Anand v. New York State Department of Taxation and Finance
ORDER granting 52 Motion for Summary Judgment. SO ORDERED that defts' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 is granted. The Clerk of the Court shall enter judgment accordingly and close this case. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 2/28/2014. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstNEW YORK STATE DEPARTMENT OF
TAJCATION AND FINANCE, eta!.,
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N y
Fid 2 8 2014
LONG ISLAND OFFICE
On November 5, 2010,pro se plaintiff Vas Anand ("plaintiff') commenced this action
against the New York State Department of Taxation and Finance (the "Department"), alleging,
inter alia, employment discrimination in violation of federal law. [Docket Entry No. 1]. On
May 2, 20 II, after the Department had served a motion to dismiss, plaintiff filed an amended
complaint, which added defendants Anthony Vano ("Vano"), Thomas Varghese ("Varghese"),
Gregory Wiley, Nonie Manion, Joseph Macchio ("Macchio"), Annmarie Dwyer ("Dwyer"), and
Dennis Gillooly ("Gillooly"), individually and in their official capacities. [Docket Entry No. 9].
On December 29, 2011, all eight (8) defendants jointly filed a motion to dismiss. [Docket Entry
No. 15]. By order dated June 18,2012, the Court granted in part and denied in part defendants'
motion to dismiss and granted plaintiff leave to file a second amended complaint. [Docket Entry
No. 20]. On July 27,2012, plaintiff filed a second amended complaint. [Docket Entry No. 24].
On March 21, 2013, defendants filed a motion to dismiss the second amended complaint. 1
On April 10,2013, defendants' motion was referred to the Honorable Magistrate Judge William
D. Wall. On May 28,2013, Magistrate Judge Wall issued a report (the "Report), recommending that,
inter alia, "all claims set forth in the Second Amended Complaint be dismissed, except for the section
[Docket Entry No. 32]. On July 25, 2013, this Court issued an order dismissing all claims in the
second amended complaint, except the equal protection claim on the basis of age discrimination
brought pursuant to Section 1983 against defendants Macchio, Varghese, and Gillooly
(collectively, "defendants"), and referring the parties to Magistrate Judge Wall to conduct
discovery. [Docket Entry No. 42]. Now before the Court is defendants' motion for summary
judgment. For the reasons that follow, defendants' motion is granted.
Plaintiff, who was born in 1934, has been employed by the New York State Department
of Taxation and Finance (the "Department") since 1997. (Defs.' 56.1 Stmt ~I; Pl. Aff. at 1).
Varghese was plaintiffs immediate supervisor from March 2005 through October 2007. (Pl.'
4). Macchio and Gillooly are former employees of the Department. (Defs.' 56.1
Stmt. ~~ 6, 8). Varghese, Macchio, and Gillooly reported to Dwyer, who in tum reported to
Vano, the district audit manager.
In 2007, plaintiff applied for a Tax Auditor 2 position and was interviewed by Vano and
Dwyer, but did not receive the promotion.
In 2008, plaintiff was interviewed for a Tax Auditor 2 position, but no one was promoted
that year. (!d.
In May 2009, plaintiff was interviewed by Varghese, Macchio, and Gillooly for a Tax
1983 equal protection claim based on age against defendants Macchio, Varghese and Gillooly." [Docket
Entry No. 35, at 1]. On June 10,2013, defendants filed objections to the Report. [Docket Entry No. 36].
On July 8, 2013, plaintiff filed a "reply" to the Report. [Docket Entry No. 39]. On July 24, 2013,
defendants filed a response to plaintiffs "reply." [Docket Entry No. 41].
The facts are taken from the undisputed assertions in defendants' Statement of Undisputed
Material Facts Pursuant to Local Civil Rule 56.1 ("Defs.' 56.1 Stmt"), Plaintiffs Statement to
Defendant's Statement of Undisputed Material Facts Pursuant to Local Civil Rules 56.1 ("Pl. 56.1 Stmt"),
plaintiffs affidavit ("Pl. Aff."), and my review of the record.
Auditor 2 position. (/d. 'l) 15). On June 17,2009, Vano announced in an email that Catherine
Chon ("Chon") and Crystal Ricks ("Ricks") were promoted to Tax Auditor 2 positions. (/d. 'l)'l) 3,
16; Pl. Aff. at 3).
Standard of Review
"Summary judgment must be granted where the pleadings, the discovery and disclosure
materials on file, and any affidavits show 'that there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law."' Brown v. Eli Lilly & Co., 654
FJd 347, 358 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). "In ruling on a summary judgment
motion, the district court must resolve all ambiguities, and credit all factual inferences that could
rationally be drawn, in favor of the party opposing summary judgment and determine whether
there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184,202 (2d Cir. 2007) (internal quotation marks omitted). "A fact
is material if it might affect the outcome of the suit under the governing law, and an issue of fact
is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party." Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir. 2012) (internal
quotation marks omitted). "Where the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue for trial." Ricci v. DeStefano, 557
U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (quotation marks and citation omitted);
see also Fabrikant v. French, 691 FJd 193,205 (2d Cir. 2012).
"The moving party bears the burden of establishing the absence of any genuine issue of
material fact." Zalaski v. City ofBridgeport Police Dep't, 613 F.3d 336,340 (2d Cir. 2010). If
this burden is met, "the opposing party must come forward with specific evidence demonstrating
the existence of a genuine dispute of material fact." Brown, 654 F.3d at 358. In order to defeat
summary judgment, the nonmoving party "must do more than simply show that there is some
metaphysical doubt as to the material facts and may not rely on conclusory allegations or
unsubstantiated speculation." Id (internal quotation marks and citations omitted).
The Second Circuit has advised district courts of "the need for caution about granting
summary judgment to an employer in a discrimination case where, as here, the merits turn on a
dispute as to the employer's intent." Holcomb v. Iona Col/., 521 F.3d 130, 137 (2d Cir. 2008).
"[Direct evidence of [an employer's] intent will only rarely be available, so ... affidavits and
depositions must be carefully scrutinized for circumstantial proof which, if believed, would show
discrimination." !d. (internal quotation marks and citation omitted). "Even in the
discrimination context, however, a plaintiff must provide more than conclusory allegations to
resist a motion for summary judgment." Gorzynski v. Jetb/ue Airways Corp., 596 F.3d 93, 101
(2d Cir. 20 I 0) (citation omitted).
Section 1983 Claim
Plaintiff's sole remaining claim alleges that defendants discriminated against him on the
basis of age when they promoted Chon and Ricks in 2009 instead of plaintiff. This claim is
brought pursuant to Section 1983 for employment discrimination on the basis of age in violation
of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
"Section 1983 provides a private right of action against any person who, acting under color of
state law, causes another person to be subjected to the deprivation of rights under the
Constitution or federal law." Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) (citing 42
U.S.C. § 1983). "To prevail on such a claim, section 1983 requires that the plaintiff prove, inter
alia, that the defendant caused the deprivation of his or her rights." Taylor v. Brentwood Union
Free School Dist., 143 F.3d 679, 686 (2d Cir. 1998) (emphasis added) (citation omitted).
I. Equal Protection Claim Based on Age Discrimination
An equal protection claim brought pursuant to Section I 983 for age-based employment
discrimination is analyzed under the three (3) step burden shifting framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 4 I I U.S. 792, 93 S.Ct. I 8 I 7, 36 L.Ed.2d
668 (1973). See Kearney v. Cnty. of Rockland ex Ref Vanderhoef, I 85 F. App'x 68, 70 (2d Cir.
June 12, 2006) (summary order) (holding that plaintiff's "equal protection claim pursuant to 42
U.S.C. § I 983 for age-based employment discrimination fails for the same reasons that her
ADEA and NYSHRL claims fail" under McDonnell Douglas analysis); Burkhardt v. Lindsay,
Defendants argue that plaintiff should not be able to bring an age discrimination claim under
Section 1983, instead of the Age and Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.
("ADEA''). The Second Circuit has not ruled on whether the ADEA preempts claims for age
discrimination under Section 1983. See e.g., Butts v. NYC Housing Pres. & Dev., 307 F. App'x 596, 598
n.l (2d Cir. Jan. 28, 2009) (summary order) ("We are aware of no opinion of this Court addressing
whether the ADEA preempts age discrimination claims based on a violation of the Equal Protection
Clause and brought under§ 1983); Piccone v. Town of Webster, 511 F. App'x 63,64 n.l (2d Cir. Feb. 7,
2013) (summary order) ("It is an open question in our circuit whether the ADEA preempts age
discrimination claims under Section 1983."). Other courts in this district have found that such claims are
not precluded. See e.g., Reed v. Garden City Union Free School Dist., No. CV 12-4195, 2013 WL
6645007, at *3 (E.D.N.Y. Dec. 16, 2013) (rejecting defendants' argument that"§ 1983 claims are
preempted by the comprehensive scheme created by the ADEA''); Weinstein v. Garden City Union Free
School Dist., No. CV 11-2509,2013 WL 5507153, at *20 n.3 (E.D.N.Y. Sep. 30, 2013) ("governing case
law in the Second overwhelmingly holds that [section 1983 equal protection claims based on age] are
cognizable"); Pappas v. NYC Bd of Educ., No. 07 Civ. 4312, 2011 WL 128509, at *I (E.D.N.Y. Jan. 14,
2011) (internal quotation marks and citations omitted) ("the weight of authority in the Second Circuit
favors the position that the ADEA does not preempt claims under§ 1983 for age discrimination"). This
Court follows the guidance of the Second Circuit and finds plaintiffs Section 1983 age discrimination
claim is not precluded by the AD EA.
While it appeared as though the Supreme Court would resolve this question when it granted a writ
of certiorari in Levin v. Madigan, 692 F.3d 607 (7th Cir. 2012), cert. granted, 133 S.Ct. 1600, 185
L.Ed.2d 575 (U.S. Mar. 18, 2013) (No. 12-872), the Supreme Court dismissed the writ of certiorari as
improvidently granted following oral argument. Madigan v. Levin, 134 S.Ct. 2, 187 L.Ed.2d I (U.S. Oct.
15, 2013) (No. 12-872), cert. dismissed, 692 F.3d 607 (7th Cir. 2012).
811 F. Supp. 2d 632, 651 (E.D.N.Y. 2011) (citations omitted) ("Age-based employment
discrimination claims brought pursuant to § 1983 are analyzed under the three-step burdenshifting framework established by the Supreme Court in McDonnell Douglas.").
a. Prima Facie Case of Age Discrimination
Under the burden shifting framework set forth in McDonnell Douglas, "a plaintiff bears
the initial burden to establish a prima facie case of age discrimination." Woodman v. WWOR-
TV. Inc., 411 F.3d 69, 76 (2d Cir. 2005). "To do so, the plaintiff must demonstrate that: 'I) he
belonged to a protected class; 2) he was qualified for the position; 3) he suffered an adverse
employment action; and 4) the adverse employment action occurred under circumstances giving
rise to an inference of discriminatory intent.'" Allen v. Murray-Lazarus, 463 F. App'x 14, 16 (2d
Cir. Feb. 21, 2012) (summary order) (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.
2003)). "[T]he burden that must be met by an employment discrimination plaintiff to survive a
summary judgment motion at the prima facie stage is de minimis." Slattery v. Swiss Reinsurance
Am. Corp., 248 F .3d 87, 94 (2d Cir. 200 I) (internal citation and quotation marks omitted).
As this Court previously found, although plaintiff's "allegations are somewhat spare, they
do, in this pro se matter, allow for an inference of age discrimination based on the 2009
promotions." Report, at 15. The Court concludes that plaintiff has satisfied the de minimus
burden of establishing a prima facie case of age discrimination as required by McDonnell
b. Defendants' Legitimate and Non-Discriminatory Reasons
If a plaintiff successively establishes a prima facie case, "the burden shifts to the
defendant, which is required to offer a legitimate, non-discriminatory rationale for its actions."
Terry, 336 F.3d at 138 (citing McDonnell Douglas, 411 U.S. at 802). The employer's burden of
showing a legitimate, non-discriminatory reason for its actions is not a particularly steep hurdle.
"The employer need not prove that the person promoted had superior objective qualifications or
that it made the wisest choice, but only that the reasons for the decision were
nondiscriminatory." Davis v. State Univ. ofNY., 802 F.2d 638,641 (2d Cir. 1986) (citations
omitted); see also Greene v. Brentwood Union Free School Dist., No. 11-CV-4308, 2013 WL
4432357, at* 17 (E.D.N.Y. Aug. 13, 2013) ("It is not a court's role to second-guess an
employer's personnel decisions, even if foolish, so long as they are not discriminatory.").
All three (3) defendants assert that they "merely made recommendations" to Dwyer and
Vano, and it was Dwyer and Vano who made the ultimate decision to promote Chon and Ricks
instead of plaintiff. De f. 56.1 Stmt ~ II. Defendants contend that their recommendation "had
nothing to do" with plaintiffs age, and have articulated legitimate, non-discriminatory reasons
for their actions. !d.
Specifically, all three (3) defendants considered the fact that unlike plaintiff, Chon was a
certified public accountant. !d.
23-25. Varghese believed that both Chon and Ricks had
superior interpersonal skills and technical abilities and would be better able to handle complex
23. Macchio recommended that Chon be promoted because she could "create
sophisticated audit analysis reports through computer software programs," "had sound financial
knowledge," and "was able to handle complex audits that involved extensive computer skills,"
while "many of plaintiffs audits involved cash businesses, for which computer skills were not as
24. Macchio considered that Ricks "had excellent communication skills
with both taxpayers and [Department] employees." Macchio also thought that although neither
Chon nor Ricks were employed by [the Department] for as long as plaintiff, Chon and Ricks
"were both skillful teachers of junior staff personnel." !d. Gillooly recommended Chon because
Chon's immediate supervisor had spoken highly of Chon to Gillooly. Id. at '1[ 25. Gillooly had
"first-hand knowledge of [Ricks's] performance" and considered her to be "the hardest working
person he had seen during his over 30-year employment by [the Department]." fd. Gillooly
believed that Ricks's "skills and abilities," including her "thorough[ness], conscientious[ness],
and ... computer expertise," "were superior to plaintiff's." !d. at '1f 26.
"Upon the defendant's articulation of such a non-discriminatory reason for the
employment action, the presumption of discrimination arising with the establishment of the
prima facie case drops from the picture." Weinstock v. Columbia University, 224 F.3d 33, 42 (2d
Cir. 2000). "[T]he burden [then] shifts back to the plaintiff to demonstrate by competent
evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination." Patterson v. Cnty. of Oneida, NY, 375 F.3d 206,221 (2d Cir. 2004)
(citation and internal quotation marks omitted). A "reason cannot be proved to be a 'pretext for
discrimination' unless it is shown both that the reason was false, and that the discrimination was
the real reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502,515, 113 S.Ct. 2742, 125
L.Ed.2d 407 (1993). "The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff, and if the
plaintiff has failed to show that there is evidence that would permit a rational factfinder to infer
that the employer's proffered rationale is pretext, summary judgment dismissing the claim is
appropriate." Patterson, 375 F.3d at 221 (citation and internal quotation marks omitted); see
also James v. NY Racing Ass 'n, 233 F.3d 149, 154 (2d Cir. 2000) ("(O]nce the employer has
proffered its nondiscriminatory reason, the employer will be entitled to summary judgment ...
unless the plaintiff can point to evidence that reasonably supports a finding of prohibited
Because defendants have set forth legitimate, non-discriminatory reasons for
recommending Chon and Ricks instead of plaintiff, the Court proceeds to the ultimate question
of whether plaintiff has presented sufficient evidence from which a reasonable jury could find
age discrimination. The Court holds that plaintiff has failed to present a material issue of fact on
the question of whether defendants' non-discriminatory reasons are pretextual.
Plaintiff argues that his "vast experience in the field of accounting, auditing and taxation
along with my exemplary record with the department for over 12 years was completely ignored
by the defendants, who were simply and solely motivated by my age." Pl. Aff. 4. Plaintiff
further asserts that since defendants "were concentrating on younger candidates, defendants
didn't look into my qualifications and experience." !d. at 3. However, these conclusory
allegations are insufficient to establish that defendants' proffered reasons are false and that
discrimination was the real reason for defendants' actions. See Gorzynski, 596 F.3d at 101
(noting that in discrimination case, "plaintiff must provide more than conclusory allegations to
resist a motion for summary judgment" in discrimination case).
Plaintiff contends that the "defendants mentioned in their declarations that they believe
both Crystal Rick and Catherine Chon are better suited for the job, but never mentioned any
specific skills or achievements to support the promotion over plaintiff." Pl. Aff. 3 (emphasis in
original). This entirely ignores the legitimate, non-discriminatory reasons proffered by
defendants. Specifically, Varghese considered Chon's and Ricks's "superior interpersonal skills
and technical abilities." Def. 56.1 Stmt ~ 23. Macchio recommended Chon because of her
"sound financial knowledge" and "extensive computer skills," and considered Ricks's "excellent
communication skills." !d. at 'l) 24. Giloolly recommended Ricks because her "skills and
abilities," including her "thorough[ness], conscientious[ness], and ... computer expertise,"
"were superior to plaintiff's." !d. at 'l) 26. Furthermore, all three (3) defendants considered that
Chon, unlike plaintiff, was a certified public accountant. !d. at 'l)'l) 23-25.
At best, plaintiff's assertions reflect his disagreement with defendants' decisions to
recommend Chon and Ricks because plaintiff believed himself to be more qualified for the
promotion. For example, plaintiff argues that a "candidate, who recently passed CPA
examination, can't be compared with professional accountant with over 50 years of experience in
auditing, accountancy and taxation and 12 years with the DTF." Opp. at 2. This argument is
simply unavailaing. Plaintiff's "subjective belief that he was more qualified is insufficient to
create a genuine issue of material fact as to whether he was the target of discrimination."
Subramanian v. Prudential Sec., Inc., No. CV016500, 2003 WL 23340865, at *9 (E.D.N.Y. Nov.
Even if plaintiff's assertion that "all of the evidence before the court reflects a very
positive and exemplary performance by me over so many years," is true, it does not establish
pretext. Pl. Aff. at 4. An "employer need not prove that the person promoted had superior
objective qualifications or that it made the wisest choice, but only that the reasons for the
decision were nondiscriminatory." Davis, 802 F.2d at 841. Employment discrimination law
"does not make employers liable for doing stupid or even wicked things," but instead, "it makes
them liable for discriminating." Norton v. Sam's Club, 145 F.3d 114, 120 (2d Cir. 1998); see
also Greene, 2013 WL 4432357, at* 17 ("It is not a court's role to second-guess an employer's
personnel decisions, even if foolish, so long as they are not discriminatory."); Flaherty v.
Massapequa Public Schools, 752 F. Supp. 2d 286,298 (E.D.N.Y. 2010) ("[I]t is not the Court's
role to determine whether an employer acted wisely in taking an adverse action.").
Plaintiff has failed to establish that defendants' proffered legitimate, non-discriminatory
reasons for recommending that Chon and Ricks be promoted instead of plaintiff were pretextual.
Accordingly, defendants are entitled to summary judgment on plaintiffs Section 1983 equal
protection claim on the basis of age discrimination. See Kearney, 185 F. App'x at 70 (affirming
summary judgment where plaintiff failed to rebut evidence offered by defendants "explaining
that candidates for promotion, known to committee members from their work with the
candidates, were selected based on perceived superiority in one or more of six specific criteria,
independent of age"); Burkhardt, 811 F. Supp. 2d at 653-54 (granting summary judgment to
defendants on section 1983 equal protection claim where "plaintiff has failed to present
sufficient evidence from which a reasonable jury could find that she was discriminated against
on the basis of her age"); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,470 (2d Cir. 2001)
("Although Plaintiffs met their de minimis burden of establishing a prima facie case of age
discrimination, they have failed to produce sufficient evidence to support a rational finding that
the non-discriminatory business reasons proffered by the defendant for the challenged
employment actions were false.").
Notwithstanding that plaintiff has failed to present a material issue of fact regarding
whether defendants' proffered reasons were pretextual, defendants are entitled to summary
judgment because plaintiff cannot satisfy the causation element of his Section 1983 claim.
Plaintiff alleges an adverse employment action based on age discrimination in violation of the
Equal Protection Clause. However, defendants may only be liable under Section 1983 if they
caused the deprivation of plaintiffs rights. See Taylor v. Brentwood Union Free School Dist.,
143 F.3d 679,686 (2d Cir. 1998).
Defendants assert that they "merely made recommendations" to Dwyer and V ano, and
that it was Dwyer and Vano who made the ultimate decision to promote Chon and Ricks instead
of plaintiff. Def. 56.1 ~~ II. As plaintiff acknowledges, "there are no records or notes or inter
office correspondence to prove" that defendants "only interviewed the plaintiff and decision to
promote was made by Anthony Vano and Annmarie Dwyer." Opp. at 5. Plaintiff himself admits
that "(i]n absence of documents and minutes of defendants discussion in this matter how plaintiff
can know how promotions were made." Opp. at 14. Accordingly, there is no evidence upon
which plaintiff may rely to create a genuine issue of material fact as to whether defendants
actually made the decision to promote Chon and Ricks. See Brown v. Eli Lilly & Co., 654 F.3d
347, 358 (2d Cir. 2011) ("[T]he opposing party must come forward with specific evidence
demonstrating the existence of a genuine dispute of material fact."). Therefore, defendants are
entitled to summary judgment.
For the foregoing reasons, defendants' motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56 is granted. The Clerk of the Court shall enter judgment accordingly
and close this case.
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: February 28, 2014
Central Islip, New York
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