BROWN v. DELAWARE RIVER PORT AUTHORITY
Filing
37
OPINION FILED. Signed by Judge Noel L. Hillman on 3/28/14. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANDRE BROWN,
Plaintiff,
v.
DELAWARE RIVER PORT AUTHORITY,
Defendant.
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Civil Action No.
12-1685(NLH)(JS)
OPINION
APPEARANCES:
JACQUELINE M.
99 NORTH MAIN
MULLICA HILL,
Attorney
VIGILANTE
STREET
NJ 08062
for plaintiff
WILLIAM M. TAMBUSSI
CHRISTOPHER A. ORLANDO
BROWN & CONNERY LLP
360 HADDON AVENUE
WESTMONT, NJ 08108
Attorney for defendant
HILLMAN, District Judge
Plaintiff has brought claims of employment discrimination
on account of race under Title VII for defendant’s failure to
promote him from police sergeant to lieutenant.
Court is defendant’s motion for summary judgment.
Before the
For the
reasons expressed below, defendant’s motion will be granted.
I. BACKGROUND
Plaintiff, Andre Brown, is an African-American police
sergeant with defendant Delaware River Port Authority (“DRPA”).
On November 23, 2009, a vacancy announcement was posted in the
DRPA for the position of lieutenant (“initial posting”).
Qualifying applicants must have previously served as sergeant
and, among other qualifications, have a bachelor’s degree in a
related field.
Pursuant to DRPA policy, a vacancy notification
is required for each vacancy, and must be approved by the CEO
and circulated.
The vacancy notification which was circulated
and approved by the executive and administrative officers of the
DRPA included a position description for lieutenant, which had
been revised and approved in February 2009.
The notification
stated that there was one vacancy, created by the retirement of
Lieutenant Nottingham.
Plaintiff applied for the promotion along with seventeen
other sergeants, six of which, including plaintiff, had the
requisite education.
Caucasian.
Two were African American, four were
The initial posting remained open from November 23,
2009 through and including December 4, 2009.
Internal emails at DRPA show that the initial posting was
revised (“revised posting”) on November 24, 2009 – the day after
the initial posting and six days before plaintiff or anyone else
applied for the position.
However, the applicants were not
2
informed of the revised posting until December 8, 2009, via
email.
The DRPA internally posted the revised posting on
December 9, 2009.
The revised posting reduced the educational
requirement from a bachelor’s degree to an associate’s degree or
documented law enforcement training within the past five years.
Plaintiff claims that the DRPA intentionally discriminated
against him when it reduced the initial posting’s educational
requirement to enable lesser-qualified Caucasians to qualify for
the position.
As a result of the revised posting, four applicants without
bachelor’s degrees made the cut, and were among the six
applicants promoted; three were Caucasian (Bollendorf, Finnegan,
and Luongo), and one was Hispanic (Santiago).
The other two
selected candidates were Caucasian (O’Neil) and African-American
(Cobbs).
Plaintiff was not selected for promotion to
lieutenant.
II.
DISCUSSION
A. Jurisdiction
The Court has subject matter jurisdiction of this case
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.
B. Summary Judgment Standard
3
Summary judgment is appropriate where the Court is
satisfied that “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 330 (1986); Fed. R. Civ. P. 56.
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
Id.
In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.” 1
1 Plaintiff points out that defendant failed to respond to
plaintiff’s supplemental statement of material facts in
violation of Local Rule 56.1(a). Local Rule 56.1(a) provides
that if a non-movant provides a supplemental statement of
material facts, the “...movant shall respond to any such
supplemental statement of disputed material facts as above, with
its reply papers.” Here, plaintiff submitted a supplemental
statement of facts containing 143 paragraphs. The Court will
deem any material supplemental facts to be true if defendant has
4
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving
party has the burden of demonstrating the absence of a genuine
issue of material fact.
323 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for trial.
Id.
Thus, to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party.
Anderson, 477 U.S. at 256-57.
A party opposing summary
judgment must do more than just rest upon mere allegations,
general denials, or vague statements.
Saldana v. Kmart Corp.,
260 F.3d 228, 232 (3d Cir. 2001).
C. Title VII – Failure to Promote
Title VII prohibits employment discrimination on the basis
of race, color, religion, sex, or national origin.
2000e-2.
42 U.S.C. §
A claim of race discrimination under Title VII uses
the burden shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 803-05 (1974).
Under that
framework, a plaintiff must first establish a prima facie case.
not disputed them in his statement of material facts.
5
The elements of a prima facie case depend on the facts of the
particular case, and it cannot be established on a one-sizefits-all basis.
Jones v. School Dist. of Philadelphia, 198 F.3d
403, 411 (3d Cir. 1999).
If the plaintiff presents a prima facie case, the burden of
production then shifts to the defendant to “articulate some
legitimate, nondiscriminatory reason for the employee's
rejection.”
1997).
Bray v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir.
“The employer satisfies its burden of production by
introducing evidence which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the
unfavorable employment decision.”
759, 763 (3d Cir. 1994).
Fuentes v. Perskie, 32 F.3d
“The employer need not prove that the
tendered reason actually motivated its behavior, as throughout
this burden-shifting paradigm the ultimate burden of proving
intentional discrimination always rests with the plaintiff.”
Id.
This is a light burden.
Id.
Once the employer answers its relatively light burden by
articulating a legitimate, nondiscriminatory reason for the
unfavorable employment decision, the burden of production
rebounds to the plaintiff, who must now show by a preponderance
of the evidence that the employer’s explanation was merely a
6
pretext for its actions, thus meeting the plaintiff's burden of
persuasion.
Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d
313, 319 (3d Cir. 2000) (citing Reeves v. Sanderson Plumbing
Products Inc., 530 U.S. 2097 (2000)).
The plaintiff must:
demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or
contradictions in the employer's proffered
legitimate reasons for its action that a
reasonable factfinder could rationally find them
“unworthy of credence” and hence infer “that the
employer did not act for [the asserted]
nondiscriminatory reasons.”
Bray, 110 F.3d at 990 (citing Fuentes, 32 F.3d
765)(emphasis in original).
“An inference of pretext may arise if the plaintiff can
raise suspicions with respect to the defendant's credibility or
the employer's treatment of the employee.”
Id. (citing Josey v.
John R. Hollingsworth Corp., 996 F.2d 632, 638-39 (3d Cir.
1993)).
“The inference, along with the components of the
plaintiff's prima facie case, allow a jury to conclude that the
employer was actually motivated by illegal bias, but it does not
compel that result.”
67).
Id. (citing Sheridan, 100 F.3d at 1066-
A plaintiff cannot prevail under Title VII merely by
establishing that the employer made a decision that was wrong or
mistaken.
Id. (citing Fuentes, 32 F.3d at 765).
7
In this case, it is undisputed that plaintiff has met the
first three elements of his prima facie case: (1) he belongs to
a protected category; (2) he applied for and was qualified for a
job in an available position; and (3) he was rejected.
Defendant argues that plaintiff cannot not meet the fourth
element - that after the rejection, the position remained open
and defendant continued to seek applications from persons of
plaintiff's qualifications for the position.
Defendant argues
that while the application window to apply for the lieutenant
position was open, the DRPA received twenty internal
applications.
Of those twenty, six were promoted to lieutenant
on April 23, 2010.
Three minorities applied for the position,
and of those three, two received the promotion: one AfricanAmerican and one Hispanic.
Plaintiff was the one minority who
did not receive the promotion.
After the plaintiff was
rejected, the position was not reopened.
Plaintiff argues that he can satisfy the fourth element
because the DRPA filled the spot with a similarly situated
applicant who was not of plaintiff’s protected class.
In
support of his argument, plaintiff cites to an unpublished
decision, Profico v. Delaware River Port Authority, No. 11-6961,
2013 WL 3283947, at *3 (D.N.J. June 27, 2013), which holds that
8
in order to present a prima facie case of discrimination, the
plaintiff must establish that: “(1) she is a member of a
protected class; (2) she was qualified for the position at
issue; (3) she was not promoted; and (4) Defendants filled the
spot with a similarly situated applicant who was not of
[plaintiff’s] protected classes.”
Id.
(citing Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994); Ezold v. Wolf, Block,
Schorr and Solis–Cohen, 983 F.2d 509, 523 (3d Cir. 1992)).
The
two cases cited in Profico, however, present a slightly
different standard for the fourth element.
In Fuentes, the
Third Circuit ruled that “[i]n a case of failure to hire or
promote under Title VII, the plaintiff first must carry the
initial burden under the statute of establishing a prima facie
case of [unlawful] discrimination...by showing... (iv) that,
after his rejection, the position remained open and the employer
continued to seek applicants from persons of complainant's
qualifications.”
Fuentes, 32 F.3d at 763 (citing McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. at 1824)).
However, in
Ezold, the Third Circuit stated, “[t]he plaintiff can establish
a prima facie case by showing that... [iv] non-members of the
protected class were treated more favorably.”
9
Ezold, 983 F.2d
at 523, abrogated, in part, on other grounds 2, St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993)).
Since the burden-shifting framework of both Fuentes and
Ezold are based on the Supreme Court’s decision in McDonnell
Douglas, it is necessary to review the elements for a prima
facie case outlined by the Supreme Court in that case, which
states:
The complainant in a Title VII trial must carry
the initial burden under the statute of
establishing a prima facie case of racial
discrimination. This may be done by showing (i)
that he belongs to a racial minority; (ii) that
he applied and was qualified for a job for which
the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and
(iv) that, after his rejection, the position
remained open and the employer continued to seek
applicants from persons of complainant's
qualifications.
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.
The Supreme Court, however, added a footnote to the fourth
element stating, “[t]he facts necessarily will vary in Title VII
2 The Supreme Court in St. Mary's Honor Ctr., clarified step
three in the McDonnell Douglas framework by ruling that the
plaintiff must prove that unlawful discrimination was the
determinative factor underlying the adverse employment action
and may not just rely on evidence that defendant's articulated
reason is pre-textual.
10
cases, and the specification above of the prima facie proof
required from respondent is not necessarily applicable in every
respect to differing factual situations.”
Id.
at 802 n.13.
This suggests that although the fourth element in a Title VII
race discrimination case is whether “after [plaintiff’s]
rejection, the position remained open and the employer continued
to seek applicants from persons of complainant's
qualifications[,]” other considerations may come into play.
Moreover, the Third Circuit has provided guiding principles in
applying the burden-shifting framework.
First, as a remedial
civil rights statute, Title VII must be construed liberally and
interpreted broadly.
Scheidemantle v. Slippery Rock University
State System of Higher Educ., 470 F.3d 535, 538-39 (3d Cir.
2006).
“Second, there is a low bar for establishing a prima
facie case of employment discrimination.”
Id. (citing Ezold,
983 F.2d at 523; Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d
Cir. 1990)).
Thus, although the first inquiry in deciding if plaintiff
made out a prima facie case will be whether the position
remained open and the employer continued to seek applicants, the
Court will also consider more broadly whether persons of the
non-protected class were treated more favorably.
11
See Bray, 110
F.3d at 990 (outlining prima facie case for failure to promote
plaintiff as requiring plaintiff to show that he: (1) belongs to
a protected category; (2) applied for and was qualified for a
job in an available position; (3) was rejected; and (4) after
the rejection, the position remained open and the employer
continued to seek applications from persons of plaintiff's
qualifications for the position; but, also noting that “the
position did not remain open after [plaintiff] was rejected....
However, this variance from the letter of the McDonnell Douglas
Corp. formula is not relevant to our analysis.
‘The facts
necessarily will vary in Title VII cases, and the specification
... of the prima facie proof required ... is not necessarily
applicable in every respect to different factual situations.’”)
(citing McDonnell Douglas Corp., 411 U.S. at 802 n. 13, 93 S.Ct.
at 1824 n. 13.).
Here, defendant has provided undisputed evidence that after
plaintiff was rejected, the position did not remain open and
DRPA did not continue to seek applications.
However, the
initial posting was revised to reduce the educational
requirements permitting more members of a non-protected class to
qualify for the position.
Due to the revised posting, plaintiff
has presented evidence that defendant promoted six sergeants:
12
one African-American, one Hispanic, and four Caucasians.
It is
undisputed that the four Caucasians are not members of a
protected minority class.
the position of lieutenant.
Like plaintiff, they interviewed for
Unlike plaintiff, three of the non-
minority applicants did not hold bachelor degrees at the time of
their applications and, therefore, benefitted from the revised
posting.
Thus, plaintiff has demonstrated at the prima facie stage
that non-members of the protected class were treated more
favorably by the revised posting and by being promoted to
lieutenant although they lacked the educational background
achieved by the plaintiff. 3
Therefore, plaintiff has presented
evidence in support of his prima facie case and the burden now
shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the failure to promote plaintiff.
Plaintiff’s argument in support of his failure to promote
claim appears to center on two decisions: first, the decision to
3 In addition, DRPA’s CEO, John Matheussen, used certain
subjective criteria in deciding whom to promote. The Third
Circuit has held “that while objective job qualifications should
be considered in evaluating a plaintiff's prima facie case, the
question of whether an employee possesses a subjective quality,
such as leadership or management skill, is better left to the
later stage of the McDonnell Douglas analysis.” Goosby v.
Johnson & Johnson Medical, Inc., 228 F.3d 313, 320 (3d Cir.
2000).
13
reduce the educational requirement which allowed Caucasians who
otherwise would not have been qualified to apply for the
position of lieutenant; and second, the decision to promote
Caucasians from the pool of applicants, particularly to promote
sergeant Luongo who was rated below plaintiff by the interview
panel.
With regard to the first decision, the initial posting for
the position of lieutenant was revised on November 24, 2009 to
lower the educational requirement from a bachelor’s degree to an
associate’s degree or documented law enforcement training.
Defendant states it was revised six days before plaintiff, or
any other person, applied.
One of the reasons proffered by the
defendant for the change was the bachelor’s degree requirement
could result in a shortage of candidates for the position.
Although the initial posting only advertised for one vacancy,
Chief McClintock knew that several upcoming officer promotions
from lieutenant to captain, as well as other retirements would
result in more vacancies.
The other reason proffered by the defendant for reducing
the educational requirement is that waiving or failing to
enforce the educational requirement of a bachelor’s degree was
common practice.
In some instances, the candidates were
14
required to obtain the requisite degree within five years of
being promoted, although the DRPA never terminated or demoted
officers who failed to obtain the educational requirement.
Defendant presented evidence that the DRPA promoted plaintiff
from corporal to sergeant in August 1999, even though he had not
obtained a bachelor’s degree at the time of his promotion. 4
Defendant has also presented evidence that at least as of 2004,
it was not mandatory that a candidate for lieutenant possess a
bachelor’s degree at the time of the application, although
successful candidates would be required to obtain a bachelor’s
4 Plaintiff received a bachelor’s degree in 2001, and a master’s
degree in 2003 in religious education from Covington Theological
Seminary. The Court can take judicial notice that the United
States Department of Education has not recognized Covington
Theological Seminary as an accredited educational institution.
See http://ope.ed.gov/accreditation/; In re Wellbutrin SR/Zyban
Antitrust Litigation, 281 F.Supp.2d 751, 755 n. 2 (E.D.Pa. 2003)
(recognizing that courts may take judicial notice of federal
government or federal agency documents published on websites).
It is undisputed that plaintiff did not obtain a bachelor’s
degree from an accredited college when he applied for the
position of lieutenant. Defendant’s position statement
submitted to the EEOC after plaintiff’s EEOC charge filed in
October 2010 stated that the reason plaintiff was not selected
for promotion was that his college degrees were not issued by an
accredited university. During the promotional process, however,
the DRPA did not reject plaintiff’s degrees based on the
accreditation of the university and defendant has not raised
this as a defense in this litigation. Therefore, the Court will
not question the sufficiency of the degree and will accept that
plaintiff has a bachelor’s degree.
15
degree within five years of being selected.
Accordingly, defendant has presented legitimate, nondiscriminatory reasons for the change in educational
requirement.
There was a common practice of relaxing the
educational requirements, and such practice was relied upon by
the officers.
Also, there was a need to increase the applicant
pool in order to fill six vacancies, rather than just one.
A
reduction in the educational requirement increased the number of
qualified applicants.
With regard to the second decision - defendant’s decision
not to promote plaintiff - defendant has offered evidence that
the interview panel ranked Finnegan, Santiago and O’Neill as
“excellent” which rating was higher than plaintiff’s rating of
“very good.”
The interview panel gave Bollendorf the same
rating as plaintiff.
DRPA’s CEO, John Matheussen, considered
other factors in his decision to promote Bollendorf, namely, his
“excellent write up. Very good solid experience. Academic
experience as well as training... significant number of years on
the force.”
The one candidate who was ranked lower than plaintiff was
Luongo.
Luongo, who is Caucasian, received a ranking of “fair”
by the interview panel which is lowest ranking.
16
The reason
offered by defendant for the promotion of Luongo over plaintiff
is that Matheussen admitted that he promoted Luongo because of
his personal relationship and dealings with him.
Although this
decision is based on favoritism rather than merit, the question
presented is whether defendant has offered a legitimate, nondiscriminatory reason.
The Third Circuit has suggested that
friendship or cronyism is not actionable under Title VII.
See
Parks v. Rumsfeld, 119 Fed.Appx. 382, 384 (3d Cir. 2005)
(“friendship or cronyism is not a basis for relief under the
ADEA or Title VII.”).
Therefore, at this stage in the burden-
shifting process, defendant has met its light burden of
proffering legitimate, non-discriminatory reasons for lowering
the educational requirement and for promoting Finnegan,
Santiago, O’Neill and Luongo.
Accordingly, the burden now
shifts back to the plaintiff to demonstrate that defendant’s
reasons are pretext for discrimination.
Plaintiff argues that defendant’s proffered reasons for
lowering the educational requirements - namely, to increase the
applicant pool, to be fair to existing sergeants, to garner a
more diverse applicant pool, and to meet the needs of additional
vacancies - do not “hold any water.”
Plaintiff also argues that
Luongo, Finnegan, Bollendorf and Santiago were not more
17
qualified than plaintiff and argues that the subjective criteria
used to promote them is susceptible to abuse and more likely to
mask pretext.
Plaintiff states that the lowering of the educational
requirement was “unprecedented” and resulted in making Luongo,
Finnegan, Bollendorf and Santiago qualified for the position
when they otherwise would not have been.
Although plaintiff
compares the facts in this case to the decision in Profico in
which the Court found the reduction in educational requirement
“unprecedented,” this case is distinguishable from Profico.
In
Profico, the plaintiff presented evidence that the change in
educational requirements for a payroll administrator was
“unprecedented” and PATCO’s human resources director testified
that never had an applicant been able to obtain an educational
requirement after-the-fact, and the change was “glaring.”
Profico, 2013 WL 3283947, at **1, 4.
Here, in 2004, the DRPA permitted candidates for lieutenant
to apply without a bachelor’s degree if they obtained their
degree within five years.
Although the lowering of the
educational requirement goes further than permitting candidates
to obtain it within five years, there is no evidence that any
successful candidate was ever terminated or demoted due to
18
failure to obtain a bachelor’s degree, thereby lowering the
requirement in practice.
This relaxation of the educational
requirement was also permitted for candidates applying from
corporal to sergeant and, which permitted plaintiff to be
promoted without a bachelor’s degree at the time he applied for
sergeant.
As such, reducing the educational requirement is not
completely “unprecedented,” nor is it “glaring” under these
facts.
Likewise, given that this was a common practice in the
department, years before the vacancies for lieutenant occurred,
it is reasonable to conclude that those in line for promotion
would rely on a relaxing of the educational requirements.
The
DRPA’s Director of Public Safety, Michael Joyce, and Chief of
Police, David McClintock, testified that the reason the position
description was revised was to be fair to the pool of sergeants,
many of whom did not have degrees.
Defendant’s other proffered reason also does not indicate
discriminatory intent.
Although the initial and revised
postings only indicated one vacancy for lieutenant, there were
in fact ultimately six vacancies that needed to be filled.
In
May 2010, three Lieutenants were promoted to Captain and the
other two retired after being passed over for promotion.
Plaintiff argues that at the time the CEO made the decision to
19
promote six people to the rank of lieutenant in March 2010,
there had been no vacancy notification issued for the five other
vacancies.
Even though an official notification was not issued,
it is undisputed that defendant knew about the upcoming
vacancies.
Chief McClintock testified that he knew that he
would have to fill six vacancies which occurred a few months
after the initial posting.
Thus, there is no discriminatory
intent shown in defendant’s desire to increase the applicant
pool in order to fill six vacancies.
Plaintiff also argues defendant knew the racial make-up of
the applicants before they revised the posting because a year
later, in a memorandum drafted by Kelly Forbes, director of
human resources for DRPA, to John Matheussen, CEO of DRPA, dated
December 3, 2010, In the memorandum, written over a year after
the events at issue here and regarding a different job posting
altogether, Forbes states that the posting for lieutenant was
revised because the applicants did not reflect diversity.
The
memorandum written by Forbes was a comparison of the vacancy
process used to recruit sergeants in late 2010 to the vacancy
process used in 2009-2010 for lieutenant.
In the memorandum,
Forbes states that in 2009, there were six lieutenant vacancies
to fill but that they received only three or four applications
20
from candidates who had the requisite bachelor’s degree and the
“applications did not reflect a diversity of candidates (i.e.,
female and minority employees)... .”
The memorandum also states
that due to the low number and lack of minority candidates, the
educational requirement was waived which increased the pool from
four to 16 and provided more diverse applicants.
Plaintiff relies on this memorandum as proof that the DRPA
had to have known the racial make-up of the applicants in order
to have changed the requirement to seek a more diverse pool of
applicants.
It is undisputed, however, that the initial posting
was revised on November 24, 2009, before any of the candidates
submitted their applications.
Plaintiff has not presented any
testimony from Forbes that would support the facts remembered
(or misremembered) in her 2010 memorandum, and plaintiff has not
presented any evidence that contradicts or questions the
authenticity of Forbes’s email on November 24, 2009, sent at the
time of the revision, asking for clarification as to what
related fields could substitute for the bachelor’s degree
requirement.
Although plaintiff states that a jury could believe the
2010 memo and disregard the other evidence, there has to be some
basis to find that this factual dispute, if resolved in
21
Plaintiff’s favor, would prove pretext either alone or in
combination with other circumstantial evidence.
However, the
December 2010 memorandum does not allow for that inference.
Of
course, if it is literally true then it proves the opposite of
discriminatory intent since the stated reason for the change was
to increase diversity in the applicant pool.
If it is a post-
hoc rationalization of the much earlier revised posting for
lieutenant, and therefore evidence of pretext, it not only
appears in an odd place but it is wholly contradicted by all the
other evidence in the case that the revised posting was decided
on before any candidates applied.
In other words, plaintiff has
not demonstrated how any reasonable jury could find that the
DRPA knew the background of the applicants before the revision,
based on Forbes’s 2010 memorandum, while at the same time being
presented with uncontroverted evidence that the initial posting
was revised the day after it was posted, and before any of the
candidates submitted applications.
Plaintiff would have to
present facts to discredit those emails and testimony, and
plaintiff has not submitted any contradictory evidence.
See
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). (A
party opposing summary judgment must do more than just rest upon
22
mere allegations, general denials, or vague statements).
5
The only reasonable inference is that the Forbes’s 2010
statement is false, not intentionally so because that would not
advance defendant’s case, but because Forbes in 2010
misremembered or failed to accurately described what happened a
year earlier.
While “inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons”
may often demonstrate pretext and may be the only discoverable
evidence of it, such discrepancies must allow “a reasonable
factfinder [to] rationally .... infer” the defendant acted with
the requisite intent.
The seeming contradiction between the
2010 memo and the contemporaneous emails and draft revisions
surrounding the revised posting is not a material factual
dispute nor is the Court resolving a factual dispute against the
non-moving party.
This dispute is simply a red herring.
See
Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769 (2007) (“[T]he
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no
5 Plaintiff has suggested that defendants could surmise who
might apply based on the number of qualified sergeants.
This,
however, is plaintiff’s speculation. There are no facts before
the Court that could show that defendants knew who might apply.
23
genuine issue of material fact.”) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–248, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986)).
What plaintiff has shown is that if the educational
requirements were not changed, then only six applicants would
have been qualified and plaintiff would more than likely have
been promoted if the educational requirement were strictly
enforced. 6 Plaintiff has also shown that others, with lesser
educational credentials, and in the case of Luongo, with a lower
interview rating, were promoted instead of him. 7
What plaintiff
6 Defendant, in its reply, states that there were seven, not
six, candidates who possessed bachelor degrees and, therefore,
if the bachelor’s degree requirement was enforced, plaintiff may
not been chosen. Defendant relies on the memorandum dated
February 25, 2010, to Chief McClintock regarding the lieutenant
selection process, which states that Sergeant Bollendorf has a
bachelor’s degree. However, the chart of “Lieutenant of Police
Minimum Qualifications” submitted by defendant as Exhibit 21,
indicates that Bollendorf did not have a bachelor’s degree.
Further, in his sur-reply, plaintiff disputes the fact that
seven candidates had bachelor’s degree. On summary judgment,
the facts are viewed in the light most favorable to the
plaintiff, and here, defendant has not established that seven
candidates had bachelor’s degrees as an undisputed fact.
7 The candidates rated as excellent were: Edward R. Cobbs Jr.
(African-American), Michael Crowther (Caucasian), Robert J.
Finnegan (Caucasian), Johnny Santiago (Hispanic), Joseph O’Neill
(Caucasian), Joseph A. Zito (Caucasian). Plaintiff, along with
four other candidates, was rated as “very good.” Two candidates
were rated as “good” and three candidates, including Michael
Luongo, were rated as “fair.”
24
has not shown, however, is that defendant reduced the
educational requirements to discriminate against him on the
basis of race.
Defendant provided legitimate, non-
discriminatory reasons for reducing the educational requirement.
Defendant has also shown that four of the candidates received a
higher rating than plaintiff, and one received the same rating
as plaintiff.
With regard to Luongo, who was ranked lower than
plaintiff, Matheussen testified that he was friends with
Luongo’s father and it was Matheussen’s subjective decision to
promote Luongo rather than plaintiff. 8
While a decision based on
favoritism instead of merit is often unfair, unwise, and
objectionable as a matter of good public administration often
leading to unfortunate results – and in some ways a remarkable
admission that should raise substantial concerns about the
employment practices of an important governmental body with law
8 “Subjective evaluations are more susceptible of abuse and
more likely to mask pretext.” Goosby v. Johnson & Johnson Med.,
Inc., 228 F.3d 313, 320 (3d Cir. 2000). Because subjective
criteria entered into the decision-making, the Court is
warranted in undertaking a careful analysis of possible
impermissible motivations. See Tomasso v. Boeing Co., 445 F.3d
702, 706 (3d Cir. 2006) (citing Xin Liu v. Amway Corp., 347 F.3d
1125, 1136 (9th Cir. 2003)); Goosby, 228 F.3d at 321
(“...cloaking [subjective] criteria with an appearance of
objectivity does not immunize an employment decision from a
claim of discrimination.”). Despite this scrutiny, however,
there is no evidence of racial animus toward plaintiff in DRPA’s
decision not to promote him.
25
enforcement powers - it is not necessarily discrimination on the
basis of race.
While such subjective decision-making raises a
suspicion, plaintiff must come forward with evidence that the
decision was motivated by discriminatory animus.
Goosby, 228
F.3d at 321 (“a plaintiff can not ultimately prove
discrimination merely because his/her employer relied upon
highly subjective qualities (i.e. “drive” or “enthusiasm”) in
making an employment decision.”).
Plaintiff has not done so.
At best, he has shown that the decision to promote Luongo was
motivated by favoritism.
Favoritism, without discriminatory
intent, is not actionable under Title VII.
See Parks, 119
Fed.Appx. at 384.
Although the plaintiff can criticize DRPA’s decision to
promote four candidates who do not possess bachelor’s degrees as
unfair, or even unsound, the legal question before the Court is
whether sufficient evidence exists that the real reason
plaintiff was not promoted was race discrimination.
See Keller
v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir.
1997)(“The question is not whether the employer made the best,
or even a sound, business decision; it is whether the real
reason is [discrimination].”) (quoting Carson v. Bethlehem Steel
Corp., 82 F.3d 157, 159 (7th Cir. 1996).
26
There is no evidence,
either alone or in combination with other evidence, that DRPA
failed to promote plaintiff because of his race.
Therefore,
DRPA’s motion for summary judgment shall be granted.
III. CONCLUSION
Plaintiff has not provided sufficient evidence to defeat
summary judgment on his race discrimination claim.
Nothing
about plaintiff’s proffered evidence shows that DRPA’s failure
to promote him to the rank of lieutenant was motivated by his
race.
Without providing such evidence, plaintiff cannot
overcome defendant’s proffered reasons for lessening the
educational requirements and for promoting other sergeants.
Consequently, summary judgment must be entered in favor of
defendant.
Date:
An appropriate Order will issue.
March 28, 2014
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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