Angioletti v. Foxx

Filing 88

FINDINGS OF FACT AND CONCLUSIONS OF LAW; For the reasons stated herein, plaintiff Angioletti has failed to prove her claim of age discrimination against defendant. In light of this Order and the Court's prior dismissal of thegender discrimination claim at the conclusion of the trial on November 16, 2016, the Clerk of the Court is directed to enter judgment for defendant and to close the file. (Ordered by Judge Leonard D. Wexler on 1/23/2017.) (Fagan, Linda)

FILED
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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EDITH ANGIOLETTI,
Plaintiff,

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JAN 2 3 2017

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LONG ISLAND OFFICE
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

-againstANTHONY FO)()(, Secretary, U.S.
Department of Transportation,

14-CV-5848
(Wexler, J.)

Defendant.

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APPEARANCES:

Locksley 0. Wade, Esq. and Felicia Nestor, Esq.
Attorneys for Plaintiff
11 Broadway, Suite 615
New York, New York 10004
United States Attorneys Office
By: Diane C. Leonardo-Beckmann, Esq., James H. Knapp, Esq., & Susan L. Riley, Esq.
Attorneys for Defendant
610 Federal Plaza
Central Islip, New York 11722
WE)(LER, District Judge:
PlaintiffEdith Angioletti ("plaintiff' or "Angioletti") commenced this action against
Anthony Foxx, as Secretary of the United States Department of Transportation, asserting claims
of gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et seq., and age discrimination under the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. A trial commenced on November 14,
2016. A jury was selected to hear and decide plaintiffs Title VII claims of gender
discrimination and retaliation, but was informed that the age discrimination claim under the
ADEA would be decided by the Court. At the close of evidence on November 16, 2016,
defendant's motion to dismiss the Title VII claims pursuant to Rule 50 of the Federal Rules of

Civil Procedure was granted. This Court also granted defendant's motion to dismiss the ADEA
claim pursuant to Rule 52 ofthe Federal Rules of Civil Procedure and indicated that a written
decision would follow. This memorandum constitutes the Court's findings of facts and
conclusions of law.

I. FINDINGS OF FACT
A. Angioletti's Employment at the Academy
Plaintiff worked at the Merchant Marine Academy (the "Academy") for approximately
five years. From 2005 to 2007 she held temporary positions through an agency. In February
2008, plaintiff was hired directly to work at the Academy and held the position of chapel
manager. In 2008, plaintiff was 59 years old. 1 At the time ofher hiring, plaintiff was classified
as a Non-Appropriated Fund Instrumentality ("NAFI") employee. NAFI employees were paid
from funds that were not appropriated by Congress.
Sometime in 2008, an audit of the Academy's funding for its employees was conducted. 2
As a result of the audit, it was determined that non-appropriated funds could no longer be used to
pay the salaries ofNAFI employees. The Academy was directed to convert the NAFI positions
to federal positions. At the time this decision was made, the jobs of approximately 67 NAFI
employees were affected. Those employees were told that they had to compete for jobs through
the federal hiring system if they wanted to be converted to federal positions. The process of
converting the positions took several steps. It was necessary to create a job description for each
position so that it could be classified within federal system and given a job series, title, and

1

Angioletti testified that she was 60 years old in 2009.

2 Although there is conflicting testimony as to whether this audit was conducted by the Government
Accountability Office or the Office of Personnel Management, there is no dispute that an audit was
conducted.

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grade. Once approved, the job would be posted on the USAJOBS federal hiring website and
opened to applicants.
The Academy was given a deadline of February 2009 to complete the NAFI conversions.
At the approach of that deadline, a number of positions, including the chapel manager job, had
yet to be converted or posted. An act of Congress gave the Academy special authority to hire the
remaining NAFI employees as federal employees on a temporary, term basis. Twelve
employees, including plaintiff, were offered these positions, and on February 11, 2009, plaintiff
signed a document entitled "Conditions of Employment" for a term of employment not to exceed
February 14, 2011, or two years. Angioletti conceded that she could have refused to sign the
document, but noted that she would have been out of a job immediately had she done so. Indeed,
as the non-appropriated funding was gone, the term positions were the only option available for
continued employment. All 12 NAFis, regardless of age or gender, were offered and accepted
the same two year, term positions.
Plaintiff testified that she was told by some unspecified person or persons that the term
positions were just a formality. Between the commencement of the term position in 2009 and
December 2010, Angioletti claims that "they kept assuring us our jobs would be posted. It was
just a formality, don't worry, you will not lose your job." Trial Transcript ("Tr.") 33:15-17. She
claims that she repeatedly asked her supervisor, Captain Eric Wallischeck, to post her job and to
find out what was going on. Tr. 36:14-16 ("every chance I get whenever I would bring my time
sheet in to be signed by Captain Wallischeck I would ask what was going on."). Captain
Wallischeck also testified that Angioletti would inquire about the conversion process as she was
concerned for her job. Neither Angioletti nor Wallischeck testified, however, that Angioletti
raised any concern or belief that her age as an issue in the conversion.

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In December 2010, a meeting was held with the remaining NAFI employees working
under the two-year term agreements. At that time, they were given information about their
separation from employment to occur in February 2011. Angioletti was not fired; her
employment ended when her two year term expired on February 14, 2011. After her
employment ended, plaintiff filed a complaint with the Maritime Administration ("MARAD") in
Washington, D.C. There is no evidence that Angioletti made a formal or informal complaint of
discrimination prior to that time. 3

B. Filling of the Chapel Manager Position
The Department of Transportation is the cabinet level agency that oversees a number of
agencies, including the Federal Highway Administration ("FHA") and MARAD. The Academy
operates within MARAD. Human Resources for the FHA acted as the executive agent for the
Department of Transportation and was responsible for the posting of the positions to be filled at
the Academy. Using the job listings provided by the Academy, FHA posted the positions,
including the chapel manager position, on the USAJOBS website.
The chapel manager position was posted on the website on February 8, 2011, with a
closing date of February 15, 2011. Angioletti applied for the job through the USAJOBS
government website. She was not interviewed and claims that she was not rehired because
"[t]hey weren't hiring old broads." Tr. 56:16.
The FHA reviewed the applicants for the chapel manager position. There were 192
applicants for the job. The position was subject to a veterans' preference such that qualified
veterans would be hired before qualified non-veterans. Ofthe applicants, approximately 18 were
veterans, and 10 ofthose were deemed qualified for the position. By operation oflaw, as there

3

Another former NAFI employee, Shirley Anthony, testified that she complained of discrimination
during the December 20 10 meeting.
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were two or more qualified veterans, only veterans would be referred for consideration and a
non-veteran, such as plaintiff, could not be considered.
The FHA compiled a hiring list or "Certificate of Eligibles" for the chapel manager
position that contained the names of the 10 qualified veterans and forwarded it to the Academy.
Angioletti was not on the hiring list. Academy personnel had no role in the compilation of the
list, nor could the list be changed by the Academy. Ofthe 10 qualified veterans, seven were men
and three were women. The hiring list and supporting documentation were presented to Captain
Wallischeck, who selected a disabled, female veteran from the list for the chapel manager job.
The Conditions of Employment signed by Angioletti for the two-year term employment
provided that "[u ]nder this appointment, you are not eligible to be promoted or reassigned to
other positions, or the ability to be non-competitively converted to a career conditional
appointment." Angioletti could only be converted to a federal position by competing for such a
position and was ineligible for any merit promotion or reassignment.

II. CONCLUSIONS OF LAW
A judgment for the defense under Rule 52( c) is appropriate when a plaintiff fails to make
out a prima facie case or where the court concludes that the preponderance of the evidence goes
against the plaintiff. See FED. R. CIV. P. 52(c). Applying this rule, "the court does not consider
the evidence in the light most favorable to the non-moving party, but rather weighs the evidence,
resolves any conflicts and determines for itself where the preponderance of evidence lies." Pal
v. New York Univ., No. 06-CV-5892, 2013 WL 4001525, at *7 (S.D.N.Y. Aug. 6, 2013)
(quotation and citation omitted).
The ADEA establishes that it is "unlawful for an employer ... to discharge any
individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions or privileges or employment, because of such individual's age." 29 U.S.C. §
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623(a)(1 ). To establish a prima facie case of age discrimination, Angioletti had to prove by a
preponderance of the evidence that (1) she was within the protected age group; (2) she was
qualified for the position; (3) she experienced an adverse employment action; and (4) such action
occurred under circumstances giving rise to an inference of discrimination. See Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010) (citation omitted). Plaintiffs burden of

persuasion on her ADEA claim is more onerous than that on her Title VII claim as she had to
prove "by a preponderance of the evidence, that age was the 'but-for' cause behind the
employer's adverse decision, and not merely one ofthe motivating factors." Hrisinko v. N.Y.C.
Dep't ofEduc., 369 F. App'x 232,234 (2d Cir. 2010) (quoting Gross v. FBL Fin. Servs, Inc., 557

U.S. 167, 176, 129 S. Ct. 2343 (2009)).
Plaintiff has failed to raise any inference of age discrimination, let alone but-for
causation. To prevail, she "must come forward with some evidence, beyond merely stating that
[she] is a member of a protected class that suffered an adverse employment decision." Rosario v.
Hilton Worldwide, Inc., No. 09-CV-5336, 2011 WL 336394, at *3 (E.D.N.Y. Jan. 24, 2011),
aff'd 476 F. App'x 900 (2d Cir. 2012). Plaintiff presented no evidence whatsoever that her

failure to be hired for the chapel manager position occurred under circumstances giving rise to an
inference of age discrimination. The Court need not make any credibility determinations
because there is no conflicting testimony regarding any alleged discrimination. Both Angioletti
and Wallischeck testified that plaintiff raised the issue of the status ofher job frequently, but
there is nothing in the content of those conversations, express or implied, that constitutes any
discriminatory intent on Wallischeck' s behalf.
While negative comments about a party's age may constitute circumstantial evidence of
discrimination, the only comments regarding plaintiffs age raised at trial were ones she made

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herself when at the December 2010 meeting, she and Anthony "stood up and said we were two
old broads." Tr. 41:24-25. Even crediting Angioletti's unsubstantiated beliefthat she was
strung along with assurances from some unidentified party that she was certain to get her job,
there is not a shred of evidence that those assurances were based on any discriminatory intent.
Finally, Angioletti was 59 years old when she was first hired as chapel manager and thus any
"inference of discrimination is further weakened by the fact that plaintiff ... was well within the
protected class when first hired." Mathews v. Huntington, 499 F. Supp. 2d 258, 268 (E.D.N.Y.
2007) (internal quotation and citations omitted).
Even if plaintiff had successfully made out a prima facie case of age discrimination,
defendant has provided a legitimate, nondiscriminatory reason for its actions. Defendant put
forth credible testimony from Human Resources personnel Ray Venkersammy, Kim Norris, and
Kirsten Wolverton regarding federal hiring regulations in general, and as applied in this case,
that was essentially unchallenged. Under the federal hiring laws, qualified veterans are preferred
for hiring over qualified non-veterans. Here, there were 10 qualified veterans, and thus by
operation of federal law, plaintiff could not be considered for the position. In addition, plaintiff
did not contest testimony that Wallischeck's hiring authority was limited to selecting a candidate
from the list provided to him and that he would have been unable to go beyond that list to select
any other individual, including plaintiff.

III. CONCLUSION
For all the foregoing reasons, plaintiff Angioletti has failed to prove her claim of age
discrimination against defendant. In light of this Order and the Court's prior dismissal of the

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gender discrimination claim at the conclusion of the trial on November 16, 2016, the Clerk of the
Court is directed to enter judgment for defendant and to close the file.

SO ORDERED.

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_LEONARb D. ExLER/'
UNITED STATES DISTRICT JUDGE

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Dated: Central Islip, New York
January 23, 2017

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