Anderson v. City of New Rochelle et al

Filing 27

OPINION AND ORDER re: 14 MOTION for Summary Judgment filed by City of New Rochelle Department of Public Works, City of New Rochelle Department of Parks and Recreation, City of New Rochelle. For the reasons set forth above, Defendants' motion for summary judgment is GRANTED. The Clerk of the Court is respectfully directed to terminate this motion, Doc. 14, enter judgment in favor of Defendants, and close this case. (Signed by Judge Edgardo Ramos on 9/4/2012) The Clerks Office Has Mailed Copies. (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
—————————————————————x
ALBERT L. ANDERSON,
:
:
Plaintiff,
:
:
- against :
:
CITY OF NEW ROCHELLE, CITY OF NEW
:
ROCHELLE DEPARTMENT OF PARKS AND :
RECREATION, CITY OF NEW ROCHELLE
:
DEPARTMENT OF PUBLIC WORKS,
:
:
Defendants.
:
—————————————————————x

OPINION AND ORDER
10 Civ. 4941 (ER)

Ramos, D.J.:
Pro Se Plaintiff, Albert L. Anderson, commenced this action against the City of New
Rochelle (the “City”), City of New Rochelle Department of Parks and Recreation (the “Parks
Department”) and City of New Rochelle Department of Public Works (collectively,
“Defendants”) on June 25, 2010, alleging discrimination on the basis of race and age in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, the Age
Discrimination in Employment Act (“ADEA”), 42 U.S.C. § 621, et seq., and New York State
Human Rights Law, N.Y. Exec. Law §§ 290-297. Compl., Doc. 2, at 1. The discriminatory
conduct alleged by Plaintiff is Defendants’ failure to hire him for a full-time laborer position
with the City in July 2007.1 Id. at 2-3. Plaintiff is an African American man and was

1

In completing the “Complaint for Employment Discrimination” form, Plaintiff checked the boxes for “failure to
hire” and “failure to promote.” Doc. 2, at 2. In the narrative portion of his Complaint, Plaintiff refers only to the
City’s failure to hire him for the full-time laborer position, and the parties describe the Plaintiff’s allegations solely
in terms of a “failure to hire” in their motion papers as well. In addressing the instant motion, the Court has done the
same, as “[t]he case law does not distinguish between the legal standards for a failure to hire claim and a failure to
promote claim.” O’Leary v. N.Y. State Unified Court Sys., No. 05 Civ. 6722 (HB), 2007 WL 2244483, at *5 n. 14
(S.D.N.Y. Aug. 6, 2007).

approximately sixty-six years old at the time of the alleged discriminatory conduct. Defs.’ 56.1
Stmt. ¶ 9.2
Before the Court is Defendants’ Motion for Summary Judgment seeking dismissal of
Plaintiff’s complaint in its entirety pursuant to Fed. R. Civ. P. 56. Doc. 14. For the reasons set
forth below, Defendants’ Motion is GRANTED.
I. Background
The following facts are undisputed except where otherwise noted.
A. Anderson’s Employment as a Seasonal Laborer
The Parks Department hires approximately eleven part-time employees to work as
seasonal laborers from April through December of each year. Defs.’ 56.1 Stmt. ¶¶ 14-15. The
City requires individuals to pass a laborer’s examination, which includes the identification of
tools and similar questions, in order to work as a seasonal laborer. Id. ¶ 18. Plaintiff took the
examination for a seasonal laborer position with the City in July 2006 and applied for
employment in August 2006. Id. ¶ 19. Plaintiff started working as a seasonal laborer in
September 2006. Id. ¶ 20.
Plaintiff’s first assignment was to work at Davenport Park, under the supervision of
James Williams, who was also employed as a seasonal laborer. Id. ¶ 21. Williams is African
American and was approximately sixty years old in 2007. Id. ¶ 22. In September or October
2006, Williams complained to his supervisors, Anthony Tardibuono, Supervisor of Maintenance
for the Parks Department, and Brian O’Rourke, the foreman for the Parks Department, that
Plaintiff refused to complete certain assignments, stopped work early at the end of each day,
talked to people in the park instead of working, and disregarded Williams’ directions. Id. ¶¶ 122

Citations to “Defs.’ 56.1 Stmt.” refer to the Defendants’ Statement of Undisputed Facts Pursuant to Local Rule
56.1. Doc. 17.

2

13, 23; Marcoline Decl. Ex. Q, ¶ 3. 3 O’Rourke is white and was approximately thirty-seven
years old in 2007. Ex. J, at 126. Tardibuono is also white, and was at least in his mid-fifties in
2007.4 Pl.’s Response Mem. Law Opp. Defs.’ Mot. Summ. Judg. (“Pl.’s Mem.”) 3, Doc. 25; Ex.
Q, ¶ 1.
At Williams’ request, Plaintiff was reassigned to the leaf pickup crew in November 2006,
where he worked under the supervision of Robert Maravilla.5 Defs.’ 56.1 Stmt. ¶ 24; Ex. Q, ¶ 3.
Maravilla is Hispanic and was approximately thirty years old in 2007. Defs.’ 56.1 Stmt. ¶ 25.
Maravilla also complained to Tardibuono and O’Rourke about problems with Plaintiff’s
performance. 6 Ex. H, at 101-02. As a result, O’Rourke transferred Plaintiff to a vacuum crew
under the supervision of Timothy Fucile. Ex. J, at 133. Fucile is white and was approximately
thirty-three years old in 2007. Defs.’ 56.1 Stmt. ¶ 29. Fucile complained to Tardibuono and
O’Rourke about problems with Plaintiff’s work performance and attitude, and asked to have him
transferred to another crew. Id. ¶ 31. O’Rourke also personally observed Plaintiff’s work on the
vacuum crew and saw him leaning on a rake and working much slower than the other members
of the crew. Id. ¶ 32. As a result, Plaintiff was reassigned to the garbage crew for the remainder
3

“Marcoline Decl.” refers to the Declaration of Thomas J. Marcoline in Support of Defendants’ Motion for
Summary Judgment. Doc. 16. All subsequent citations to the Exhibits attached to the Declaration of Thomas J.
Marcoline are referenced herein as “Ex.__.”

4

Tardibuono’s age is not identified anywhere in the record; however, he began his employment with the City in
1971. Ex. Q, ¶ 1.

5

Although Plaintiff purports to dispute Defendants’ descriptions of his assignments and transfers to different work
crews by arguing that he did not work as part of those crews on a regular basis, Pl.’s Counter-Stmt. Material Facts to
Defs.’ Rule 56.1 Stmt. (“Pl.’s 56.1 Stmt.”) ¶¶ 24, 26, 28, 33, Doc.26, such factual issues are immaterial “because
they will not affect the disposition of this case,” and “need not be resolved as they have no bearing on the Court’s
decision.” Douglas v. Dist. Council 37 Mun. Emps.’ Educ. Fund Trust, 207 F. Supp. 2d 282, 288 (S.D.N.Y. 2002).
6

Maravilla testified that Plaintiff had trouble operating the necessary equipment, worked slower than others, reacted
with anger and frustration when Maravilla tried to provide feedback or guidance to Plaintiff, and was insubordinate.
Ex. H, at 99-101. Maravilla also testified that he informed Tardibuono and O’Rourke that he was having problems
with Plaintiff’s performance; however, he did not testify concerning the specific content of his complaints to his
supervisors. Id. at 101-02. O’Rourke testified that Maravilla complained to him about Plaintiff “standing around
and not keeping up with the crew,” and that Maravilla “wanted to have [Plaintiff] moved off of his crew.” Ex. J, at
132.

3

of the 2006 season. Id. ¶ 33. In accordance with the City’s normal practices, the seasonal
laborers, including Plaintiff, were laid off in December 2006. Id. ¶¶ 17, 35.
Plaintiff was hired as a seasonal laborer again in April 2007. Id. ¶ 36. Mario Rizzo, the
individual who was ultimately offered the full-time position, was also hired as a seasonal laborer
in the spring of 2007. Ex. K, at 159; see also Ex. O. Rizzo is white and was in his late 20s or
early 30s in 2007.7 Defs.’ Mem. Law Supp. Mot. Summ. Judg. (“Defs.’ Mem.”) 5, Doc 15.
During the 2007 season, Tardibuono received similar complaints about Plaintiff’s job
performance and attitude from Plaintiff’s supervisors. Defs.’ 56.1 Stmt. ¶ 37; Ex. K, at 160.
Tardibuono did not receive any complaints about Rizzo’s work or behavior. Ex. K, at 160.
O’Rourke testified that he received positive feedback about Rizzo’s work performance and that,
based on his personal observations of Rizzo’s work, Rizzo “looked like he had done the work
before, he had experience and . . . he seemed to be a good guy with a good attitude.” Ex. J, at
140-41. Maravilla, who supervised Rizzo from the beginning of the 2007 season, testified that
Rizzo was “efficient” and that he “[w]hen you told him what to do, he would go ahead and do
it.” Ex. H, at 104. Maravilla provided O’Rourke and Tardibuono with positive feedback about
Rizzo’s work; he told them that Rizzo “did his job, always did it as was he was told, [and] so on
and so forth.” Id. at 105. Tardibuono also observed Rizzo’s work in the spring of 2007 and
found that Rizzo “seemed to know what he was doing, [and] that he ‘knew landscaping.’” Defs.’
56.1 Stmt. ¶ 49.
B. Selection for the Permanent Laborer Position
At the beginning of the 2007 season, Tardibuono made an announcement about a new
full-time laborer position with the Parks Department. Id. ¶ 38. The announcement was made in
7

There is no evidence in the record from which the Court could discern Rizzo’s exact age at the time he was hired
for the full-time laborer position.

4

the lunchroom of the Parks Department headquarters on the first payday when all of the
employees appeared to receive their checks. Ex. J, at 138, Ex. K, at 158; Ex. H, at 105. Plaintiff
claims that he did not learn of the position until after Rizzo had been hired. Pl.’s Mem. 2-3.8
The permanent “laborer” position is a labor class position under Civil Service Law § 43.
Defs.’ 56.1 Stmt. ¶ 39. There is no competitive examination for the position, and the City was
free to hire anyone on the laborer’s list who met the minimum qualifications for the position. Id.
The laborer’s list consists of people who have taken and passed the City’s most recent laborer’s
test. Id. ¶ 40. The City also required that the position be filled by someone with a drivers’
license. Id. A commercial drivers’ license (“CDL”) was not a requirement for the position, id. ¶
41; however, it was considered a “plus.” Ex. J, at 140; Ex. K, at 157. The list of candidates who
met the minimum requirements for the job in 2007 was comprised of three individuals: Plaintiff,
Joe Tadillo and Mario Rizzo.9 Defs.’ 56.1 Stmt. ¶ 42.
While Tardibuono and O’Rourke were involved in the selection process for the full-time
laborer position, id. ¶ 43, William Zimmerman, Commissioner of the Parks Department, had
final decision-making authority for hiring full-time employees. Ex. L, at 174. Zimmerman is
white and was approximately fifty-four years old in 2007. Id. at 173-74. In order to make a
hiring recommendation to Zimmerman, O’Rourke and Tardibuono observed the candidates’
work, reviewed their civil service applications and considered factors such as CDLs, attendance,

8

The Court has accepted Plaintiff’s assertion as true for purposes of this motion, notwithstanding the sworn
testimony of O’Rourke and Tardibuono that Plaintiff was present for the announcement, Ex. J, at 138; Ex. K, at 158,
because the Court is required to draw all reasonable inferences in favor of the non-moving party on a motion for
summary judgment. However, Plaintiff’s assertion that Tardibuono previously testified or otherwise admitted that
he did not tell Plaintiff about the position, Pl.’s 56.1 Stmt. ¶¶ 38, 46; Pl.’s Mem. 3, is not supported by any evidence
in the record. The evidence to which Plaintiff cites in his Memorandum (“SDHR Transcript, Document #s 200, 202
to Defendants’ discovery responses”) is not attached to his opposition papers or otherwise included in the record.
9

The evidence in the record indicates that Tadillo was not recommended for the position because of a drinking
problem. Ex. K, at 162. There is no information in the record about Tadillo’s race, age or qualifications for the fulltime position.

5

work performance, attitude and prior landscaping experience. Ex. J, at 142; Ex. K, at 160-61.
There was no formal application or interview process for the full-time job. Ex. K, at 159-60.
During a meeting with Zimmerman in or around June of 2007, Tardibuono and O’Rourke
informed the Commissioner about the three individuals who were eligible for the position and
recommended that Rizzo be hired. Defs.’ 56.1 Stmt. ¶ 49; Ex. J, at 143-44. Their
recommendation was based on Rizzo’s good work performance and attitude, his near perfect
attendance record, his four years of professional landscaping experience and his expressed
interest in the position. Defs.’ 56.1 Stmt. ¶ 49; Ex. J, at 144; Ex. K, at 167; Ex. Q, ¶ 9. At the
meeting, Zimmerman requested documentation regarding each of the eligible individuals to
“verify [the] recommendation.” Ex. L, at 177; Ex. K, at 166. Tardibuono subsequently provided
Zimmerman with the candidates’ labor test applications, attendance records and paperwork with
information about verified licenses and prior experience. Ex. L, at 178. After reviewing the
requested paperwork and meeting with Tardibuono for a second time, Zimmerman “concurred
with [Tardibuono’s] recommendation to hire Mr. Rizzo.” Id.; Ex. K, at 166-67. Rizzo was
offered the position in early July 2007. Ex. K, at 167.
Plaintiff continued to work for the Parks Department for two or three weeks after
Defendants offered the full-time laborer position to Rizzo. Id. at 167. At the end of July,
O’Rourke reassigned Plaintiff to work at City Park. Defs.’ 56.1 Stmt. ¶ 56; Ex. K, at 168; Ex. Q,
¶ 7. Plaintiff did not report to work at City Park the following week. Ex. Q, ¶ 8. The City held
the job open for Plaintiff until August 10, 2007; however, he never returned to work for the
Parks Department. Id.; Defs.’ 56.1 Stmt. ¶¶ 57-58. It is undisputed that Plaintiff quit his job
with the City. Defs.’ 56.1 Stmt. ¶ 58. Plaintiff claims that he quit when he learned that he was
passed over for the full-time laborer position. Pl.’s 56.1 Stmt. ¶¶ 57-58.

6

C. Allegations of Discrimination
Plaintiff did not identify the individuals who he believes are responsible for the alleged
discrimination anywhere in his Complaint, and Plaintiff never made any complaints of
discrimination during his employment with the City. Defs.’ 56.1 Stmt. ¶ 59. In opposing the
instant motion, Plaintiff has not alleged that any of his co-workers or supervisors made any
discriminatory comments or engaged in any discriminatory conduct that he believes were related
to his age or race. The only person specifically mentioned in Plaintiff’s opposition papers is
Tardibuono. Plaintiff’s sole allegation against Tardibuono—which is not based on personal
knowledge or otherwise supported by any the evidence in the record—is that he has never hired
any African Americans as full-time laborers. Pl.’s 56.1 Stmt. ¶ 55; Pl.’s Mem. 3. Plaintiff also
alleges that there were no African Americans employed as full-time laborers by the Defendants
in July 2007. Pl.’s 56.1 Stmt. ¶ 57.
D. Administrative Proceedings
On or about October 26, 2007, Plaintiff filed a verified complaint with the New York
State Division of Human Rights (“SDHR”) and the Equal Employment Opportunity Commission
(“EEOC”) alleging discrimination on the basis of race and age. Defs.’ 56.1 Stmt. ¶ 2. A hearing
before an Administrative Law Judge (“ALJ”) for the SDHR was held on April 6, 2009. Id. ¶ 3.
Counsel for the SDHR appeared on Plaintiff’s behalf. Id. ¶ 4. Plaintiff testified at the hearing
and had the opportunity to cross-examine witnesses. Id. On or about May 11, 2009, the ALJ
issued Recommended Findings of Fact, Opinion and Decision, and Order that Plaintiff’s
complaint be dismissed, because the City had articulated a legitimate non-discriminatory reason
for its decision to hire Rizzo for the full-time position, and there was no evidence of
discrimination. Id. ¶ 5. On or about January 26, 2010, Department of Human Rights (“DHR”)

7

Commissioner Galen Kirkland issued an Order adopting the ALJ’s Recommended Order as the
Final Order of the SDHR. Id. ¶ 6. The DHR Commissioner’s Order contained information
advising the parties about their rights to appeal the decision to the New York State Supreme
Court. Id. Plaintiff did not appeal the DHR Commissioner’s Order. Id. ¶ 8. On or about April
10, 2010, the EEOC adopted the findings of the SDHR and issued Plaintiff a Right to Sue letter.
Id. ¶ 7.
II. Legal Standard Governing Motions for Summary Judgment
A. Summary Judgment Standard
Summary judgment is only appropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). “An issue of fact is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free
Sch. Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v.
Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is “material” if it might affect the
outcome of the litigation under the relevant law. Id.
The party moving for summary judgment is first responsible for demonstrating the
absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). “When the burden of proof at trial would fall on the nonmoving party, it ordinarily is
sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential
element of the nonmovant’s claim.” Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d
Cir. 2009) (citing Celotex Corp., 477 U.S. at 322-23). “In that event, the nonmoving party must
come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order

8

to avoid summary judgment.” Saenger v. Montefiore Med. Ctr., 706 F. Supp. 2d 494, 504
(S.D.N.Y. 2010) (internal quotation marks omitted) (quoting Jaramillo v. Weyerhaeuser Co., 536
F.3d 140, 145 (2d Cir. 2008)). “Summary judgment is properly granted when the non-moving
party ‘fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.’” Abramson v. Pataki,
278 F.3d 93, 101 (2d Cir. 2002) (quoting Celotex Corp., 477 U.S. at 322).
In deciding a motion for summary judgment, the Court must “‘construe the facts in the
light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.’” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.
2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However,
in opposing a motion for summary judgment, the non-moving party may not rely on unsupported
assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14,
18 (2d Cir. 1995). A motion for summary judgment cannot be defeated on the basis of mere
denials or unsupported alternative explanations of facts. Senno, 812 F. Supp. 2d at 467. The
non-moving party must do more than show that there is “some metaphysical doubt as to the
material facts.” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (internal quotation marks
omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
“[T]he non-moving party must set forth significant, probative evidence on which a reasonable
fact-finder could decide in its favor.” Senno, 812 F. Supp. 2d at 467-68 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256–57 (1986)).
B. Additional Summary Judgment Standards for Employment Discrimination Cases
While, courts are cautious in granting summary judgment in employment discrimination
cases where the employer’s intent is at issue, Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.

9

2008), “‘summary judgment is appropriate even in discrimination cases, for . . . the salutary
purposes of summary judgment—avoiding protracted, expensive and harassing trials—apply no
less to discrimination cases than to other areas of litigation.’” Hongyan Lu v. Chase Inv. Servs.
Corp., 412 F. App’x 413, 415 (2d Cir. 2011) (quoting Weinstock v. Columbia Univ., 224 F.3d 33,
41 (2d Cir. 2000)). Indeed, “‘[i]t is now beyond cavil that summary judgment may be
appropriate even in the fact-intensive context of discrimination cases.’” Feingold v. New York,
366 F.3d 138, 149 (2d Cir. 2004) (quoting Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,
466 (2d Cir. 2001)). Thus, the Supreme Court has “reiterated that trial courts should not treat
discrimination differently from other ultimate questions of fact.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000) (internal quotation marks omitted) (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)). Accordingly, “[e]ven in the discrimination
context, [] a plaintiff must provide more than conclusory allegations to resist a motion for
summary judgment.” Holcomb, 521 F.3d at 137. A “nonmoving party ‘must offer some hard
evidence showing that its version of the events is not wholly fanciful.’” Jeffreys v. City of New
York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting D’Amico v. City of New York, 132 F.3d 145, 149
(2d Cir. 1998)).
C. Local Rule 56.1
Under Rule 56.1 of the Local Civil Rules of the United States District Courts for the
Southern and Eastern Districts of New York (“Local Rule 56.1”), a party moving for summary
judgment pursuant to Fed. R. Civ. P. 56, must submit a “separate, short and concise statement, in
numbered paragraphs, of the material facts as to which the moving party contends there is no
genuine issue to be tried.” Local R. 56.1(a). In answering a motion for summary judgment,
litigants in this District are required to specifically respond to the assertion of each purported

10

undisputed fact by the movant and, if controverting any such fact, to support its position by
citing to admissible evidence in the record. Local Rule 56.1(b), (d); see also Fed. R. Civ. P.
56(c) (requiring reliance on admissible evidence in the record in supporting or controverting a
purported material fact). If the moving party seeks summary judgment against a pro se litigant,
it is also required to notify the pro se litigant of the requirements of Fed. R. Civ. P. 56 and Local
Civil Rule 56.1. Local R. 56.2. Once served with a statement pursuant to Local Rule 56.2,
“[p]ro se litigants are then not excused from meeting the requirements of Local Rule 56.1.” Wali
v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) (citing Vt. Teddy Bear Co. v. 1800-BEARGRAM Co., 373 F.3d 241, 246 (2d Cir. 2004)).
Pursuant to Local Rule 56.1(c), each factual statement set forth in the moving party’s
Rule 56.1 statement “will be deemed to be admitted for purposes of this motion unless
specifically controverted by a correspondingly numbered paragraph in the statement required to
be served by the opposing party.” Local R. 56.1(c); see also T.Y. v. N.Y. City Dep’t of Educ.,
584 F.3d 412, 418 (2d Cir. 2009) (“A nonmoving party’s failure to respond to a Rule 56.1
statement permits the court to conclude that the facts asserted in the statement are uncontested
and admissible.”), cert. denied, 130 S. Ct. 3277 (2010). However, “where a pro se plaintiff fails
to submit a proper Rule 56.1 statement in opposition to a summary judgment motion, the Court
retains some discretion to consider the substance of the plaintiff’s arguments, where actually
supported by evidentiary submissions.” Wali, 678 F. Supp. 2d at 178 (citing Holtz v. Rockefeller
& Co., 258 F.3d 62, 73 (2d Cir. 2001)).
Here, Defendants filed and served a statement pursuant to Local Rule 56.1, setting forth
the undisputed material facts with citations to admissible evidence in the record. Doc. 17. In
addition, Defendants duly served and filed a statement pursuant to Local Rule 56.2, apprising

11

Plaintiff of the potential consequences of not responding to the motion as required by the Local
Rules. Doc. 18. In opposing the instant motion, Plaintiff filed a response to Defendants’ Rule
56.1 Statement that contains statements corresponding to the paragraphs in Defendants’ Rule
56.1 Statement; however, none of Plaintiff’s responses contain citations to any evidence in the
record. A number of Plaintiff’s responses are also improper because he states that a fact is
disputed based on assertions that do not specifically controvert the facts set forth by Defendants,
e.g., Pl.’s 56.1 Stmt. ¶¶ 23, 27, 34, 37, or because Plaintiff claims he does not have any basis
upon which to admit or deny the facts set forth by Defendants. E.g., id. ¶¶ 39-44. Such
responses are impermissible under Local Rule 56.1. See, e.g., Buckman v. Calyon Secs., 817 F.
Supp. 2d 322, 328 n.42 (S.D.N.Y. 2011) (“Plaintiff had ample opportunity during discovery to
determine the accuracy of the relevant facts and may not now claim that he lacks sufficient
information.”). In opposing the instant motion, Plaintiff did not submit a sworn affidavit or
declaration containing his own evidence.10
In addressing the present motion, the Court is mindful that Plaintiff is proceeding pro se
and that his submissions are “held to less stringent standards than formal pleadings drafted by
lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam) (internal quotation marks omitted)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Young v. N.Y. City Dep’t of
Educ., No. 09 Civ. 6621, 2010 WL 2776835, at *5 (S.D.N.Y. July 13, 2010) (noting that same
principles apply to briefs and opposition papers filed by pro se litigants (citing Ortiz v. McBride,
323 F.3d 191, 194 (2d Cir. 2003))). Although “pro se status ‘does not exempt a party from
compliance with relevant rules of procedural and substantive law,’” Triestman v. Fed. Bureau of
10

In his Memorandum of Law, Plaintiff cites to six documents that he identifies by what appear to be Bates
numbers, and which he says are attached to his submission. Two of the documents cited by Plaintiff were not
attached to his Memorandum. See supra note 8. The remaining four exhibits are not properly identified or
authenticated, and, more importantly, they do not support the assertions in Plaintiff’s opposition papers. See infra
notes 17-19.

12

Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)), courts read the pleadings and opposition papers submitted by pro se litigants “liberally
and interpret them ‘to raise the strongest arguments that they suggest.’” McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Therefore, because Plaintiff is proceeding pro se, this Court has endeavored to discern from the
record if there is any evidentiary support for the assertions contained in his Rule 56.1 Statement
and opposition papers, and to determine if there are any other material issues of fact based on the
evidence in the record. Geldzahler v. N.Y. Med. Coll., 746 F. Supp. 2d 618, 620 n.1 (S.D.N.Y.
2010).
Additionally, despite Plaintiff having received a Rule 56.2 Notice, advising him that his
claims might be dismissed if he did not respond to the motion by filing either sworn affidavits
based on personal knowledge or other admissible evidence, this Court takes into account his
status as a pro se litigant, and will consider the unsworn statements in his Rule 56.1 Statement
and opposition papers that are based on personal knowledge or supported by other admissible
evidence in the record, on the assumption that if his allegations were sufficient to raise an issue
of fact, Plaintiff would be given an opportunity to submit an affidavit properly attesting to those
allegations. Olle v. Columbia Univ., 332 F. Supp. 2d 599, 603 n.1 (S.D.N.Y. 2004).
III. Legal Standard for Claims under Title VII and the ADEA
All of Plaintiff’s employment discrimination claims are analyzed under the three-step
burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).11 Under the McDonnell Douglas framework, a plaintiff must first

11

Courts apply the same legal framework to analyze claims under Title VII, the ADEA, and the NYSHRL. See,
e.g., Dixon v. Int’l Fed’n of Accountants, 416 F. App’x 107, 109 (2d Cir. 2011) (applying McDonnell Douglas
framework to Title VII, ADEA and NYSHRL claims); see also Gorzynski v. Jetblue Airways Corp., 596 F.3d 93,
106 (2d Cir. 2010) (holding that, even after the Supreme Court’s decision in Gross v. FBL Financial Services, Inc.,

13

demonstrate a prima facie case of discrimination. 411 U.S. at 802. In order to do so, a plaintiff
must show that: (1) he is a member of a protected class; (2) he was qualified for the position in
question; (3) he suffered an adverse employment action; and (4) the adverse action took place
under circumstances giving rise to an inference of discrimination. Ruiz v. Cnty. of Rockland, 609
F.3d 486, 491-92 (2d Cir. 2010).12
The Second Circuit has explained that a plaintiff’s burden at this stage is de minimis.
Abdu-Brisson, 239 F.3d at 467. Nonetheless, in order to state a prima facie case of
discrimination, “a plaintiff must proffer some admissible evidence of circumstances that would
be sufficient to permit an inference of discriminatory motive,” Bennett v. Watson Wyatt & Co.,
136 F. Supp. 2d 236, 246 (S.D.N.Y. 2001), aff’d, 51 F. App’x 55 (2d Cir. 2002), and cannot meet
its burden through reliance on unsupported assertions, Goenaga, 51 F.3d at 18, or “[s]tatements
that are devoid of any specifics, but replete with conclusions.” Griffin v. Ambika Corp., 103 F.
Supp. 2d 297, 308 (S.D.N.Y. 2000).
If a plaintiff successfully presents a prima facie case, a presumption of discrimination
arises, which the defendant must then rebut by offering legitimate and non-discriminatory
557 U.S. 167 (2009), this Circuit continues to apply the McDonnell Douglas burden-shifting framework to ADEA
claims). Because discrimination claims on the basis of age and race under the NYSHRL are analyzed under the
same standards as claims brought under the ADEA and Title VII respectively, the Court has analyzed all of
Plaintiff’s discrimination claims together. Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 114 n.3 (2d Cir. 2007),
abrogated in part on other grounds by Gross, 557 U.S. 167 (2009); see also Torres v. Pisano, 116 F.3d 625, 629 n.1
(2d Cir. 1997).
12

Though there is case law indicating that a plaintiff ordinarily must allege that he applied for a specific position
and was rejected therefrom in order to establish a prima facie failure-to-hire claim under Title VII, Brown v. Coach
Stores Inc., 163 F.3d 706, 710 (2d. Cir. 1998) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 n.6
(1981) and McDonnell Douglas, 411 U.S. at 802), the applicability of that requirement depends on the facts of each
particular case. Id. (“[T]he general rule of McDonnell Douglas and Burdine is subject to modification where the
facts of a particular case make an allegation of a specific application a quixotic requirement.”); see also, e.g., Mauro
v. S. New England Telecomms., Inc., 208 F.3d 384, 387 (2d Cir. 2000) (holding that Brown requirement did not
apply where plaintiff indicated to employer an interest in being promoted to a particular class of positions, but was
not aware of specific available positions because employer never posted them, “as an employee by definition cannot
apply for a job that he or she does not know exists.”). Where, as here, there is no formal application process for the
position and Defendants claim that all current part-time employees were given equal consideration for the full-time
job, the Court will not require Plaintiff to show that he applied for the specific position he was denied.

14

reasons for the adverse employment action demonstrated in the plaintiff’s prima facie case.
Abdu-Brisson, 239 F.3d at 468 (citing Burdine, 450 U.S. at 254). The defendant’s burden at this
step of the analysis is also “light.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir.
1998). “The employer need not persuade the court that it was motivated by the reason it
provides; rather, it must simply articulate an explanation that, if true, would connote lawful
behavior.” Id. The Supreme Court has explained that defendant’s burden “is one of production,
not persuasion; [and] it ‘can involve no credibility assessment.’” Reeves, 530 U.S. at 142
(quoting St. Mary’s Honor Ctr., 509 U.S. at 509). If the defendant satisfies its burden at the
second step of the test, “the presumption raised by the prima facie case is rebutted” and “drops
from the case,” Burdine, 450 U.S. at 255, 255 n.10, “and the sole remaining issue [is]
discrimination vel non.” Reeves, 530 U.S. at 143 (internal quotation marks omitted) (quoting
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)).
Under the third step of the McDonnell Douglas framework, the burden then shifts back to
the plaintiff to prove by a preponderance of the evidence that the defendant’s articulated reason
for the adverse employment action is merely a pretext for actual discrimination. Mandell v.
Cnty. of Suffolk, 316 F.3d 368, 380-81 (2d Cir. 2003). Under Title VII, a plaintiff can establish
an unlawful employment practice by demonstrating that race was “a motivating factor for an[]
employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e–
2(m) (emphasis added). Under the ADEA, the third step of the test is different.13 In addition to
showing that the defendant discriminated against him on the basis of age, the plaintiff must also

13

As explained in Mattera v. JPMorgan Chase Corp., the third step of the McDonnell Douglas test for ADEA
claims has changed as a result of the Supreme Court’s holding in Gross v. FBL Financial Services, 557 U.S. 167
(2009), which set forth the more stringent “but-for” standard articulated above. 740 F. Supp. 2d 561, 571 n.8
(S.D.N.Y. 2010) (citing Gorzynski, 596 F.3d at 106-07).

15

show that age discrimination was a “but-for” cause of the adverse action, and not merely one of
the motivating factors. Gross, 557 U.S. at 177, 180.
It is important to note, that “[a]lthough intermediate evidentiary burdens shift back and
forth under this framework, ‘[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.’” Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253). In determining whether
the plaintiff has satisfied this burden, the Court must consider the sum of all evidence of
discrimination in its totality, and “examine the record as a whole, just as a jury would, to
determine whether a jury could reasonably find an invidious discriminatory purpose on the part
of an employer.” Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001).
IV. Plaintiff’s Discrimination Claims
A. Prima Facie Case of Discrimination
The first three elements of a prima facie case are not in contention. It is undisputed that
Plaintiff was a member of a protected class under Title VII and the ADEA, because he is African
American and he was approximately sixty-six years old when he was not chosen for the full-time
laborer position in July 2007. It is also clear from the record that Plaintiff was minimally
qualified for the position, because he was one of the three individuals Defendants identified as
eligible for the full-time position based on the City’s requirements for the job. Defs.’ 56.1 Stmt.
¶ 42. This is all that is required at the prima facie stage. Sista v. CDS Ixis N. Am., Inc., 445 F.3d
161, 171 (2d Cir. 2006). Additionally, it is well-settled that a plaintiff can establish an adverse
employment action on the basis of a failure to hire. Sibilla v. Follett Corp., No. CV 10-1457
(AKT), 2012 WL 1077655, at *12 (E.D.N.Y. Mar. 30, 2012); see also Stewart v. City of New
York, No. 11 Civ. 6935 (CM), 2012 WL 2849779, at *6 (S.D.N.Y. July 10, 2012) (“Failure to

16

promote is specifically identified in Burlington as qualifying as an adverse employment action
under Title VII.” (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998))).
Defendants here challenge the fourth requirement of the prima facie case, arguing that
Plaintiff has not offered any admissible evidence suggesting that anyone associated with the
decision to offer the full-time position to Rizzo, rather than Plaintiff, was motivated by racial
animus or age discrimination. Defs.’ Mem. 10-11.
For claims brought under Title VII, in order to raise an inference of discrimination at the
prima facie stage, it is typically sufficient for a plaintiff to show that the position was filled by
someone outside of his protected class. Morris v. Ales Group USA, Inc., No. 04 CV 8239 (PAC)
(THK), 2007 WL 1893729, at *9 (S.D.N.Y. June 29, 2007) (citing de la Cruz v. N.Y. City
Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996)). For claims brought
under the ADEA, courts look to whether the person who was chosen for the position was
“substantially younger” than the plaintiff.14 Rouse v. City of New York, No. 08 CV 7419 (HB),
2009 WL 1532054, at *6 (S.D.N.Y. June 2, 2009) (citing Graves v. Finch Pruyn & Co., Inc., 457
F.3d 181, 187 (2d Cir. 2006)).
Here, the fourth element is established, because Rizzo is white and was in his late 20s or
early 30s when he was offered the full-time position over Plaintiff, thus giving rise to an
inference of discrimination. See, e.g., Saenger, 706 F. Supp. 2d at 507 (fourth element
established where plaintiff was replaced by someone twelve years younger); see also Witkowich
v. Gonzales, 541 F. Supp. 2d 572, 579 (S.D.N.Y. 2008) (promotion of employee fourteen years
14

In O’Connor v. Consolidated Coin Caterers Corporation, the Supreme Court explained that “[b]ecause the ADEA
prohibits discrimination on the basis of age and not class membership, the fact that the [person chosen for the
position] is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the
fact that the plaintiff was replaced by someone outside the protected class,” meaning someone under the age of
forty. 517 U.S. 308, 313 (1996); see also Woodman v. WWOR-TV, Inc., 411 F.3d 69, 78-79 (2d Cir. 2005)
(explaining how the differences between the ADEA and other employment discrimination statutes, such as Title VII,
alter the showing that is required to satisfy the fourth element of a prima facie case).

17

younger than plaintiff satisfied fourth element of prima facie case (citing Schnabel v. Abramson,
232 F.3d 83, 87 (2d Cir. 2000))).15
B. Legitimate, Non-discriminatory Reason for Decision
Because Plaintiff has stated a prima facie case of discrimination on the basis of age and
race, the burden shifts to Defendants to demonstrate a legitimate, non-discriminatory reason for
their decision to hire Rizzo rather than Plaintiff for the full-time job. Defendants state that Rizzo
was chosen because of his four years of professional landscaping experience, his near perfect
attendance record, his good work performance and attitude as a seasonal laborer in 2007, and the
fact that he expressed interest in the position. Defs.’ 56.1 Stmt. ¶ 49; Ex. J, at 144; Ex. K, at 167;
Ex. Q, ¶ 9. Defendants claim that Plaintiff was not chosen for the position because of the
numerous complaints about his work performance and attitude, and his lack of prior professional
landscaping experience.16 Defs.’ Mem. 5. The rationale proffered by Defendants effectively
satisfies their burden of production in articulating a legitimate, non-discriminatory reason for
choosing Rizzo for the permanent position over Plaintiff. See, e.g., Byrnie, 243 F.3d at 102, 10405 (promotion of candidate with inferior paper credentials who did not meet one of the minimum
eligibility requirements because she performed better during an interview, “and thus seemed,
15

The Second Circuit has held that a plaintiff who relies on a substantial age discrepancy between himself and the
person who was hired over him to satisfy the fourth element of his prima facie case must also demonstrate that
defendants had knowledge of that age discrepancy to support an inference of discriminatory intent. Woodman, 411
F.3d at 77-83. “[W]here such knowledge is undisputed, however, a court need not specifically address this point;
rather it may be assumed.” Saenger, 706 F. Supp. 2d at 508 n.8 (internal quotation marks omitted) (quoting
Woodman, 411 F.3d at 83). Here, Defendants do not dispute that they were aware of the age difference between
Plaintiff and Rizzo, and it is reasonable for the Court to assume that Defendants had knowledge of their
approximate, relative ages based on the thirty-five to forty year age difference, as well as the dates that were
included in their laborer test application forms relating to their educational backgrounds and work history. Exs. N,
O; Saenger, 706 F. Supp. 2d at 508 n.8.

16

The Court accepts as true Plaintiff’s assertion that he did not express interest in the full-time laborer position
because he did not know about it until after Rizzo was hired, Pl.’s 56.1 Stmt. ¶¶ 38, 46; Pl.’s Mem. 2-3,
notwithstanding the admissible evidence to the contrary submitted by Defendants, Ex. J, at 138; Ex. K, at 158, and
thus disregards Defendants’ reliance on Plaintiff’s failure to express interest in the position as an additional reason
for their decision to hire Rizzo over him.

18

based on subjective criteria, the better qualified candidate” was legitimate, non-discriminatory
reason for failing to promote plaintiff who did not perform well during interview despite his
objectively superior qualifications).
C. Pretext
Because Defendants have articulated a legitimate, non-discriminatory reason for their
decision to offer the full-time position to Rizzo, the burden shifts back to Plaintiff to demonstrate
that Defendants’ proffered non-discriminatory reason was pretextual—that is, that age and race
discrimination were the real reasons for the decision not to offer the full-time position to
Plaintiff. Under Title VII, it is sufficient for Plaintiff to show that race discrimination was a
substantial or motivating factor for the adverse employment action, even if it was not the only
reason for Defendants’ decision. 42 U.S.C. § 2000e–2(m); see also Vargas v. Morgan Stanley,
438 F. App’x 7, 9 (2d Cir. 2011). For his ADEA claim to survive summary judgment, Plaintiff
must show “sufficient evidence upon which a reasonable jury could conclude by a
preponderance of the evidence that [his] age was a ‘but for’ cause of [Defendants’] decision.”
Gorzynski, 596 F.3d at 107.
In an attempt to satisfy his burden at the third stage of the McDonnell Douglas test,
Plaintiff argues that: (1) he was higher on the civil service list than Rizzo; (2) he was entitled to
preference for the position because he is a veteran of the U.S. military; (3) the civil service
commission posting for the position advertised that a CDL license was preferred for the position;
(4) the white supervisor who selected the candidate for the position, Anthony Tardibuono, has
never hired an African American permanent laborer since assuming his position; (5) Defendants
have provided “a series of shifting explanations” for why Plaintiff was not hired;17 (6) Plaintiff

17

To support this assertion, Plaintiff cites to two letters attached to his Memorandum. Even assuming arguendo that
the exhibits had been properly authenticated and were otherwise admissible, they do not support Plaintiff’s argument

19

was “clearly the most qualified” candidate, because he had more experience as a seasonal laborer
than Rizzo; (7) the complaints about Plaintiff’s job performance were untrue; and (8) there were
no African Americans working as full-time laborers in July 2007. Pl.’s Mem. 1-3; Pl.’s 56.1
Stmt. ¶¶ 55, 57. There is no evidence in the record to support Plaintiff’s first five assertions,
most of which are also expressly contradicted by admissible evidence offered by Defendants. 18
Plaintiff’s remaining three arguments are addressed in turn below.19
1. Superior Qualifications and Seniority
In order to survive summary judgment, a plaintiff claiming that his employer’s proffered
explanation for a failure to hire is pretextual based on purportedly stronger credentials must
demonstrate that his qualifications are “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 (internal
quotation marks omitted). This is a “weighty burden.” Id. (finding discrepancy between
that Defendants have offered “shifting” explanations for their decision to hire Rizzo, and the purported
inconsistencies identified by Plaintiff are too trivial to raise a triable issue of material fact as to whether Defendants’
proffered reasons for their decision are pretext for actual discrimination. Saenger, 706 F. Supp. 2d at 513 n.12.
18

Plaintiff’s first four assertions are inadmissible, because they are not based on personal knowledge or supported
by any other admissible evidence in the record. With respect to the first three assertions, the Court also notes that
Plaintiff stated that he did not have any basis to agree or deny with Defendants’ assertions regarding the selection
process and requirements for the permanent position in their Rule 56.1 Statement. Pl.’s 56.1 Stmt. ¶¶ 39-40.
Plaintiff’s third assertion is also expressly contradicted by Plaintiff’s own assertion that the position was never
posted. Id. ¶¶ 38, 46, Pl.’s Mem. 2-3. His fourth assertion is incorrect, as Tardibuono was not the individual who
made the final decision to offer the full-time job to Rizzo. Ex. L, at 174. “Although in a ruling on a motion for
summary judgment a court must assess the evidence in the light most favorable to the non-moving party, resolve all
ambiguities, and draw all reasonable inferences in his favor, . . . the non-moving party cannot rely on mere
allegations, denials, conjectures, or conclusory statements, but must present affirmative and specific evidence . . . .
[A] court will not entertain inadmissible hearsay unsubstantiated by any other evidence on ruling on a summary
judgment motion.” Mattera, 740 F. Supp. 2d at 566 n.2 (internal quotation marks and citations omitted).

19

The Court has not addressed Plaintiff’s assertion that he had “far more years of experience and service” than
Rizzo, Pl.’s Mem. 1 (emphasis added), because it is undisputed that: (1) Plaintiff had no professional landscaping
experience prior to his four months of employment with the City in 2006; (2) Rizzo had four years of professional
landscaping experience; and (3) Plaintiff had no personal knowledge of Rizzo’s work experience. Defs’ 56.1 Stmt.
¶¶ 50-51; Ex. O. The Court also has not addressed Plaintiff’s assertion that all of the complaints about his job
performance came from supervisors who were young and white, Pl.’s Mem. 2-3, because it is undisputed that only
one of the three supervisors who complained about Plaintiff was young and white. Defs.’ 56.1 Stmt. ¶¶ 22, 25, 29.

20

credentials of plaintiff, who was undoubtedly, objectively more qualified than the person
selected for the job, who failed to satisfy the minimal requirements for the position, insufficient
alone to satisfy plaintiff’s burden to demonstrate pretext).
Here, Plaintiff does not argue that Rizzo was unqualified for the position, only that he
was less qualified than Plaintiff, based on Plaintiff’s four months of work experience as a
seasonal laborer in 2006. Pl.’s Mem. 1. While Plaintiff’s experience as a seasonal laborer was
relevant to the selection process insofar as Defendants considered prior landscaping experience
in making a hiring decision, there is no evidence indicating that seniority—that is, prior service
as a seasonal laborer with the Parks Department—was a criterion considered by O’Rourke,
Tardibuono or Zimmerman. Diello v. Potter, 413 F. App’x 344, 346 (2d Cir. 2011). Moreover,
it is undisputed that Rizzo had four years of professional landscaping experience, while Plaintiff
had none, Defs.’ 56.1 Stmt. ¶ 50, and that Plaintiff did not have any personal knowledge or
information about Rizzo’s work history or his performance as a seasonal laborer. Id. ¶ 51.
Plaintiff’s purely self-serving statement that he was “clearly the most qualified” for the
position, without direct or circumstantial evidence to support the assertion, does not create a
question of fact on the issue of discrimination. Hurd v. N.Y. Health & Hosps. Corp., No. 04 Civ.
998 (PAC), 2007 WL 678403, at *5 (S.D.N.Y. Mar. 5, 2007); see also Witkowich, 541 F. Supp.
2d at 582 (“An employer has the right to decide how it will value the various qualifications
different candidates bring to the table.” (citing Scaria v. Rubin, 117 F.3d 652, 654-55 (2d Cir.
1997))); O’Leary, 2007 WL 2244483, at *7 (“Defendant’s decisions regarding the professional
experience and characteristics sought in a candidate, as well as the search committee’s evaluation
of Plaintiff’s qualifications, are entitled to deference.” (quoting Sarmiento v. Queens Coll., 386
F. Supp. 2d 93, 97-98 (E.D.N.Y. 2005))) (internal quotation marks omitted). The only appraisals

21

of Plaintiff’s performance in the record, which appear in the sworn testimony of Williams,
Maravilla, Fucile and O’Rourke, uniformly demonstrate that all of Plaintiff’s supervisors
reported problems with his job performance and attitude. Ex. G, at 80-85; Ex. H, at 99-101; Ex.
I, at 114-16; Ex. J, at 130-34.
A court will not second-guess an employer’s non-discriminatory business decision.
Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) (“Evidence that an employer
made a poor business judgment . . . generally is insufficient to establish a genuine issue of fact as
to the credibility of the employer’s reasons.”). “The fact that a court may think that the employer
misjudged the qualifications of the [employees] does not in itself expose him to Title VII
liability.” Burdine, 450 U.S. at 259; see also Byrnie, 243 F.3d at 103 (explaining that “‘the court
must respect the employer’s unfettered discretion to choose among qualified candidates’” when
evaluating whether its proffered reason for an adverse action was pretextual (quoting Fischbach
v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996))). “Only where an employer’s
business decision is so implausible as to call into question its genuineness should this Court
conclude that a reasonable trier of fact could find that it is pretextual.” Fleming v. MaxMara
USA, 371 F. App’x 115, 118 (2d Cir. 2010). That is not the case here. As noted, Defendants
have proffered competent evidence tending to establish that Rizzo had more relevant experience
than Plaintiff and a better work performance history as a seasonal laborer.
2. “Untrue” Complaints from Supervisors
Plaintiff does not cite to any evidence to support his claim that the complaints about his
work performance were “simply untrue.” Pl.’s Mem. 2. After an assiduous review of the entire
record, it appears that Plaintiff challenged the veracity of one of the incidents that Williams

22

complained about in 2006 during his deposition in 2011.20 However, Plaintiff does not dispute
that all three of his supervisors made complaints about his job performance, or that their
complaints contributed to O’Rourke and Tardibuono’s recommendation that Rizzo be hired for
the full-time position. Further, Plaintiff does not argue, and there is nothing in the record to
suggest, that O’Rourke or Tardibuono had any reason to disbelieve the corroborated complaints
about Plaintiff’s work performance and attitude. Even assuming that Plaintiff had adequately
disputed the veracity of the complaints, that is insufficient to raise a material issue of fact on
pretext where, as here, Defendants relied on the complaints in good faith when making their
hiring decision.21 Hargett v. N.Y. City Transit Auth., 640 F. Supp. 2d 450, 475-76 (S.D.N.Y.
2009), aff’d sub nom Hargett v. Metro. Transp. Auth., 381 F. App’x 12 (2d Cir. 2010); see also
Saenger, 706 F. Supp. 2d at 508 (“It is not for the Court to decide whether these complaints were
truthful or fair, as long as they were made in good faith.”).
3. Lack of African Americans Employed as Full-Time Laborers
Plaintiff’s assertion that there were no African Americans working as full-time laborers
in July 2007 has limited, if any, probative value. “Without considerably more analysis and
interpretation of why and how it came to be that” there were no African American full-time
laborers working for the Parks Department at that time, “that fact in isolation is of limited value

20

An excerpt of Plaintiff’s deposition testimony submitted by Defendants indicates that Plaintiff claimed that
Williams’ complaint about Plaintiff cutting down flowers was “made up [] because he wanted to get his son over
there . . . .” and “wanted to make [Plaintiff] look like the bad guy.” Ex. M, at 52. Plaintiff claimed that he did not
have any problems with Williams before Williams’ son was hired, and that he did not cut down any flowers;
however, he did not dispute the fact that Williams had made such a complaint. Id. at 52-53. It is also important to
note that Plaintiff does not attribute the purported falsification or exaggeration of the one disputed complaint to
either racial animus or age discrimination.

21

While the Court accepts as true Plaintiff’s claim that he was never written up or spoken to about any performance
problems, Pl.’s 56.1 Stmt. ¶¶ 23, 27, 31-32, 34, 37, notwithstanding the admissible evidence in the record that
O’Rourke spoke to Plaintiff about the complaints made by his supervisors on more than one occasion, Ex. J, at 13032, Defendants’ failure to warn him of their dissatisfaction with his job performance or attitude is not relevant to the
issue of pretext where, as here, there is no evidence that Defendants had a policy or practice of giving such verbal or
written warnings to seasonal laborers.

23

to the Court, [as n]o rational finder of fact could use this piece of information alone to infer that
[Defendants’ hiring decision] was based on impermissible racial animus.” Anderson v. Hertz
Corp., 507 F. Supp. 2d 320, 329 (S.D.N.Y. 2007) (finding insufficient evidence of discrimination
at prima facie stage of analysis where plaintiff was the only African American manager at a
particular site that was supervised by the superior who was alleged to have discriminated against
him for a twelve-year period), aff’d, 303 F. App’x 946 (2d Cir. 2008); see also Saenger, 706 F.
Supp. 2d at 516 (explaining that courts routinely reject statistical evidence that is anecdotal or
insufficiently complete to permit a reasonable inference of discrimination).
4. Hiring of a Younger, White Worker22
While being passed over for a substantially younger candidate or someone outside the
protected class is generally sufficient to create an inference of discrimination for a prima facie
case of discrimination, Witkowich, 541 F. Supp. 2d at 579, it is not sufficient to demonstrate that
a defendant’s asserted non-discriminatory reasons for the failure to hire are pretextual. Antunes
v. Putnam/N. Westchester Bd. of Coop. Educ. Servs., No. 09-CV-3063 (CS), 2011 WL 1990872,
at *6 n.17 (S.D.N.Y. May 19, 2011).
Here, Plaintiff has not pointed to any statements made by any of his co-workers, or
supervisors that he believes related to his age or race (or that reflect age discrimination or racial
animus generally) and he does not point to any person who he views as having a bias against
older workers or African Americans. In fact, Plaintiff failed to identify any individuals who he
believes discriminated against him anywhere in his complaint. Moreover, the minimal inference
of discrimination arising out of Defendants’ decision to hire Rizzo is undercut by the fact that:
22

“[A]lthough the presumption of discrimination drops out of the picture once the defendant meets its burden of
production, the trier of fact may still consider the evidence establishing the plaintiff’s prima facie case and
inferences properly drawn therefrom . . . on the issue of whether the defendant’s explanation is pretextual.” Reeves,
530 U.S. at 143 (internal quotation marks and citations omitted).

24

(1) Tardibuono—the only individual named anywhere in Plaintiff’s submissions—testified that
he “would have loved to have had” Rob Smith, one of the other African American part-time
laborers in the Parks Department, as a permanent employee, if he had been eligible for the
position, Ex. K, at 163;23 (2) the Deputy Commissioner for the Parks Department is African
American and was in his late 40s or early 50s at the time of the hiring decision, Defs.’ 56.1 Stmt.
¶ 11; Ex. L, at 180-81; (3) among the fourteen full-time non-supervisory employees working
under Parks Department Commissioner Zimmerman, two were African American men, one of
whom was in his 50s and the other who was in his 70s, Zenni v. Hard Rock Cafe Int’l, Inc., 903
F. Supp. 644, 654 n.15 (S.D.N.Y. 1995) (noting that defendant had provided evidence that two of
the six people promoted during the period when plaintiff sought a particular position were within
plaintiff’s protected group in discussing weaknesses in statistical evidence submitted by plaintiff
to support a failure to promote claim under Title VII); and (4) Zimmerman was approximately
fifty-four years old when he made the decision to hire Rizzo over Plaintiff. Ex. L, at 173;
Saenger, 706 F. Supp. 2d at 510 n.9 (explaining that a number of courts have recognized that
members of a protected class are less likely to discriminate against a fellow class member than
are non-members of the protected class); see also Pasha v. William M. Mercer Consulting, Inc.,
No. 00 Civ. 8362 RWS, 2004 WL 188077, at *10 (S.D.N.Y. Feb. 2, 2004) (noting that defendant
had hired other members of the protected age group both prior to and following its decision not

23

In their Rule 56.1 Statement, Defendants state that Smith and one other African American part-time laborer were
not eligible for the full-time job because they had not taken the laborer’s test, Defs.’ 56.1 Stmt. ¶ 52; however,
Defendants also state that “to work as a seasonal laborer, one must pass a laborer’s examination administered by the
City of New Rochelle.” Id. ¶ 18. These statements appear contradictory; however, neither one is disputed by
Plaintiff, and each statement is based on sworn testimony submitted by Defendants in support of their motion. It is
not clear from the evidence in the record whether these two statements do in fact conflict, or if the statements
reference two distinct exams—one that was required to become a seasonal laborer and a second one that was
required to be placed on the “laborer’s list.”

25

to offer plaintiff employment in support of conclusion that plaintiff had not offered sufficient
evidence of age discrimination to establish pretext), aff’d, 135 F. App’x 489 (2d Cir. 2005).
5. Totality of the Evidence of Discrimination
Examining the record as a whole, Plaintiff has failed to offer any evidence that
Defendants’ decision was actually motivated by discriminatory intent. Plaintiff’s argument is
simply a conclusion: he is African American and was, at the time of the relevant hiring decision,
sixty-six years old; Defendants chose a younger, white candidate for the full-time position rather
than Plaintiff; therefore, Plaintiff must have been passed over because he is African American
and was sixty-six years old. This is insufficient to defeat a summary judgment motion. Farias v.
Instructional Sys., 259 F.3d 91, 99 (2d Cir. 2001) (affirming summary judgment where
“[p]laintiffs failed to produce any evidence, other than conclusory statements unsupported by the
record, to rebut the legitimate, nondiscriminatory reasons offered by [defendant], let alone
evidence that could reasonably support a verdict in their favor.”). “[W]hen an employer provides
convincing evidence to explain its conduct and the plaintiff’s argument consists of purely
conclusory allegations of discrimination, the Court may conclude that no material issue of fact
exists and it may grant summary judgment to the employer.” Walder v. White Plains Bd. of
Educ., 738 F. Supp. 2d 483, 493 (S.D.N.Y. 2010); see also, e.g., Budde v. H & K Distrib. Co.,
No. 99–9449, 216 F.3d 1071, 2000 WL 900204, at *1 (2d Cir. June 29, 2000) (unpublished table
decision) (affirming award of summary judgment because the plaintiff’s conclusory assertions
that she did not perform her job poorly and that customers did not complain did not suffice to
create a genuine issue of dispute that her employer had received customer complaints and had
terminated her because of poor performance).

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