The opinion of the court was delivered by: Gershon, District Judge.
Plaintiff Sheila Duncan brings this action against defendants New York
City Transit Authority, and Manhattan and Bronx Surface Transit Operating
Authority ("MaBSTOA") (collectively "Transit"), alleging discrimination
on the basis of age in violation of the Age Discrimination in Employment
Act of 1967 ("ADEA") as amended, 29 U.S.C. § 621 et seq., and the New
York State Human Rights Law ("HRL"), New York State Executive Law §§
290 et seq.; and discrimination on the basis of race in violation of
Title VII of the Civil Rights Act of 1964 ("Title VII") as amended,
42 U.S.C. § 2000(e) et seq., and the HRL.
Defendants move for summary judgment pursuant to Federal Rule of Civil
Procedure 56(b) dismissing plaintiff's claims in their entirety.
Defendants argue that plaintiff has failed to establish a prima facie
case of age or race discrimination in violation of the ADEA, Title VII
and the HRL, and, alternatively, that plaintiff cannot show that the
stated legitimate, nondiscriminatory reason for her termination was a
pretext for discrimination.
Unless otherwise indicated, the following facts are undisputed.
Plaintiff Sheila Duncan is an African-American female who was born on
January 12, 1949. Plaintiff has a High School diploma, but did not attend
college. She began working for MaBSTOA, a subsidiary of the New York City
Transit Authority, on February 22, 1971, as a clerk typist in the
Personnel Department of the Materiel Division ("Materiel"). Then on
August 25, 1971, plaintiff was transferred to the Purchasing Department
of Materiel, where she remained until her termination in 1995. During her
employment, plaintiff was promoted from clerk typist, to assistant
buyer, to buyer, to senior buyer, to supervising buyer, and finally to
procurement specialist. In 1994, Bonnie Hickey, plaintiff's supervisor,
carried out a series of evaluations. On three occasions, plaintiff
received a good, the second highest score on a scale of four, for her job
quality, initiative, and overall performance. On two evaluations, under
the heading "initiative," Ms. Hickey comments that plaintiff shares ideas
and suggestions, and on the third evaluation, Ms. Hickey comments that
"[w]hen called upon, Ms. Duncan will offer suggestions and ideas."
However, in 1987, plaintiff was disciplined for tardiness. Further, in
March 1995, Ms. Hickey reprimanded plaintiff for excessive absenteeism
and reduced plaintiff's paycheck, because plaintiff took approximately 9
sick days in 1990; 18 sick days in 1991; 24 sick days in 1992; 19 sick
days in 1993; 22 sick days in 1994; and 10 sick days in the first half of
Plaintiff, rejecting the significance of these figures, relies on the
fact that, of the six terminated procurement specialists, four were
African-American, and four were age-protected. Further, plaintiff relies
on the fact that the number of Materiel procurement specialists of each
class (and the percentage of that class) with a college degree prior to
the RIF was:
While the Task Force was in place, Materiel hired two
non-African-American and non-age-protected procurement specialists.
Transit hired Mr. Havaldar straight into Materiel on January 9, 1995, and
transferred Mr. Nisnevich into Materiel on April 22, 1995. However,
Materiel evaluated both new employees under the RIF. Further, on June
12, 1995, several days after plaintiff was informed of her termination,
defendants transferred Carlos Torres, a non-African-American,
non-age-protected procurement specialist, into Materiel. However, Mr.
Torres was hired as a negotiator for his outsourcing skills, which
plaintiff did not possess. Pursuant to Transit policy, plaintiff received
a one year hiring preference, but there were no vacancies between June
1995 and June 1996. Several times in 1997 and 1998, Materiel sought
applications for procurement specialists. Materiel hired six new
procurement specialists and rehired one specialist who had been laid off
under the RIF. Six of the seven new procurement specialists were
non-African-Americans, and six of the seven new procurement specialists
Plaintiff alleges that she applied for several of these positions. In
her deposition, plaintiff states that she "probably" applied for three
positions that were not limited to current employees. However, there is no
documentary evidence that plaintiff applied as required by the employer.
She was represented by an attorney during the period that Transit was
seeking applications. Her attorney wrote a letter to Transit requesting
priority for his client in obtaining these positions. Plaintiff's counsel
also stated that "this letter is to be considered as an application by
Sheila Duncan for each and every vacant procurement position in the
Materiel Division." Transit responded that, pursuant to Transit policy,
plaintiff received priority in rehiring only for one year and that, if she
wished to apply, she would have to follow procedure and submit a formal
written application for each position. However, plaintiff supplies no
documentation that plaintiff did so.
Motions I for summary judgment are granted if there is no genuine issue
as to any material fact, and the moving party is entitled to judgment as
a matter of law. See Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.
1995). The moving party must demonstrate the absence of any material
factual issue genuinely in dispute. See id. The court must view the
inferences to be drawn from the facts in the light most favorable to the
party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
However, the non-moving party may not "rely on mere speculation or
conjecture as to the true nature of the facts to overcome a motion for
summary judgment." Knight v. US. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.
1986). The party must produce specific facts sufficient to establish that
there is a genuine factual issue for trial. See Celotex Corp. v. Catret,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Rosen v. Thornburgh,
, 533 (2d Cir. 1991) (citations
omitted). On the other hand, "[t]he summary judgment rule would be
rendered sterile . . . if the mere incantation of intent or state of mind
would operate as a talisman to defeat an otherwise valid motion." Meiri
v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
Race and Age Discrimination Under Title VII, the ADEA, and the HRL
Plaintiff proceeds under both disparate impact and disparate treatment
theories. Under a disparate impact theory, a plaintiff must show that a
facially neutral employment practice falls more harshly on a protected
group. Under a disparate treatment theory, a plaintiff must prove that an
employer intentionally discriminated against a member of a protected
class. See Dist. Council 37, American Fed. of State, County & Municipal
Employees, AFL-CIO v. New York City Dep't of Parks and Recreation,
113 F.3d 347, 351 (2d Cir. 1997). The standard of proof governing an
employment discrimination claim raised under the New York HRL is the same
as the standard of proof for a Title VII or an ADEA claim. See Sogg v.
American Airlines, Inc., 193 A.D.2d 153, 155-56, 603 N.Y.S.2d 21 (1st
1. Disparate Impact: While the Supreme Court has not yet decided
whether the disparate impact doctrine applies to ADEA claims, See Hazen
Paper v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993), the Second Circuit continues to hold that disparate impact claims
can be made under the ADEA. See Dist. Council 37, 113 F.3d at 351. In
order to establish a prima facie case, plaintiff must demonstrate that 1)
she is a member of a protected class; and 2) a challenged employment
practice had a significant disparate impact on that class, so as to
evidence a causal connection between the specific factor challenged and
the disparate impact. The burden then shifts to the employer to show that
the challenged practice had a legitimate purpose. Finally, if the
defendant meets this burden, the plaintiff must show that the proffered
purpose is pretextual. See Fernandez v. U.S. Postal Service,
804 F. Supp. 448, 452 (E.D.N.Y. 1992); Dist. Council 37, 113 F.3d at
351-52. Under the disparate impact theory, proof of a disparity can be
demonstrated through statistical analysis which compares the impact of a
particular employment action on a protected class with the impact upon
qualified employees in the relevant labor pool. See Diehl v. Xerox
Corp., 933 F. Supp. 1157, 1165 (W.D.N Y 1996). An employer has the "right
to decide the qualifications it require[s]" in deciding which employees
to terminate, so long as the terminations do not have a disparate
impact. Florence v. U.S. Vanadium Corp., 162 F.3d 1147, 1998 WL 639395,
*3 (2d Cir. 1998). A plaintiff can prove significant disparate impact
either through gross statistical disparity, or a statistically
significant adverse impact coupled with other evidence of
discrimination. See Fernandez, 804 F. Supp. at 452.
Plaintiff is an African-American who is over forty years of age.
Plaintiff argues that, as a result of the RIF giving education and
experience the same weight, and its equating of internal experience with
external experience, the RIF had a disparate impact on African-Americans
and employees over forty years of age. Plaintiff relies on the
administrative four-fifths rule of the Equal Employment Opportunity
Commission. This rule, which has been looked to for guidance in gauging
the significance of statistical evidence of discrimination, Equal
Employment Opportunity Commission v. Joint Apprenticeship Comm.,
164 F.3d 89, 97 (2d Cir. 1998), states that:
A selection rate for any race, sex, or ethnic group
which is less than four-fifths (4/5) (or eighty
percent) of the rate for the group with the highest
rate will generally be regarded by the Federal
enforcement agencies as evidence of adverse impact,
while a greater than four-fifths rate will generally
not be regarded by Federal enforcement agencies as
evidence of adverse impact. Smaller differences in
selection rate may nonetheless constitute adverse
impact, where they are significant in both statistical
and practical terms. . . .
Id.; 29 C.F.R. § 1607.4D. Plaintiff argues that the ratio of
specialists with a college education to non-age-protected procurement
specialists with a college education prior to the RIF was 65%, and the
ratio of African-American procurement specialists with a college
education to non-African-American procurement specialists with a college
education was 66%. Since both rates are below the 80% required by the
four-fifths rule, plaintiff argues there is evidence of an adverse
This is a misapplication of the four-fifths rule because the relevant
selection factor is the pass rate of the RIF as a whole. When a component
of an overall selection process is not dispositive, "the selection
process as a whole, rather than any segment of ft, should be examined for
disproportionate impact in a Title VII case," because to "examine each
component of an entire application process . . . launches a court on a
course that has no boundaries and no clear end. . . . The prospect of a
court's examining subtests, sub-subtests, and even individual questions
within test segments argues in favor of examining only the end result of
an entire  process." Brown v. New Haven Civil Service Rd.,
474 F. Supp. 1256, 1261-62 (D.Conn. 1979). A subtest is the relevant
selection factor where the subtest is dispositive, but where "all of the
candidates participate in the entire [employment] process, and the
overall results reveal no significant disparity of impact, scrutinizing
individual [steps] would, indeed, `conflict with the dictates of common
sense.'" Dist. Council 37, 113 F.3d at 353 (citation omitted). In this
case, college education was not dispositive because the RIF was a
multi-component process where an employee, who lacked a college education
and thus received a low education score, was nevertheless not precluded
from passing the overall test by scoring well in other components. Nor
does Waisome v. Port Authority of New York and New Jersey, 948 F.2d 1370
(2d Cir. 1991), compel a different result because, in that case, the test
at issue was both a dispositive step, and a factor in the overall scoke.
See Dist. Council 37, 113 F.3d at 354.
In addition, plaintiff improperly relies upon the tail rate. The pass
rate compares the umber of protected employees who pass a test to the
number of non-protected employees who pass the test. The Second Circuit
has held that this method, rather than comparing the number of protected
employees who fail a test to the number of non-protected employees who
fail a test, should be used because the number of failing employees is
usually too small to produce statistically reliable results. See Joint
Apprenticeship Comm., 164 F.3d at 97. Using the fail rate would produce a
statistically unreliable result in this case, where only six employees
were terminated. See Pulitzer v. New Hartford Central Schools, 1998 WL
187410 *5-*6 (N.D.N.Y. 1998) (granting defendant's summary judgment
motion in an ADEA case because a sample of six is too small to be of
probative value). While the fact that two-thirds of the terminated
employees were African-American, and two-thirds were age-protected,
initially may appear significant, the probative value of this evidence
"is greatly diminished by the small number of people involved." Coleman
v. Prudential Relocation, 975 F. Supp. 234, 240, 245 (W.D.N.Y. 1997). The
ratio of passing African-Americans to passing non-African-Americans is
93%, and the ratio of age-protected employees to non-age-protected
employees is 97%. Both these ratios are above the 80% required by the
four-fifths rule to show an adverse impact. Since this is the only
statistical evidence plaintiff offers of disparate impact, plaintiff has
failed to show a material factual issue genuinely in dispute as to a
prima facie case under this theory.
In any event, even if plaintiff could make a prima facie showing of
disparate impact, plaintiff fails to show' a genuine issue of material
fact to support her claim that her termination, was pretextual.
Defendants have shown a legitimate business reason for terminating the
specialists, namely budgetary constraint. A "reduction-in-force and
reorganization of staff constitutes a legitimate nondiscriminatory reason
for employment related decisions. . . . [but] even during a legitimate
reorganization or workforce reduction, an employer may not dismiss
employees for unlawful discriminatory reasons." Maresco v. Evans
Chemetics, 964 F.2d 106, 111 (2d Cir. 1992) (quotation omitted). The
small changes in the composition of Materiel's workforce is clearly
insufficient to show that this legitimate business reason was a pretext.
See Thayne v. New York State Electric & Gas Corp., 1997 WL 727617 *8
(N.D.N.Y. 1997). Thus, defendants are entitled to summary judgment under
a disparate impact theory.
2. Disparate Treatment: Under disparate treatment analysis, a plaintiff
first must establish a prima fade case of disparate treatment by
demonstrating that: (1) she belongs to a protected class; (2) she was
performing satisfactorily; (3) she was discharged; and (4) the decision to
discharge occurred under circumstances giving rise to an inference of
discrimination based on her membership in the protected class. See
Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). Once a
prima facie case has been made, the employer must articulate a
legitimate, non-discriminatory reason for having taken the action of
which the plaintiff complains. See Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). If this is done, the McDonnell Douglas presumptions
disappear, and the governing standard is whether the particular
evidence, taken as a whole, reasonably supports an inference of the facts
plaintiff must prove, particularly intentional discrimination. See Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097,
2106, 147 L.Ed.2d 105 (2000); James v. New York Racing Assoc.,
233 F.3d 149, 156-57 (2d Cir. 2000). Plaintiff must "establish a genuine
issue of material fact either through direct, statistical or
circumstantial evidence as to whether the employer's reason for
discharging her is false and as to whether it is more likely that a
discriminatory reason motivated the employer to make the adverse
employment decision." Gallo v. Prudential Residential Services Ltd.,
Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994). Evidence satisfying the
prima facie requirement, coupled with evidence of the falsify of the
employer's explanation, may or may not be sufficient to satisfy a finding
of discrimination in a particular case. The factors to consider include
the strength of plaintiff's prima fade case, the probative value of the
proof that the employer's explanation is false, and other evidence that
supports or undermines the employer's case. See Reeves, 120 S.Ct. at
2109; James, 233 F.3d at 156-57.
Even assuming that plaintiff makes a prima facie case of
discrimination, the requirements of which are minimal, defendants, as
described above, have proffered a legitimate reason for terminating
plaintiff. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113
S.Ct. 2742, 125 L.Ed.2d 407 (1993). Thus, the issue is whether the
circumstances will logically support an inference that plaintiff's age or
race was a substantial motivating factor in defendants' decision to
terminate her. See Burger v. New York Institute of Technology, 94 F.3d 830,
834 (2d Cir. 1996).
Plaintiff points to four circumstances that she claims logically
support an inference of discrimination. First, plaintiff points to
discrepancies between plaintiff's 1994 performance evaluations and her
score on the 1995 RIF regarding her job qualify and initiative. The first
alleged discrepancy cannot be sustained because plaintiff received a
"good" for job qualify on both her performance evaluations and the RIF.
As for her initiative, plaintiff received a good on her performance
evaluations, but a raw score of four on the RIF. Four is "marginal" on
RIF, but only one point below good. Furthermore, the descriptions
underlying these labels reveal no discrepancy sufficient to reasonably
support a conclusion that plaintiff's RIF ranking was motivated in
substantial part by discrimination. The RIF's description of a marginal
employee as one who often avoids difficult assignments and occasionally
extends her role with prodding is not significantly inconsistent with the
comments plaintiff received on her performance evaluations, which include
Ms. Hickey's comment that "[w]hen called upon, Ms. Duncan will offer
suggestions and ideas."
Second, plaintiff argues that a jury could reasonably infer that
discrimination was a substantial motivating factor from Materiel's hiring
of Mr. Havaldar and transfer of Mr. Nisnevich, both non-African-American
and non-age-protected procurement specialists, when Materiel knew it
would be making terminations pursuant to the RIF. Plaintiff acknowledged
at oral argument that Mr. Havaldar and Mr. Nisnevich filled vacancies. No
inference of discrimination can be drawn from the fact that defendants
made a business decision to fill vacancies. Furthermore, unlike in
Burger, 94 F.3d at 834, the RIF would have occurred whether or not Mr.
Havaldar and Mr. Nisnevich came into Material. Finally, defendants
treated plaintiff the same as Mr. Havaldar and Mr. Nisnevich, because it
subjected them all to the same rating process. See McDonnell Douglas,
411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668.
Third, plaintiff argues that transferring Mr. Torres, a
non-African-American and non-age-protected employee, into Materiel
several days after plaintiff received notice of her termination suggests
that defendants acted with a discriminatory motive. Defendants offer
evidence that Materiel hired Mr. Torres as a negotiator because of his
outsourcing skills, which plaintiff did not possess. Plaintiff offers no
evidence to demonstrate that plaintiff was qualified for Mr. Torres'
position. Since Mr. Torres and plaintiff were not similarly situated and
plaintiff has not even shown she was qualified for the position he
received, the transfer of Mr. Torres does not support a reasonable
inference that intentional discrimination was a substantial motivating
factor in plaintiff's termination. See McDonnell Douglas, 411 U.S. 792,
804, 93 S.Ct. 1817, 36 L.Ed.2d 668.
Fourth, plaintiff argues that defendants' failure to rehire plaintiff
when defendants had procurement specialist vacancies in 1997 and 1998
supports an inference that discrimination was a substantial motivating
factor in her termination. Plaintiff does not raise an independent claim
of failure to rehire. Rather, she argues that defendants' failure to hire
plaintiff when openings became available is circumstantial evidence that
discrimination was a substantial motivating factor in the earlier
decision to terminate her. However, defendants' business decision to hire
seven employees two to three years after plaintiff's termination does not
circumstantially and retroactively reflects on defendants' earlier
decision to terminate plaintiff. "That an employer reconsiders its
business strategy and consequently rehires an employee . . . does not,
without more, cast any doubt on the economic justification for the
earlier termination." Florence, 1998 WL 639395, *3 Gallo, 22 F.3d at
1227, does not compel a contrary conclusion because defendants undertook
no obligation to rehire plaintiff beyond one year in this case. See Viola
v. Philips Medical Systems of North America, 42 F.3d 712, 718 (2d Cir.
1994) (declining to apply Gallo where an employer undertook no obligation
to rehire a former employee).
Furthermore, these subsequent hirings do not support a discrimination
claim because no reasonable fact-finder could conclude from the evidence
taken as a whole that plaintiff applied for the subsequent openings.
Although plaintiff was represented by counsel and her attorney was
told she had to submit written applications, plaintiff failed to do so.
In sum, no reasonable fact-finder could conclude that age or race
discrimination was a substantial motivating factor in plaintiff's
termination. There is no direct evidence of discrimination and the
circumstantial evidence relied upon by plaintiff is insufficient.
Defendants' motion for summary judgment is granted, and the Clerk of
Court is directed to enter judgment for defendants.
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