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EVANS v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY

April 5, 2002

NEVILLE EVANS, PLAINTIFF,
V.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.

    MEMORANDUM OPINION

This employment discrimination action is brought against The Port Authority of New York and New Jersey (the "Authority") and a number of its employees pursuant to Title VII of the Civil Rights Act of 1964, as amended,*fn1 and 42 U.S.C. § 1981. The individual defendants*fn2 are sued also under the New York State Human Rights Law ("NYSHRL")*fn3 and the New York City Human Rights Law ("NYCHRL").*fn4 Plaintiff, an African-American engineer employed in the Authority's Tunnels. Bridges and Terminals Department (the "TB&T"), claims that he repeatedly has been passed over for promotion and subjected to a hostile work environment because of his race and that defendants have retaliated against him for complaining about alleged racial discrimination at the Authority. Extensive discovery having been completed, the matter is before the Court on the motion of the remaining defendants for summary judgment dismissing the complaint. The material facts pertinent to this motion are entirely undisputed except as noted below.*fn5

I. The Factual Background

A. Port Authority Practices for Filling Job Vacancies

As this case is concerned chiefly with plaintiff's contention that he repeatedly was passed over for promotion by the Authority, it is useful to begin with an account of the manner in which it fills vacancies in its management ranks.

The Authority, perhaps unlike an organization subject to civil service laws or collective bargaining agreements, is not obliged to solicit applicants for nonexecutive management and field supervisory positions by posting vacancies and providing for a competitive hiring process. A job bulletin describing the position and necessary qualifications may or may not be issued by the Human Resources Department. The department filling the vacancy may exercise also a so-called departmental option selection process, limiting competition for the position to candidates within the department. Finally, the hiring manager may opt not to post the position vacancy at all and make a selection based on a review of a candidate's qualifications and job performance.*fn6

This sort of system can be used honestly and fairly. It can be used also for favoritism and/or discrimination. Plaintiff asserts that he was victimized by it on the basis of his race. In considering his claims, however, it is important to bear in mind that the analysis of the specific promotions for which he claims he was passed over on the basis of race and for which he seeks relief varies depending upon whether the job was posted or, in the Authority's vernacular, "bulletinized," and plaintiff actually was an unsuccessful candidate or whether, instead, the individual responsible for filling the vacant position simply picked someone other than plaintiff in circumstances in which plaintiff could not have applied and may not even have known that a vacancy existed.

In theory, one in plaintiff's position might have mounted two different claims in these circumstances, disparate treatment and disparate impact. The gravamen of the former would be that plaintiff did not get the job in question as a result of intentional discrimination on the basis of race. The latter would not require proof of intentional discrimination. Rather, its essence would be that the system was neutral on its face but had an unjustifiable disparate impact on a protected group of which plaintiff was a member.*fn7 Given these differences, the evidentiary requirements of the two theories vary.*fn8 For present purposes, however, it is important to recognize that plaintiff neither has pleaded nor sought to make out a disparate impact claim.*fn9 Accordingly, there is no issue of disparate impact in the case despite its theoretical availability.

B. Plaintiff's Experience and the Promotions at Issue

Plaintiff, who holds a bachelor's degree in engineering, was hired to work in the Authority's Engineering Department in 1985.*fn10 In 1987, he was accepted in a two-year management development program in the TB&T during which he and the other trainees were rotated through six-month assignments within TB&T to gain a better understanding of the department and to develop management skills and abilities.*fn11 Upon completion of the program, he became a supervisor in the Tolls Pool and Training Center, then worked in the Tolls Program Unit and later the Toll System and Technology program, and eventually became a supervisor in the Operation and Maintenance Services Unit.*fn12 Apart from the six-month trainee assignments during the management development program, plaintiff never has been assigned to work at an Authority facility such as the Verrazzano or George Washington Bridge or the Lincoln Tunnel.*fn13

Although plaintiff, doubtless in consequence of the statute of limitations, seeks relief here only for his failure to be promoted in or after 1997, there are a few earlier events that bear mention so that plaintiff's claims may be evaluated in their total context.

1. The Lockette Incidents — 1989 & 1990

The first is an alleged instance of racial bias on the part of Allegra Lockette. In 1989, plaintiff attended a meeting at the Staten Island Bridges with Ms. Lockette, a manager there, at which Ms. Lockette became very angry and abusive toward plaintiff, perhaps because she had expected two of his supervisors to attend the meeting rather than he.*fn14

A year later, plaintiff became aware of a vacancy at the Staten Island facilities. His manager, Ernesto Butcher, an African American himself,*fn15 however, told him that he had received a call from Ms. Lockette to the effect that she did not want plaintiff to get the job. Mr. Butcher suggested that plaintiff try to resolve the problem with her.*fn16 In the course of the conversation, he commented on plaintiff's assertiveness, adding that white people can think of assertiveness by an African American as aggression and that this might account for Ms. Lockette's attitude.*fn17 Plaintiff then arranged a meeting with Ms. Lockette at which he "said I'm coining here to find out what makes you come to the point of denying me, an African-American, [the] job even though I'm qualified for it."*fn18 Ms. Lockette responded by suggesting that plaintiff "be more like the other blacks in the Port Authority" such as Mr. Butcher.*fn19 Plaintiff did not apply for the job.*fn20 He did, however, complain to Mr. Butcher about Ms. Lockette's behavior but was unhappy with Butcher's reaction and failure to intervene.*fn21

2. The Brown Incident — 1992

In 1992, plaintiff and a white co-worker, Ray Brown, had a spat concerning "coffee money."*fn22 Brown threatened plaintiff, who later overheard Brown use the word "nigger" while speaking to someone else on the telephone. He complained to Mr. Butcher, who took no action.*fn23

3. Plaintiff's Early Complaints

In 1995, plaintiff complained to his department director about what he perceived to be "official misconduct by Port Authority executive staff."*fn24 His complaint was investigated within TB&T, and it was determined that there was no discrimination by Authority executive staff.*fn25 Plaintiff did not file charges with the EEOC or bring suit as a result of his 1995 complaint.*fn26

4. The Cardoza Complaints

One Horace Cardoza, who is a plaintiff in another employment discrimination suit against the Authority, has submitted an affidavit stating that he had complaints about racial discrimination in 1996, 1997 and early 1998, which at some unspecified time he brought to the attention of Frederick Myers, then Director of the Authority's Office of Equal Opportunity and also an African American.*fn27 Mr. Cardoza states that Mr. Myers said that he was the "head nigger in charge"*fn28 and that he had no power to change things at the Authority, and that Mr. Myers was hostile towards him and dismissive of his complaints.*fn29 Mr. Butcher also allegedly was unresponsive to Mr. Cardoza's complaints.*fn30

This brings us to the events directly at issue in this action.

5. Failures to Promote — 1997 through September 2000

a. December 1997 — to Supervisor, Bridge Operations at George Washington Bridge (Cpt.*fn31 ¶ 34)

In February 1997, the Authority issued a bulletin stating that the position was available and received several applications.*fn32 Plaintiff did not apply, and he is entitled for present purposes to the assumption that he was unaware of the opening despite the job posting.*fn33 After interviewing the candidates who applied as a result of the posting, Adrienne Holmes, an African-American woman involved in the hiring process, decided that none was qualified.*fn34 She then obtained the permission of her supervisor to approach Robert Eadicicco about the job, did so, and ultimately convinced him to take the position.*fn35 While plaintiff claims that he was more qualified that Mr Eadicicco, he concedes that Ms. Holmes was not aware of his qualifications for the job.*fn36

b. 1998 — to Manager, TB&T Operations and Maintenance Services (Cpt. ¶ 40)*fn37

The complaint alleges that plaintiff was passed over for this position, which he asserts was not bulletinized, in retaliation for prior complaints about racial discrimination at the Authority.*fn38 His memorandum states further that he was supervisor of TB&T Operations and Maintenance Services*fn39 when the vacancy arose, had acted temporarily as manager, was recommended for the job, and therefore was in line for the promotion but the position was not posted.*fn40 His affidavits and deposition, to the extent it has been made of record, however, do not address these events. The only evidence of record therefore is that of the defendants, which stands uncontroverted. According to their proof, the job was posted and plaintiff was considered, but Mark Muriello, the appointing authority in this case, chose Adrienne Holmes, an African-American woman, in preference to plaintiff because he thought her better qualified.*fn41

c. August 1998 — to Supervisor, E-ZPass Customer Service (Cpt. ¶ 19)

Plaintiff's memorandum states that he "dismisses his claim with respect to Maria Malone Hodges receiving this position."*fn42

d. August 1998 — to Manager, TB&T Operations at Staten Island Bridges (Cpt. ¶ 23)

Plaintiff's complaint about this promotion begins in 1995 with the appointment of Patricia Trimarchi to the subordinate position of supervisor (or unit head), TB&T Operations at Staten Island Bridges. He contends that Ms. Trimarchi was appointed in preference to plaintiff, despite plaintiff's superior qualifications,*fn43 and that this led to her promotion in 1998 to the manager position without the job having been posted and thus without plaintiff having been given an opportunity to compete for the latter job.*fn44

Mr. Butcher, the African-American man who appointed Ms. Trimarchi to the manager position, states that he did so because she was uniquely qualified in view of her prior service at the Staten Island Bridges.*fn45 He denies that race was a factor.*fn46

e. September 1998 — to Manager, TB&T Operations at Holland Tunnel (Cpt. ¶ 25)

In this instance, the Authority posted the position and plaintiff applied. Both he and the successful white applicant, Mr. Curnyn, were interviewed. Mr. Butcher states that Mr. Curnyn was offered the position rather than Mr. Evans because he scored higher on a panel interview than Mr. Evans.*fn47 But he does not claim to have been a member of the interview panel,*fn48 so his denial that race played a part in the appointment cannot be based on personal knowledge.*fn49

Defendants submitted interview evaluation forms filled out by each of the panel members for both Mr. Curnyn and Mr. Evans. The evaluation forms are broken into eleven "dimensions," ostensibly measuring the degree to which a candidate's responses demonstrated his or her possession of certain valued characteristics.*fn50 For each of the eleven dimensions, the interviewer was asked to rate the candidate on scale of one to ten (one being "not acceptable" and ten being "outstanding"). The scores for each dimension then were added to create a "total" score for each candidate.*fn51 Using only their employee identification numbers, the candidates were ranked based on their total scores.*fn52 A spreadsheet document showing the ranking of the candidates indicates that Mr. Curnyn scored third highest out of thirteen, with a total score of 81.33, and that Mr. Evans scored fourth highest, with a total score of 78.00.*fn53

For purposes of this motion, plaintiff is entitled to the assumption that Ronell Greene, an African-American member of the panel, told plaintiff after the decision was made that Joe Bardzilowski, whom plaintiff refers to as the "manager of the facility," had the "final say" in the decision and that plaintiff was the better qualified person for the job.*fn54 Similarly, plaintiff is entitled to the assumption that Mr. Green told plaintiff that Mr. Bardzilowski said that Mr. Curnyn was chosen for the position over Mr. Evans because he was a "better fit" for the position.*fn55

f. February 1999 — to Manager, TB&T Physical Plant at Holland Tunnel (Cpt. ¶ 27) and to Manager, TB&T Physical Plant at Staten Island Bridges (id. ¶ 29)

These jobs were posted.*fn56 Although the evidence is in conflict on this point, the Court is obliged to assume, in plaintiff's favor, that an engineering degree was a listed qualification for the jobs.*fn57 Mr. Prince, the successful applicant for the Holland Tunnel job, and plaintiff had such degrees,*fn58 while Mr. McKee, who was given the Staten Island job, did not.*fn59 According to the Authority, Messrs. Prince and McKee were selected because they performed better than plaintiff in their interviews.*fn60 Defendants did not submit interview evaluation forms or spreadsheets ranking the candidates for these positions. There is evidence in the record from which a jury could conclude that Messrs. Greene and Bardzilowski, two members of the interview panels for these positions, did not review Mr. Prince's personnel file and were not aware that Mr. Prince once had failed a drug test and allegedly absconded with an Authority motor vehicle.*fn61

g. January 2000 — to Supervisor, E-ZPass Customer Service (Cpt. ¶ 31)

In 2000, Mr. Philmus appointed Daniel Moffit to fill this position, apparently without posting the job.*fn62 Plaintiff challenges the appointment only on the ground that defendants had a practice of giving "mobility assignments"*fn63 only to white persons.*fn64 But plaintiff has produced no evidence of any such practice.

h. January 2000 — to Manager, TB&T Operations at George Washington Bridge (Cpt. ¶ 34)

Plaintiff concedes that he never applied for this job.*fn65 He contends, however, that he approached Mark Muriello, an assistant department director to whom he reported, about the job in November or December 1999. Mr. Muriello, according to plaintiff, told plaintiff that he felt plaintiff qualified for the job and would make sure that the job was posted and that plaintiff had an opportunity to apply for it.*fn66 Nevertheless, in January 2000, Kenneth Philmus, the TB&T director and Mr. Muriello's superior, at the request of the General Manager of the George Washington Bridge, Stephen Napolitano, appointed Robert Eadicicco Manager of Operations at that facility without posting the job.*fn67 The request ostensibly was based on Mr. Eadicicco's involvement with the so-called ITS system, an on-going project with which he had become familiar as supervisor of TB&T eperations at the Bridge,*fn68 a position he had held since December 1997. There is no evidence that either Mr. Philmus or Mr. Napolitano was aware of the alleged conversation between plaintiff and Mr. Muriello.

i. September 2000 — to Manager, TB & T Operations at Holland Tunnel (Cpt. ¶ 147)

The Authority issued a job bulletin for this position.*fn69 Plaintiff applied for it and was interviewed by Robert Durando, the General Manager of the Holland Tunnel, and Mark Duffy, a representative from the human resources department.*fn70 Following interviews of several candidates, Mr. Durando recommended that Anthony Carvagno receive the position. Mr. Carvagno had been the Supervisor of Bridge Operations at the Staten Island Bridges from 1998 until March 2000 and the Supervisor of Operations at the Lincoln Tunnel thereafter.*fn71 Mr. Philmus agreed with Mr. Durando's recommendation and Mr. Carvagno received the position.*fn72 Leonard Hicks, an African-American man who was Supervisor of Operations at the Holland Tunnel at this time, also applied for the position and was interviewed by Mr. Durando and Mr. Duffy. but was not offered the position.*fn73

6. Hostile Work Environment — 2000

The hostile work environment claim, apart from whatever is implicit in what has been said already, appears to have two aspects, the first a chain of events directed at plaintiff that allegedly began in late February or early March 2000 and the second a general contention that the Authority systematically ignores or inadequately investigates complaints of racial discrimination.

a. The Office Taping Incident

In late March 2000, plaintiff attended a meeting conducted by Mr. Philmus with Mr. Muriello's staff at which Mr. Philmus first made a presentation and then opened the floor for questions.*fn74 Plaintiff and Rodrigo Ortiz raised concerns about the procedure used to promote Mr. Eadicicco to Manager of Operations at the George Washington Bridge, i.e., noncompetitive appointment. There was an exchange of views, and all concur that there was strong disagreement between plaintiff and Philmus.*fn75 Plaintiff contends, and the Court assumes for purposes of this motion, that he complained that the practice of making noncompetitive appointments was discriminatory.*fn76

Following the meeting, plaintiff returned to his office and found that masking tape had been criss-crossed over the door opening and a packet of job bulletins affixed to the tape.*fn77 Although plaintiff's immediate reaction is a matter of dispute, the Court assumes, in plaintiff's favor, that he was angry. In any case, he called his manager, Ms. Holmes, to come to his office to see what had occurred.*fn78 When she arrived, plaintiff showed her the tape across his door, told her that he believed he was being harassed for complaining about racial discrimination, and asked that she investigate to find out who had done it.*fn79 Ms. Holmes nodded affirmatively, told plaintiff to remove the tape, and returned to her office.*fn80

On the following day, Ms. Holmes reported the incident to her supervisor, Mr. Muriello, although she did not tell him that plaintiff thought the incident racially motivated. He told a Ms. Papageorgis, apparently the immediate supervisor of those whose workplaces were in the area, to tell her staff that this sort of incident would not be tolerated in the workplace.*fn81

On April 16, 2000, plaintiff sent a memorandum to the Authority's chief of staff describing the taping incident as "an act of harassment" and complaining of Mr. Philmus's "fervent verbal attack" against him at the March meeting.*fn82 When that letter, which had not been copied to any TB&T staff,*fn83 came to Mr. Philmus' attention, he directed Mr. Muriello to investigate.*fn84 Mr. Muriello did so. In due course, Lee Home, an Asian-American man who had been present at the late March meeting, confessed to having taped the door as a "practical joke," ostensibly ...


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