments also reflected a noted
absence of the “‘take charge’ attitude” each interviewer was specifically instructed to “look for”
– an instruction that does not appear to be out of place for those evaluating possible foreman
candidates. And the fact that all three interviewers independently gave Plaintiff Ocana a low
rating further undermines Plaintiffs’ effort to show pretext. (See Ocana Interview Sheets (Pls.
Ex. 15).) As for the credibility of the comments, I find that they are supported by Plaintiff
Ocana’s responses, as documented by the interviewers.
For example, the interviewers’ comments that Plaintiff Ocana performed poorly on the
situational questions because he would not “take charge” and would instead turn to upper
management for direction are consistent with the notes of his responses to these questions. (Pls.
Ex. 15 (Miller reported that in response to question 14, Ocana said “call [s]omebody higher than
me . . . . I would report them to my supervisors.” For question 14, Stagnaro wrote that Ocana
14
had provided “no real answer – would ask boss. I [Ocana] never had that [situation] happen – all
my life. Report to supervisors.” For question 16, if an electrician was not doing assigned work,
Kenwood recorded Ocana’s response as “can’t force him to work; let him move to another
job.”).)
Similarly, the comments about Plaintiff Ocana’s uncertainty regarding safety are
consistent with the interviewers’ notes of Plaintiff Ocana’s answers and other evidence in the
record. (Compare id. (Plaintiff Ocana was reported by all interviewers as saying that a safety
audit is “observing how employees work” and should be done “every week by management”),
with Stagnaro Aff. (Def. Ex. 7) at ¶ 20 (“[Ocana’s] response demonstrated to me that he did not
seem to understand the foreman’s role in the safety audit. In a safety audit, the foreman (line
supervision) must walk around the shop, observe and evaluate the work performed by
employees, note violations if necessary, and complete forms for compliance. The foreman
position is supervision, not management.”), and Pls. Ex. 8 (interviewee John Murman, who,
according to Interviewer Miller, “nailed safety,” responded that a safety audit is “walking around
shop noting unsafe conditions and behaviors” and should be done “any time.”).)
Plaintiff Ocana compares his responses to Interview Questions 1, 13, 14, and 16 to those
given by non-minority applicants in an attempt to demonstrate that he should have received a
rating at least equal to the non-minority applicants. (See Local Rule 56(a)(2), ¶¶ 32, 34-36.) For
example, he asserts that the interviewers were “subjective and arbitrary in their assessment of
[his] perceived weakness such as . . . ‘take charge’ qualities” (L.R. 56(a)2, Sec. 2, ¶ 6; Pls. Opp.
Mem. at 7), and provides a chart showing his responses and those of two Caucasian applicants,
Mr. Bownas and Mr. Garnot.
When asked: “Tell us what you know about a Foreman’s
responsibilities and what skills and abilities are necessary to be a good foreman,” Plaintiff Ocana
reportedly stated “receive orders or direction from management” along with some comments
15
about communication skills, computer skills, and the ability to assess the skills of his workforce.
(L.R. 56(a)2, ¶ 32.) Plaintiff Ocana then points out that Mr. Bownas also said “take and give
orders” and, similarly, Mr. Garnot said something akin to “work with superiors and convey
problems.” (Id.)
Plaintiff Ocana neglects to mention, however, that the Caucasian applicants made
additional comments in response to the question that were distinct from his and that, in the
interviewer’s estimation, might reasonably have warranted a higher rating.
(See id. (Mr.
Bownas: “Timekeeping – complete timely. Mediator – assign workers to best of abilities” and
“Does work in a timely fashion, know your men.” Mr. Garnot: “Understand work and tasks
involved” and “In the end the job must get done.”) Ultimately, the comparison chart fails to
show or even raise a reasonable inference that ratings were not credible or that discrimination
was the real reason behind them.
I draw the same conclusion when considering the comparison charts provided for
Plaintiff Ocana’s responses to Questions 13, 14, and 16. In addition, the comparison charts do
not mention Plaintiff Ocana’s answers to other questions, which the interviewers likely
considered in rating Plaintiff Ocana lower than the Caucasian applicants.
For example,
Interviewer Kenwood wrote that Plaintiff Ocana had “weak answers to 1 and 2,” but a
comparison chart of question 2 was not provided by Plaintiff Ocana. (See L.R. 56(a)2, ¶ 27
(emphasis added).) In question 2, interviewees were asked “[i]f you are accepted, what do you
expect to get out of this training program?” (See Ocana Interview Sheets (Pls. Ex. 15).) Plaintiff
Ocana responded that he wanted to broaden his knowledge of engines and learn more about other
work locations, such as Harlem and Hudson. (See id.) Compare Plaintiff Ocana with Mr.
Bownas, who said that he sought to familiarize himself with “points” (e.g., shop, yard), learn
16
about newer equipment, and gain supervisory skills (Pls. Ex. 7) and Mr. Garnot, who said that he
wanted to acquire leadership skills and learn more about railroad regulations (Pls. Ex. 5). Both
of these men explicitly stated that they hoped to gain skills related to managing subordinates,
which is at least related to the “‘take charge’ attitude” that Defendant sought in applicants to the
FIT program.
With respect to Question 10, Plaintiff Ocana reported less supervisory experience than
well-performing interviewees; not including any volunteer activities, Plaintiff Ocana had spent
two years as a foreman for a plastics company and fifteen months for another company as a
senior mechanic with supervisory responsibilities (Pls. Ex. 15), while Mr. Garnot had spent
seven years as a lead maintenance technician for IBM (Pls. Ex. 5) and Mr. Murman had spent
nine years as a lead ramp serviceman for Eastern Airlines (Pls. Ex. 8). Question 12 asked
interviewees about their computer skills. Plaintiff Ocana explained that he had limited skills and
used computers primarily for online use. (Pls. Ex. 15.) In comparison, Messrs. Bownas, Garnot,
and Grehl all reported at least some use of Microsoft applications, such as Microsoft Word,
Access, Excel, and/or PowerPoint. (Pls. Ex. 5-7.) When viewing the documentation of the
interviews holistically, I find that no reasonable inference of discriminatory animus may be
drawn from the fact that the Caucasian interviewees were given higher interview ratings than
Plaintiff Ocana.
Plaintiffs make much of the reference to a “language barrier” in Interviewer Kenwood’s
statement in Plaintiff Ocana’s Recommendation: “Language barrier – had difficulty
understanding.” (L.R. 56(a)2, ¶ 37.) Standing alone, however, an employer’s reference to a job
candidate’s language deficiencies or accent is not evidence of discriminatory animus. “An
adverse employment decision may be predicated upon an individual’s accent when – but only
17
when – it interferes materially with job performance. There is nothing improper about an
employer making an honest assessment of the oral communications skills of a candidate for a job
when such skills are reasonably related to job performance.” Fragante v. City & Cnty. of
Honolulu, 888 F.2d 591, 596-97 (9th Cir. 1989) (citing EEOC Compliance Manual (CCH) ¶
4035 at 3877–78 (1986)); see also Mejia v. New York Sheraton Hotel, 459 F. Supp. 375, 376
(S.D.N.Y. 1978) (chambermaid properly denied promotion to front desk where English
proficiency was significantly related to successful job performance); Ang v. Procter & Gamble
Co., 932 F.2d 540, 549 (6th Cir. 1991) (“Unlawful discrimination does not occur . . . when a
plaintiff’s accent affects his ability to perform the job effectively.”); Martin v. Olathe Health
Sys., Inc., No. 11-cv-2179, 2012 WL 2874062, at *6 (D. Kan. July 13, 2012) (same).
Because Plaintiff Ocana was being considered for a program designed to train individuals
to occupy a foreman position with supervisory responsibilities, his communication skills were
reasonably related to job performance. Had he been accepted into the FIT program, he would
have needed to be able to communicate clearly and effectively with his subordinates. In addition,
there is no indication that Ms. Kenwood based her low rating of Plaintiff Ocana solely or even
primarily on his accent. She offered additional reasons for his poor rating: “Not strong answers
on situational questions. Weak answers to 1 & 2. Doesn’t want to take resp[onsibility] for
employees – wants upper [management] to handle. Not sure of safety audit/brief – should have
better knowledge.”
(L.R. 56(a)2, ¶ 37.)
These comments are also reflected in the other
interviewers’ recommendation notes. (See id.)
Finally, the evidence in the record does not
support an inference that Ms. Kenwood’s assessment of Plaintiff Ocana’s communication skills
betrayed discriminatory animus.
There is no indication that the observation was made in
derogatory fashion or reflected anything other than her factual observation that she had difficulty
18
understanding him. See Martin, 2012 WL 2874062, at *6 (“[B]ecause there is no evidence that
anyone mocked plaintiff because of her accent or otherwise made statements about her accent in
a derogatory fashion, defendant’s reliance on plaintiff’s accent for the termination decision is not
actionable under Title VII.”).
These facts distinguish this case from Hasham v. California State Bd. of Equalization,
200 F.3d 1035, 1042, 1044 (7th Cir. 2000) – on which Plaintiffs rely – where (1) the final
decision maker who denied the promotion to the foreign-born plaintiff had made contradictory
comments about the plaintiff’s language skills and accent and admitted that the plaintiff’s
performance in the job interview was excellent, (2) the plaintiff was clearly better qualified than
the individual selected for the promotion in terms of education, certification as a CPA, and exam
performance, and (3) the company had deviated from previous practice when making the
promotion.
Although Plaintiffs make no reference in their brief about this point, their Local Rule
statement cites a finding made by the CHRO that “[t]he interview process may have been biased
against foreign born candidates with thick accents:”
In 2006 respondent interviewed nine candidates. Five were minority group
members . . . . three of these five candidates were rejected in part by at least one
panelist who perceived a language barrier. One panelist commented about the
complainant, “language barrier-had difficulty understanding.” In the case of the
two other candidates, both had high performance evaluation ratings, Abdus Salam
(Asian) and Sena Amevor (African), at least one panel member commented about
“language,” “communication obstacle.”
(L.R. 56(a)2, Sec. 2, ¶ 8; Ocana Aff. Ex. H (Pls. Ex. 14) at 6.) While a CHRO finding may be
considered at the summary judgment stage if such a finding has been assessed by the Court as
being trustworthy, see Barlow v. Connecticut, 319 F. Supp. 2d 250, 258 (D. Conn. 2004), I
decline to do so in this case because the evidence supporting the CHRO’s finding has not been
19
presented to the Court. See Johnson, 972 F. Supp. 2d at 223 (“The findings of the CHRO on the
ultimate issue in dispute is of dubious reliability as Plaintiff has not filed the underlying evidence
substantiating the finding in opposition to the motion for summary judgment, nor have the
Defendants. Because no evidence in the record supports any of the foregoing arguments or
factual assertions, the Court disregards them in its analysis.” (citations omitted)). Plaintiffs
failed to include the individual performance evaluations or interview sheets for Abdus Salam or
Sena Amevor.
As a result, there is no context provided to determine whether the
“communication obstacle” statement was made with discriminatory animus.
Further, it is
unknown which interviewer made the “communication obstacle” comment or which interviewee
it referred to. As the panel that interviewed Plaintiff Ocana did not interview Abdus Salam (see
Stagnaro Aff. (Def. Ex. 7) at ¶ 22), the “communication obstacle” comment may have been made
by an interviewer on a different interview panel and, in that case, would have little bearing on
Plaintiff Ocana’s disparate treatment claim. In addition, there is some evidence in the record
before the Court that is inconsistent with the CHRO’s finding. For instance, the CHRO’s
statement that Abdus Salam had a high performance evaluation rating is belied by evidence
showing that the total average performance evaluation for him ranked in the bottom half of
interviewees in 2006. (See Summary Sheet (Ex. E to Def. Ex. 4.).)
Finally, the comment made by interviewer Tom Valentine during the March 2005
application process – which is not being challenged in this case – that Plaintiff Ocana had “some
language problems” arguably reinforces the conclusion that Ms. Kenwood’s comment did not
betray discriminatory animus, and in any event does not warrant an inference of discrimination.
(L.R. 56(a)2, Sec. 2, ¶ 8; Valentine’s March 2005 Interview of Ocana (Pls. Ex. 48) at 442.); see
Beaver v. McHugh, 840 F. Supp. 2d 161, 174 (D.D.C. 2012) (“The number of complaints from
20
various persons, who interacted with [plaintiff] across the full range of her responsibilities as a
statistician, render entirely reasonable defendant’s contention that language problems – not
national-origin discrimination – led to her termination.”).
When viewing the record as a whole, no reasonable juror could find that Ms. Kenwood’s
language-related remark was sufficient to show pretext.
2. Plaintiff Vidal
In his 2006 interview, Plaintiff Vidal received a rating of “some reservations about
considering further” from two interviewers and “do not consider further” from one interviewer.
(Pls. Ex. 19.) Interviewer Miller supported his “do not consider further” rating of Plaintiff Vidal
as follows: “Had no expectations of what he expected from FIT training even though he had
obvious deficiencies. Didn’t do well on safety. Didn’t do well on situation questions. Used
some buzz words but didn’t understand concepts.” (Id.) Interviewer Stagnaro gave Plaintiff
Vidal the mediocre rating of “some reservations about considering further” based on the
following reasoning: “Good ans[wer] to situations. Weak understanding of job responsibilities
and safety.
Could not recall responsibilities of previous supervisory role (Q. 10).”
(Id.)
Interviewer Kenwood similarly gave Plaintiff Vidal the rating of “some reservations about
considering further” because he: “May do well w[ith] training. Sup[ervisor] quest[ion] ok; not
great. 19 – ls/eq - concern; empl[oyee] states he has improved. Nonchalant about int[erview];
showed no interest. Unsure of FIT training expectations. Not sure of foreman resp[onsibilities];
safety program.”
As with Plaintiff Ocana, the reasons given by each interviewer for the rating selected
were “clear and specific” and thus satisfied the standard set forth in Byrnie for transparency in a
subjective hiring and promotion processes. Further, the reasons provided by the interviewers do
21
not suggest animus and are supported by their notes regarding his performance during the
interview. For example, the interviewers’ notes reflecting Plaintiff Vidal’s answer to the second
question are consistent with the comments that he did not have a clear expectation of what he
expected to learn from the FIT program and showed little interest. (Id. (Interviewer Stagnaro
recorded Plaintiff Vidal’s answer to the question “If you are accepted what do you expect to get
out of this training program?” as: “I’m not sure . . . I am open and willing to learn whatever is
nec[essary] . . . prompt do job properly. Pulling teeth … getting nowhere.”).) Plaintiff Vidal’s
poor performance on safety-related questions is also reflected in the interview sheets. (Id. (In the
margin next to the question of what Plaintiff Vidal knows about a foreman’s responsibilities and
what skills he has, Interviewer Miller wrote “Safety?” All of the interviewers recorded that
when asked what the term “safety audit” means, Plaintiff Vidal responded “not sure.”
Interviewers Stagnaro and Kenwood noted that when asked how often a safety audit should be
done, Plaintiff Vidal responded “once/month, don’t know.”).) Again, there is no suggestion in
Plaintiff Vidal’s interview sheets that any interviewer acted with discriminatory intent.
Plaintiff Vidal provides a comparison chart of Questions 1 and 13 in an effort to
demonstrate that he responded to these questions in a manner similar to the Caucasian applicants.
(See Local Rule 56(a)(2), ¶¶ 47-48.) Question 1 asked: “Tell us what you know about a
Foreman’s responsibilities and what skills and abilities are necessary to be a good foreman?”
Plaintiff Vidal responded that a foreman would need to be able to carry out the job properly and
on time, have good communication skills, be a team player, a disciplinarian, and authoritative,
and get along with superiors. (Id. at ¶ 47.) Mr. Grehl, the closest comparator to Plaintiff Vidal,4
4
While Plaintiff Vidal received a rating of “110” from the interview panel, Mr. Grehl received a
rating of “111.” As discussed below, Mr. Grehl’s rating was later adjusted – upwards to “122” –
22
responded that a foreman must be a “leader” who is able to direct personnel, and who must know
“FRA regulations,” facility rules, and how to assign work. (Id.) While these responses may not
be miles apart, they are clearly different and every interviewer apparently considered Mr. Grehl’s
response to be superior, noting his comments on leadership and knowledge of specific rules and
regulations.5 This comparison provides no basis from which a reasonable juror could determine
that Plaintiff Vidal was judged more harshly than Mr. Grehl based on some sort of
discriminatory animus.
With respect to question 13, the question about safety audits, Plaintiff Vidal was unsure
of the meaning of a safety audit and how often it should be performed. (Id. at ¶ 48.) Mr. Grehl,
on the other hand, explained that a safety audit involved a foreman watching his employees’ job
performance and documenting their compliance; he added that such an audit should be done once
a day. (Id.) Interviewer Kenwood noted in her recommendation that Mr. Grehl had a “good
grasp of safety.” (Id. at ¶ 52.) The interviewers’ apparent conclusion that Mr. Grehl’s response
was superior was reasonably based on the evidence of the responses that appears in the record.
While the responses to Questions 1 and 13 by the other Caucasian candidates, all of
whom scored better than Plaintiff Vidal in the interview, may have had some similarity to his
responses, Plaintiffs have not provided comparison charts for other questions where these
candidates outshined Plaintiff Vidal. For example, while Plaintiff Vidal had to be prompted
when asked what he expected to get out of the FIT program, Mr. Garnot replied that he hoped to
by the consensus committee after consideration of his performance evaluations. (See Interview
Sheets (Pls. Exs. 6 ).)
5
In the comparison chart for Plaintiff Ocana’s response to Question 1, no comparison was
provided between Plaintiff Ocana and Mr. Grehl. Mr. Grehl’s response referring to leadership
and rules and regulations was reasonably considered by the interviewers to be superior to
Plaintiff Ocana’s response that, as a foreman, he would be responsible for receiving orders and
direction from management – especially given the instructions to look for a “‘take charge’
attitude.” (See Pls. Exs. 6, 15.)
23
acquire leadership skills and learn more about how the railroad worked. (See Garnot Interview
Sheets (Pls. Ex. 5).) According to Interviewer Stagnaro, Plaintiff Vidal had difficulty recalling
the duties of his previous supervisory experience (see Pls. Ex. 19); Mr. Garnot, on the other
hand, had worked for seven years as lead maintenance of electrical/hydraulic equipment and,
within the first year, brought MTF [mean time to failure] from 60% to 92% (see Pls. Ex. 5).
Finally, the comparison charts fail to consider other criteria that the interviewers may
have considered in deciding to give Plaintiff Vidal a lower rating than the Caucasian applicants.
For example, Interviewer Kenwood wrote that Plaintiff Vidal was “nonchalant about interview;
showed no interest.” ((See L.R. 56(a)2, ¶ 52.) Based on a review of Plaintiff Vidal’s interview
performance, there is no evidence indicating that the interviewers “disregard[ed] or misjudg[ed]”
his subjective qualifications in a way that would call the credibility of the interviewer’s ratings
into question. Byrnie, 243 F.3d at 103.
C. Consensus Committee
Within two days after the interview, the two interview panels met as a committee to
review the recommendations and reach a consensus about which applicants would be accepted to
the FIT program. (L.R. 56(a)1, ¶ 17; L.R. 56(a)2, ¶ 17.) In 2006, the consensus committee
consisted of six individuals – five Caucasian men and one Caucasian woman. (Stagnaro Dep.
(Def. Ex. 4) at 27; Vidal Aff. (Pls. Ex. 1) at ¶ 3.) The committee assigned a numerical rating of 0
through 2 to correspond to the recommendation given by each interviewer; top performance in
the interview resulted in a rating of “222” and lowest performance in the interview resulted in a
rating of “000.” (See Stagnaro Aff. (Def. Ex. 7) at ¶¶ 27, 29.) In addition to discussing
interview performance, the consensus committee also reviewed each applicant’s performance
24
evaluations. (See Stagnaro Dep. (Def. Ex. 4) at 45-46, 52, 65.) Based on this discussion, the
numerical rating for a candidate could be changed. (Stagnaro Aff. (Def. Ex. 7) at ¶ 30.)
Of the four Caucasian applicants, two had a rating of “222” such that it would not have
been possible to increase their rating. Mr. Garnot’s numerical rating improved from “211” to
“222” and Mr. Grehl’s numerical rating improved from “111” to “122” as a result of discussions
by the consensus committee. (See Interview Sheets (Pls. Exs. 5, 6 ).) There is no evidence in the
record that any applicant’s rating was lowered, rather than increased. Plaintiffs’ interview
ratings were not adjusted as a result of the consensus committee discussion.
The consensus committee process was undoubtedly more opaque than the interview
process, and there is not much contemporaneous evidence providing the basis for changing a
given rating. One of Mr. Garnot’s interviewers wrote “change to accept” and the other wrote
“willing to accept and give him a chance.” (Pls. Ex. 5.) For Mr. Grehl, Interviewer Kenwood
crossed out the box “some reservations about considering further” and checked the box
“recommend applicant for promotion to foreman,” and Interviewer Stagnaro wrote “after further
discussion and taking scores into consideration recommend.” (Pls. Ex. 6.)
Interviewer Stagnaro explained in his affidavit that an applicant’s ratings might be
improved based on good performance evaluations, but that good performance evaluations
“would not outweigh poor interview scores.” (Stagnaro Aff. (Def. Ex. 7) at ¶ 33.) Because
objective criteria had already been considered as part of the initial application process (i.e.,
before the interview stage), the committee did not usually review or discuss the applicants’
attendance records, test scores, or disciplinary history. (Id. at ¶¶ 35-36.) “The race, national
origin and ethnicity of the candidates being considered for the FIT Program were not mentioned
or discussed in the consensus committee meeting.” (Id. at ¶ 41.) Of import for the Plaintiffs,
25
both of whom received at least one “Do Not Consider Further” rating by the interview panel, the
consensus committee “normally will not recommend a candidate for the FIT Program if at least
one member of the interview panel says ‘Do Not Consider Further.’” (Id. at ¶ 40.)
There is no evidence in the record that contradicts the statements made in Interviewer
Stagnaro’s affidavit, and his deposition testimony supports the fact that the consensus committee
reviewed the applicants’ performance evaluations. (See Stagnaro Dep. (Def. Ex. 4) at 24-26, 52,
65.) Because Plaintiff has not demonstrated any pretext arising out of the interviewer process or
interview ratings, the issue of pretext arising out the consensus committee turns on the credibility
and consideration of the applicants’ performance evaluations.
In 2006, Defendant required as part of the FIT program application process that two
performance evaluations be submitted for each applicant – one from an “agreement supervisor”
and one from a “non-agreement” supervisor. (L.R. 56(a)1, ¶ 65; L.R. 56(a)2, ¶ 65.) An
“agreement supervisor” is a first-line supervisor, such as a foreman, who is a member of a
bargaining unit and covered by a collective bargaining agreement; a non-agreement supervisor
refers to other supervisors and managers who are not members of a bargaining unit and are not
covered by a collective bargaining agreement. (Id. at ¶¶ 66-67.) Evaluation forms were sent to
department and shop managers, who distributed the forms to supervisors for completion. (Id., ¶
68.) Applicants were also told in advance that the selection criteria for the FIT program included
“Performance appraisals from Agreement and Non-Agreement supervisors.”
(Promotion to
Foreman Flyer (Def. Ex. 5).)
While Defendant attempted to have a direct supervisor conduct each performance
evaluation, this is not required and not always possible. (See Bradley 30(b)(6) dep. (Def. Ex. 8)
at 97, 99 (“Q. One of the things that you mentioned, I think, is the fact that while you try to get a
26
direct supervisor to do the evaluation, that because the employees work on shifts, it’s not always
possible to get the direct supervisor to do the evaluation? A. We try to get someone who has
supervised the individual as much as possible. Because the way it works in a shop is that, if you
bid a job, sometimes you have a relief supervisor, sometimes you have a day supervisor. So
they’re interchangeable – agreement supervisor. . . . Sometimes the supervisor’s not available.
Sometimes the supervisor went to another location.”).)
The performance evaluation form asked the “rater” to rate the employee in thirteen
different categories on a scale of one through five, with one being “unsatisfactory” and five
being “superior.” (See, e.g., Vidal performance evaluations (Pls. Ex. 28).) A rater had the option
of selecting “N.O.” for any category, indicating that the performance was “not observed.” (Id.)
After the performance evaluation was submitted, the ratings for each category were summed and
then divided by the total number of categories that were rated, which would result in an average
rating; this would mean that if one category was rated as “N.O.,” then the total sum would be
divided by twelve, instead of thirteen. (See id. (Kelly McGowan evaluation of Plaintiff Vidal).)
The average rating across both performance evaluations was included as part of a “summary
sheet” that was provided to and used by the consensus committee. (See Stagnaro Dep. (Def. Ex.
4) at 29-30; Summary Sheet (Ex. E to Def. Ex. 4.).)
The summary sheet shows that Plaintiff Ocana’s average performance evaluation rating
was 2.8, the lowest of all nine applicants who were interviewed in 2006. (Summary Sheet (Ex. E
to Def. Ex. 4).) Plaintiff Vidal’s average rating was 3.5. (Id.) In comparison, Mr. Garnot had an
average rating of 4.0, Mr. Bownas an average rating of 4.1, and Messrs. Murman and Grehl
average ratings of 4.2. (Id.)
27
Plaintiffs argue that the performance evaluations submitted as part of the application
process lack credibility and did not follow Defendant’s practices, and therefore demonstrate
pretext.
(Pls. Opp. Mem. at 10-11.)
Because each Plaintiff had his own performance
evaluations, I consider each Plaintiff separately.
1. Plaintiff Ocana
Plaintiff Ocana’s performance was evaluated by Kelly McGowan and Michael Gagliardi,
Jr., neither of whom was his direct supervisor. (L.R. 56(a)1, ¶ 71; L.R. 56(a)2, ¶ 71.) Plaintiff
Ocana takes issue with the fact that neither his direct supervisor, Alex Turner, nor the person
listed on his application, Arthur Platt, filled out a performance evaluation. (Pls. Opp. Mem. at
11.) This fact, however, is insufficient to demonstrate pretext. As Defendant’s 30(b)(6) witness
testified, a direct supervisor does not always fill out a performance evaluation. (Bradley 30(b)(6)
dep. (Def. Ex. 8) at 97, 99.) Plaintiff Ocana has not pointed to evidence showing that he was
singled out in a manner reflecting disparate treatment.
Although Plaintiff Ocana testified that he had little interaction with Mr. McGowan (see
Ocana Dep. (Pls. Ex. 18) at 74), Mr. McGowan described himself as “reasonably familiar” with
Plaintiff Ocana’s work. (McGowan 2006 Evaluation (Pls. Ex. 28), McGowan 2005 Evaluation
(Pls. Ex. 49).) While Plaintiff Ocana testified that he was told by coworkers to stay away from
Mr. McGowan because Mr. McGowan did not like minorities (Ocana Dep. (Pls. Ex. 18) at 7475), this is hearsay and thus cannot serve as a basis for defeating summary judgment. Lewis v.
Town of Waterford, 239 F.R.D. 57, 60 (D. Conn. 2006) (“A party cannot rely on inadmissible
hearsay in opposing a motion for summary judgment . . . . In accordance with this policy, a court
may therefore strike portions of an affidavit that are not based on the affiant’s personal
knowledge, contain inadmissible hearsay or make generalized and conclusory statements.”).
28
Plaintiff Ocana asserts that his performance evaluations are not credible because they
reflected poor performance, and he had not previously been told that his performance was poor.
(Id.) But there is evidence in the record showing that Plaintiff Ocana was aware of some
performance deficiencies. In 2005, Mr. Gagliardi, the non-agreement supervisor who was
“reasonably familiar” with Plaintiff Ocana’s work, rated Plaintiff Ocana as “adequate” in twelve
categories and did not provide a rating for one of the categories. (Gagliardi 2005 Evaluation
(Pls. Ex. 49).) In 2006, however, Mr. Gagliardi rated Plaintiff Ocana as “good” in one category,
“adequate” in seven categories, and “poor” in five categories. (Gagliardi 2006 Evaluation (Pls.
Ex. 28).) Mr. Gagliardi provided a reason for his lower evaluation in 2006: “I often observe this
individual without his safety classes on. I have spoken to him numerous times.” (Id.) Further,
even crediting Plaintiff Ocana’s version of events – that he was not previously told of poor
performance – that fact alone, and especially when viewed in the context of the entire record, is
insufficient to permit a reasonable juror to infer discriminatory intent.
The consensus committee had the following subjective criteria available when
considering Plaintiff Ocana: his “000” performance during the interview process and his
performance evaluations, which reflected an overall performance that was lower than any of the
other FIT program interviewees for the 2006 cycle. In addition to Mr. Gagliardi’s average rating
of 2.7, Mr. McGowan had rated Plaintiff Ocana as “adequate” in nine categories, as “poor” in
three categories, and did not provide a rating for the one of the categories, resulting in an average
rating of 2.8. (McGowan 2006 Evaluation (Pls. Ex. 28).) As a result, Interviewer Stagnaro
recalled that Plaintiff Ocana had “scored low” on his performance evaluations, which was
discussed during the consensus committee. (Stagnaro Dep. (Def. Ex. 4) at 52.) Because Plaintiff
Ocana did not have as strong a set of ratings on his interview or performance as any of the
29
Caucasian candidates who were accepted, and because he has failed to produce evidence from
which a reasonable juror could infer that his ratings were not credible, he has failed to raise a
genuine issue of material fact at the third stage of the McDonnell-Douglas framework with
respect to the consensus committee process.
2. Plaintiff Vidal
Plaintiff Vidal was evaluated by John Deponte and John Fucci. John Deponte was
Plaintiff Vidal’s direct supervisor at the time and rated him favorably. (L.R. 56(a)1, ¶¶ 73-74;
L.R. 56(a)2, ¶¶ 73-74, Sec. 2, ¶ 10.) Plaintiff Vidal takes issue with Mr. Fucci’s review because
Mr. Fucci rated Plaintiff Vidal lower in 2006 than in 2005. (Id. at 10-11; compare Fucci 2006
Evaluation (Pls. Ex. 28), with Fucci 2005 Evaluation (Pls. Ex. 51).) This provides no basis from
which to infer discrimination, and, in fact, may warrant the reverse inference: the “same actor
inference” applies “[w]hen the same actor hires a person already within the protected class, and
then later fires that same person, [because] it is difficult to impute to [the actor] an invidious
motivation that would be inconsistent with the decision to hire.” Carlton v. Mystic Transp., Inc.,
202 F.3d 129, 137 (2d Cir. 2000). Similarly, it does not make sense to impute discriminatory
animus to Mr. Fucci, who was previously willing to give Plaintiff Vidal a better evaluation even
though he was presumably aware of Plaintiff Vidal’s race at that time.
The consensus committee had the following subjective criteria available when
considering Plaintiff Vidal: his “110” performance during the interview process and his
performance evaluations, which reflected an overall performance evaluation rating of 3.5. While
Mr. Deponte generally evaluated Plaintiff Vidal as “good,” Mr. Fucci evaluated Plaintiff Vidal as
having a mix of “poor,” “adequate,” and “good” performance across the various categories.
(Deponte and Fucci 2006 Evaluations (Pls. Ex. 28).) Of particular note is that Mr. Deponte
30
selected “not observed” for the “Leadership” category, and Mr. Fucci selected “poor” for that
category. There is no evidence in the record to support Plaintiff Vidal’s contention that it was
suspicious for Mr. Fucci to have rated Plaintiff Vidal in a category that Plaintiff Vidal’s direct
supervisor, Mr. Deponte, failed to rate. (See Pls. Opp. Mem. at 12.) Each evaluator was
responsible for rating the employee based on his own observations, and there is no evidence to
suggest that it would have been impossible for Mr. Fucci to have observed Plaintiff Vidal in a
scenario in which he might (or might not) demonstrate leadership qualities.6 At his deposition,
Interviewer Stagnaro noted that Plaintiff Vidal had one performance evaluation that was poorer
than the other. (Id. at 24-26.)
In comparison, Mr. Grehl – the closest Caucasian comparator7 – had a “111” interview
numerical rating and an average performance evaluation rating of 4.2, a score that tied him for
the second best evaluation average among all applicants who were interviewed.
Joseph
McLaughlin, who was “reasonably familiar” with Mr. Grehl’s work, provided a rating of “good”
in nine categories, “adequate” in two categories, and “not observed” in two categories. (2006
Evaluation (Pls. Ex. 31).) Daniel DeVoe, Mr. Grehl’s direct supervisor, evaluated him as
“superior” in eight categories and “good” in five categories. (Id.) In addition, Mr. DeVoe
commented on the evaluation form that “Mr. Grehl is a pleasure to work with. Rob is a team
builder, and goes the extra mile to get things done.” (Id.)
As a result of Mr. Grehl’s positive performance evaluations, two of the interviewers
changed their interview rating to “2,” so that Mr. Grehl’s final numerical rating was “122.” See
6
According to Interviewer Stagnaro, an evaluation that had a variety of ratings, like Mr. Fucci’s,
demonstrated more reflection and thoroughness than one with the same ratings for every
category, like Mr. Deponte’s. (See Stagnaro Dep. (Pls. Ex. 4) at 26.)
7
The other Caucasian individuals who were accepted into the FIT program are less apt
comparators because their interview performances were significantly better than Plaintiff
Vidal’s.
31
Interview Sheets (Pls. Exs. 6).) While Plaintiff takes issue with the fact that Mr. Grehl was
accepted into the FIT program in 2006 after having performed poorly in the interviews six
months earlier in 2005 (Pls. Opp. Mem. at 8), there is no evidence in the record showing that it
was impossible for Mr. Grehl to have improved over the course of six months, or that it was
inappropriate for the consensus committee to take his very strong performance evaluations into
account.
Interviewer Stagnaro testified that “Mr. Grehl was chosen primarily because of his
evaluations by his supervisors.” (Stagnaro Dep. (Pls. Ex. 4) at 65.) Although Interviewer
Stagnaro acknowledged that Mr. Grehl had a “weak interview,” the consensus committee
discussed and found favorable Mr. Grehl’s “leadership potential.” (Id. at 67-68.)
As compared to Plaintiff Vidal, Mr. Grehl had superior performance evaluations from
both his direct and non-direct supervisor. Further, Mr. Grehl did not have any “do not consider
further” interview ratings, while Plaintiff Vidal had one such rating; as noted, the unrebutted
evidence showed that the consensus committee “normally will not recommend a candidate for
the FIT Program if at least one member of the interview panel says “Do Not Consider Further.”
(L.R. 56(a)1, ¶ 85; Stagnaro Aff. (Def. Ex. 7) at ¶ 40.)8 In short, there is no evidence that the
ratings resulting from the consensus committee process were the product of discrimination
against Plaintiff Vidal.
8
In its Local Rule statement, Defendant wrote: “The committee normally will not recommend a
candidate for the FIT Program if at least one member of the interview panel says ‘Do Not
Consider Further.’ Vidal received one ‘Do Not Consider Further’ and Ocana received three (3)
‘Do Not Consider Further’ rankings.” (L.R. 56(a)1, ¶ 85.) Plaintiffs did not deny this consensus
committee practice. (L.R. 56(a)(2), ¶ 85) (“Admit that portion of the statement concerning the
Plaintiffs’ ratings. The Plaintiffs neither admit nor deny the remainder.”) Under this Court’s
Local Rules, “[a]ll material facts set forth in said statement and supported by the evidence will
be deemed admitted unless controverted by the statement required to be filed and served by the
opposing party in accordance with Local Rule 56(a)2.” L. R. Civ. P. 56(a)1. Since Plaintiffs
failed to deny this statement or provide a “specific citation” to contrary evidence in the record,
see L. R. Civ. P. 56(a)2, this consensus committee practice is deemed admitted by Plaintiffs.
32
D. Numerical Disparity
Plaintiffs argue that evidence of pretext may be gleaned from statistics showing the rates
of acceptance of minority and non-minority applicants to the FIT program. (Pls. Opp. Mem. at
25-26.) As a preliminary matter, Plaintiffs concede that these rates are essentially the same at the
first stage of the process – the passage from the application stage to the interview stage. They
assert, however, that the rates of acceptance vary sharply after candidates reach the interview
stage. (Pls. Opp. Mem. at 26 (“A review of the Defendant’s 2003-2006 Data illustrates the point
that the percentage of white candidates who applied and interviewed from 2003 to 2006 was near
the percentage of minority candidates who applied and interviewed during the same time. Once
they got to the interview stage, minority candidates were selected [at] a far lower rate than their
white counterparts.”).)9
The number of interviewees for the FIT program were as follows: 26 interviewees, 9 of
whom were minorities (6 Black, 2 Hispanic), in 2003; 25 interviewees, 7 of whom were
minorities (3 Black, 2 Hispanic, 2 Asian/Pacific Islander), in 2004; 12 interviewees, 5 of whom
were minorities (3 Black, 1 Hispanic, 1 Asian/Pacific Islander), in 2005, session 1; 14
interviewees, 9 of whom were minorities (5 Black, 1 Hispanic, 3 Asian/Pacific Islander), in
2005, session 2; 9 interviewees, 5 of whom were minorities (2 Black, 2 Hispanic, 1 Asian/Pacific
Islander), in 2006. (M of E Promotion to Foreman Program Data (Pls. Ex. 36).) On an
aggregate level, there were a total of 86 interviewees: 51 Caucasian, 19 Black, 8 Hispanic, and 8
Asian/Pacific Islander. (Id.) 25 Caucasian interviewees were accepted into the FIT program, at
9
Plaintiffs’ concession is reinforced by the conclusion of Defendant’s expert statistician, Dr.
Paul White. Dr. White concluded that “[t]here is no statistically significant difference in the
number of non-white candidates who were interviewed versus the number one would expect in a
race-neutral process.” (Expert Report (Def. Ex. 33) at 8.) Plaintiffs chose not to depose Dr.
White.
33
an acceptance rate of 49%. 3 Black interviewees were accepted at an acceptance rate of 16%. 0
Hispanic interviewees were accepted. 1 Asian/Pacific Islander interviewee was accepted, at an
acceptance rate of 13%.
While “Plaintiffs are correct that statistics are relevant to support a discrimination claim
even in a disparate treatment case,” Plaintiffs’ use of these figures is flawed because “statistics
[are] determinative at the prima facie stage of the analysis, rather than in the later inquiry into
pretext.” Vuona, 919 F. Supp. 2d at 374. “Statistical analysis is rarely sufficient to defeat
summary judgment. Although a generalized statistical analysis . . . can provide circumstantial
evidence of an inference of discrimination in support of a prima facie case, as a matter of law, it
is not sufficient to establish that the Defendant’s legitimate business rationale . . . is false, or that
[Plaintiffs’ membership in a protected class] was the real reason for [the employment decision].”
Id.; see also Robinson v. Metro-N. Commuter R.R. Co., No. 94-cv-7374, 1998 WL 17742, at *9
(S.D.N.Y. Jan. 16, 1998) (“While statistical evidence may sometimes enable a plaintiff to carry
its modest burden of creating a prima facie case, the Court is aware of no case where generalized
statistical evidence has been held sufficient to refute, for summary judgment purposes, a
defendant’s particularized evidentiary showing of a nondiscriminatory explanation for a
particular act complained of, in the absence of any other material, admissible evidence of
discrimination.” (internal citations omitted)).
Further, courts in this Circuit have held consistently that statistics are unreliable
indicators of discrimination where, as here, they were calculated from a small set of data. See,
e.g., EEOC v. Joint Apprenticeship Comm. of Joint Indus. Bd. of Elec. Indus., 186 F.3d 110, 119
(2d Cir. 1999) (“[S]uch a small sample would tend to produce inherently unreliable results.”);
Waisome v. Port Auth. of New York & New Jersey, 948 F.2d 1370, 1379 (2d Cir. 1991)
34
(“[W]here statistics are based on a relatively small number of occurrences, the presence or
absence of statistical significance is not a reliable indicator of disparate impact. For smaller
samples the value of the standard deviation rule drops off . . . . It is for this reason that, in cases
involving small or marginal samples, other indicia raising an inference of discrimination must be
examined.”); Lowe v. Commack Union Free Sch. Dist., 886 F.2d 1364, 1372 (2d Cir. 1989)
(statistical comparison of the performance of thirty-four candidates who were part of the
protected group versus three who were not was “not sufficiently substantial to support an
inference of discrimination, particularly in light of the unreliability of such a small statistical
sample”); Teasdale v. City of New York, 08-CV-1684, 2013 WL 5300699, at *9 (E.D.N.Y. Sept.
18, 2013) (“Plaintiff alleges that only one male over 40 failed the EVOC twice while seven
women over 40, or 99% of women, failed the EVOC test twice. Plaintiff alleges that this high
failure rate for women over 40 shows that the EVOC has a disparate impact. This argument is
deeply flawed because plaintiff’s sample size of seven women and one man is extremely small . .
. .”); Vuona, 919 F. Supp. 2d at 374 (“The statistics offered by [Plaintiffs] are insufficient to
prove pretext. . . . [T]he relevant universe is small: 28 employees were under consideration for
the [reduction in force], and 14 were eventually laid off. This small sample size counsels against
heavily weighting statistical evidence.”).
Based on the case law, the number of Black and Hispanic interviewees for any given year
is too small of a sample size to bear statistically significant data.10 Even taken collectively
across all of the years, a comparison of the performance of 51 Caucasian interviewees versus 19
Black interviewees or 8 Hispanic interviewees is likely insufficient to yield statistically
10
It is worth noting that in the September 2005 session, the only individuals who were accepted
into the FIT program were minorities: 1 Black, 1 Asian/Pacific Islander. (See M of E Promotion
to Foreman Program Data (Pls. Ex. 36).)
35
significant results. In any event, Plaintiffs have not provided any evidence that these figures are
statistically significant, such as by offering opinions by a statistics expert to support their
analysis. Compare Port Auth. Police Asian Jade Soc. of New York & New Jersey Inc. v. Port
Auth. of New York & New Jersey, 681 F. Supp. 2d 456, 466 (S.D.N.Y. 2010) (crediting fact that
“Dr. Cavanaugh presented the results of his analyses to the jury and then explained why, in his
opinion, they were significant given the sample size at issue”), with In re W. Dist. Xerox Litig.,
850 F. Supp. 1079, 1084 (W.D.N.Y. 1994) (noting that the plaintiffs “do not have an expert who
is prepared to opine that defendants’ statistics give rise to an inference of discrimination”), and
Carter v. Ball, 33 F.3d 450, 456-57 (4th Cir. 1994) (“[I]f a plaintiff offers a statistical
comparison without expert testimony as to methodology or relevance to plaintiff’s claim, a judge
may be justified in excluding the evidence.” (internal quotation marks and citations omitted)).
Nor have Plaintiffs offered any alternative statistical evidence that might expand the sample size,
such as “evidence concerning the impact which the selection procedure had when used in the
same manner in similar circumstances elsewhere.” 29 C.F.R. § 1607.4(D).
I conclude that, when considered in light of the record as a whole, Plaintiffs’ statistical
presentation is insufficient to carry their burden of demonstrating pretext.
E. Other Arguments
Plaintiffs make a number of other arguments in support their disparate treatment claims,
all of which fail.
For example, they assert that “[n]o minorities sat as interview
panelists/consensus committee members in 2006.” (Pls. Opp. Mem. at 20.) This is debatable,
due to the presence of Ms. Kenwood, a woman, on the panel that interviewed Plaintiffs. Even if
this assertion refers only to racial or ethnic minorities, however, it does not, by itself or in light
36
of the record before the Court, furnish a basis for finding pretext or discrimination.11 See, e.g.,
Turner v. Pub. Serv. Co. of Colorado, 563 F.3d 1136, 1146 (10th Cir. 2009) (“Nor does the fact
that Turner’s interview panel consisted of four men raise any concerns. Turner proffered no
evidence that any of the interviewers held discriminatory attitudes or participated in past
discrimination.”); Obi v. Anne Arundel Cnty., 142 F. Supp. 2d 655, 670-71 (D. Md. 2001)
(“[T]his missed opportunity by the County to craft a process that was more sensitive to
appearances does not translate into a showing that defendant’s articulated reason for selecting
Tait is pretextual. Nor would the fact that the interview panel was all white – by itself – permit a
reasonable juror to infer that race and/or national origin played an impermissible role in the
selection process.”).
Plaintiffs also complain that “[t]he panelists’ decisions were final and there was no
additional review by anyone at Metro-North,” (Pls. Opp. Mem. at 20), and that John Hogan, a
Caucasian superintendent, initially denied Plaintiff Ocana’s request for time off to attend the FIT
program interview, stating “I don’t need more foreman, I need good electricians.” Neither of
these facts evidences pretext or discrimination; Hogan was not even a decision maker. See
Brown v. Cnty. of Erie, No. 12-cv-251, 2013 WL 885993 (W.D.N.Y. Mar. 8, 2013) (“Courts
have routinely held that stray remarks by non-decision makers are insufficient, without other
evidence, to raise an inference of discrimination.”).
Plaintiffs also point to previous class action litigation that was filed in 1994, resulting in a
class that included “all African American/Black employees who were actively employed by
Metro-North at any time during the period from January 1, 1985 to June 30, 2002.” (Id. at 2-3.)
11
In the September 2005 session, Zanetta Johnson, a black woman, interviewed Plaintiff Ocana
and gave him a “do not consider further” rating. (See Pls. Ex. 21, Interr. Resp. 2 & 3; Pls. Ex.
22, Interr. Resp. 2 & 3; Ocana 2005 Interview Sheet (Pls. Ex. 45).)
37
Courts caution, however, that while “evidence of discrimination in employment decisions
affecting other workers could support an inference that the decision makers harbored a bias
against the protected class which might have affected other decisions, including the decisions
adverse to the plaintiff, [t]his does not mean . . . that evidence as to the prior mistreatment of
employees in a protected class necessarily gives rise to an inference that all subsequent
employment decisions adversely affecting that protected class or someone in it, no matter how
unrelated, are also tainted with bias. Rather, some nexus between the circumstantial evidence of
general bias and the [adverse employment decision] is required.” Timmerman v. U.S. Bank,
N.A., 483 F.3d 1106, 1117-18 (10th Cir. 2007). Plaintiffs have not demonstrated any nexus
between the previous class action lawsuit and the decisions not to accept them into the FIT
program. Plaintiff Vidal “received paperwork to join the class but declined because he had only
been working at Metro-North for a short period of time.” (Pls. Opp. Mem. at 2.) Further, there
is a lack of nexus between conduct that was alleged to have occurred between 1994 and 2002,
and the alleged disparate treatment in this suit that took place almost four years later, in 2006.
See Turner, 563 F.3d at 1144 (“[W]e have clarified that a gap of two years between the alleged
general bias and the adverse employment action signals a lack of ‘temporal proximity.’”).
Finally, the existence of a class action lawsuit is not, in and of itself, evidence of prior
mistreatment of employees in a protected class; the class action lawsuit brought against
Defendant settled and therefore does not constitute an actual finding of prior discrimination.
(See Pls. Opp. Mem. at 3 (“A hearing was held before the court on November 26, 2002 and a
Final Judgment and Order of Dismissal approving the Second Amended Stipulation of
Settlement was issued on December 6, 2002.”).)
38
IV.
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:
Hartford, Connecticut
August 6. 2014
39
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