United States District Court, N.D. New York
February 9, 2004.
SANDRA RESTANI, Plaintiff
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
Plaintiff, a fifty-seven-year-old employee of the Social Security
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
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
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
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).
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
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
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
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
she filled, it is unlikely that Ms. Kaiser harbored animus toward
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
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
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
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
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)
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.
IT IS SO ORDERED.