Byrd v. Fingerlakes \ Developmental Disabilities Services Office O.P. W.D.D.
Filing
54
DECISION AND ORDER granting 52 Defendants' Renewed Motion for Summary Judgment and the Complaint is dismissed in its entirety. The Clerk of Court is directed to close this case. The Court further certifies that any appeal of this decision and order would not be taken in good faith, and therefore denies Plaintiff permission to proceed in forma pauperis on appeal.. Signed by Hon. Michael A. Telesca on 11/21/18. (Copy of this Decision and Order sent by first class mail to Plaintiff.) (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
VICKIE DIANNE BYRD,
Plaintiff,
No. 6:14-cv-06470(MAT)
DECISION AND ORDER
-vsNYS FINGERLAKES DEVELOPMENTAL
DISABILITIES SERVICES
O.P.W.D.D.,
Defendant.
INTRODUCTION
Proceeding pro se, Vickie Dianne Byrd (“Plaintiff”) instituted
this action by filing a complaint (Dkt #1) dated August 11, 2014,
alleging that “NYS Fingerlakes Developmental Disabilities Services
O.P.W.D.D.”1
discriminated against her in connection with her
application for employment in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq.; Americans with Disabilities Act of 1990 (“ADA”), Pub. L.
No. 101–336, 104 Stat. 327, amended by ADA Amendments Act of 2008,
Pub. L. No. 110–325, 122 Stat. 3553 (2008); and the New York Human
Rights Law (“NYHRL”), N.Y. Exec. Law § 290 et seq.
Presently before the Court is Defendant’s renewed Motion for
Summary Judgment pursuant to Federal Rule of Civil Procedure
1
This term appears to be a conflation of the New York State Office For
People With Developmental Disabilities (“OPWDD”) and the Finger Lakes
Developmental Disabilities State Operations Office (“FLDDSOO”).
(“F.R.C.P.”) 56. For the reasons that follow, it is granted in its
entirety.
FACTUAL BACKGROUND
The
Court’s
factual
summary
is
gleaned
principally
from
Defendant’s Statement of Facts and the Affidavit of Julie Pape,
along with the admissible evidence cited therein. Unless otherwise
noted, the facts below are undisputed.
On July 6, Plaintiff applied for the position of Direct
Support Assistant Trainee with the FLDDSOO in Rochester, New York.
A Direct Support Assistant (“DSA”) cares for individuals with
developmental disabilities, typically in a community residential
setting. DSAs have substantial direct and unsupervised contact with
this vulnerable population. In light of this, OPWDD conducts
background checks on all job applicants for direct care positions,
including the position of DSA. The results are then reviewed in
accordance with New York Correction Law (“Corr. Law”) Article 23-A
and a determination is made whether the applicant may be hired,
subject to
his
or
her satisfactory
completion
of
the
hiring
process. DSAs must also meet the physical and medical requirements
of the position as set forth in the Civil Service Statement of
Physical and Medical Requirements for Direct Support Assistant. To
that
end,
job
candidates
undergo
physical
and
psychological/psychiatric testing by the New York State Department
of Civil Service.
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On November 19, 2012, Julie Pape (“Pape”), a Senior Personal
Administrator assigned to the FLDDSOO, along with Senior Personnel
Administrator Jeannette Mallaber, interviewed Plaintiff for the DSA
Trainee position. Also on that day, Plaintiff was fingerprinted.
Plaintiff was informed that her pre-placement testing with the
Employee Health Services (“EHS”) was scheduled for December 7,
2012.
On November 20, 2012, Plaintiff’s fingerprint test results
revealed that she had an unresolved criminal charge which she had
failed to disclose on her application. The following day, Plaintiff
was notified not to attend the scheduled appointment at EHS due to
the issue raised by her fingerprint results and that OPWDD was
holding her application in abeyance.
On November 26, 2012, Plaintiff sent Pape a letter requesting
that the hold on her application be lifted and that it continue to
be processed.
On December 3, 2012, Plaintiff filed a complaint against OPWDD
FLDDSOO
with
the
New
York
State
Division
of
Human
Rights
(“NYSDHR”), claiming to have been subjected to discrimination in
connection with her application for the DSA Trainee position. By
decision
dated
January
15,
2013,
the
NYSDHR
dismissed
the
complaint, finding that there was no probable cause to believe that
OPWDD engaged in unlawful discrimination by placing Plaintiff’s
application on hold pending resolution of her criminal charge.
-3-
On December 11, 2012, Plaintiff was notified by mail that her
application could not be processed further until she resolved the
theft charge on her record. On January 4, 2013, Plaintiff faxed
evidence of the disposition of her theft charge to Pape.
When Plaintiff subsequently inquired about the status of her
application, she was informed that she needed to be fingerprinted
again. OPWDD’s policy requires that no applicant may commence
employment
on
a
date
more
than
thirty
(30)
days
after
fingerprinting.
On August 28, 2013, Plaintiff was fingerprinted a second time.
On September 5, 2013, OPWDD Criminal Background Check Unit issued
a
limited
Findings
letter
to
FLDDSOO
with
the
following
determination: “OPWDD has not
issued a denial and has not directed the agency, sponsoring agency,
or provider of services to issue a denial [of employment to
Plaintiff].”
However, a hiring freeze was in place due to the closing of
FLDDSOO’s Monroe Developmental Center. Available openings FLDDSOO’s
community residences—where Plaintiff wished to work—were being
filled by displaced employees. Nonetheless, on October 9, 2013,
Pape verbally offered Plaintiff the option of proceeding with the
required physical and psychological testing while awaiting an
opening and the Director’s decision about her background check.
Plaintiff accepted.
-4-
On November 4, 2013, Plaintiff was examined at EHS. By letter
dated November 21, 2013, EHS informed her that she had she failed
the
testing.
Specifically,
her
physical
examination
revealed
several medical abnormalities. In addition, Plaintiff failed the
Minnesota
Multiphasic
Personality
Inventory
(“MMPI”)
test.
Plaintiff sent the necessary medical documentation to EHS to clear
those
medical
concerns.
However,
due
to
the
unsatisfactory
psychological testing results, EHS required that Plaintiff be
personally interviewed by its psychologist, Dr. Griffiths.
On January 7, 2014, Plaintiff underwent the psychological
interview with Dr. Griffiths but failed to pass. EHS consequently
advised FLDDSOO
that
Plaintiff
was
required
to submit
to
an
additional, final interview before a decision could be made as to
application. On January 8, 2014, Pape advised Plaintiff that she
was
scheduled
for
a
final
interview
with
EHS
psychologist
Dr. Wapner on January 22, 2014.
On January 21, 2014, Plaintiff called Pape and requested that
the interview with Dr. Wapner be rescheduled. Pape rescheduled the
appointment to the first date Plaintiff was available, February 26,
2014. On February 26, 2014, EHS informed Pape that Plaintiff was a
“no show” for her scheduled interview, which resulted in OPWDD
being charged $160. Because Plaintiff did not complete the final
interview,
EHS
was
unable
to
make
qualifications.
-5-
a
final
decision
on
her
At 1:07 a.m. on February 27, 2014, Plaintiff left Pape a
voicemail message stating that would not be able to attend the
February
26,
2014
interview
(which
she
had
already
missed).
Plaintif offered no explanation for her failure to attend, nor did
she request a new appointment. She also did not request that Pape
return her call.
On March 11, 2014, Plaintiff called Pape and yelled at her
regarding the application process. During the 15-minute call,
Plaintiff never explained her failure to appear for the interview
scheduled the previous month. When Pape asked Plaintiff if she
wanted to reschedule her interview, Plaintiff replied in the
negative. She also accused her of discriminating against her on the
basis of her race and threatened to sue Pape.
On March 20, 2014, Plaintiff again called Pape and demanded
that Pape
provide
her
with
a
written decision
regarding her
employment application.
On
April
1,
2014,
Barbara
McGuire
(“McGuire”),
FLDDSOO
Director of Human Resources, sent a letter to Plaintiff informing
her that she would not be hired. In pertinent part, McGuire noted
Plaintiff’s failure to successfully complete the EHS evaluation,
which is mandated by the Department of Civil Service for all DSA
Trainee
candidates.
McGuire
also
cited
Plaintiff’s
“highly
inappropriate” comments and “extremely loud, rude, confrontational,
and
threatening”
tone
during
her
conversation
with
Pape
on
March 11, 2014. McGuire informed Plaintiff that given her “refusal
-6-
to participate in the EHS evaluation process, as well as [her]
grossly inappropriate behavior while speaking with Ms. Pape, OPWDD
decline[d] to offer [her] any employment.” Exhibit D to Pape
Affidavit, Docket No. 52-3, p. 25 of 25.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure (“F.R.C.P.”) 56(c) states that
summary judgment shall be granted “if 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 a
judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). The court’s role in determining a motion for
summary judgment is not “to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for
trial.”
Id.
When
considering
a motion
for
summary
judgment, the court must draw inferences from underlying facts “in
the light
most
favorable
to
the party
opposing
the
motion.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986).
DISCUSSION
I.
The Material Facts Are Undisputed
Western District of New York Local Rule of Civil Procedure
56(a)(1) (“L.R. 56(a)(1)”) sets forth the required contents and
form of a statement of facts in support of summary judgment motion.
Defendant, in accordance with L.R. 56(a)(1), has set forth the
-7-
material and essential facts as to which it contends there is no
material
dispute,
citing
admissible
evidence.
Moreover,
L.R.
56(a)(2) provides that “[e]ach numbered paragraph in the moving
party’s statement of material facts will be deemed admitted for
purposes of the motion unless it is specifically controverted by a
correspondingly numbered paragraph in the opposing statement.”
W.D.N.Y. L.R. 56(a)(2). Plaintiff has not submitted an opposing
statement of facts, much less responded to Defendant’s renewed
request
for
summary
judgment,
despite
being
clearly
advised
regarding the consequences of not responding to the motion. The
Court finds that Plaintiff has not fulfilled her obligations under
F.R.C.P.
56(c),
L.R.
56(a)(1),
and
L.R.
56(a)(2).
Therefore,
Defendant’s statement of facts must be deemed admitted.
II.
Plaintiff’s Discrimination Claims All Fail as a Matter of Law
Title VII claims for employment discrimination are analyzed
under the three-part burden-shifting framework first set out by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–04 (1973). ADEA claims are analyzed under this same standard.
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.
2001) (citing Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir.
2000)). Claims alleging disability discrimination in violation of
the ADA also are subject to the McDonnell Douglas burden-shifting
analysis. McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96
(2d Cir. 2009). As discrimination claims brought under the NYSHRL
“are analytically identical to claims brought under Title VII[,]”
-8-
Torres v. Pisano, 116 F.3d 625, 629, n. 1 (2d Cir.), cert. denied,
522 U.S. 997 (1997), the McDonnell Douglas framework applies to
NYSHRL claims as well. Id.
Under the McDonell Douglas framework, a plaintiff must first
establish a prima facie case of discrimination under the pertinent
statute. See 411 U.S. at 802-04. If the plaintiff can meet her
de minimis burden of making out a prima facie case, the employer
then is required to offer a legitimate, non-discriminatory business
rationale for its actions. Abdu-Brisson, 239 F.3d at 466 (citing
McDonnell Douglas, 411 U.S. at 802-04; Cronin v. Aetna Life Ins.
Co.,
46
F.3d
196,
203-04
(2d
Cir.
1995)).
“If
the
employer
articulates such a reason, the presumption of . . . discrimination
dissolves, and the burden shifts back to the plaintiff to prove
that the employer’s stated reasons are merely pretextual and that
. . . discrimination was the true reason for the adverse employment
action.” Abdu-Brisson, 239 F.3d at 466 (citing McDonnell Douglas,
411 U.S. at 802-04).
Under all four statutes, one of the required elements of a
prima facie case is that the plaintiff is qualified for the
employment position in question. See Abdu-Brisson, 239 F.3d at 466
(ADEA and NYSHRL); Byrnie
v. Town of Cromwell, 243 F.3d 93, 107
(2d Cir. 2001) (Title VII and ADEA), superseded in part on other
grounds by FED. R. CIV. P. 37(e) (2015); McBride, 583 F.3d at 98
(ADA). Here, Plaintiff cannot prove by a preponderance of the
evidence that she was qualified for the position given that she did
-9-
not fulfill pass the psychological screening required by the
New York State Department of Civil Service. Specifically, Plaintiff
failed each psychological test and psychological interview that she
did complete (i.e., the MMPI and the interview with Dr. Griffiths).
Furthermore, Plaintiff failed to appear for her final psychological
evaluation with Dr. Wapner at EHS, which rendered her application
incomplete.
Even assuming arguendo, for purposes of resolving this motion
only, that Plaintiff has made out prima facie cases under the ADA,
ADEA, Title VII, and the NYSHRL, Defendant has fulfilled its burden
of production by “articulat[ing] some legitimate, nondiscriminatory
reason for the employee’s rejection.” Texas Dep’t of Community
Affairs
v.
Burdine,
450
U.S.
248,
252-53
(1981)
(quotation
omitted); accord Meiri v. Dacon, 759 F.2d 989, 994 (2d Cir. 1985).
An 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.” Greenway
v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998) (emphasis
in
original;
citation
omitted).
Plaintiff’s
failure
to
satisfactorily pass and complete the psychological testing required
for the position of DSA Trainee, discussed above, also qualifies as
a legitimate, nondiscriminatory reason for OPWDD’s decision not to
hire her.
Defendant has furnished another legitimate, nondiscriminatory
reason for declining to hire Plaintiff, namely, her confrontational
-10-
and belligerent behavior toward the individual overseeing her job
application
process.
Plaintiff
has
not
opposed
or
otherwise
responded to Defendant’s motion, and the facts regarding her
conduct have been deemed admitted. Thus, it is not in dispute that
Plaintiff engaged in the behavior described in McGuire’s letter
informing her that she would not be offered employment with OPWDD.
Once an employer has satisfied its burden of producing a
legitimate nondiscriminatory reason for its hiring decision, “the
plaintiff has an opportunity to show that the reason was merely a
pretext for discrimination. Pretext may be demonstrated either by
presentation of additional evidence showing that the employer’s
preferred explanation is unworthy of credence, or by reliance on
the evidence comprising the prima facie case, without more.”
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994)
(internal quotation marks omitted) (quoting Burdine, 450 U.S. at
256; citation omitted).
At this stage, the court must “examin[e]
the entire record to determine whether the plaintiff could satisfy
his ‘ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against plaintiff.’” Woodman
v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005) (quoting Schnabel,
232 F.3d at 90; citation omitted). Plaintiff’s evidence in support
of
her
discrimination
claim
consists
entirely
of
her
own
allegations of disparate treatment, which do not suffice to meet
the de minimis burden imposed by the first McDonnell Douglas step.
And, Plaintiff has come forward with no “additional evidence,”
-11-
Chambers, 43 F.3d at 38, to show that OPWDD’s legitimate reason for
declining
to
offer
Therefore,
as
a
‘“ultimate
burden
her
matter
of
a
position
of
law,
persuading
of
employment
Plaintiff
the
trier
cannot
of
fact
is
false.
carry
her
that
the
defendant intentionally discriminated against . . . [her][.]’”
Woodman, 411 F.3d at 76 (quotation omitted). Her causes of action
under Title VII, the ADA, the ADEA, and the NYSHRL must be
dismissed.
CONCLUSION
For the foregoing reasons, Defendant’s renewed Motion for
Summary Judgment is granted, and the Complaint is dismissed in its
entirety. The Clerk of Court is directed to close this case. The
Court further certifies that any appeal of this decision and order
would not be taken in good faith, and therefore denies Plaintiff
permission to proceed in forma pauperis on appeal.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
November 21, 2018
Rochester, New York.
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