McKnight v. Town of Hamburg
MEMORANDUM AND ORDER ADOPTING 45 REPORT AND RECOMMENDATION GRANTING defendant's motion for summary judgment (Docket Item 28). The Clerk of the Court shall take all steps necessary to close the case. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 3/13/2017. (CMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TOWN OF HAMBURG,
MEMORANDUM AND ORDER
The plaintiff is a retired police officer who claims that her former employer
discriminated against her on the basis of her sex and disability. The defendant moved
for summary judgment (Docket Item 28), after which the Court referred this matter to
United States Magistrate Judge Michael J. Roemer. Docket Item 40.1 Judge Roemer
then issued a Report and Recommendation (“R&R”), dated April 25, 2016,
recommending that the defendant’s motion be granted. See Docket Item 45. Pending
before this Court are the plaintiff’s objections to Judge Roemer’s R&R. See Docket
This Court “must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to” and “may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1).
At the time, this matter was assigned to United States District Judge Richard J. Arcara.
On March 8, 2016, this matter was reassigned from Judge Arcara to the undersigned.
Docket Item 41.
Upon de novo review, this Court agrees with Judge Roemer’s conclusions that
“there is simply no evidence that McKnight’s gender played any role in the adverse
actions she complains of,” Docket Item 45 at 21, and that she “could not perform the
essential functions of her job, with or without a reasonable accommodation.” Id. at 23.
Therefore, for substantially the same reasons set forth in the R&R, the defendant’s
motion for summary judgment (Docket Item 28) is GRANTED.
Certain arguments made in the plaintiff’s objections (or at oral argument of those
objections) are, however, worth briefly addressing.
The Plaintiff’s Evidence
In her objections, the plaintiff argues that she submitted evidence sufficient to
defeat summary judgment, that Judge Roemer failed “to construe the evidence in the
light most favorable to [her],” and that he “sycophantically accepted defendant’s version
of events as true.” Docket Item 48 at 1.
In discrimination cases like this one, it is appropriate to employ the burdenshifting analysis that the Supreme Court set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Under McDonnell Douglas, a plaintiff must first establish a prima facie
case of discrimination. The burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its employment action.
If the employer meets this burden, the presumption of intentional
discrimination disappears, but the plaintiff can still prove disparate
treatment by, for instance, offering evidence demonstrating that the
employer’s explanation is pretextual.
Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003) (internal citation omitted).
The R&R found that the plaintiff failed to establish a prima facie case of sex
discrimination. See Docket item 45 at 20. But even assuming that the plaintiff had
satisfied that burden, the defendant also satisfied its burden of articulating nondiscriminatory reasons for its actions. Therefore, the defendant was entitled to
summary judgment “unless the plaintiff can point to evidence that reasonably supports a
finding of prohibited discrimination.” Dawson v. Bumble & Bumble, 398 F.3d 211, 216
(2d Cir. 2005) (internal quotation marks omitted). In this regard, the plaintiff had “no
obligation to prove that the employer’s innocent explanation [was] dishonest.” Henry v.
Wyeth Pharm., Inc., 616 F.3d 134, 156 (2d Cir. 2010). Instead, she need have shown
only “that the defendant was in fact motivated at least in part by the prohibited
discriminatory animus.” Id.
The plaintiff pointed to certain comments and conduct by the chief of police when
he was a patrol officer in 1991 as being evidence that reasonably supports a finding of
prohibited discrimination. See, e.g., Docket Item 36-2 at ¶¶ 10-12.2 Judge Roemer
found that “not probative of discrimination because [it] occurred nearly twenty years
before McKnight went on leave, and [it had] nothing to do with the adverse employment
actions she alleges.” Docket Item 45 at 16. The plaintiff objected to that conclusion,
characterizing it as relying on a “per se rule that remarks of more than one year in age
are, as a matter of law, not probative.” Docket Item 48 at 11. But the plaintiff’s
objection misses the mark.
First, the plaintiff is correct that “there is no bright-line rule for when remarks
become ‘too attenuated’ to be significant to a determination of discriminatory intent.” Id.
The plaintiff also described a comment the chief allegedly made at a meeting in 2012,
which Judge Roemer properly discounted because the plaintiff did not attend the
meeting “and the basis for her knowledge of the remark [was] not stated.” Docket Item
45 at 16.
(quoting Tolbert v. Smith, 790 F.3d 427, 437 (2d Cir. 2015). But Judge Roemer did not
rely on such a bright-line rule. Moreover, and more importantly, this Court finds on de
novo review that the chief’s comments and conduct still are far too attenuated to defeat
summary judgment. And that is based on the decades-long gap between the specific
remarks or conduct alleged and the adverse employment actions, as well as the lack of
any connection between the remarks or conduct and the circumstances surrounding the
adverse employment actions.
The plaintiff also alleged that similarly situated male police officers were treated
more favorably, and she argued that this supported a finding of prohibited
discrimination. That, too, was insufficient because the plaintiff failed to submit evidence
that those police officers were “similarly situated in all material respects.” Shumway v.
United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). Indeed, the plaintiff relied
almost entirely on her own statements, based on “common knowledge” (as her counsel
described it at oral argument) that comparable male officers were treated differently. As
the Second Circuit observed in Shumway, such evidence boils down to “conclusory
statements of no probative value.” Id.
At oral argument of the plaintiff’s objections, this Court questioned counsel in
detail about what evidence reasonably supported a finding of prohibited discrimination
with respect to each of the four alleged adverse actions. In addition to the evidence
discussed above, the plaintiff’s counsel also referred to certain deposition testimony
upon which the plaintiff had previously relied in opposing summary judgment (even
though that testimony was not specifically referenced in her objections). But a review of
that evidence reveals that it contradicts, rather than supports, the plaintiff’s claims.
The plaintiff claimed that males were treated differently in connection with a
policy that requires officers on sick leave to stay at home during normal work hours. In
support, the plaintiff cited the deposition testimony of Officer Joseph O’Brien, her union
representative, in which he describes how the policy was applied to Officer Thomas
Best. The plaintiff argued that Best was “allowed to leave his home in violation of the
policy without being disciplined.” Docket Item 36-2 at ¶ 35. According to the testimony
the plaintiff cited, however, after Best left home “to go to the store and get medicine for
his kid,” the chief told Best that he still needed to ask permission, the discussion
became heated, and then “both sides took a step back.” Docket Item 29-3 at 86. By
contrast, the plaintiff undisputedly violated the policy by going to a mall to pick up some
clothing. So even assuming that Best was treated differently (which is not clear from
O’Brien’s testimony), there is no basis to conclude that Best was similarly situated to the
plaintiff—even remotely—in all material respects.
Similarly, with respect to the plaintiff’s allegation that she was forced to submit an
application for New York General Municipal Law § 207(c) benefits when male officers
were not, see, e.g., Docket Item 36 at 12, the plaintiff’s counsel again referred to
O’Brien, the union representative. According to the plaintiff, O’Brien told her that “he
had no idea what a 207(c) application even was,” Docket Item 36 at 12, which the
plaintiff presumably offered to support the inference that male officers routinely received
the benefits without needing to apply. But according to O’Brien’s sworn testimony in the
record, he did not recall any male officers receiving the benefits without the application.
See Docket Item 29-3 at 80. He also recalled one or more male officers who did submit
the application (or, at least, had been “given hell” with respect to the benefits). Id. at 7980. So again, there is nothing in the record that supports the plaintiff’s claim.
Viewing the evidence as a whole, the plaintiff simply has not adduced evidence
that reasonably supports a finding of prohibited discrimination. On the contrary,
evidence upon which the plaintiff relied suggests just the opposite.
The Plaintiff’s Objection to Applying the McDonnell Douglas Framework
In her objections, the plaintiff also objects to employing the McDonnell Douglas
framework. According to the plaintiff, “[t]he R&R erroneously [held] that the McDonnell
Douglas burden shifting paradigm is still applicable to title VII cases based on sex,”
which “has long been untrue.” Docket Item 48 at 6. In support of this claim, the plaintiff
relies on Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989), and Desert Palace v.
Costa, Inc., 539 U.S. 90, 94-95 (2003), arguing that McDonnell Douglas applies “only in
cases requiring but-for causation,” such as those involving age discrimination. Docket
Item 48 at 7.
The plaintiff’s argument is itself out of date, since there was no such sea change
in the law regarding Title VII cases after Desert Palace.3 In fact, federal courts have
Arguments similar to the plaintiff’s initially found some traction following Desert Palace,
but they soon were rejected. See generally Carey v. Fedex Ground Package Sys., Inc.,
321 F. Supp. 2d 902, 915 (S.D. Ohio 2004) (“The Court does not agree with those
courts and commentators that have found that, after Desert Palace, the McDonnell
Douglas framework has ceased to exist entirely.”); Herawi v. State of Alabama Dep’t of
Forensic Scis., 311 F. Supp. 2d 1335, 1346 (M.D. Ala. 2004) (“There is nothing in
Desert Palace to undermine the usefulness of McDonnell Douglas.”); Dunbar v. Pepsi–
Cola Gen. Bottlers, 285 F.Supp.2d 1180, 1197-98 (N.D.Iowa 2003) (concluding that
“McDonnell Douglas burden-shifting paradigm must only be modified in light of Desert
Palace” to permit plaintiff to prove, at step three, either (1) “that the defendant’s reason
is not true” or (2) that prohibited discrimination is a “motivating factor”).
subsequently applied McDonnell Douglas to thousands of Title VII sex discrimination
claims based on circumstantial evidence.4 Even a cursory search of Second Circuit
case law reveals a number of such decisions in 2016 alone. See, e.g., Camarda v.
Selover, 2016 WL 7234686, at *3 (2d Cir. Dec. 14, 2016) (Summary Order) (“In sum,
because [plaintiff] failed to adduce sufficient evidence to make out a prima facie case of
employment discrimination under . . . the McDonnell-Douglas framework . . . ,
defendants were entitled to summary judgment on her claims of sex discrimination.”);
Dotel v. Walmart Stores, Inc., 627 F. App’x 42, 43 (2d Cir. 2016) (Summary Order)
What is more, the “shifting burdens of proof set forth in McDonnell Douglas” are
merely a procedural device “designed to assure that the plaintiff has [her] day in court
despite the unavailability of direct evidence.” Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 121 (1985) (internal quotation marks and alteration omitted). The McDonnell
Douglas analysis allows a plaintiff alleging discrimination first to make a “minimal”
showing, which “creates a presumption that the employer unlawfully discriminated
against the employee” and “places upon the defendant the burden of producing an
explanation to rebut the prima facie case.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
506-07 (1993) (internal quotation marks omitted). Once “the employer’s
nondiscriminatory explanation has been given, the McDonnell Douglas presumptions
disappear from the case, and the governing standard is simply whether the evidence,
taken as a whole, is sufficient to support a reasonable inference that prohibited
discrimination occurred.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 156 (2d Cir.
Despite the plaintiff’s assertion to the contrary, there is no “direct” evidence of
2000). Thus, there is nothing in the McDonnell Douglas framework that prejudices the
plaintiff or holds her to an inappropriate standard when opposing summary judgment.
The plaintiff’s confusion perhaps is a result of the R&R’s use of the term “pretext”
to describe step three of the McDonnell Douglas framework. The Second Circuit has
recognized “that courts often speak of the obligation on the plaintiff to prove that the
employer’s explanation is a ‘pretext for discrimination.’” Henry v. Wyeth Pharm., Inc.,
616 F.3d 134, 156 (2d Cir. 2010). But in this case, as in many others, that term simply
was “shorthand for the more complex concept that, regardless of whether the
employer’s explanation also furnished part of the reason for the adverse action, the
adverse action was motivated in part by discrimination.” Id. Here, Judge Roemer
correctly found that “there is simply no evidence that McKnight’s gender played any role
in the adverse actions she complains of.” Docket Item 45 at 21 (emphasis added).
Therefore, the plaintiff failed to produce evidence showing that the defendant was
motivated, in whole or in part, by prohibited discriminatory animus.
For the reasons set forth above and in the R&R, the defendant’s motion for
summary judgment (Docket Item 28) is GRANTED. The Clerk of Court shall take all
steps necessary to close the case.
IT IS SO ORDERED.
March 13, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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