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RESTANI v. BARNHART

February 9, 2004.

SANDRA RESTANI, Plaintiff
v.
HHS, JO ANNE BARNHART, as Commissioner of Social Security, Defendant



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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

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).

  II. BACKGROUND

  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.

  III. DISCUSSION

 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 ...


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