to a B-94 position in September 1989; (2) failed to
promote him to a B-95 position in October 1992; (3) failed to promote him
to Rosenberg's former position in May 1993; (4) downgraded his PPR in
January 1995; and (5) denied him the Principal Environmental Engineer
position, another B-95 position, in March 1995. See Plaintiffs Memorandum
of Law in Opposition to Defendant's Motion for Summary Judgment
[hereinafter "Pl.'s Mem."] at 3-4.
I. Standard for Summary Judgment
A moving party is entitled to summary judgment 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 judgment a
matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Holt v. KMI-Continental Inc.,
95 F.3d 123, 128 (2d Cir. 1996). When considering a motion for summary
judgment, the Court's responsibility is not "to resolve disputed issues
of fact but to assess whether there are any factual issues to be tried."
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). In
determining whether genuine issues of material fact exist, the Court must
resolve all ambiguities and draw all justifiable inferences in favor of
the nonmoving party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242,
255 (1986), Holt, 95 F.3d at 129.
The moving party bears the burden of demonstrating that no genuine
issue of material fact exists. See Adickes v. S. H. Kress & Co.,
398 U.S. 144, 157 (1970); Gallo v. Prudential Residential Serv. L.P.,
22 F.3d 1219, 1223-24 (2d Cir. 1994). "[T]he movant's burden will be
satisfied if he can point to an absence of evidence to support an
essential element of the nonmoving party's claim." Goenaga v. March of
Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Once the
moving party discharges his burden of demonstrating that no genuine issue
of material fact exists, the burden then shifts to the nonmoving party to
offer specific evidence showing that a genuine issue for trial exists.
See Celotex, 477 U.S. at 324. The nonmoving party "must do more than
simply show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574.
586 (1986). "A `genuine' dispute over a material fact only arises if the
evidence would allow a reasonable jury to return a verdict for the
nonmoving party." Dister v. Continental Group, 859 F.2d 1108, 1114 (2d
Cir. 1988) (quoting Liberty Lobby, 477 U.S. at 248).
Employment discrimination is often perpetrated "by discreet
manipulations and hidden under a veil of self-declared innocence." Rosen
v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). Because "[a]n employer
who discriminates is unlikely to leave a `smoking gun' attesting to a
discriminatory intent," a "victim of discrimination . . . is usually
constrained to rely on the cumulative weight of circumstantial evidence."
Id. (internal citations omitted). Consequently, courts must be cautious
in granting summary judgment when the employer's intent and state of mind
are placed in issue. See Gallo, 22 F.3d at 1224; See also Rosen, 928 F.2d
at 533. However, if there is a lack of genuine issue of material fact,
courts are not precluded from granting summary judgment in employment
discrimination cases. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d
Cir. 1997); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir.
see also Abdu-Brisson v. Delta Airlines Inc., 239 F.3d 456, 466
(2d Cir. 2001) ("It is now beyond cavil that summary judgment may be
appropriate even in the fact-intensive context of discrimination
II. Acts Prior to September 25, 1994
A. 180-day Time Limit Applies
For complaints based on Title VII or the ADEA, a plaintiff must file a
charge of discrimination with the EEOC before commencing an action in
federal court. See 42 U.S.C. § 2000e-5(e), 29 U.S.C. § 626(d).
The charge must be filed within 180 days after the alleged unlawful
employment practice occurred or within 300 days if the plaintiff has
initiated proceedings with a state or local employment agency. See
42 U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d); Dezaio v. Port Auth.
of N.Y. & N.J., 205 F.3d 62, 64-65 (2d Cir. 2000), cert. denied 121
S.Ct. 56 (2000) (ADEA); Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d
Cir. 1992) (Title VII).
Port Authority, a bi-state entity created by a Compact between New York
and New Jersey, "lies outside New York's [and New Jersey's]
anti-discrimination regime[s]." Dezaio, 205 F.3d at 64, 65. Bi-state
entities "are not subject to the unilateral control of any one of the
States." Id. at 66 (quoting Hess v. Port Auth. Trans-Hudson Corp.,
513 U.S. 30, 42 (1994)). Thus, "New York's anti-discrimination laws are
not controlling with respect to the time limitations that govern when an
individual must file a charge of discrimination with the EEOC." Id. at
65. Because there is no state or local agency that has jurisdiction over
claims against Port Authority; the 300-day rule does not apply to cases m
which Port Authority is a party. See id. at 66. Therefore, in Title VII
or ADEA cases involving Port Authority, a plaintiff must file a claim
with the EEOC within 180 days of the occurrence of the discriminatory
act. See id. at 64; see also Suggs v. Port Auth. of N.Y. & N.J., 1999 WL
269905, *3 (S.D.N.Y. 1999); Rose v. Port Auth. of N Y & N.J.,
13 F. Supp.2d 516, 520 (S.D.N.Y. 1998) (Leisure, J.); Settecase v. Port
Auth. of N Y & N.J., 13 F. Supp.2d 530, 535 (S.D.N.Y. 1998); Baron v.
Port Auth. of N.Y. & N.J., 968 F. Supp. 924, 930 (S.D.N.Y. 1997).
Vernon filed with the EEOC on March 25, 1995. Applying the 180-day
rule, only incidents occurring within 180 days prior to his filing are
actionable. Therefore, any events occurring before September 25, 1994 are
B. Continuing-Violation Exception Does Not Apply
There is an exception to the time limitation to file a claim with the
EEOC in cases where there is a continuing violation of Title VII or the
ADEA. "The continuing-violation exception extends the limitations period
for all claims of discriminatory acts committed under an ongoing policy
of discrimination even if those acts, standing alone, would have been
barred by the statute of limitations." Ouinn v. Green Tree Credit Corp.,
159 F.3d 759, 765 (2d Cir. 1998) (internal quotes omitted). A continuing
violation may be found where there is evidence of an ongoing
discriminatory policy or a discriminatory mechanism such as a
discriminatory seniority list or an employment test. See Lambert v.
Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied 511 U.S. 1052
(1994); see also Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713
(2d Cir. 1996). Even where there is no formal policy, a continuing
violation may also be found where there is proof that "the employer has
permitted [specific and related instances of discrimination] to continue
unremedied for so long that its inaction may reasonably be viewed as
tantamount to a policy or practice of tolerating such discrimination."
Fitzgerald v. Henderson, 251 F.3d 345, 362 (2d Cir. 2001). Furthermore,
the policy does not need to be widespread; the continuing violation
exception may apply to specific and related instances of discrimination
against a single plaintiff See id. However, several incidents of
discrimination, even if similar, that are not the result of a
discriminatory policy or mechanism do not amount to a continuing
violation. See Lambert, 10 F.3d at 53, Van Zant, 80 F.3d at 713.
Vernon argues that the continuing-violation exception applies and that
all the events that occurred before September 25, 1994 are timely,
because Krishner created a pattern of discrimination. See Pl.'s Mem. at
9. This argument is unpersuasive to the Court. The discontinuity in time
of the three acts of alleged discrimination occurring before September
25, 1994 is fatal to his argument. See Quinn, 159 F.3d at 766. In Quinn,
the Court held that acts occurring in breaks of 3 years, 1 year, and less
than a year were sufficiently isolated in time to break the continuum of
discrimination. See id. Here, the first incident occurred in 1989, the
second in October of 1992, and the third in May of 1993. Similar to
Quinn, the 3-year and 7-month time gaps between these incidents do not
reflect a "continuing" violation.
Even if there was continuity in time of the allegedly discriminatory
acts, Vernon has not provided any evidence of a discriminatory policy or
mechanism used against him. He appears to be arguing that Krishner
instituted a discriminatory policy against him in failing to promote him
several times over the years, but he does not show that it was the result
of a discriminatory policy that Krishner instituted against him. Although
Vernon claims to have discussed his desire to b& promoted with Krishner,
he does not indicate when these conversations took place. Therefore,
Vernon offers no evidence to show that Krishner knew of Vernon's desire
to be a Senior or a Supervising Engineer in 1989 and 1992 when Rosenberg
was promoted. Furthermore, Vernon offers no evidence that Krishner had
the authority to carry out such a policy against Vernon or that Krishner
was involved in the hiring decisions in 1989 and 1992. Although the
incidents of failure to promote are similar in nature, because they are
not the result of a discriminatory policy or mechanism, they do not
constitute a continuing violation.
In addition, Vernon cannot show that these incidents continued
unremedied for so long as to amount to a discriminatory policy or
practice. Vernon complained about the alleged discriminatory practices
first in March 1994 and then in August 1994, and Port Authority started
an investigation of these allegations in September of the same year.
Because Port Authority took prompt action in response to Vernon's
complaints, there is no evidence that discriminatory acts continued
unremedied for so long to amount to a continuing violation. See
Fitzgerald, 251 F.3d at 362. Because there is no evidence of a continuing
violation, the 180-day rule cannot be extended to cover incidents
occurring prior to September 25, 1994.
C. Equitable Tolling Does Not Apply
Courts have held that time limitations for filing periods under Title
VII or the ADEA are subject to equitable tolling. See South v. Saab Cars
USA, Inc., 28 F.3d 9, 11 (2d Cir. 1994) (applying equitable tolling to
time limitation for filing civil action under Title VII); Cerbone v.
Int'l Ladies' Garment Worker's Union, 768 F.2d 45, 48
(2d Cir. 1985)
(applying equitable tolling to time limitation for filing EEOC charges
under ADEA). Time periods governing filings may be tolled if "the
claimant has actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or where the complainant has been
induced or tricked by his adversary's misconduct into allowing the filing
deadline to pass." South, 28 F.3d at 11 (quoting Irwin v. Dept. of
Veterans Affairs, 498 U.S. 89, 96 (1990)). In other words, the time
limitation will be tolled if a plaintiff was "prevented in some
extraordinary way from exercising his rights." Cerbone, 768 F.2d at 49
(internal quotes omitted). Such extraordinary circumstances exist when
"it would have been impossible for a reasonably prudent person to learn
that an employment decision was discriminatory," the Court led the
plaintiff to believe that he had taken all the required steps, the
defendant's affirmative misconduct lulled the plaintiff into inaction,
the claimant did not have adequate notice, or there is a pending motion
for the appointment of counsel. Id. (internal quotes omitted); See also
South, 28 F.3d at 11-12.
Here, Vernon has not shown that any extraordinary circumstances exist
in his case to justify equitable tolling. Neither the Court nor the
defendant lulled the plaintiff into inaction. Vernon argues that Port
Authority's internal investigation caused time to lapse and led him to
delay filing with the EEOC. See Pl.'s Mem. at 6. There is no evidence,
however, that Port Authority used the internal investigation to hinder
Vernon from filing. The fact that Vernon filed with the EEOC before
Meyers issued a final report of the investigation reflects Vernon's
awareness that he was free at any time during the investigation to file
with the EEOC. Furthermore, Vernon had already missed the 180-day
deadline through his own inaction before Port Authority's EEO became
involved. The 180-day period begins to accrue "from the date the claimant
had notice of the allegedly discriminatory action." Van Zant, 80 F.3d at
713. Each time Vernon was denied a promotion, he had notice of the events
and could have filed a charge with the EEOC. When he first complained in
March 1994, the 180-day deadline for the most recent incident, which
occurred in May 1993, had already expired.
Vernon also insists that Port Authority's failure to advise him of his
rights, including notice of the 180-day rule and right to counsel,
prevented him from timely filing with the EEOC. Vernon does not cite, and
research by the Court has failed to reveal, any case law holding that the
employer must inform the employee of his rights when he files an internal
discrimination complaint. To the contrary, the Second Circuit has held
that ignorance of the 180-day rule for Port Authority employees, because
the employer or a lawyer failed to advise the employee, is no excuse for
missing the filing deadline. See Dezaio, 205 F.3d at 64. Because Vernon
is unable to show that he was induced or tricked into missing the
limitation period, equitable tolling to admit acts occurring prior to
September 25, 1994 as timely is not appropriate in this instance.
D. 180-day Rule Does Not Violate the Equal Protection Clause
Vernon argues that the I 80-day rule violates the Equal Protection
Clause, because non-Port Authority employees can take advantage of the
300-day time requirement. "When a statute neither impinges on a
fundamental right guaranteed by the Constitution nor uses a
classification based on a suspect criterion such as race, nationality,
alienage, or gender, the law generally will not be found to violate the
Equal Protection Clause unless it has
no reasonable or rational basis."
Story v. Green, 978 F.2d 60, 63-64 (2d Cir. 1992) (citing Exxon Corp. v.
Eagerton, 462 U.S. 176, 196 (1983); Hodel v. Indiana, 452 U.S. 314, 331
(1981)). Vernon does not argue that the time limitations in Title VII or
the ADEA impinge on any fundamental right, but argues instead that the
time limitations violate the Equal Protection Clause because they treat
Port Authority employees differently than other victims of
discrimination. Because Port Authority employees are not a suspect
class, the statutes must be examined under the rational basis standard.
Under the rational basis standard, a statute will be upheld if there is
a "rational relationship between. the [challenged classification] and
some legitimate governmental purpose." Tarbe v. Berkel, 196 F.3d 136, 137
(2d Cir. 1999) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)).
"[T]hose attacking the rationality of the legislative classification have
the burden to negative every conceivable basis which might support it."
Tarbe, 196 F.3d at 137 (quoting FCC v. Beach Communications Inc.,
508 U.S. 307, 315 (1993)).
The difference in time limitations for filing with the EEOC promotes a
legitimate government purpose. Normally, Title VII and the ADEA require
that a charge be filed 180 days after the alleged unlawful act occurred.
The 300-day rule is applicable only where the "alleged unlawful practice
occurred in "a State which has a law prohibiting discrimination in
employment and establishing or authorizing a State authority to grant or
seek relief from such discriminatory practice." Dezaio, 205 F.3d at 65.
The purpose of the extension of time is for "exhaust[ing] administrative
remedies with an eye toward conciliation and resolution of the alleged
[discriminatory] practice . . . without the need to resort to
litigation." Id. Not allowing Port Authority employees to benefit from
the extension of time from 180 days to 300 days is rationally related to
this purpose, because neither New York's no New Jersey's
anti-discrimination laws apply to Port Authority, therefore making
reconciliation with the state unattainable. Therefore, the 180-day rule
does not violate Vernon's right to Equal Protection.
Given Vernon's failure to produce evidence that establishes a
continuing violation, a reason for equitable tolling, or a violation of
the Equal Protection Clause, the Court grants the defendant's motion for
summary judgment for all claims occurring prior to September 25, 1994 and
excludes them from its consideration on the merits. The Court will
consider the remaining two acts of alleged discrimination and retaliation
that occurred subsequent to September 25, 1994: (1) the downgrade in
Vernon's PPR and (2) the failure to promote to the Principal
Environmental Engineer position.
III. Title VII and ADEA Claims
A. McDonnell Douglas Standard
Title VII provides that it shall be unlawful for an employer "to
discriminate against any individual . . ., because of such individual's
race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a)(1). The ADEA provides that it shall be
unlawful for any employer to "discriminate against any individual . . .
because of such individual's age." 29 U.S.C. § 623(a). Title VII and
ADEA claims are examined under the three-step burden-shifting analysis
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973). See Scaria v. Rubin, 117 F.3d 652, 653 (2d Cir. 1997) (analyzing
both Title VII and ADEA claims under the McDonnell Douglas
First, a plaintiff must establish a prima facie case of unlawful
discrimination. See id.; also Reeves v. Sanderson Plumbing Prods. Inc.,
530 U.S. 133, 142 (2000); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29,
37 (2d Cir. 1994) (citing Tex. Dep't. of Cmty. Affairs v. Burdine,
450 U.S. 248, 252-53 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506 (1993); McDonnell Douglas, 411 U.S. at 802).
In order to establish a prima facie case of discrimination, the
plaintiff must show: (1) membership in a protected class, (2)
qualification for the position, (3) an adverse employment action, and (4)
circumstances giving rise to an inference of discrimination. See O'Connor
v. Consol. Caterers Corp., 517 U.S. 308, 310, 312 (1996); Schnabel v.
Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Scaria, 117 F.3d at 652;
Chambers, 43 F.3d at 37; De la Cruz v. N.Y. City Human Res. Admin. Dep't
of Soc. Serv., 82 F.3d 16, 20 (2d Cir. 1996). The burden of establishing
a prima facie case is minimal. See Scaria, 117 F.3d at 654; Chambers, 43
F.3d at 37.
Once the plaintiff has made out a prima facie case, there is a
presumption that the employer unlawfully discriminated against the
employee. See Scaria, 117 F.3d at 654. To rebut the presumption, the
employer is required to introduce, through admissible evidence, a
legitimate, nondiscriminatory reason for its action. See id.; see also
Chambers, 43 F.3d at 38. "Any stated reason is sufficient; the employer
need not persuade the court that the proffered reason was the actual
reason for its decision." Tarshis v. Riese Org., 211 F.3d 30, 36 (2d
Finally, alter the employer justifies its action, the burden of
production shifts back to the plaintiff to show that the employer's reason
was merely a pretext for discrimination. See Abdu-Brisson, 239 F.3d at
469; see also Chambers, 43 F.3d at 38. Pre-text can be shown by either
presenting additional evidence showing that the employer's justification
is "unworthy of credence" or relying solely on the "evidence comprising
the prima facie case." See Chambers, 43 F.3d at 38 (quoting Burdine, 450
U.S. at 256). There is no categorical rule that the plaintiff must
offer, in addition to his prima facie case and evidence of pretext,
further evidence that discrimination was the actual motivation. See
Abdu-Brisson, 239 F.3d at 469 (interpreting Reeves, 530 U.S. at 143).
1. PPR Downgrade
Vernon is able to make out a prima facie case of discrimination under
Title VII and the ADEA for the downgrade in his PPR. It is undisputed
that Vernon belongs to a protected class (he is 40 years of age or older
and a black Belizean) and that he was qualified for the position he
Port Authority argues that the PPR downgrade is not an "adverse"
employment action, because although some individual scores were reduced,
Vernon still received the same overall score as previous years and
received the maximum pay increase to which he was entitled. Title VII and
the ADEA prohibit employers from discriminating with respect to "terms,
conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1),
29 U.S.C. § 623(a)(1). "[A] materially adverse change in the terms
and conditions of employment" is considered an adverse employment
action. Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (internal
quotes omitted); see also, De la Cruz v. N.Y. City
Human Res. Admin.
Dep't of Soc. Serv., 82 F.3d 16, 21 (2d Cir. 1996). An action "injurious
to current employment or the ability to secure future employment" is an
adverse employment action. Wanamaker v. Columbian Rope Co., 108 F.3d 462,
466 (2d Cir. 1997).
The Second Circuit has held that a downgrade in evaluation is an
adverse employment action. See Morris v. Lindau,