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VERNON v. THE PORT AUTHORITY OF NY AND NJ
August 8, 2001
LEONARD A. VERNON, PLAINTIFF,
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, DEFENDANT.
The opinion of the court was delivered by: Leisure, District Judge:
Plaintiff, Leonard A. Vernon, brings this action alleging unlawful
employment discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq (2001) ("Title
VII") and the Age Discrimination in Employment Act of 1967,
29 U.S.C. § 623(a),(d) (2001) ("ADEA"). Defendant, The Port Authority
of New York and New Jersey, moves for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. Defendant's motion is granted
in part and denied in part.
Leonard A. Vernon ("Vernon"), a citizen of the United States, is a
black male over 40 years old who was born in Belize. See Plaintiffs Rule
56.1 Statement [hereinafter "Pl.'s 56.1 S."] at 1. He received a B.A. in
Civil Engineering in 1977 and a M.S. in Environmental Engineering in
1980. See id. In January 1984, The Port Authority of New York and New
Jersey ("Port Authority") hired Vernon to be a Principal Administrative
Assistant, a Level B-92 position, with the Civil and Environmental Unit
of the Engineering Department. Z Plaintiffs Complaint [hereinafter "Pl.'s
Compl."] at 2. In January 1985, Vernon was promoted to Staff Services
Engineer, a Level B-93 position. See Pl.'s 56.1 S. at 1. Throughout his
career at Port Authority, Vernon has been recognized favorably for his
work. For example, he received an individual bonus in 1985 for high
quality performance, was nominated for the 1986 Black Achievers in
Industry Program, honored by the Director of the World Trade Department
in 1990 for contributing to the Department's capital projects objective,
and has consistently received high ratings in his performance evaluations
the last ten years. See Pl.'s Compl. at 3, Deposition of Frederick
A. Meyers, sworn to on July 5, 2000 [hereinafter "Meyers July Dep."] at
In September 1989, Heidi Rosenberg, a white engineer in the
Environmental Engineering Unit, was promoted to Senior Engineer, a Level
B-94 position.*fn1 See Defendant's Rule 56.1 Statement [hereinafter
"Def.'s 56.1 S."] at ¶ 4. Vernon was not promoted despite the fact
that Marvin Krishner, Chief Environmental Engineer of the unit and
Vernon's immediate supervisor, wrote in a 1987 memorandum that Rosenberg
and Vernon were both "performing at `Senior Levels'." See Defendant's
Answer [hereinafter "Def.'s Answer" at ¶ 10. In December 1992,
Rosenberg informed her supervisor that she had received an employment
offer in another department, and to induce her to stay in the
Environmental Engineering Unit, she was promoted to Supervising
Environmental Engineer, a Level B-95 position. See Def.'s 56.1 S. at
¶ 5, Deposition of Frederick A. Meyers, sworn to on Oct. 13, 2000
(hereinafter "Meyers Oct. Dep.") at 14-15.
In March 1993, Rosenberg resigned from Port Authority, and Port
Authority advertised her position internally as well as externally. See
Pl.'s 56.1 S. at 2. Vernon applied for the B-95 position but was notified
in May that he had not been selected for the position. A white, 65-year
old temporary employee, who had been working for Port Authority for one
year, filled the vacancy. See Def.'s 56.1 S. at ¶ 7. In March and
August of 1994, Vernon complained to the Assistant Chief Engineer for
Design and the Executive Director of Port Authority about alleged ongoing
discriminatory practices at Port Authority. See id. at 3. In September
1994, Frederick Meyers, Manager of Port Authority's Equal Employment
Office ("EEO"), started an investigation into Vernon's allegations of
discrimination. See id.
In January 1995, four months after the start of Meyers's
investigation, Vernon received his annual Performance Planning and Review
("PPR"), and discovered that although he had received the same overall
rating as previous years and the maximum merit increase to which he was
entitled, the individual scores in one category were downgraded. See
Oscar Suros Affidavit, sworn to on Sept. 12, 2000 [hereinafter "Suros
Aff."] at ¶ 12. According to Oscar Suros, the Manager of the
Engineering/Architecture Design Division, Vernon's rating was downgraded
because supervisors were asked to be more realistic about PPR ratings,
and this policy was applied to all employees. See id. at ¶¶ 11, 13.
In February 1995, Port Authority issued a job bulletin seeking
candidates for a Principal Environmental Engineer position, a Level B-95
position. See Def. 56.1 S. at ¶ 10. Vernon applied for the position
but was told that he could not be considered for the position because he
did not meet the job requirement of holding an engineer's license. See
id. at ¶ 6. Because of a hiring and promotion freeze in 1995, the
position was not filled. See id. at ¶ 7.
On March 23, 1995, Vernon filed a charge with the Equal Employment
Opportunity Commission ("EEOC"), claiming race, age, and ethnic origin
discrimination and retaliation. See Pl.'s Compl. at 5. A Notice of Right
to Sue was issued in April 1995. See id. On June 20, 1995, Vernon
commenced the instant action by filing a Complaint in this Court,
alleging that Port Authority violated Title VII and the ADEA when it: (1)
failed to promote him
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 ...