Bykhovski v. NeuroCog Trials

Filing 25

ORDER granting 16 Motion for Summary Judgment. Signed by US District Judge Terrence W. Boyle on 7/21/2015. Copies sent to Pro Se plaintiff via US Mail at 704 Samuel Cary Drive, Cary, NC 27511. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-378-BO
ALEXEI BYKHOVSKI,
Plaintiff,
V.

NEUROCOG TRIALS,
Defendant.

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ORDER

This cause comes before the Court on defendant's motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff, prose, has responded,
defendant has replied, and the motion is ripe for ruling. For the reasons discussed below,
defendant's motion is granted.

BACKGROUND
Plaintiff filed this action alleging that defendant failed to employ him and that its conduct
was discriminatory on the basis of plaintiff's sex (male) and age pursuant to Title VII ofthe Civil
Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). 42 U.S.C. §§
2000e, et seq.; 29 U.S.C. §§ 621, et seq. Plaintiff alleges that he is a fifty-two year old male U.S.
scientist and engineer of Russian origin and that he is fluent in English and Russian with the
capability to perform both oral and written translations. Plaintiff alleges that in March 2013 he
applied for a data monitor position with defendant. In October 2013, defendant selected
plaintiff's wife, who had also applied, to interview for the same position; plaintiff was not
selected to interview for the data monitor position. Plaintiff alleges that defendants

discriminated against him on the basis of his sex and age when they did not select him for an
interview. 1
Defendant's business includes the provision and development ofneurocognitive
assessment products. The data monitor position involves consulting with the pharmaceutical and
academic communities and providing assessment expertise for scoring and reviewing data for
test batteries. Gadigan Decl. ~ 6. In selecting candidates to interview for the data monitor
position, defendant considered the following non-exhaustive criteria: a high level of foreign
language skill, time management skills, the ability to strictly follow templates and well-defined
rules, the ability to work well and interact with people, the ability to teach, train, or easily
explain concepts, and knowledge of or experience in psychology or related fields. Id at~ 14.
These skills might be indicated by work or educational experience in accounting, teaching,
human resources, and social work. !d.

DISCUSSION
A motion for summary judgment may not be granted unless there are no genuine issues
of material fact for trial and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56( a). The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 4 77 U.S. 317, 323 (1986). If that burden has
been met, the non-moving party must then come forward and establish the specific material facts
in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
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In his opposition to the motion for summary judgment, plaintiff appears to attempt to recharacterize his complaint to include a claim for disparate treatment. This plaintiff cannot do.
See e.g. Swann v. Source One Staffing Solutions, 778 F. Supp. 2d 611, 622 (E.D.N.C. 2011)
(citing Barclay White Skanska, Inc. v. Battelle Meml. Inst., 262 Fed. App'x 556, 563 (4th Cir.
2008)(unpublished)).

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U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a
trial court views the evidence and the inferences in the light most favorable to the nonmoving
party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla
of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for
summary judgment; "there must be evidence on which the [fact finder] could reasonably find for
the [nonmoving party]." Anderson v. LibertyLobby, Inc., 477 U.S. 242,252 (1986).
Speculative or conclusory allegations will not suffice. Thompson v. Potomac Elec. Power Co.,
312 F.3d 645,649 (4th Cir. 2002).
Title VII prohibits covered employers from, inter alia, failing or refusing to hire someone
because of that person's sex. 42 U.S.C. § 2000e-2(a)(l). In the absence of direct evidence of
discrimination, a plaintiff must first establish a prima facie case of discrimination. Bryant v. Bell

A. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). If the plaintiff is successful, the burden shifts to the employer to
articulate a non-discriminatory reason for the treatment; ifthe employer articulates such a reason,
the burden shifts back to the plaintiff to demonstrate that the employer's proffered basis is mere
pretext. Id. In order to establish a prima facie case of employment discrimination for failure to
hire, a plaintiff "must show by a preponderance of the evidence that ( 1) she is a member of a
protected class; (2) her employer had an open position for which she applied or sought to apply;
(3) she was qualified for the position; and (4) she was rejected for the position under
circumstances giving rise to an inference of unlawful discrimination." Evans v. Technologies

Applications & Serv. Co., 80 F .3d 954, 959-60 (4th Cir. 1996) (further discussing the
McDonnell-Douglas burden shifting analysis and noting that a plaintiff always bears the burden
of demonstrating that an employer engaged in intentional discrimination).

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First, plaintiff's limitation of his complaint to the defendant's failure to interview him but
choosing to interview his wife is fatal to his claim; by limiting his claim in such a way he cannot
show that he suffered any adverse employment action due to defendant's failure to hire him
because defendant did not ultimately hire plaintiff's wife. See e.g. Hall v. Bausch & Lomb, Inc.,
CIV.A. DKC 10-0215, 2012 WL 3536755, at *9 (D. Md. Aug. 13, 2012) (noting that while a
failure to interview claim generally encompasses a claim for failure to hire or promote, where
plaintiff had expressly limited her claim to defendant's choosing to interview two other
candidates who were not ultimately hired, plaintiff could not prevail on her claim as she suffered
no adverse employment action).
However, even assuming, arguendo and without deciding, that plaintiff could
successfully demonstrate a prima facie case of sex discrimination, he has plainly failed to rebut
defendant's articulated legitimate reasons for declining to interview him. Defendant has put
forth numerous bases for not interviewing plaintiff, including his lack of relevant educational or
professional experience and its dissatisfaction with plaintiff's resume presentation. Specifically,
defendant proffers that plaintiff's resume "gave no indication of any degree or educational
experience in psychology or any other related social sciences field and by containing seven pages
of disorganized and difficult to follow and understand material gave an impression of lack of
organization skills and attention to detail .... " Gadigan Decl. ,-r 23.
Though plaintiff vehemently disagrees with defendant's assessment of his resume and
applicability of his professional experience, defendant correctly notes that plaintiff's "perception
ofhimself, however, is not relevant. It is the perception of the decision maker which is relevant."

Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980). Nor are plaintiff's perception ofhis wife's
qualifications or the perceptions of plaintiff's son and former colleague germane to the inquiry.

DeJarnette v. Corning Inc., 133 F.3d 293,299 (4th Cir. 1998). The only evidence ofpretext
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proffered by plaintiff is his own speculation that the data monitor position would not present any
difficulty for him, and this is simply insufficient to survive a motion for summary judgment. See
id. ("employee must present evidence reasonably calling into question the honesty of his

employer's belief; employee's mere demonstration that his employer's belief may be incorrect is
not sufficient to prove discrimination.") (citation omitted).
Plaintiff has similarly failed to proffer sufficient evidence to survive defendant's motion
as to his ADEA claim. The ADEA makes it unlawful for an employer to "fail or refuse to hire ..
. any individual ... because of [that] individual's age." 29 U.S.C. § 623(a)(l). "The ADEA
plaintiff may prove age discrimination in one of two ways: by proving a prima facie case of age
discrimination, which establishes a rebuttable presumption that the employer violated the ADEA;
or by offering direct or circumstantial evidence of an employer's discriminatory animus." Arthur
v. Pet Dairy, 593 Fed. App'x 211,216 (4th Cir. 2015)(unpublished) (internal quotation and

citation omitted). To succeed on an ADEA claim, a plaintiff must ultimately show that age was
the but-for cause ofhis employer's decision. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177
(2009).
While plaintiff is a member of the protected class, aged forty or older, and even assuming
that plaintiff could prove a prima facie case of age discrimination, plaintiff has proffered no
evidence which would demonstrate that age was the but-for cause of defendant's decision not to
interview him. Defendant has stated that plaintiffs age was not identified on his resume or
application and that no effort was made to try to determine his age based on other information
provided. Gadigan Decl.

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26; Alexander Decl.

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11. Plaintiff contends that defendant's

allegations that his resume is disorganized and long are properly understood as age-related
discrimination because plaintiff has worked for too long, in contrast to recent graduates' resumes
which are always well-organized and short because they have little or nothing to write about.
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[DE 22 at 28]. Plaintiff further notes his "top-notch communication skills, organizational skills
and attention to detail" as the reasons why he believes that defendant disqualified him without a
legitimate reason. !d. As discussed above, however, plaintiff's own perceptions about his
abilities and the reasons for defendant's decision not to interview him are insufficient to rebut
defendant's stated legitimate reasons. Because plaintiff has not proffered any evidence with
sufficient probative value upon which the Court could infer that plaintiff's age was the but-for
reason defendant chose not to interview him, summary judgment is appropriate in defendant's
favor. See Ramos v. Molina Healthcare, Inc., 603 Fed. App'x 173, 180 (4th Cir.
20 15)(unpublished) (citation omitted).

CONCLUSION
For the foregoing reasons, defendant's motion summary judgment [DE 16] is
GRANTED. The clerk is DIRECTED to enter judgment accordingly and to close the file.

SO ORDERED, thisa.J_ day of July, 2015.

T RRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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