Mancini v. City of Providence et al
MEMORANDUM AND ORDER issued by Chief Judge William E. Smith: Plaintiffs Motion for Summary Judgment 86 is denied, and Defendants Cross-Motion for Summary Judgment 85 is granted. (Perry, Frank)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
CITY OF PROVIDENCE, by and through )
its Treasurer, James J. Lombardi, )
C.A. No. 13-092 WES
OPINION AND ORDER
William E. Smith, Chief Judge.
Before the Court are Plaintiff Mark Mancini’s Motion for
Summary Judgment and Defendant City of Providence’s Cross-Motion
for Summary Judgment. 1 After considering the evidence and arguments
Plaintiff’s motion is DENIED and Defendant’s motion is GRANTED.
I. Background 2
Plaintiff Mark Mancini was, at all relevant times, a Sergeant
in the Providence Police Department (“PPD”), and an employee of
Pl.’s Mot. for Partial Summ. J. against Def. City of
Providence on the Issue of Liability on Counts I, II, III, and IV
of the Compl. (“Pl. Mot.”), ECF No. 86; Def.’s Obj. to Pl.’s Mot.
for Summ. J. & Cross-Mot. for Summ. J. (“Def. Mot.”), ECF No. 85.
The following facts are undisputed, unless otherwise noted.
Where there are factual disputes, the Court views the facts in the
light most favorable to Plaintiff. See Garmon v. Nat’l R.R.
Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016).
the Defendant City of Providence (“the City”). 3 On November 15,
2010, Mancini injured his right knee while chasing a suspect in
the line of duty. 4 As a result of Mancini’s injury, he was placed
on “injured on duty” (“IOD”) status and was out of work until May
2011. 5 When Mancini returned to work, he was placed on “light duty”
status. 6 In August 2011, the PPD terminated his light duty status,
and by September 2, 2011, as a result of a directive from his
employer, Mancini filed for accidental disability benefits with
the City. 7 On June 27, 2012, the City denied Mancini’s application
for an accidental disability pension. 8 After Mancini was denied
the pension, the City refused to allow him to return to work on
light duty status. 9
Compl. ¶ 14, ECF No. 1; Def.’s Answer ¶ 14, ECF No. 7.
Pl. Mark Mancini’s Statement of Undisputed Facts (“Pl.’s
SUF”) ¶ 7, ECF No. 88; Def.’s Statement of Undisputed Facts
(“Def.’s SUF”) ¶ 1, ECF No. 84.
Pl.’s Statement of Disputed Facts (“Pl.’s SDF”) ¶¶ 2, ECF
No. 92; Def.’s SUF ¶ 2.
Pl.’s SDF ¶ 3; Def.’s SUF ¶ 3.
Pl.’s SUF ¶ 14 (“Mancini applied for work-related disability
benefits after being told that if he did not submit the
application, the Department would do it on his behalf.”); Def.’s
SUF ¶ 4; see also Excerpted Depo. Tr. Mark Mancini vol. II
(“Mancini Depo. vol. II”) 26:16-27:15, ECF. No. 87-2; Aff. of Mark
Mancini (“Mancini Aff.”) ¶ 16, ECF No. 86-3.
Pl.’s SDF ¶ 4; Def.’s SUF ¶ 4.
Mancini Aff. ¶ 17.
On May 3, 2012, Mancini learned of the June 2012 Lieutenant’s
promotional process for attaining the rank of lieutenant was
governed by the Collective Bargaining Agreement (“CBA”) between
the City and the police union. 11 According to the CBA, the criteria
for selecting a lieutenant were as follows: (1) 0-85 points for
his or her score on a 100-question written examination; (2) 0-5
points for his or her level of education; (3) 0-5 points for his
or her level of seniority; and (4) 0-5 points for his or her
service. 12 The top five individuals who took the Lieutenant’s exam
would be eligible for promotion. 13 On June 16, 2012, Mancini took
Compl. ¶ 35; Answer ¶ 35.
Def.’s SUF ¶ 6; Pl.’s SDF ¶ 6.
Def.’s SUF ¶ 7; Pl.’s SDF ¶ 7.
See Def.’s SUF ¶ 14. Once a candidate is deemed “eligible
for promotion,” his or her name is placed on a promotional list
from which all positions are filled until all candidates were
promoted, unless their names were removed for cause. See Collective
Bargaining Agreement (“CBA”), Art. IV, sec. 2, 3(B), Ex. 3 to Pl.’s
Mot., ECF No. 86-2 (noting that, under the CBA, the City was
required “at all times [to] maintain promotional lists for all
positions required either by ordinance or by [the CBA] to be filled
in accordance with” the CBA, and that after the promotional
examination is administered, “the highest ranking candidates
necessary to fill the slots on the promotional list” are assigned
to the list); see also Lieutenant’s Promotional Examination
Results, Ex. 8 to Pl.’s Mot., ECF No. 86-2 (noting that the
Lieutenant’s Eligibility List issued on July 6, 2012 “shall remain
in effect until all of the candidates thereon have been promoted,
or unless their name(s) are removed for cause”).
the exam and received a total score of “88.2,” ranking him seventh
of the sixteen sergeants who took the exam and taking him out of
the running for promotion to the rank of lieutenant. 14 At the time
of the exam, Mancini was the only promotional candidate on IOD
The portion of the exam at issue here is the score Mancini
received for the “service section” of the exam, where Mancini
scored a “0” out of a possible “5” points. 16 The service section
was graded by the Chief of Police, Colonel Hugh T. Clements, Jr. 17
discretion to evaluate and rate a promotional candidate’s overall
work performance. 18 In evaluating a candidate, the Chief of Police
typically considered letters of commendation, memoranda of merit
received, and other factors to determine a candidate’s service
points. Had Mancini received at least “1” point in the service
Pl.’s SDF ¶¶ 12-13; Def.’s SDF ¶¶ 12-13.
Pl.’s SUF ¶ 13; Def.’s Suppl. Answer to Pl.’s Second Set
of Ints., Ex. 6 to Pl.’s Mot., ECF 86-2.
Pl.’s SUF ¶ 16; Def.’s SUF ¶ 12.
Def.’s SUF ¶¶ 7-11, 15; Pl.’s SDF ¶¶ 7-11, 15; Clements
Depo. Tr. vol. I 99:10-100:9, Ex. B to Def.’s SUF, ECF No. 84-2.
Def.’s SUF ¶¶ 8-10; Pl.’s SDF ¶¶ 8-10.
section, he would have tied with the fifth highest test taker and
been eligible for promotion to lieutenant based on his seniority. 19
Mancini filed the instant suit against the City and Clements
lieutenant because of his disability, or in the alternative, his
record of disability. 20 Defendant Clements was dismissed from the
lawsuit after a decision by the Rhode Island Supreme Court, on a
certified question from this Court, that there is no individual
Employment Practices Act (“FEPA”). See generally Mancini v. City
of Providence, 155 A.3d 159 (R.I. 2017).
(This matter was stayed
for a considerable amount of time while the certified question was
under advisement with the Rhode Island Supreme Court.)
Mancini has charged the City with four counts of unlawful
discrimination including violations of the Rhode Island Civil
Rights Act of 1990, Rhode Island Fair Employment Practices Act,
Americans with Disabilities Act, and Civil Rights of Peoples with
Disabilities Act. 21
Def.’s SUF ¶ 14; Pl.’s SDF ¶ 14; see also CBA, Art. IV at
15-36; Lieutenant’s Promotional Examination Results, Ex. 8 to
Pl.’s Mot., ECF No. 86-2.
See generally Compl.
See generally id.
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
In ruling on a motion for summary judgment, the Court
views “the facts in the light most favorable to the non-moving
party.” Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d 307, 312
(1st Cir. 2016) (quoting Rodriguez–Cuervos v. Wal–Mart Stores,
Inc., 181 F.3d 15, 19 (1st Cir. 1999)).
That said, “a nonmovant
inferences, and unsupported speculation.’” Id. at 313 (quoting
Pina v. Children's Place, 740 F.3d 785, 795 (1st Cir. 2014)).
Ultimately, “a plaintiff’s ability to survive summary judgment
depends on his ability to muster facts sufficient to support an
inference of discrimination.” Id. (quoting Bennett v. Saint–Gobain
Corp., 507 F.3d 23, 30 (1st Cir. 2007)).
Where, as here, there
are cross-motions for summary judgment, this “simply require[s]
[the Court] to determine whether either of the parties deserves
judgment as a matter of law on facts that are not disputed.” Barnes
v. Fleet Nat’l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)
(quoting Wightman v. Springfield Terminal Ry., 100 F.3d 228, 230
(1st Cir. 1996)).
paradigm set forth by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). 22 At the outset, a plaintiff
must establish a prima facie case of discrimination. Rathbun v.
Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004) (citing McDonnell
Douglas, 411 U.S. at 802).
In the failure-to-promote context, to
establish a prima facie case, the plaintiff must show he “(i) is
a member of a protected class who (ii) was qualified for an open
position for which [he] applied, but (iii) was rejected (iv) in
favor of someone possessing similar qualifications.” Id. (citing
Gu v. Boston Police Dep’t, 312 F.3d 6, 11 (1st Cir. 2002); see
also McGary, 47 A.3d at 280 (recognizing that “[t]he burden placed
on the complainant at this stage is not especially onerous”).
the plaintiff establishes a prima facie case, a presumption of
See also McGarry v. Pielech, 47 A.3d 271, 280 (R.I. 2012).
While the Court would typically apply Rhode Island law to
Plaintiff’s state law claims, Rhode Island looks to the McDonnell
Douglas paradigm because of the Rhode Island Supreme Court’s
reliance on federal jurisprudence under Title VII of the Civil
Rights Act of 1964 (“Title VII”) for “enlightenment and guidance”
in interpreting FEPA, the state analogue to Title VII. Weeks v.
735 Putnam Pike Operations, LLC, 85 A.3d 1147, 1156 n.11 (R.I.
2014) (noting that the Rhode Island Supreme Court historically has
looked to federal precedent in the process of construing FEPA).
discrimination arises, and “[t]he burden of production then shifts
to the employer to articulate a legitimate, nondiscriminatory
reason for its employment decision(s).” Rathbun, 361 F.3d at 71;
McGarry, 47 A.3d at 280. An “employer need only produce competent
Conquistador Resort & Country Club, 218 F.3d 1, 6 (1st Cir. 2000)
At this juncture, “[t]he burdens of proof
and production fall squarely upon the plaintiff to demonstrate
that the defendant’s tendered explanation is only a pretext and
that discrimination was the true motive underlying the [promotion]
decision.” McGarry, 47 A.3d at 280-81. “The core inquiry in such
disparate treatment cases is whether the defendant intentionally
Rathbun, 361 F.3d at 71 (citing Cumpiano v. Banco
Santander, 902 F.2d 148, 153 (1st Cir. 1990))(emphasis added).
A. Mancini’s Prima Facie Case of Discrimination
Mancini argues that at the time of the Lieutenant’s exam he
was a member of a protected class because he had a disability
within the meaning of the law. 23 The City counters that Mancini was
not a member of a protected class because he did not have a
disability within the meaning of the law. 24
There are three ways a person may be covered by the Americans
with Disabilities Act (“ADA”); the ADA defines disability as
The term “disability” means, with respect to an
(A) a physical or mental impairment that substantially
limits one or more major life activities of such
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as
described in paragraph (3)).
42 U.S.C. § 12102(1).
subsection (1)(A), that is, he had a physical or mental impairment
that substantially limits a major life activity. 25 In order to
qualify for coverage, however, Mancini must provide competent
impairment as follows:
Mem. of Law in Supp. of Pl.’s Mot. for Partial Summ. J.
against Def. City of Providence on the Issue of Liability on Counts
I, II, III, and IV of the Compl. (“Pl.’s Mem.”) 18, ECF No. 86-1.
Def.’s Mem. of Law in Supp. of Def.’s Obj. to Pl.’s Mot.
for Summ. J. and in Supp. of Def.’s Cross-Mot. for Summ. J.
(“Def.’s Mem.”) 19, ECF No. 85-1.
Pl.’s Mem. 18-19.
(1) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more
body systems, such as neurological, musculoskeletal,
special sense organs, respiratory (including speech
genitourinary, immune, circulatory, hemic, lymphatic,
skin, and endocrine; or
(2) Any mental or psychological disorder, such as an
retardation”), organic brain syndrome, emotional or
mental illness, and specific learning disabilities.
29 C.F.R. § 1630.2(h).
Further, EEOC regulations state that “[a]n impairment is a
disability within the meaning of this section if it substantially
limits the ability of an individual to perform a major life
activity as compared to most people in the general population.”
Id. § 1630.2(j)(1)(ii).
[a]n impairment need not prevent, or significantly or
severely restrict, the individual from performing a
major life activity in order to be considered
impairment will constitute a disability within the
meaning of this section.
Lastly, the ADA defines major life activities as:
major life activities include, but are not limited to,
caring for oneself, performing mutual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting,
concentrating, thinking, communicating, and working.
42 U.S.C. § 12102(2)(A).
In support of his position that he had a physical impairment
activities, the only evidence that Mancini has submitted to the
Court is his own affidavit, prepared for purposes of moving for
summary judgment. 26 In the affidavit, Mancini states the following:
“At the time I sat for the June 2012 Lieutenant[’]s Exam, my
physical impairment substantially limited my ability to stand,
walk, bend, lift, and work as compared to the average member in
society.” 27 In order to survive summary judgment, an affidavit must
be factually specific to give rise to a genuine issue of material
fact. See A.J. Amer Agency, Inc. v. Astonish Results, LLC, No. 12351S, 2014 WL 3496964, at *12 (D.R.I. July 11, 2014) (citing Fleet
Nat’l Bank v. H&D Entm’t, Inc., 96 F.3d 532, 540 (1st Cir. 1996)).
Mancini’s self-serving affidavit misses the mark by a wide margin.
The First Circuit has consistently rejected conclusory affidavits
conclusions required by the cause of action at the summary judgment
stage. See Garcia-Gonzalez v. Puig-Morales, 761 F.3d 81, 87 (1st
Cir. 2014) (quoting Nieves-Romero v. United States, 715 F.3d 375,
378 (1st Cir. 2013)) (explaining that “[c]onclusory allegations,
empty rhetoric, unsupported speculation, or evidence which, in the
aggregate, is less than significantly probative will not suffice
to ward off a properly supported summary judgment motion”); see
See generally Mancini Aff.
Id. at ¶ 14.
also Fleet Nat’l Bank, 96 F.3d at 540 (disregarding an affidavit
containing only conclusory assertions and lacking dates, names, or
actual statements); Felkins v. City of Lakewood, 774 F.3d 647, 652
admissible insofar as it described the plaintiff’s “injuries and
symptoms, such as pain and difficulties walking, standing, and
lifting,” but inadmissible “insofar as they diagnose her condition
. . . or state how that condition causes limitations on major life
activities”) (citing James River Ins. Co. v. Rapid Funding, LLC,
658 F.3d 1207, 1214 (10th Cir. 2011)); Russell v. Phillips 66
Company, 687 Fed. App’x 748, 753-54 (10th Cir. 2017) (holding
depression caused insomnia not admissible to establish depression
Scotiabank De Puerto Rico, 260 F. Supp. 2d 403, 411 (D.P.R. 2003)
support a finding of discriminatory atmosphere at summary judgment
Moreover, while Mancini is correct that Congress has made it
easier to establish a disability within the meaning of the law, by
enacting the ADA Amendments Act of 2008 (“ADAAA”), Mancini still
fails to establish a disability under the more liberal standard. 28
See Pl.’s Mem. of Law in Opp. to Def.’s Mot. for Summ. J.
1-2, ECF No. 93. The ADAAA states that the definition of disability
“[e]vidence of a medical diagnosis of impairment, standing alone,
is insufficient to prove a disability,” but rather, “[w]hat is
particular plaintiff to a substantial extent.” Ramos-Echevarría v.
Pichis, Inc., 659 F.3d 182, 187 (1st Cir. 2011).
Here, the only
“chondromalacia of the right knee” but that his “workplace injury
improved . . . .” 29
The affidavit further mimics the text of the
impairment substantially limited [his] ability to stand, walk,
At best, this statement is hearsay, and at worst, it
is wholly inadequate on its face; indeed, the record contains no
diagnosis and the claimed physical limitations. For these reasons,
Mancini has failed to demonstrate that he has a disability within
the meaning of the ADA and the related state laws.
is to be construed “in favor of broad coverage of individuals
. . . to the maximum extent permitted” by the law. 42 U.S.C. §
Mancini Aff. ¶ 8, 12.
Id. ¶ 14.
Mancini makes an alternative argument, that he was disabled
within the meaning of the law because he had a record of a physical
impairment, but this fares no better.
The EEOC regulation states
individual has a history of, or has been misclassified as having,
a mental or physical impairment that substantially limits one or
more major life activities.” 29 C.F.R. § 1630.2(k)(1).
asserts that because he was on IOD status at the time of the
promotional exam and because he was directed by the City to apply
for an accidental disability pension, “defendant must be charged
disability and that his disability was so severe that it was
sufficient to warrant seeking a disability retirement.” 31 Knowledge
that Mancini was on IOD status or that he had a pending disability
retirement application, without more, however, does not establish
that the City misclassified Mancini as having a physical impairment
substantially limiting one or more of his major life activities.
See 29 C.F.R. § 1630.2(k)(1). As the First Circuit has noted, “[a]
plaintiff claiming that he is ‘regarded’ as disabled cannot merely
show that his employer perceived him as somehow disabled; rather,
he must prove that the employer regarded him as disabled within
the meaning of the ADA.” Bailey v. Georgia-Pacific Corp., 306 F.3d
Pl.’s Mem. 20.
1162, 1169 (1st Cir. 2002) (citing Giordano v. City of New York,
274 F.3d 740, 748 (2d Cir. 2001)).
In other words, the “regarded
as” prong (42 U.S.C. § 12102(1)(C)) is not merely a catch-all
clause for plaintiffs who cannot show an actual disability within
the meaning of the law, but who believe that the employer harbored
some kind of subjective bad intent.
It requires the same level of
specificity and evidentiary showing as a claim under § 12102(1)(A).
Accordingly, because both of Mancini’s disability theories fall
flat, Mancini has failed to establish a prima facie case of
B. The City’s Rebuttal of Mancini’s Prima Facie Case
Even if the Court assumes that Mancini could establish that
he was disabled, he still has not mustered enough evidence in his
favor to survive the City’s motion for summary judgment.
otherwise has met the less than onerous burden of showing he was
qualified for the position and did not receive it.
See 29 C.F.R.
§ 1630.2(m); see also Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823
(1st Cir. 1991) (explaining that the burden on a complainant in
establishing a prima facie case is “not onerous”) (quoting Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1982)). The
burden then shifts to the City to produce evidence sufficient to
rebut the presumption of discrimination. Burdine, 450 U.S. at 254.
“[T]he prima facie case ‘raises an inference of discrimination
only because we presume these acts, if otherwise unexplained, are
more likely than not based on the consideration of impermissible
factors.’” Id. (quoting Furnco Constr. Corp. v. Waters, 438 U.S.
567, 577 (1978)).
“The burden that shifts to the defendant,
producing evidence that the plaintiff was rejected, or someone
else was preferred, for a legitimate, nondiscriminatory reason.”
Id. Here, the burden placed on a defendant is one of production,
and not one of persuasion. Mesnick, 950 F.2d at 823. In order to
satisfy its burden, “the defendant must clearly set forth, through
the introduction of admissible evidence, the reasons for the
plaintiff’s rejection.” Burdine, 450 U.S. at 255. “Once such a
reason emerges, the inference raised by the prima facie case
dissolves, and the last transfer of burdens occurs.” Mesnick, 950
F.2d at 823 (internal citations omitted). Finally, the plaintiff
is tasked with demonstrating “unassisted by the original inference
actually a pretext for discrimination of the type alleged.” Id.
evidence, or “[t]here are many veins of circumstantial evidence
that may be mined by a plaintiff to this end.” Id. at 824. On a
motion for summary judgment, one must keep in mind that, “so long
constitute a legitimate, nondiscriminatory justification for the
employer’s actions, the trial court’s focus in deciding a Rule 56
motion must be on the ultimate question, not on the artificial
striations of the burden-shifting framework.” Id. at 825. As Judge
Selya explained: “in a case where the first two steps of the
McDonnell Douglas pavane have been satisfactorily choreographed,
a plaintiff must offer some minimally sufficient evidence, direct
or indirect, both of pretext and of the employer’s discriminatory
animus to prevail in the face of a properly drawn Rule 56 motion.”
It is on this final point that Plaintiff again fails to defeat
the City’s motion for summary judgment.
The City has presented ample evidence of nondiscriminatory
reasons for Mancini’s award of service points. Specifically, the
City cites to Clements’s deposition in which Clements articulated
the following reasons for Mancini’s service points score: (1) heavy
reliance on the recommendations of the command staff; (2) the fact
that Mancini was applying for a promotion to lieutenant — a
position entailing far greater leadership, responsibility, and
external engagements than the rank of sergeant; and (3) the fact
that Clements and his command staff were looking to make the award
of service points more meaningful. 32
With this proffer, the City has met its burden of production.
The nondiscriminatory reasons proffered by the City are similar to
Def.’s Mem. 7-9 (citing Clements Depo. vol. II 71:25–72:5,
97:22—98:7; Clements Depo. vol. I 102:2-14).
other reasons articulated by defendant-employers that courts have
found sufficient. See, e.g., McKay v. U.S. Dep’t of Transp., 340
F.3d 695, 700 (8th Cir. 2003) (deeming employer’s justification
legitimate and nondiscriminatory where it selected an arguably
less qualified candidate due to her “superior communication skills
evidenced in an interview process”); Mesnick, 950 F.2d at 828-29
(affirming grant of summary judgment in favor of employer where
employee based on his insubordination and hostility); see also
Burdine, 450 U.S. at 254 (explaining “[t]he defendant need not
persuade the court that it was actually motivated by the proffered
reasons”). Additionally, the City’s nondiscriminatory reasons are
insufficient. See Alvarado v. Texas Rangers, 492 F.3d 606, 616-17
(5th Cir. 2007) (finding candidate’s failure to score among the
insufficient nondiscriminatory reason proffered by the defendantemployer because the employer failed to provide any evidence of or
explanation for why the other candidates scored higher); Iadimarco
v. Runyon, 190 F.3d 151, 166-67 (3d Cir. 1999) (rejecting the
defendant-employer’s proffered explanation that the plaintiff was
not promoted because he was not “the right person for the job”);
Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (rejecting the
defendant-employer’s proffered explanation that the plaintiff was
not sufficiently suited for his job).
In his deposition, Colonel Clements stated that the award of
service points to Mancini was consistent with, and the product of,
testimony, Clements would meet with members of his command staff
promotional candidate prior to the administration of a promotional
exam. 34 At these meetings, promotional candidates were evaluated,
and after discussion of a candidate’s qualifications, members of
the command staff had the opportunity to recommend a service points
score. 35 At the meeting prior to the administration of the June
service points score: “3,” “0,” “2,” “1,” “0,” “0,” and “2.” 36
Clements testified that he relied on all of the score sheets
Clements Depo. Tr. vol. I 73:11-20, ECF. No. 84-2.
Major Keith Tucker recommended a three. Clements Depo Tr.
vol. II 46:18-20, ECF No. 84-2. Deputy Chief Thomas Oates
recommended a zero. Id. 47:4-6. Captain David Lapatin recommended
a two. Id. 55:11-15. Major Tom Verdi recommended a one. Id. 58:1315. Major Frank Colon recommended a zero. Id. 63:12-14. Captain
Robert Lepre recommended a zero. Id. 64:8-22. Captain William
Campbell recommended a two. Id. 66:15-67:12.
submitted by his command staff and that he was alarmed by the
number of low scores that Mancini had received. 37 Further, Clements
explained that at the meeting, some members of the command staff
conveyed feelings that Mancini had a negative or poor attitude and
that he was not a team player. 38 Clements’s testimony described the
conversation around the room, in conjunction with the command
staff’s actual recommendations, as “glaring”; in other words,
Clements found the command staff’s recommendations and comments to
be glaringly less favorable to Mancini than the other candidates
they discussed. 39
recommendations, Clements distinguished between the qualities of
a sergeant and those of a lieutenant as a means of illustrating
Mancini’s unsuitableness for the rank of lieutenant. 40 Clements
explained that a “[l]ieutenant is responsible for the entire
operations in that community; in essence, the mini police chief
for that geographical area.” 41 Clements also described that the
police department is “counting on someone ascending to the rank of
Clements Depo. Tr. vol. II 119:25-120:4.
Clements Depo. Tr. vol. I 97:18-21.
Clements Depo. Tr. vol. II 11:14-12:4.
lieutenant to carry the ball and to speak for the Office of the
Chief of Police or the department when he’s out there on a shift.” 42
Further, in order to fulfill these responsibilities, Clements
expressed that the police department was “looking for people that
become way more engaged with the work staff, with the community,
and to present a positive direction . . . .” 43 In contrast, Clements
described Mancini as an individual who “comes into work, does the
job and [then] leaves.” 44
because the command staff was looking to make the award of service
points more meaningful. In explaining the rationale behind the
change, Clements explained that the rank of sergeant, as compared
to the rank of lieutenant, is “a lesser rank. So not as much weight
would be given to certain areas of leadership ability, because
The City’s proffered nondiscriminatory reason, as articulated
by Clements’s deposition, is more than sufficient to satisfy
Defendant’s burden of production. Although members of the PPD, and
Clements Depo. Tr. vol. I 104:7-13.
Clements Depo. Tr. vol. II 92:3-6.
the parties before the Court, share diverse opinions about whether
Mancini was qualified for the lieutenant position, the burden on
the City “is one of production, not persuasion; it ‘can involve no
Products, Inc., 530 U.S. 133, 142 (2000) (quoting St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 509 (1993) (“the burden-of-production
Accordingly, the Court concludes that the City has satisfied its
discrimination generated by Mancini’s prima facie case.
production on employers, the burden of persuasion always remains
with the employee. Burdine, 450 U.S. at 256. The plaintiff “must
have the opportunity to demonstrate that the proffered reason[s]
[were] not the true reasons for the employment decision.” Id. “This
burden now merges with the ultimate burden of persuading the court
discrimination.” Id. The plaintiff may prevail by “persuading the
court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” Id. Alternatively, “the
trier may infer the ultimate fact of discrimination from the
components of the plaintiff’s prima facie showing combined with
explanation.” Rathbun, 361 F.3d at 72; see also Mesnick, 950 F.2d
at 825. So the question for the Court is whether Mancini has
marshalled enough evidence to demonstrate that there is a material
issue of disputed fact as to the claim of pretext that needs to be
resolved by a jury.
Mancini presents several arguments in his attempt to show
that the City intentionally discriminated against him because of
his alleged disability. Plaintiff’s arguments, read in conjunction
with each other, state his theory that genuine issues of material
fact remain as to whether (1) Mancini’s performance of his assigned
duties justified an award of “0” service points; (2) Mancini was
the least qualified for the position of lieutenant as compared to
the other promotional candidates; and (3) Clements had legitimate,
nondiscriminatory reasons to award Mancini a “0,” when two years
earlier in 2010, Clements had recommended Mancini a “5” for the
same promotional exam, and three years later awarded him a “4.” 46
Plaintiff’s arguments are insufficient to create a genuine
discriminated against him. See Garcia-Gonzalez, 761 F.3d at 87
(noting that a genuine issue of material fact “must be built on a
solid foundation –- a foundation constructed from materials of
evidentiary quality.”) (quoting Nieves-Romero, 715 F.3d at 378).
Pl.’s Mem. 10-11.
When boiled down, Plaintiff’s argument is simply that a reasonable
jury will not believe Colonel Clements and instead it would be
compelled to find Mancini more qualified than the other candidates.
But this theory does no more than beg the question. Plaintiff’s
burden is to show some evidence of intentional discrimination,
i.e., that the City’s proffered reasons are pretextual.
Mancini presents a colorable argument that his service points score
relationship between his score and his alleged disability. While
direct evidence of intentional discrimination is not necessary for
Mancini to overcome his burden of persuasion, Mancini has failed
to provide the “compelling proof of the pretextual nature of the
employer’s explanations[s]” necessary for a reasonable jury to
infer a fact of discrimination. See Rathbun, 361 F.3d at 72; see
also Mesnick, 950 F.2d at 825 (explaining that a “plaintiff must
offer some minimally sufficient evidence, direct or indirect, both
of pretext and of the employer’s discriminatory animus to prevail
in the face of a properly drawn Rule 56 motion.” (emphasis added)).
Not only is there no evidence of pretext or animus, the evidence
that is in the record shows that, during the 2012 Sergeant’s
Promotional Exam, eleven candidates were on IOD status, and every
candidate with such status was awarded a “5” or a “4” on the
Clements would penalize Mancini for his alleged disability as he
sought a promotion to the rank of lieutenant, while Clements
simultaneously disregarded that fact for other officers seeking a
promotion to the rank of sergeant.
One may be able to infer that
Clements thought Mancini undeserving, or perhaps disliked him for
one reason or another – but such inferences are of no consequence.
speculation, not evidence, and therefore must fail.
Summary Judgment (ECF No. 86) is DENIED and Defendant’s CrossMotion for Summary Judgment (ECF No. 85) is GRANTED.
IT IS SO ORDERED.
William E. Smith
Date: October 10, 2017
See Def. City of Providence’s Supp. Answer to Pl.’s Second
Set of Inter., Ex. 6 to Pl.’s Mot., ECF No. 86-2; Def.’s Mem. 2324; Award of Service Points for the 2012 Sergeant’s Exam, Ex. E to
Def.’s Mot., ECF No. 85-6.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?