Anaya v. Potter

Filing 42

ORDER granting 37 Motion for Summary Judgment. The Clerk of the Court is directed to close the case. Ordered by Magistrate Judge Andrew L. Carter, Jr on 8/26/2011. (Figeroux, Davina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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OCTAVIO ANAYA,
Plaintiff,

08 CV 3842 (ALC)

v.

MEMORANDUM AND
ORDER

PATRICK R. DONAHOE,
POSTMASTER GENERAL, UNITED
STATES POSTAL SERVICE,1
Defendant.
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CARTER, United States Magistrate Judge:

In this action, plaintiff Octavio Anaya (“Plaintiff” or “Anaya”) has asserted claims
alleging that the United States Postal Service, through its Postmaster General, Patrick R.
Donahoe (“Defendant” or the “Postal Service”), discriminated against him in violation of the
following federal anti-discrimination statutes: (1) Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., on the basis of his national origin; and (2) the Age
Discrimination in Employment Act (“ADEA”), as amended, 29 U.S.C. § 621, et seq., on the
basis of his age. Defendant moves for summary judgment dismissing this action pursuant to
Federal Rule of Civil Procedure 56(e). Based on the submissions of the parties, and for the
reasons set forth below, Defendant’s motion is granted.

1

The original caption named John E. Potter as defendant. Because the position of Postmaster General has
since been filled by Patrick R. Donahoe, he is now the appropriate defendant in this action.

1

BACKGROUND
In any motion for summary judgment brought in this District, the moving party is
required, pursuant to Local Rule 56.1(a), to submit a Statement of Material Facts that it contends
are in dispute. The non-moving party then must, pursuant to Local Rule 56.1(b), set forth the
material facts that it believes are in dispute. In this case, Plaintiff has failed to submit a 56.1
Counter Statement, despite relying on Defendant’s Statement in his motion papers. As such, I
will treat Defendant's 56.1 Statement as unopposed, to the extent its allegations are supported by
the record. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (“If the
opposing party ... fails to controvert a fact so set forth in the moving party's Rule 56.1 statement,
that fact will be deemed admitted.”).
Plaintiff is a 69 year old Hispanic male who was employed by the Postal Service from
1970 until his retirement in 2010. During his 40 year tenure with the Postal Service, Plaintiff
received one temporary promotion and two full promotions, in 1998, 1999 and 2003,
respectively. The last of the three promotions resulted in his being named “Manager, Customer
Service” in the Kew Gardens Hills Post Office, which was the last position he held at the Postal
Service.
Plaintiff claims to have made previous complaints of discrimination over the years, but
provides little specificity. His complaint (“Complaint”) makes vague reference to his “prior
discrimination complaint(s)” but he submitted no evidence to indicate the number or date of such
complaints, or even to indicate that they number more than one. From the record, only one prior
complaint is apparent, and it is annexed to the Declaration submitted by counsel for the Postal
Service. (Eskew Decl. Ex. V.) It indicates that, in July 2006, Plaintiff was denied a promotion

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to another position and filed an internal complaint of discrimination, selecting race, national
origin, sex, age and retaliation as the bases of the claim (the “2006 Complaint”).
On January 2, 2007, the Postal Service announced a vacancy for a position for which
Plaintiff applied, to wit: “Manager Customer Service” in the Rego Park Post Office (the “Rego
Park Position” or the “Position”). The application process required both the submission of a
“Form 991” and a written statement of qualifications, specifically ten areas of knowledge, skills
and abilities (“KSA”) needed for the Position. A committee (the “Committee”) was selected to
review the applications. Three members comprised the Committee: Phyllis A. Morrissey
(“Morrissey”), Jeffrey S. Goldman (“Goldman”) and Robert Botman (“Botman”).
The Committee reviewed all applications and scored each on a scale of 0 (being the
weakest applicant) to 3 (the strongest). The three highest scoring applicants were then selected
for an interview with the Selecting Officer, Sunny Wong (“Wong”). Wong, in turn, would
ultimately select a candidate to be introduced to William Rogers, Postmaster of the Flushing Post
Office. Rogers would then make the official appointment.
Seven Postal Service employees applied for the Rego Park Position, and the Committee
ranked Plaintiff’s application sixth. Specifically, the committee ranked Plaintiff’s KSA answers
quite low, awarding him one point apiece in seven categories, and two points apiece in the
remaining categories. According to the Postal Service, the activities and information provided
by Plaintiff tended to reference events too remote in time to reflect his current abilities. As a
result, he was not selected for an interview.

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John Zucchi (“Zucchi”), a nine-year employee of the Postal Service, was among the three
top-scoring individuals recommended by the Committee.2

According to the Committee,

Zucchi’s application made reference primarily to recent displays of skills and knowledge,
causing his KSA scores to be higher than Anaya’s. Wong conducted interviews and ultimately
selected Zucchi for the Position. Wong’s recommendation was adopted by Rogers.
At a minimum, this was the second position for which Plaintiff was not selected that
involved Wong and Rogers, as the 2006 Complaint listed them as the “persons who took the
action(s)” alleged to be discriminatory.
In his deposition, Plaintiff testified that he does not believe any of the three Committee
members discriminated against him on the basis of age, and that he does not believe that
Goldman, Botman or Wong discriminated against him at all. What are left are the allegations
that both Morrissey, who chaired the Committee, and Rogers, the Postmaster, discriminated
against him on the basis of his national origin and retaliated against him because of a prior
complaint of discrimination.

When asked to provide the basis on which he makes these

accusations, Plaintiff responded, as to Morrissey, that she knew he made “complaints;” that she
became upset with him during a conversation after which she allegedly asked him if he intended
to file another complaint; and that her “distance” following that comment indicated her animus
toward his national origin.

When asked what conduct led him to believe that Rogers

discriminated against him, he responded, “I can’t place it. I don’t know. I don’t know why.” He
later testified that, while he did not believe Rogers discriminated against him on the basis of his
age, he did believe that Rogers discriminated against him based on his national origin because “I

2

Plaintiff has provided no proof of Zucchi’s age, beyond speculating that because Zucchi’s Form 991
indicates that he graduated high school in 1991, he was 34 years old at the time of the promotion. I will
assume arguendo that Zucchi was under 40 at the time of the promotion.
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don’t know. That’s the only one that I could come up with.” (See generally Ex. B to Eskew
Decl. (“Pl. Depo.) at 81-115.)
Plaintiff filed the Complaint on September 18, 2008, alleging discrimination on the bases
of his age and national origin, and for retaliation. Presently before me is Defendant’s motion for
summary judgment.
DISCUSSION

A party moving for summary judgment has the burden of establishing that there exists no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c); Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776 (2007);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986); Ford v.
Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). Material facts are those that may affect the
outcome of the case. See Anderson, 477 U.S. at 248; 106 S.Ct. at 2510. An issue of fact is
considered “genuine” when a reasonable finder of fact could render a verdict in favor of the nonmoving party. See Ricci v. DiStefano, __ U.S. __; 129 S.Ct. 2658, 2677 (2009).
In considering a summary judgment motion, “the court’s responsibility is not to resolve
disputed issues of fact but to assess whether there are any factual issues to be tried, while
resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v.
U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at
2510). If the Court recognizes any material issues of fact, summary judgment is improper, and
the motion must be denied. See Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249
(2d Cir. 1985).
If the moving party discharges its burden of proof under Rule 56(c), the non-moving
party must then “set forth specific facts showing that there is a genuine issue for trial.” Fed. R.
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Civ. P. 56(e). The non-moving party opposing a properly supported motion for summary
judgment “may not rest upon mere allegations or denials of his pleading.” Anderson, 477 U.S. at
256, 106 S.Ct. 2510. Indeed, “the mere existence of some alleged factual dispute between the
parties” alone will not defeat a properly supported motion for summary judgment. Id. at 247-8.
Rather, enough evidence must favor the non-moving party’s case such that a jury could return a
verdict in its favor. See Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir.
1999) (“When no rational jury could find in favor of the nonmoving party because the evidence
to support its case is so slight, there is no genuine issue of material fact and a grant of summary
judgment is proper.”).

A. McDonnell Douglas Burden Shifting Analysis
Discrimination and retaliation claims are subject to the well-known burden-shifting
analysis set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). At the first stage,
Plaintiff must make a prima facie claim of discrimination or retaliation. Id. at 802; Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089 (1981). Then, the burden
shifts to the employer to articulate a legitimate nondiscriminatory (or nonretaliatory) reason for
the challenged action. If the employer does so, using clear, specific reasons for the adverse
action, the plaintiff must then demonstrate that the employer’s proffered reasons are a pretext
and that, more likely than not, the real reason was discriminatory or retaliatory. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 510-11; 113 S.Ct. 2742 (1993). If Plaintiff fails to meet this
final burden of persuasion, Defendant is entitled to summary judgment.
The McDonnell Douglas analysis applies whether the alleged discrimination is grounded in
the employee’s age or national origin, as well as cases in which a plaintiff alleges retaliation
based on prior complaints of discrimination. See McDonnell, 411 U.S. at 802 (setting forth
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prima face case of racial discrimination); see also 42 U.S.C. § 2002e-3(a) (permitting retaliation
actions which are based on underlying complaints of racial or national origin discrimination);
Gomez-Perez v. Potter, 553 U.S. 474, 128 S.Ct. 1931 (2008) (permitting actions under the
ADEA based on prior complaints of age discrimination); Abrahamson v. Bd. of Educ. of
Wappingers Falls Cent. Sch. Dist., 374 F.3d 66, 71 (2d Cir. 2004) (applying McDonnell to
actions brought pursuant to the ADEA).

B. Discrimination Claims
“To meet [his] initial burden of establishing a prima facie case of discrimination,
[Plaintiff] must demonstrate that: (1) [he] is a member of a protected class; (2) [he] applied and
was qualified for a job for which the employer was seeking applicants; (3) [he] suffered an
adverse employment action; and (4) the circumstances surrounding that action permit an
inference of discrimination.” Williams v. R.H. Donnelly, Corp., 368 F.3d 123, 126 (2d Cir.
2004) (quoting McDonnell, 411 U.S. at 802). In this case, it is undisputed both that Plaintiff is a
Hispanic man who was over the age of 40 at all relevant times and that he suffered an adverse
employment action in being denied the promotion. The parties do dispute his qualifications for
the Position, but for the purposes of this motion, I will assume arguendo that he was qualified for
it throughout the application process. What remains is whether he has demonstrated that the
denial of the promotion occurred under circumstances permitting an inference of discrimination
based either on his age or national origin. I find that it did not.
“[C]ourts ... must carefully distinguish between evidence that allows for a reasonable
inference of discrimination and evidence that gives rise to mere speculation and conjecture ... An
inference is not a suspicion or a guess.” Bickerstaff v. Vassar College, 196 F.3d 435, 558 (2d
Cir. 1999); Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir. 2004) (nonmoving party
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may not rely on conclusory allegations or speculation); Wang v. Swain, 09 CV 306 (TM), 2011
WL 887815, at *7 (N.D.N.Y. Mar. 14, 2011) (dismissing claim of plaintiff who was denied
tenure for her failure to provide direct, statistical or circumstantial evidence of any biases among
the decision-makers); Morris v. New York City Dep't of Sanitation, No. 99 CV 4376 (WK),
2003 WL 1739009 at *6 (S.D.N.Y. Apr. 2, 2003) (stray remarks, without a demonstrated nexus
to the complained-of action, insufficient to defeat a summary judgment motion).
In his deposition, Plaintiff readily admitted that he had no reason to believe that the
majority of decision-makers involved in filling the Rego Park Position harbored any
discriminatory animus against him. As described, supra, the first level of applicant screening
was done by the Committee. Of the three Committee members charged with narrowing the list
of candidates to three, Plaintiff accuses only one member, Morrissey, of discrimination on the
basis of national origin.

He did not believe that the other two retaliated against him or

discriminated on the basis of national origin and he did not think that any of the three Committee
members discriminated against him on the basis of his age. After the list of candidates for the
Position was narrowed to three, the next decision-maker was Wong. However, Plaintiff testified
he did not suspect Wong of any type of discrimination. Finally, he accuses the final decisionmaker, Rogers, of national origin discrimination because “[t]hat was the only one that [he] could
come up with.” In sum, Plaintiff exonerated each of the decision-makers as to any claim of age
discrimination, and all but two on his claim of national origin discrimination. Of the two
(Morrissey and Rogers) who remain, he contends that he could tell Morrissey discriminated
against him because of the “distance” she kept from him. As to Rogers, Anaya could come up
with no other reason why he was not selected for the position besides discrimination.3
3

Plaintiff’s position as to Rogers is entirely unsupported by the record, as Rogers did not enter the
selection process until Plaintiff was already eliminated. Therefore, Rogers never had an opportunity to
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Therefore, his discrimination claims fail for want of evidence from which a reasonable factfinder can infer discrimination on either the basis of his age or his national origin.
Even if Plaintiff were able to meet his prima facie burden under the McDonnell Douglas
test, the Postal Service has put forth a legitimate nondiscriminatory basis for denying Plaintiff
the Rego Park Position in that the Committee decided as a whole that his application was not as
strong as Zucchi’s. Of the ten KSA categories on which the applicants were evaluated, Anaya
and Zucchi scored identically in the first six categories. Of the remaining four categories, Anaya
cited incidents of proficiency and achievement dating back to 1999 in one instance, to 2003 in
two instances, and in the remaining instance, the Committee found his answer nonresponsive
altogether. Zucchi’s responses included incidents experienced in his then-current position as
Manager at the Whitestone Post Office, one of which involved him approaching a customer to
suggest more efficient methods of shipping commercial goods, and another acknowledging how
he contributed to the increased efficiency of the Postal Service’s Priority Mail service.
(Compare Eskew Decl. Ex. K with Eskew Decl. Ex. Q.)

Therefore, the Postal Service has

carried its burden under McDonnell Douglas by proffering a legitimate nondiscriminatory reason
for not selecting Plaintiff for the Position. See Hicks, 509 U.S. at 509 (the employer need only
“introduce evidence, which, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.”) (emphases in original); see also Estate of
Hamilton v. City of New York, 627 F.3d 50, 56 n.7 (2d Cir. 2010) (“Our role is to prevent
unlawful hiring practices, not to act as a ‘super personnel department’ that second-guesses
employers' business judgments.”) (citation omitted); Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.
2006) (employer is not required to prove allegations beyond a reasonable doubt).

reject Plaintiff. To the extent Plaintiff claims that Rogers exerted influence on the Committee, this is yet
another blanket assertion for which he provides no support.
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Now, the burden shifts back to Plaintiff to present sufficient evidence for a reasonable
factfinder to conclude that the reason provided was pretextual and that the real reason he was not
offered the Rego Park Position is because of discrimination. See Slattery v. Swiss Reinsurance
Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001). In this regard, “the issue not whether the employer
reached a correct conclusion” in selecting Zucchi over Anaya for the Position, but “whether the
employer made a good-faith business determination.” Baur v. Rosenberg, Minc, Falkoff &
Wolff, No. 07 CV 8835 (GEL), 2008 WL 5110976, at *5 (S.D.N.Y. Dec. 2, 2008). The Court is
“decidedly not interested in the truth of the allegations against plaintiff [but rather] what
motivated the employer.” McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d
Cir. 2006) (emphasis in original).
Just as Plaintiff failed to present evidence permitting an inference of discrimination, so
too has he failed to introduce evidence indicating that the Postal Service’s proffered reason for
not selecting him for the Position is pretextual. He merely reiterates that his years of service far
exceeded Zucchi’s and insists that his application was the stronger of the two. He neither puts
forth evidence that challenges the Postal Service’s stated motivation for hiring Zucchi nor any
other evidence of discrimination, other than his own conjecture. Because Plaintiff “cannot
escape summary judgment by simply attacking the legitimacy of the employer’s findings,”
Avillan v. Potter, No. 04 CV 9019 (PKC) (FM), 2006 WL 3103309, at *19 (S.D.N.Y. Nov. 1,
2006), summary judgment on Plaintiff’s discrimination claims is warranted.

C. Retaliation Claim
As stated, supra, the McDonnell Douglas burden-shifting analysis applies equally to claims
of retaliation. See McDonnell, 411 U.S. at 802; see also 42 U.S.C. § 2000e-3(a). The prima

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facie elements of retaliation are slightly different from those in a discrimination case. In a
retaliation case, the plaintiff must first show (1) participation in a protected activity; (2) that the
employer was aware of this activity; (3) that he suffered an adverse employment action; and (4)
that a causal connection exists between the adverse employment action and the protected
activity. Slattery, 248 F.3d at 91. At that point, the burden shifts to the Postal Service which, in
providing a legitimate nondiscriminatory reason for not promoting Anaya, has also provided a
legitimate nonretaliatory reason for same.
Therefore, even assuming arguendo that Plaintiff has made a prima facie showing of
retaliation, the claim fails because he can neither demonstrate that the Postal Service’s proffered
reason is pretextual nor provide evidence beyond speculation that would permit a factfinder to
conclude that, more likely than not, he was not selected because of retaliation. His allegations
that he perceived Morrissey to be creating “distance” between them and that he could think of no
other reason to explain his failure to be promoted besides Morrissey’s and Rogers’ retaliation are
patently insufficient.

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CONCLUSION
Plaintiff has offered no evidence of discrimination or retaliation other than his own
impressions and speculations. He admitted that he did not believe most of the decision-makers
exhibited any discriminatory or retaliatory animus. Of those he did accuse, his reasons were
groundless, and were successfully rebutted by the Postal Service’s production of evidence
supporting its decision not to promote him. While it appears he completed an impressive 40
years of service with the Defendant, that alone does not entitle him to every job promotion. For
the foregoing reasons, Defendant’s motion is granted. The Clerk of the Court is directed to close
the case.

SO ORDERED.

DATED: August 26, 2011
Brooklyn, New York

____________/s/________________
Andrew L. Carter, Jr., U.S.M.J.

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