Liu v. Queens Library Foundation, Inc.
Filing
48
ORDER granting 43 Motion for Summary Judgment: Defendant's motion for summary judgment is granted. The Clerk of Court shall enter judgment accordingly and close this case. See attached. Ordered by Judge Denis R. Hurley on 9/20/2017. (Gapinski, Michele)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------X
HONG LIU,
Plaintiff,
MEMORANDUM & ORDER
-againstCivil Action No. 14-7311
QUEENS LIBRARY FOUNDATION, INC.,
Defendant.
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APPEARANCES:
For Plaintiff:
Jonathan A. Tand & Associates
990 Stewart Ave. Suite 130
Garden City, New York 11530
By:
Jonathan A. Tand, Esq.
Gary R. Novins, Esq.
For Defendant:
Lydeckar Diaz, LLC
200 Broadhollow Road
Melville, NY 11747
and
101 Hudson Street, Suite 2100
Jersey City, New Jersey 07302
By:
Robert J. Pariser, Esq.
Kevin D. Clinton, Esq.
HURLEY, Senior District Judge:
Plaintiff Hong Liu (“Plaintiff” or “Liu”) commenced this action against Queens Borough
Public Library, incorrectly sued herein as Queens Library Foundation, Inc., (“Defendant” or “the
Library”) asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et
seq. (“Title VII”); the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”); New York Executive Law §
296, et seq.(“NYSHRL”); the New York City Human Rights Law, N.Y.C. Admin. Code §8-017
(“NYCHRL”); and New York Labor Law (“NYLL”) § 194. Presently before the Court is
Defendant’s motion for summary judgment. For the reasons the forth below, the motion is
granted.
BACKGROUND
The following facts are taken from the parties’ Rule 56.1 statements and are undisputed
unless otherwise noted.
Plaintiff is a 60 year old female born in China. She has a master’s degree in English
Literature from the Hunan Teachers University and a master’s degree in Library Information
Sciences from the University of West Ontario. (Pl.’s 56.1 Resp. ¶¶ 2-5.)
I.
Overview of Plaintiff’s Employment at Queens Library
Liu began her employment at the Library in 1996 as a general assistant. From January
1998 to September 2001, she held the position of assistant branch manager, serving in that
position at four branch locations.1 As an assistant branch manager, Plaintiff (1) served as a
member of the Adult Advisory Committee to develop training sessions for new librarians, (2)
supervised, trained and evaluated the performance of librarians and clerks, , (3) maintained staff
schedules, and (4) managed and resolved staff and patron conflicts. In September 2001, she
became branch manager of the Library’s Briarwood branch. As manager, Liu was responsible for
the overall operation of the Briarwood branch, supervised and managed its staff, and was
responsible for its budgeting and staff training. In June 2002, she became a Departmental
Assistant for the Extension Service Department (“ESD”) at the central library building. Since
then the ESD has been renamed the Community Library Services Department (“CLS”) and
1
To be clear, Plaintiff was assigned as assistant manager to only one branch at a time.
(Def.’s Counter 56.1 ¶145.)
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Plaintiff is currently the only departmental assistant for CLS. Prior to approximately 2011, she
was supervised by Dale McNeil, then a Director of Library Services. From approximately 20112012 she was supervised by Tom Fortin, then a Director of CLS. Since 2012, she has been
supervised by Nicholas Buron, the Vice President of Public Service and Strategic Planning. (Pl.’s
56.1 Resp. ¶¶ 6-13; Ex. 2 to Novins Declar.; Ex. A to Pariser Reply Declar.; Def.’s Counter 56.1
¶ 146, 148.)
As a Departmental Assistant, Liu does not supervise any employees; no employees
directly report to her and her position is not considered to be at the executive or managerial level.
As the sole CLS Departmental Assistant, Plaintiff is primarily responsible for responding to
customer complaints, a task that comprises ninety percent of her duties. Since 2002 when she
became a Departmental Assistant she has not completed a performance review for another
employee and has not been vested with the authority to issue written warnings to employees.
Whereas each Community Library Director is responsible for of overseeing the branch managers
and their staff for twenty community libraries, Plaintiff does not have that responsibility. (Pl.’s
56.1 Resp. ¶¶ 14-21.)
At some point in her employment with the Library, Plaintiff “composed a ‘branch training
report’ that included the entire staff of Defendant and which analyzed the conditions of
Defendant’s training programs and the possible initiatives Defendant, as an organization, could
implement to foster the development of future training.” (Def.’s Counter 56.1 ¶ 153.)
II.
Liu’s Employment Prior to Her Library Employment
From 1988 to 1993, Plaintiff worked as an Assistant Professor in the Foreign Language
Department of Hunan Agricultural University in Changsha, China. As an Assistant Professor, she
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was responsible in relevant part to teach English as a second language to undergraduate students
by planning and delivering seminars, served as a team leader for other teachers, and assisted
teachers in their own curriculum development and material selection. (Def.’s Counter 56.1 ¶¶
150-151.)
III.
The 2007 Assistant Director of CLS Position
In April 2007, the Library posted three openings for the position of Assistant Director of
CLS. The vacancy announcement set forth the following qualifications for the position:
Minimum of six years of public library experience [;] at least five
years in library management. Experience in large library system,
consortium or state library preferred. Demonstrated experience in
collection development. Ability to communicate effectively, both
written and orally. Exceptional interpersonal skills and creative
problem solving ability. The ability to lead by example, inspire
staff and promote enthusiastic teamwork. An MLS from an ALAaccredited library school, and eligibility for NYS certification.
Must have a valid driver’s license.
(Pl.’s 56.1 Resp. ¶¶ 25-28; Def.’s Counter 56.1 ¶ 142.)
Liu was interviewed for the position but did not receive it; the three positions went to
Nicolas Buron, Manuel Figueroa and Tom Fortin. (Pl.’s 56.1 Resp. ¶¶ 29-30.)
At the time he was interviewed, Buron had been responsible for planning and
implementing youth services throughout all 62 of the Library’s branches. This responsibility
included managing the budgets for the youth services program at all 62 branches. (Pl.’s 56.1
Resp. ¶¶ 31-32.) According to Defendant, “Plaintiff did not have similar budgetary experience at
the time of this interview, nor did she have experience in overseeing and implementing
organization wide programs.” (Def.’s 56.1 Statement ¶ 33.) Plaintiff asserts she “possessed at
least five (5) years of management experience with Defendant as both an Assistant Branch
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Manager and a Community Library Manager, which allowed her budgetary [experience] and
experience in overseeing and implementing organization-wise programs.” (Pl.’s 56.1 Resp. ¶ 33.)
At the time of his interview Figueroa was working for the New York Public Library in
essentially the same job that the Library had posted. He had 13 years experience as a librarian
with 5 years as Supervising Branch Librarian and 2 years as District Librarian. As District
Librarian, Mr. Figueroa supervised 12 library branches, reviewed the performance of the
managers of those branches, made budget decisions and disciplined all employees in those
branches. Plaintiff had never been responsible for managing multiple branch locations at the
same time and did not have the budgetary responsibilities that Figueroa had. Nor had she been
responsible for hiring, firing, or disciplining employees. (Pl.’s 56.1 Resp. ¶¶ 36-39.)
Fortin had held a leadership position at the San Francisco Public Library similar to the
position posted by the Library. He had managerial responsibility for multiple branch locations.
His resume documented twenty years experience as a librarian, including serving as Interim
Deputy Director for Fargo Public Library (where he supervised more than 40 employees) and as
North District Manager for the San Francisco Public Library (overseeing 8 branches). Plaintiff
has never been responsible for supervising multiple branch libraries nor for supervising any
managerial employees. (Pl.’s 56.1 Resp. ¶¶ 40-42.)
Mr. McNeil, a member of the hiring panel, reported that the panel concluded that Messrs.
Buron, Fortin and Figueroa had each established that they possessed significant system-wide
managerial and budgetary oversight experience which made them better qualified than Liu for the
position of Assistant Director of ALS and that her race, national origin and gender played no role
in the decision-making process. (Pl.’s 56.1 Resp. ¶¶ 43-46.)
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When Buron vacated the position of Assistant Director of CLS, he was replaced by a
female. When Fortin and Figueroa left their positions as Assistant Director of CLS, they were
also both replaced by females in the upgraded position of Director of Community Library
Services. (Pl.’s 56.1 Resp. ¶¶ 47-50.)
IV.
The 2009 Associate Director of Central Library Position
In 2009, the Library posted the position of Associate Director of the Central Library. The
Central Library is the flagship in Defendant’s library system. The posting set forth the following
minimum qualifications:
MLS from an ALA accredited library school and 6 to 8 years of
managerial experience required. Evidence of knowledge of policy
and organizational planning. Ability to think creatively as well as
critically. Candidate must have demonstrated understanding of the
administrative, policy and philosophical issues facing public
libraries during a period of significant change in the delivery of
customer service. Candidates must be able to participate in the
short and long range planning process and guide the resultant
activities. In addition to being a skilled communicator, candidates
must be able to establish positive cooperative working
relationships within all levels of the organization. Evidence of
involvement and participation in the profession outside of the
Library is essential. Candidates must be expertly familiar with
current practices in librarianship, public library service and
management. All candidates must be in their current position for at
least one year to be considered.
(Def.’s Counter 56.1 ¶ 143.)
Plaintiff, together with Buron and Donna Ciampa applied for the position. Liu was
interviewed; Buron was the successful candidate. (Pl.’s 56.1 Resp. ¶¶ 51-57; Def.’s Counter 56.1
¶ 143.)
At the time of his interview, Buron had supervised 20 library branches since 2007 in his
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role as Assistant Director of CLS; this included supervising the 20 branch managers and
conducting their performance evaluations. He was also responsible for disciplining all employees
in those 20 branches, helping to establish budgets for each branch at the beginning of each fiscal
year and then monitoring each of those budgets. As coordinator for young adult services, Buron
had been responsible for programs in 62 branch locations. (Pl.’s 56.1 Resp. ¶¶ 58-61.)
In comparison, Liu had never been responsible for managing multiple branch locations, or
for hiring or firing employees; in her role as Departmental Assistant she was not responsible for
disciplining any other employees. (Pl.’s 56.1 Resp. ¶¶ 62-64.)
The interview committee consisted of four females and one male: Tom Galante, Maureen
O'Connor, Angelica Huynh, Lorna Rudder-Kilkenny and Diana Smith; Huynh is of Vietnamese
national origin. Plaintiff’s national origin and gender did not play any role in O’Connor’s
decision making process and to her knowledge did not play any role in her fellow panel members
decision making process. Rather, Buron’s experience served to make him the best qualified
candidate for the position. (Pl.’s 56.1 Resp. ¶¶ 54-55, 66-67.)
V.
The 2013/2014 Talent Development/Training Manager Position
In 2013 the Library posted the position of Talent Development/Training Manager
(“TDTM”), specifying the following minimum qualifications:
Bachelor’s degree required. Master’s Degree in related area
preferred. Experience working with and leading publicfocused/front line staff preferred. Seven years of professional
management experience required. Must demonstrate the ability to
execute and improve Learning & Development processes. Must
process strategic short/long-term thinking capabilities with a focus
on providing excellent customer service. Must have the ability to
conduct and oversee needs assessments with well-developed
project management skills. Experience providing and coordinating
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training preferred. Strong organizational skills with ability to meet
deadlines while maintaining accuracy required.
Plaintiff submitted an application for the position. (Pl.’s 56.1 Resp. ¶¶ 68-70; Def.’s Counter
56.1 ¶ 144.)
Plaintiff was interviewed for the position of TDTM in January 2014 by a hiring panel
consisting of three women (Tracie Hall, Marta Clark and Sharon Cox) and one male of Asian
national origin (Nelson Lu). According to Lu, Plaintiff demonstrated mainly customer service
experience. Throughout her interview, Plaintiff kept referring back to her time as an assistant
professor in China some 20 years prior to the interview. Defendant maintains this experience was
not relevant to the duties and/or responsibilities of the position and that Liu was unable to
articulate a substantive vision for planning, developing, and implementing the Library’s talent
development and training strategies. On the other hand, Liu maintains her time as an “assistant
professor in the university for five years directly related like (sic) development and training” and
that she expressed ideas for training, including training sessions to incorporate groups of
individuals with similar performance issues. In responding to Defendant’s 56.1 Statement Liu
does not dispute,2 and therefore admits, that she was “unable to provide any detailed answers to
the interview panel’s questions, i.e. Plaintiff would veer away from the topic asked, specifically
the topic of what she would do in order to carry out the specific duties of the position sought.”
(Pl.’s 56.1 Resp. ¶¶ 75-77.)
2
The Court notes that this is not a case where a party has failed to respond to a movant’s
56.1 statement. Here, Plaintiff filed a response to Defendant’s 56.1 Statement, disputing some
statements, stating that other proffered facts (including the one referenced in the text above and
in other parts of this Memorandum) were “undisputed for purposes of this motion,” as well as
adding additional facts she wished to be considered.
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Manual Figueroa also applied for the position. His resume documented 13 years of
experience as a librarian, with five years experience as a Supervising Branch Librarian and two
years of experience as a District Librarian at the New York Public Library. As a District
Librarian, Figueroa was responsible for 12 branch locations within the New York Public Library
system. In his executive-level roles with the New York Public Library system, Figueroa’s
responsibilities included directing the professional development and training of the library
managers, librarians and staff within the 12 branch libraries he supervised. Additionally,
Figueroa had served for five years as the Library’s Assistant Director for CLS from January of
2008 until this position became available during which he was responsible for at least twenty
(20) community library branches, including (1) directing the professional development of their
library managers, librarians and other staff, (2) preparing and conducting the performance
reviews of the managers, (3) disciplining branch employees, and (4) supervising their budgets.
Liu does not dispute that in his interview Figueroa “appeared to be much better prepared than
Plaintiff, and he impressed the panel by specifically citing web-based training modules which he
referenced during his interview.” She also does not dispute that “Mr. Lu concluded that [she] did
not demonstrate that she possessed the managerial and training experience which would have
distinguished her from Mr. Figueroa as the better-qualified candidate” and that no comments
regarding her race, national origin or gender were made during the post-interview caucus during
which the panel discussed the candidate [sic].” (Pl.’s 56.1 Resp. ¶¶ 78-83, 87-88).
Figueroa was hired for the position of TDTM. Plaintiff does not dispute that “[t]he
interview panel unanimously concluded that Mr. Figueroa should be hired because he was the
best-qualified candidate for the position.” She does dispute that the her “race, national origin or
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gender played absolutely no role in Mr. Lu, Ms. Cox or Ms. Hall’s decision not to recommend
Plaintiff for the position.” According to Plaintiff, after the interviews were concluded Ms. Hall
brought Liu into her office to tell her why she did not get the position. Ms. Hall did not state that
it was because she was woman or because she was Chinese. According to Plaintiff, however,
Hall told her that she did not get the position because she “is not open,” which Liu interpreted to
mean not open like Americans and a reference to her national origin. Hall denies having made
the statement. (Pl.’s 56.1 Resp. ¶¶ 85-86, 104-06; Def.’s Counter 56.1 ¶ 136.)
VI.
Pay Disparity
Plaintiff identified three comparators in support of her pay disparity claim during
discovery, viz. Fortin, Buron and Figueroa, asserting that in or about 2007 their job title and
salaries were upgraded to reflect a CLS Assistant Director position but her’s were not although
she performed the duties of a CLS Assistant Director. (Pl.’s 56.1 Resp. ¶ 93.)
Assistant Directors for CLS have responsibility for supervising 20 libraries, including
overseeing managers and staff, conducting yearly performance evaluations and imposing
progressive discipline, as well as, budgeting responsibilities; Liu does not have those
responsibilities. (Pl.’s 56.1 Resp. ¶¶ 95-96.)
Plaintiff received the following salary increases: 5.5% in 2007; 3% in 2008; 4% in 2009;
2.5% in 2013; 1.954% in 2014. (Pl.’s 56.1 Resp. ¶¶ 129-133.)
Plaintiff does not dispute that when Tatyana Magazinnik replaced Buron as Assistant
Director of CLS, she earned $83,400 compared to Liu’s $69,000; the reason for the pay
differential “was that the positions at issue were vastly different with different responsibilities.”
Magazinnik “was going to be supervising 20 library managers in 20 community libraries [and]
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would have responsibility for performance reviews, discipline and budgeting.” (Pl.’s 56.1 Resp.
¶¶ 97-98.)
Plaintiff contends that in 2005 her job duties changed to incorporate part of the duties
previously handled by Thomas Alford, the Deputy Director of Customer Services, including the
customer service aspects of his job and collection duties, a fact disputed by Defendant. In light of
this change, she alleges that she complained and asked for a re-evaluation of her job title and
duties. No action was taken. (Def.’s Counter 56.1 ¶¶ 155-160.)
VII.
Other Matters
Plaintiff testified that a customer complained about an employee at the Jackson Heights
branch named Edith allegedly calling a customer a “chink.” Liu was not present when the remark
was allegedly made. Liu forwarded the complaint to Magazinnik, who had oversight for the
Jackson Heights branch. Magazinnik began an investigation into the complaint and apprised the
Community Library Manager at the Jackson Heights branch, Weiqing Dai, a person of Chinese
national origin, of the complaint. (Pl.’s 56.1 Resp. ¶¶ 107-111.)
In a performance review of Plaintiff for the period July 1, 2003 through June 30, 2004,
Plaintiff’s supervisor, Bernadine Byer, stated that Plaintiff “had to watch her tone and watch the
accuracy of her communication.” However, Plaintiff testified that “her allegation regarding tone
and accuracy of communications do not reflect anything else other than what Ms. Byer put in the
performance review.” Byer left the employment of the Library in November 2004. (Pl.’s 56.1
Resp. ¶¶ 112-115.)
According to Plaintiff, Paula Goings, the former Associate Director of Community
Library Services, mocked Plaintiff’s accent, told her that her accent was too hard to understand
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and that she did not speak standard English. Plaintiff did not complain to anyone in Human
Resources after Goings allegedly made the comments. Goings retired in October 2010. (Pl.’s
56.1 Resp. ¶¶ 116-118.) Plaintiff also testified that a former library employee Valerie Kilmartin
allegedly accused Chinese individuals of being spies. Kilmartin retired from the Library’s
employ in July 2004. (Pl.’s 56.1 Resp. ¶¶ 123-124.) Plaintiff admits that no one at the Queens
Library ever directed a racially derogatory comment to her or made a comment to her about her
gender. (Pl.’s 56.1 Resp. ¶¶ 127-128.)
DISCUSSION
I.
Standard: Motion for Summary Judgment
Summary judgment pursuant to Rule 56 is appropriate only where admissible evidence in
the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of
a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See
Viola v. Philips Med. SYS. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing
law in each case determines which facts are material; "only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of summary
judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable
factual issue exists when the moving party demonstrates, on the basis of the pleadings and
submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the
non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l
Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).
To defeat a summary judgment motion properly supported by affidavits, depositions, or
other documentation, the non-movant must offer similar materials setting forth specific facts that
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show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002,
1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. &
Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477
U.S. at 252) (internal quotation marks omitted), or "some metaphysical doubt as to the material
facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal quotation marks
omitted), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on
"mere assertions that affidavits supporting the motion are not credible." Gottlieb v. Cnty. of
Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).
The district court considering a summary judgment motion must also be "mindful . . . of
the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928
(5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the "evidentiary burdens that the
respective parties will bear at trial guide district courts in their determination of summary
judgment motions." Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). "[W]here
the nonmovant will bear the ultimate burden of proof at trial on an issue, the moving party's
burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an
essential element of the nonmoving party's claim." Id. at 210-11. Where a movant without the
underlying burden of proof offers evidence that the non-movant has failed to establish her claim,
the burden shifts to the non-movant to offer "persuasive evidence that his claim is not
'implausible.' " Id. at 211 (citing Matsushita, 475 U.S. at 587).
II.
The Parties’ Contentions
In support of its motion, Defendant argues that Liu’s claims regarding the 2007 and 2009
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positions are barred by the statute of limitations. Further, her claims regarding all three positions
fail on the merits because she failed to set forth a prima facie case as she was not qualified for the
TDTM position and because the hiring decision for all three positions did not occur under
circumstances which would give rise to an inference of discriminatory intent. It argues that it had
legitimate non-discriminatory reasons for its decisions and there is no evidence of pretext. As to
Plaintiff’s EPA claims, Defendants maintain that they fail on the merits and the claims are timebarred.
Plaintiff does not contest that the 2007/2009 claims are time-barred. She asserts that she
has put forth sufficient evidence of a discriminatory motivation for the Library’s failure to
promote her to the position of TDTM. She further argues that her EPA claim survives as her
duties of resolving customer enquiries and complaints and investigating and responding to
requests from the Library’s collection service were previously the responsibility of Thomas
Alford, the former Director of Customer Services.
By way of format, the Court will first address Plaintiff’s Title VII, NYSHRL AND
NYCHRL claims with respect to the position of TDTM. Like the parties, the Court will jointly
discuss the claims for race/national origin discrimination and sex discrimination. Next, Plaintiff’s
EPA and state law equal pay claims will be addressed.
III.
Title VII, NYSHRL and NYCHRL Claims
A.
Applicable Law
Title VII prohibits an employer from discriminating against an employee on the basis of
race, color, religion, sex, or national origin. Title VII and NYSHRL discrimination claims are
analyzed under the burden-shifting framework set forth in McDonnell Douglas Corporation v.
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Green, 411 U.S. 792 (1973). See Walsh v. New York City Housing Auth., 828 F.3d 70, 74 (2d
Cir. 2016). Under McDonnell Douglas and its progeny, a plaintiff must first establish a prima
facie case of discrimination by showing that: (1) he belonged to a protected class, (2) was
qualified for the position he held or sought, and (3) suffered an adverse employment action (4)
under circumstances giving rise to an inference of discriminatory intent. Terry v. Ashcroft, 336
F.3d 128, 137-38 (2d Cir. 2003). If the plaintiff establishes a prima facie case, the burden then
shifts to the employer to "articulate some legitimate, nondiscriminatory reason for [the adverse
act]." Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir. 2009) (internal quotation marks
and citation omitted). Should the employer satisfy its burden, the McDonnell Douglas
framework and its presumptions and burdens disappear, leaving the sole remaining issue of
"discrimination vel non." See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000). “[T]he ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Id. at 143. It is not
sufficient for the fact-finder to disbelieve the employer's explanation; rather, “the fact-finder
must believe the plaintiff's explanation of intentional discrimination.” Id. at 147 (internal
quotation marks omitted). In other words, the plaintiff “must always prove that the conduct at
issue . . . actually constituted discrimination.” Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 81 (1998) (internal quotation marks, emphasis and alteration omitted).
A plaintiff “may attempt to establish that he was the victim of intentional discrimination
by showing that the employer's proffered explanation is unworthy of credence.” Reeves, 530 U.S.
at 143 (internal quotation marks omitted); see also Taylor v. Family Residences and Essential
Enters., Inc., 2008 WL 268801, at *8 (E.D.N.Y. Jan. 30, 2008) (“[A plaintiff] may show pretext
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by demonstrating such weaknesses, implausibilities, inconsistencies, incoherences, 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.” (citations and internal quotation marks
omitted)). However, “the mere fact that an employee disagrees with an employer's evaluation of
that employee's misconduct or deficient performance, or even has evidence that the decision was
objectively incorrect, does not necessarily demonstrate, by itself, that the employer's proffered
reasons are a pretext for termination.” Grant v. Roche Diagnostics Corp., 2011 WL 3040913, at
*11 (E.D.N.Y. July 20, 2011) (quoting Kalra v. HSBC Bank USA, N.A., 567 F. Supp. 2d 385,
397 (E.D.N.Y. 2008)).
Where a plaintiff offers evidence of pretext, a “case-by-case approach” is appropriate
whereby a court examines “the entire record to determine whether the plaintiff could satisfy [her]
ultimate burden of persuading the trier of fact that the defendant intentionally discriminated
against the plaintiff.” Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (internal quotation
marks omitted). Whether summary judgment is appropriate depends on “a number of factors,”
including “the strength of the plaintiff's prima facie case, the probative value of the proof that the
employer's explanation is false, and any other evidence that supports the employer's case and that
properly may be considered.” Reeves, 530 U.S. at 148–49. Even if “the plaintiff has established a
prima facie case and set forth sufficient evidence to reject the defendant's explanation,” judgment
as a matter of law may still be appropriate, where, for instance, “the record conclusively revealed
some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only
a weak issue of fact as to whether the employer's reason was untrue and there was abundant and
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uncontroverted independent evidence that no discrimination had occurred.” Id. at 148.
For purposes of this motion the Court will assume that Liu has established a prima facie
case. See Sattar v. Johnson, 129 F. Supp.3d 123, 138 (S.D.N.Y. 2015) (“Despite the elaborate
framework set up in McDonnell Douglas, Second Circuit case law makes clear that the court may
simply assume that the plaintiff has established a prima facie case and skip to the final step in the
McDonnell Douglas analysis, as long as the employer has articulated a legitimate
nondiscriminatory reason for the adverse employment action.”) (citing cases). As discussed
below, the Court concludes that Liu cannot show pretext and no reasonable jury could conclude
that the failure to promote Plaintiff to the position of TDTM was discriminatory.
B.
The Evidence Does Not Support a Finding of Discriminatory Animus
Defendant has offered a legitimate, non-discriminatory reason for failing to select
Plaintiff for the TDTM position - specifically that she was not as well qualified for the position,
nor did she perform as well as the selected individual during her interview. Indeed, this position
is well supported by the following facts which are conceded by Plaintiff:
(1) Plaintiff was unable to provide detailed answers to the interview panel’s questions,
veering away from the topic asked, to wit, what she would do in order to carry out the
duties of the position. (Pl.’s 56.1 Resp. at ¶ 85.)
(2) In his executive level roles with the New York Public Library, Figueroa’s
responsibilities included directing the professional development and training of the
library managers, librarians and staff within the 12 branch locations he supervised. (Pl.’s
56.1 Resp. at ¶ 77.)
(3) As Assistant Director for CLS, Mr. Figueroa was responsible for twenty community
library branches including directing the professional development and disciplining all
staff at these branches, supervising their budgets, and conducting the performance
reviews of their managers. (Pl.’s 56.1 Resp. at ¶ 82.)
(4) Figueroa appeared to be much better prepared than Plaintiff during his interview and
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impressed the panel by specifically citing web-based training modules which he
referenced during his interview. (Pl.’s 56.1 Resp. at ¶ 83.)
(5) One member of the interview panel concluded that Plaintiff did not demonstrate that
she possessed the managerial and training experience that would have distinguished her
from Figueroa as the better qualified candidate. (Pl.’s 56.1 Resp. at ¶ 87.)
(6) “The interview panel unanimously concluded that Mr. Figueroa should be hired
because he was the best-qualified candidate for the position of [TDTM].” (Pl.’s 56.1
Resp. at ¶ 85.)
Therefore, the Court turns to the question of whether Liu has identified evidence that would
allow a reasonable jury to find that the failure to select her was discriminatory.
Plaintiff relies on the following to support her claim that her protected characteristics
were a motivating factor in her nonselection: “(1) the repeated nature of the denials despite
plaintiff being qualified for each of the positions; (2) that the positions were given to Plaintiff’s
male counterparts who are not of Chinese national origin; (3) the affidavits submitted as part of
Defendant’s instant motion by those involved are self-serving devices to absolve them of
culpability in this matter; (4) the circumstances surrounding Ms. Hall’s remark to Plaintiff as to
the reason Plaintiff was not selected for the 2013 [TDTM] position; and (5) the continued
disregard of Plaintiff’s work experience in China . . . .” (Pl.’s Mem. in Opp. at 16.) The Court
will address each of these items ad seriatim.
In view of the undisputed facts, that Liu did not receive the 2007 and 2009 positions does
not support her claim of discrimination. She concedes that she had never been responsible for
managing multiple branch locations, supervising managerial employees, hiring, firing, or
disciplining employees, and did not have the same extensive budgetary experience as the
individuals selected. She also concedes that the hiring panel concluded that Buron, Fortin and
Page 18 of 25
Figueroa had each established that they possessed significant system-wide managerial and
budgetary oversight experience which made them better qualified than Liu. Plaintiff simply has
not put forth evidence that she “was objectively so much better qualified than the person[s]
promoted over [her] that the employer's justification for the decision must be pretextual.”
Witkowich v. Gonzales, 541 F. Supp.2d 572, 582 (S.D.N.Y. 2008) (citation omitted).
Nor does the fact that the positions went to males who were not of Chinese origin support
an inference of discrimination in view of the record before the Court. Absent is any evidence of
whether there were other applicants for the 2007 positions and what their gender and racial/ethic
background were. Thus that the position went to males who are not of Chinese origin does not
support an inference of discrimination. Cf. Schupach v. Shinseki, 905 F. Supp.2d 422 (E.D.N.Y.
2012) (hiring statistics were insufficient to overcome motion for summary judgment where
statistics regarding the pool of applicants that were considered was not provided); Sattar v.
Johnson, 129 F. Supp.3d 123, 140 (S.D.N.Y. 2015) (Without information as to the characteristics
of the applicant pool, “it is impossible to determine if the selections for particular positions
deviate from the rate of selection that would be expected if the personal characteristics of the
applicants were not influencing the decision-makers’ selection.”).3 Similarly the information
provided as to the applicants for the 2009 position (plaintiff, Buron, and Donna Campbell) is
insufficient to support that Plaintiff’s race/national origin or sex played a role in that decision,
especially when juxtaposed to the undisputed fact that, unlike Buron, Plaintiff had never been
3
The Court notes parenthetically that is undisputed that the successors to Fortin, Buron
and Figueroa for the position of Assistant Director of CLS were all females. (Pl.’s 56.1 Resp. ¶¶
47-50.)
Page 19 of 25
responsible for managing multiple branch locations or for hiring or firing employees.
Plaintiff’s alleges, in support of her claim of discrimination, that the affidavits submitted
in support of the Library’s motion are “self-serving.” However, discovery in this case is closed
and there is no claim that Plaintiff was precluded from deposing the declarants. More
importantly, such a bald allegation in insufficient to defeat a motion for summary judgment.
Rather, as discussed earlier, it is Plaintiff’s burden, in a case such as this, to put forth evidence
that permits an inference that the adverse action was motivated in part by discrimination.
Next to be addressed is the alleged statement of Ms. Hall, a member of the interview
panel for the TDTM position, that Plaintiff did not receive that position because she was not
“open.” First, it bears noting that Plaintiff does not contend that this statement supports her sex
discrimination claim; rather she references it only as to her race/national origin claim. However,
there is nothing, other than Liu’s subjective interpretation, to support that this comment was
directed at her race/national origin. See Haynes v. Capital One Bank, 2015 WL 2213726, *2
(E.D.N.Y. May 8, 2015) (ambiguous remark insufficient to support inference of discrimination);
Shephard v. BCBG Max Azria Group, Inc., 2012 WL 4832883 (S.D.N.Y. Oct. 11, 2012) (no
inference of discrimination where remark did not clearly refer to race; plaintiff’s belief that
remark was motivated by discrimination is not sufficient); cf. Saunders v. McDonald Invs. Inc.,
110 Fed. App'x 150, 152 (2d Cir.2004) (four statements by supervisor were ambiguous and
therefore did not support discrimination). Moreover, “[s]tatements do not demonstrate
discriminatory animus merely because they reflect poorly on the plaintiff.” Lynch v. Pathmark
Supermarkets, 987 F. supp. 236, 243 (S.D.N.Y. 1997). When juxtaposed to Plaintiff’s factual
concessions, including that the “the interview panel unanimously concluded that Figueroa should
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be hired because he was the best-qualified candidate for the position,” this remark does not
support an inference of discriminatory intent.
Lastly, Plaintiff contends that discriminatory motivation is demonstrated by the
continued disregard of her work experience in China. “[A]n employer's disregard or misjudgment
of a plaintiff's job qualifications may undermine the credibility” of the employer's stated reason
for its employment decision. Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d
Cir. 2001) (citing cases). However, it is appropriate in the current context to “afford employers a
great deal of discretion in assessing the credentials and qualifications of applicants and in
determining the criteria for positions.” Milano v. Astrue, 2008 WL 4410131, at *32 (S.D.N.Y.
Sept. 26, 2008) (citing cases), aff'd, 382 Fed. App’x 4 (2d Cir. 2010). For a discrepancy in
qualifications to serve as a basis to defeat a motion for summary judgment, the plaintiff's
“credentials would have to be so superior to the credentials of the person selected for the job that
no reasonable person, in the exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff for the job in question.” Byrnie, 243 F.3d at 103; accord Cintron v.
Orange Cnty. Cmty. Coll., 2013 WL 1812196, at *6 (S.D.N.Y. Apr. 29, 2013). In other words,
“[a] plaintiff may defeat summary judgment by showing that [s]he was objectively so much
better qualified than the person promoted over [her] that the employer's justification for the
decision must be pretextual.” Witkowich, 541 F. Supp.2d at 582 (citation omitted). Viewed
objectively, Plaintiff’s work experience in China is not superior to Figueroa’s prior experience.
First, Figueroa’s experience was more relevant as his administrative and training experience was
garnered in a library setting as opposed to an academic setting. Moreover, Figueroa had
experience in training and management that was more recent than Plaintiff’s work experience
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duties in China. Thus, that the Library may have discounted that experience does not demonstrate
a discriminatory motive especially where, as here, Plaintiff admits that during his interview the
successful candidate “appeared to be much better prepared than [her] and impressed the panel by
specifically citing web-based training modules” and that the “interview panel unanimously
concluded Figueroa should be hired because he was the best-qualified candidate for the position
of TDTM.” (Pl.’s 56.1 Resp. ¶83, 85.)
Viewing the record as a whole, it is insufficient to permit a trier of fact to infer that
Defendant’s failure to promote Liu to the TDTM position was more likely than not motivated in
part by discrimination.4 Summary judgment is granted in favor of defendant on Plaintiff’s Title
VII, NYSHRL and NYCHRL claims.5
IV.
The EPA and NYLL Claims
A.
Applicable Law
“The Equal Pay Act . . . prohibits employers from discriminating among employees on
the basis of sex by paying higher wages to employees of the opposite sex for ‘equal work . . .’ ”
4
Although not referenced by Plaintiff in her memorandum, the Court notes that the
alleged statements by a Jackson Heights branch employee referring to a customer as a “chink”
and by Paula Goings referring to Liu’s accent provides no support to Liu’s claim. The undisputed
facts demonstrate that the Library timely investigated the customer’s claim and plaintiff did not
report Goings’ statement to anyone. Also there is no evidence that Goings played any role in
determining who was selected for any of the referenced positions and in fact she was no longer
employed by the Library at the time of the posting of the TDTM position. (Pl.’s 56.1 Resp. ¶¶
107-111,116-122.)
5
Although a NYCHRL claim is subject to a different standard, i.e., a plaintiff must show
only differential treatment of any degree based on a discriminatory motive and a materially
adverse employment action is not required, see Gorokhovsky v. New York City Housing Auth.,
552 Fed. App’x 100, 102 (2d Cir. 2014), that differing standard has no impact on the present
case.
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Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (quoting 29 U.S.C. § 206(d)(1)). Its
purpose is to “legislate out of existence a long-held, but outmoded societal view that a man
should be paid more than a woman for the same work.” Id. Claims under the EPA are analyzed
pursuant to a burden-shifting framework. See Ryduchowski v. Port. Auth. of N.Y. & N.J., 203
F.3d 135, 142 (2d cir. 2000). Under that framework, a plaintiff must initially demonstrate “that
[1] the employer pays different wages to employees of the opposite sex; [2] the employees
perform equal work on jobs requiring equal skill, effort, and responsibility; and [3] the jobs are
performed under similar working conditions.” E.E.O.C. v. Port. Auth. of N.Y. & N.J., 768 F.3d
247, 254-55 (2d Cir. 2014) (internal quotation marks omitted). [U]nlike Title VII, an EPA
plaintiff is not required to establish her employer’s discriminatory intent. Id. After the prima
facie case is established, the burden shifts to defendant “to show, by a preponderance of the
evidence, that the pay differential is attributable to ‘(i) a seniority system; (ii) a merit system; (iii)
a system which measures earnings by quantity or quality of production; or (iv) a differential
based on any other factor other than sex.’ ” Flaherty v. Massapequa Pub. Sch., 752 F. Supp.2d
286, 299 (E.D.N.Y. 2010) (quoting 29 U.S.C. § 206(d)(1)). The burden of establishing such an
affirmative defense is heavy.” Jamilik v. Yale Univ., 362 Fed. App’x 148, 150 (2d Cir. 2009).
“Further, to successfully establish the ‘factor other than sex’ defense, an employer must also
demonstrate that it had a legitimate business reason for implementing the gender-neutral factor
that brought about the wage differential.” Belfi, 191 F.3d at 136. Lastly, a plaintiff may “counter
the employer's affirmative defense by producing evidence that the reasons the defendant seeks to
advance are actually a pretext for sex discrimination.” Id. “The appropriate inquiry to determine
if the factor put forward is a pretext, is whether the employer has use[d] the factor reasonably in
Page 23 of 25
light of the employer's stated purpose as well as its other practices.” Id. (citation omitted). Equal
pay claims brought under the New York Labor Law are analyzed under this same standard.
Talware v. Staten Island Univ. Hosp., 610 Fed. App’x 28, 31 n.2 (2d Cir. 2015).
B.
Plaintiff has not Proffered Sufficient Evidence to Support These Claims
Initially, the Court notes that Plaintiff appears to have abandoned any claim that the
relevant comparators are Buron, Fortin and Figueroa as her memorandum refers solely to
Thomas Alford, the Defendant’s former Deputy Director of Customer Services, as a comparator.
(Pl’.s Mem. in Opp. at 18-20.) Accordingly, the Court shall confine its analysis to Alford.
Absent from the record before this Court is any information as to Alford’s salary. Thus
Liu has not satisfied the requirement that she submit evidence that the Library paid different
wages to an employee of the opposite sex.
Nor has she submitted evidence to support that she and Alford “perform[ed] equal work
on jobs requiring equal skill, effort, and responsibility.” For this aspect of her EPA burden,
Plaintiff merely attests that (1) beginning in 2005 her job duties were changed “to incorporate
part of the duties previously handled by Thomas Alford, Defendant’s former Director of
Customer Service, including the customer service aspects of Mr. Alford’s job and the Unique
collection duties;” (2) she continues to undertake the responsibilities performed originally by
Alford; and (3) in 2012 Buron assumed certain aspects of Mr. Alford’s job duties. (Pl.’s 56.1
Resp. ¶ 156, 163, 164; see Liu Declar. ¶ 13 (“I was tasked with the customer service aspects of
Mr. Alford’s role and handling the requests [from] Unique collection services following his
retirement.”) At best, this supports that she took on some of Alford’s duties. However, without a
full description of what Alford’s actual job requirements and performance were, there can be no
Page 24 of 25
comparison as to whether her actual duties and Alford’s required “equal skill, effort, and
responsibility.” See Moccio v. Cornell Univ., 889 F. Supp.2d 539, 570-71 (S.D.N.Y. 2012). In
other words, the proffered evidence does not permit an inference that the two positions are
substantially equal.
Defendant’s motion for summary judgment on Plaintiff’s EPA and NYLL claims is
granted.
CONCLUSION
In accordance with the foregoing, Defendant’s motion for summary judgment is granted.
The Clerk of Court shall enter judgment accordingly and close this case.
Dated: Central Islip, New York
September 20, 2017
/s Denis R. Hurley
Denis R. Hurley
United States District Judge
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