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United States District Court, N.D. New York

February 9, 2004.

HHS, JO ANNE BARNHART, as Commissioner of Social Security, Defendant

The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District



Plaintiff, a fifty-seven-year-old employee of the Social Security Administration ("SSA"), Page 2 commenced this action in September 2001*fn1 alleging she was subject to unlawful discrimination and retaliation based on her age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a) and (d).


  Plaintiff alleges that during 1996-1997 and 1999-2000, the Office of Hearings and Appeals ("OHA") subjected her to several instances of discrimination. Plaintiff claims that the pattern of discrimination culminated in Defendant's failure to award her two promotions, to legal assistant in 1997 and to case assistant in 2000, for which she was the most qualified candidate.

  Presently before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that Plaintiff has failed to establish a prima facie case for unlawful discrimination or retaliation under the ADEA. The Court will address each of Defendant's arguments in turn.


 A. Summary Judgment Standard

  A court should grant a motion for summary judgment only if "there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). In making this determination, the court must resolve all ambiguities and draw all Page 3 reasonable inferences in a light most favorable to the non-moving party. See id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)).

  Although discrimination cases often involve a fact-intensive inquiry that precludes summary judgment, a court may award summary judgment where a fact finder could not infer a discriminatory motive. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).

  With these standards in mind, the Court will address Plaintiff's claims.

 B. Plaintiff's Claim of Discrimination

  The ADEA, which protects individuals over the age of forty, makes it unlawful for an employer to discriminate against an individual with respect to the terms, conditions, and privileges of employment because of that individual's age. See 29 U.S.C. § 623, 631(a).

  When a plaintiff has alleged that she was discriminated against based on her age, courts analyze the Plaintiff's claim using the three-step McDonnell Douglas burden-shifting analysis. See Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1993) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973)) (other citation omitted). Under this analysis, an employee can establish aprima facie case by showing that 1) she was a member of the protected age group; 2) she was qualified for the position that she sought; 3) she was subjected to a material adverse employment action; and 4) the circumstances of the adverse employment action give rise to an inference of discriminatory intent. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (citations omitted). Page 4

  Once the plaintiff has successfully demonstrated a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for taking the adverse action. See Jackson v. Lyons Falls Pulp & Paper, Inc., 865 F. Supp. 87, 96 (N.D.N.Y. 1994) (citation omitted). If a defendant can offer a legitimate, non-discriminatory reason, the plaintiff must then show that the employer's reason was a pretext for age discrimination. See Gallo, 22 F.3d at 1224-25 (citation omitted).

  Plaintiff began her employment with the SSA in 1987 as a hearing clerk floater. Thereafter, she was promoted to hearing clerk (GS-6). Plaintiff was forty-six years old at the time of the first alleged instance of discrimination (1996-97) and therefore was a member of the ADEA's protected class at all times relevant to this action. Plaintiff's claim of discrimination largely centers on two instances in which Defendant denied her promotions for which she applied. Plaintiff did not receive a promotion to a legal assistant position in 1997, and she was also rejected for a promotion to a case assistant position in 2000. With regard to the second element of the prima facie case, that Plaintiff show that she was qualified for the position she sought, Defendant acknowledges that Plaintiff was on a "well-qualified" list*fn2 for both of the positions. Furthermore, Defendant largely does not dispute that the failures-to-promote constitute material adverse employment actions. Therefore, Plaintiff has met the first three elements of her prima facie case. The issue then is whether the circumstances of the adverse employment actions are such that they give rise to an inference of discriminatory intent. Page 5

  1. 1997 Promotion Denial

  In April 1997, shortly after a permanent legal assistant position opened, OHA Office Manager Carol Kaiser, Supervisor Yvonne Kent, and Supervisor Karen Paradiso jointly selected three individuals from the well-qualified list for permanent assignment as legal assistants at OHA: Susan Vaeth, Mary Jo Maleski, and Jill Sullivan. All three successful candidates were younger than Plaintiff and none was within the protected class.*fn3 Plaintiff contends that she was more qualified and had more seniority than each of the three successful candidates.

  As support for her assertion that she was more qualified than the other three candidates, Plaintiff contends that in addition to nine years of experience as a hearing clerk, she received a paralegal certificate from LeMoyne College,*fn4 took several college level courses, and received awards for her performance at her job. Plaintiff has not submitted any other evidence that she was more qualified or that her failure to be selected occurred under such circumstances as to give rise to an inference of discrimination.

  As Defendant points out, Plaintiff acknowledged that at least one of the successful candidates had more seniority than she did and had actually served as her supervisor in the past. Although Plaintiff stated in her submissions that her time as a hearing clerk qualified her for the position, such an assertion does not make her "more qualified," because the successful candidates Page 6 also worked as hearing clerks. Furthermore, according to Ms. Kent's notes, Plaintiff did not understand aspects of case preparation and needed improvement in organization, planning and communication. More importantly, two other SSA employees, Karen Paradiso and Brenda Shearer, whom Plaintiff has not accused of discrimination, corroborated Ms. Kent's assertions regarding Plaintiff's performance. Ms. Paradiso, one of the three supervisors involved in choosing the three candidates for the legal assistant positions, testified that, when she worked with Plaintiff, Plaintiff frequently erred or lost interest in preparing cases. Ms. Shearer, a legal assistant, testified that Plaintiff communicated poorly and was unable to answer certain straightforward questions about the Social Security program. In addition, Plaintiff has not pointed to any specific deficiencies in the qualifications of the other candidates. See, e.g., Diaz v. New York City Transit Auth., No. 99 Civ. 9528, 2003 U.S. Dist. LEXIS 18084, * 15-* 17 (S.D.N.Y. Oct. 10, 2003) (comparing qualifications of competing candidates and finding no inference of discrimination).

  Lastly, as Defendant points out, the "same actor interference" rule further undermines Plaintiff's claim of discrimination.*fn5 Since Ms. Kaiser hired Plaintiff when Plaintiff was over 40, and between 1995 and 1997, Ms. Kaiser chose age-protected candidates for six of nine positions Page 7 she filled, it is unlikely that Ms. Kaiser harbored animus toward older workers.*fn6

  Even assuming a prima facie case, Defendant, has met its McDonnell Douglas burden of providing a legitimate, non-discriminatory reason for choosing to hire other candidates for the positions: Plaintiff was less qualified than other candidates.*fn7

  Accordingly, the Court grants summary judgment to Defendant with regard to the 1997 promotion denial.

  2. 2000 Promotion Denial

  In late 1999, Plaintiff applied for one of two positions as a senior case technician.*fn8 Defendant denied her the promotion and instead chose Debra Warder and Sharon Lee Little for Page 8 the positions.*fn9 To show that the 2000 promotion denial occurred under circumstances giving rise to an inference of discrimination, Plaintiff largely relies on the same evidence that she offered with regard to the 1997 promotion denial. She also claims that Ms. Warder (then age 27) was not within the protected class and that the other successful candidate, Ms. Little (then age 50), was an inferior candidate who received a demotion after she was appointed senior case technician.

  Here, too, assuming that Plaintiff has made a prima facie case, Defendant has rebutted Plaintiff's attempt to show discriminatory motive by providing facts that illustrate the strengths of the successful candidates. Both Ms. Warder and Ms. Little received excellent evaluations from their supervisors. Ms. Warder's former supervisor, Karen Paradiso, whom Plaintiff has not accused of discrimination, highly recommended her for the promotion. See Affidavit of Carol A. Kaiser, Exhibit 5, Social Security Administration Report of Investigation, Attachment B to Defendant's Memorandum of Law. Ms. Kaiser, the selecting official for the promotion, and Administrative Law Judge ("ALJ") Tarrant, the concurring official for the promotion, offered concrete reasons for deciding not to award the position to Plaintiff. ALJ Tarrant testified that Ms. Warder and Ms. Little were both more motivated and knowledgeable in the program than Plaintiff; he also testified that he ranked Plaintiff below two other unsuccessful candidates with regard to her ability to perform in the new role. See Plaintiff's Response to Defendant's Statement of Material Facts at ¶ 36. Ms. Kaiser testified that Plaintiff's decision-making abilities were Page 9 somewhat weak. See id. at ¶ 35. Therefore, Defendant has successfully shifted the burden to Plaintiff to show that Defendant's reasons are pretextual. Plaintiff's only response to Defendant's proffered reasons is her conclusory statement that she was a superior candidate to Ms. Warder. With regard to Ms. Little, Plaintiff argues that she was the superior candidate because Ms. Little was ultimately "relegated to the lesser position of Chief Docketing Clerk until she retired." See id. at ¶ 34. However, even if Plaintiff was a superior candidate, she may only seek redress under the ADEA where an employer's preferences stem from discrimination against older candidates, not where an employer simply prefers another individual.*fn10

  As Plaintiff has provided no facts that would show directly or indirectly that the denial of promotion in 2000 resulted from impermissible age discrimination, the Court grants summary judgment as to the claim of discrimination.

 C. Plaintiff's Claim of Retaliation

  Plaintiff also claims that the 2000 denial of promotion and a series of other more minor Page 10 incidents*fn11 were in retaliation for a series of complaints that she made to the EEO and testimony that she gave in an undisclosed proceeding in 1999.

  To establish a prima facie case of retaliation under the ADEA, a plaintiff must show that (1) she engaged in a protected activity; (2) her employer was aware of that activity; (3) her employer took adverse action against her; and (4) a causal connection exists between the protected activity and the adverse action. See Terry, 336 F.3d at 141. Protected activity includes a range of activities such as formal complaints to an employer or agency such as the Equal Employment Opportunity Commission ("EEOC") and informal complaints to management. See Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d Cir. 1992).

  Defendant does not contest most of Plaintiff's assertions that she engaged in protected activity at the various times alleged.*fn12 And again, Defendant does not dispute that a denial of promotion constitutes an adverse action. Therefore, only the fourth element of the prima facie Page 11 case — the existence of a causal connection between the protected activity and the adverse action-is in dispute.

  As in a discrimination claim, once a plaintiff has established her prima facie case of retaliation by a preponderance of the evidence, the burden shifts to her employer to articulate a legitimate, non-discriminatory reason for the employment decision. See id. at 77 (citing [McDonnell Douglas Corp. v. Green, 411 U.S. 792] at 802-03).

  Again, assuming arguendo that Plaintiff has met her prima facie case, Plaintiff is unable to rebut Defendant's proffered nondiscriminatory reasons for declining to award her a promotion. Plaintiff asserts, with no factual support, that a causal connection exists between her April 1997 and June 1998 contacts with the EEOC, the protected activity in 1999, and the 2000 promotion denial. However, as Defendant points out, the denial occurred in January 2000, nearly two years after the 1997 and 1998 contacts with the EEOC and seven months after the alleged protected activity in 1999. The Court finds that the 1997/1998 contacts with the EEOC are too remote in time to raise a presumption of retaliation. Even assuming that the several-month gap from the 1999 activity is sufficiently close in time to raise a presumption of discrimination,*fn13 Defendant has successfully rebutted any presumption of retaliation by (1) showing that another employee who participated in the same investigation and gave similar testimony received a promotion shortly thereafter; see Declaration of Carol A. Kaiser, sworn to March 12, 2003 at ¶ 5; and (2) offering Page 12 specific testimony from Ms. Kaiser and ALJ Tarrant, both of whom testified to Plaintiff's deficiencies as compared to the other candidates.

  Accordingly, the Court grants Defendant's motion for summary judgment with respect to the retaliation claim.


  After carefully considering the file in this matter and the parties' submissions, as well as the applicable law, and for the reasons stated herein, the Court hereby

  ORDERS that Defendant's motion for summary judgment is GRANTED in its entirety; and the Court further

  ORDERS that the Clerk of the Court enter judgment in favor of Defendant and close this case.


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