Gallegos v. Tompkins Consolidated Area Transit, Inc.

Filing 56

SUMMARY ORDER - That TCAT's 47 motion for summary judgment is GRANTED. That Gallegos's amended complaint (Dkt. No. 5) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 7/16/2018. (Copy served via regular and certified mail)(jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ANDRES P. GALLEGOS,
Plaintiff,

5:15-cv-613
(GLS/ATB)

v.
TOMPKINS CONSOLIDATED
AREA TRANSIT, INC.,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Andres P. Gallegos
Pro Se
7 Enfield Center Road West
Ithaca, NY 14850
FOR THE DEFENDANT:
Hancock, Estabrook Law Firm
100 Madison Street, Suite 1500
Syracuse, NY 13202
Gary L. Sharpe
Senior District Judge

JOHN T. MCCANN, ESQ.
WHITNEY M. KUMMEROW,
ESQ.

SUMMARY ORDER
Plaintiff pro se Andres P. Gallegos brings claims under Title VII of the
Civil Rights Act (Title VII)1 and the Age Discrimination in Employment Act
(ADEA)2 against Tompkins Consolidated Area Transit, Inc. (TCAT) for a
failure to promote him. (Am. Compl., Dkt. No. 5.) Pending is TCAT’s
motion for summary judgment. (Dkt. No. 47.) For the reasons stated in
that motion and in TCAT’s reply, (Dkt. No. 51), summary judgment for
TCAT is granted.
To begin with, the court is mindful 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 Coll., 521 F.3d 130, 137 (2d Cir. 2008).3 And, as a pro se litigant,
the court must read Gallegos’s pleadings “liberally and interpret them to
raise the strongest arguments that they suggest.” McPherson v. Coombe,

1

See 42 U.S.C. §§ 2000e-2000e-17.

2

See 29 U.S.C. §§ 621-34.

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The standard of review pursuant to Fed. R. Civ. P. 56 is well established and will not
be repeated here. For a full discussion of the standard, the court refers the parties to its
decision in Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner
v. Sprague, 489 F. App’x 500 (2d Cir. 2012).

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174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks and citation
omitted). “A pro se plaintiff, however, cannot defeat a motion for summary
judgment by simply relying on the allegations of his complaint; he must
present admissible evidence from which a reasonable jury could find in his
favor.” Belpasso v. Port Auth. of N.Y. & N.J., 400 F. App’x 600, 601 (2d
Cir. 2010).
The court agrees with TCAT’s arguments. (See generally Dkt. No.
47, Attach. 12.) In particular, summary judgment is warranted because
Gallegos voluntarily withdrew his application for the promotion at issue.
(Id. at 3-4, 7-9.) Because Gallegos did not see his application through, he
was not rejected by TCAT, and thus cannot set forth a prima facie case of
discrimination. (Id. at 7 (citing Brown v. Coach Stores, Inc., 163 F.3d 706,
710 (2d Cir. 1998); Sanchez v. Univ. of Conn. Health Care, 292 F. Supp.
2d 385, 394 (D. Conn. 2003)).)
Gallegos’s response, (Dkt. No. 50), even when read liberally and
interpreted to raise the strongest arguments it suggests, cannot overcome
TCAT’s motion. His subjective assessment of his own qualifications in
comparison to other candidates, (id. at 4-12), is insufficient to create a
genuine dispute as to a material fact. See Concepcion v. City of New
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York, 15 Civ. 2156, 2016 WL 386099, at *14 (S.D.N.Y. Jan. 29, 2016),
aff’d, 693 F. App’x 31 (2d Cir. 2017) (collecting cases). Gallegos also
alleges that a former employee harassed him for his Mexican heritage,
(Dkt. No. 50 at 4), TCAT’s budget was manipulated to promote other
candidates, (id. at 15), certain events contributed to his post-traumatic
stress disorder, (id. at 20, 21), and that someone named Mr. Dillard was
repeatedly offered a “better” interview time for a second interview, (id. at
24). These allegations are non sequiturs because Gallegos offers no
connection between them and his claims, see Clark v. N.Y. State Elec. &
Gas Corp., 67 F. Supp. 2d 63, 72 (N.D.N.Y. 1999), and “[s]tatements that
are devoid of any specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment,” Bickerstaff v.
Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999), as amended on denial of
reh’g (Dec. 22, 1999).
In trying to overcome the fact that he withdrew from the application
process before the second interview, (Dkt. No. 47, Attach. 12 at 3-4),
Gallegos alleges that notes from his first interview “clearly show that no
one on the interview committee had any intention of promoting [him],” (Dkt.
No. 50 at 14). If true, this allegation would arguably justify Gallegos’s
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withdrawal on the theory that completing his application (instead of
withdrawing before the second interview) would have been a futile
endeavor. See Malarkey v. Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir.
1993); Matthews v. Corning Inc., 77 F. Supp. 3d 275, 288-89 (W.D.N.Y.
2014). But Gallegos’s allegation is speculation that need not be accepted
as true. See Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). At
best, the notes from the first round of interviews show that one interviewer
did not favor Gallegos and another did not recommend Gallegos as a top
candidate at the time, which does not justify Gallegos withdrawing from his
second interview. (Dkt. No. 50, Attach. 1 at 20-30.)4
Gallegos also alleges that he had legitimate reasons for trying to
reschedule his second interview. (Dkt. No. 50 at 1.) But he testified at
deposition that he wanted a longer interview than the thirty minutes
allotted, and no other candidate received more time. (Dkt. No. 47, Attach.
10 at 36-37; Attach. 1 ¶¶ 8, 12; Dkt. No. 50 at 18.)

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One interviewer wrote, among other notes, “no” on his rating sheet for Gallegos.
(Dkt. No. 50, Attach. 1 at 25.) Another interviewer’s notes included, “I don’t recommend him
as a top candidate at this time.” (Id. at 30.) Even drawing all reasonable inferences from
these notes, they do not create a genuine dispute as to whether the interviewers had no
intention of promoting Gallegos. See Bickerstaff, 196 F.3d at 452. In any event, the court
agrees with TCAT that Gallegos was unaware of these notes when he decided to withdraw his
application, and interviews were just one factor that TCAT considered. (Dkt. No. 51 at 6 n.4.)

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Gallegos’s argument about the lack of diversity in TCAT’s
management is unavailing. (Dkt. No. 50 at 2-3, 22, 24.) This is a vague,
generalized allegation that does not demonstrate how Gallegos was
discriminated against. See Fletcher v. Goord, No. 07-cv-707, 2008 WL
4426763, at *16 n.41 (N.D.N.Y. Sept. 25, 2008). And, in any event, TCAT
has a small managerial staff that primarily consists of six managers, (Dkt.
No. 51, Attach. 1 ¶ 2), and “[s]uch a small sample size does not allow for
inferences of discrimination.” Sattar v. Johnson, 129 F. Supp. 3d 123, 140
(S.D.N.Y. 2015), aff’d sub nom. Sattar v. U.S. Dep’t of Homeland Sec., 669
F. App’x 1 (2d Cir. 2016) (collecting cases).
Finally, Gallegos’s feelings and perceptions of discrimination are not
evidence of discrimination. See Bickerstaff, 196 F.3d at 456. And the
court “must respect the employer’s unfettered discretion to choose among
qualified candidates” and is “not to act as a super personnel department
that second guesses employers’ business judgments.” Byrnie v. Town of
Cromwell, 243 F.3d 93, 103 (2d Cir. 2001) (internal quotation marks and
citation omitted).
ACCORDINGLY, it is hereby
ORDERED that TCAT’s motion for summary judgment (Dkt. No. 47)
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is GRANTED; and it is further
ORDERED that Gallegos’s amended complaint (Dkt. No. 5) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
July 16, 2018
Albany, New York

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