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United States District Court, S.D. New York

September 2, 2004.

CLARE VARA, Plaintiff,
NORMAN MINETA, Secretary of the United States Department of Transportation, Defendant.

The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


Plaintiff Clare Vara ("plaintiff" or "Vara") brings this action for declaratory judgment, injunctive relief and damages against Norman Mineta ("defendant"), Secretary of the United States Department of Transportation (DOT), alleging discrimination on the basis of gender and age and unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Defendant moved for summary judgment. For the reasons set forth below, defendant's motion is granted in part and denied in part.


  Unless otherwise indicated, the following facts are undisputed.*fn1 Plaintiff Vara was born on April 24, 1947, and at the time of the events at issue in this litigation was 52 years old. (Def.'s 56.1 ¶ 1.) She was at all times relevant to this action employed by the Federal Aviation Administration (FAA), an agency located within the DOT, as a Grade 12 Air Traffic Control Specialist (ATCS) at the FAA's New York Automated International Flight Service Station in Ronkonkona, New York (also referred to by parties and herein as the "Islip Facility"). (Def.'s 56.1 ¶ 2; Stock Decl. Ex. A, Compl. ¶ 7.) At all times relevant to this action, Vara was a director of a union called Professional Women Controllers (PWC). (Stock Decl. Ex. A, Compl. ¶ 17.)

  A. The Three-Day Suspension

  The events giving rise to this lawsuit were set in motion in 1999 when Vara learned that Ron Napurano ("Napurano"), her second-line supervisor, and George Fonos ("Fonos"), the union representative at the Islip Facility, were planning to vacation together. (Stock Decl. Ex. C, Vara DOT Aff. 2.)*fn2 Vara was concerned that this vacation could appear improper and present a conflict of interest, since "it would lead one to wonder who was paying for the trip" and may affect Fonos' "independent exercise of discretion in his representation of union members and union interests." (Id.) Vara expressed her concern to Fonos, to another union representative at the facility, Deborah Shea ("Shea"), and to another co-worker. (Id.; Stock Decl. Ex. B, Vara Dep. 94:2-14.) Napurano learned of Vara's comments and called a meeting to discuss this issue. Prior to this meeting, on June 27, 1999, Shea approached Vara and informed her that she was gong to file charges against Vara for making "scurrilous and inflammatory" comments against Napurano. (Stock Decl. Ex. C, Vara DOT Aff. 2.) At the meeting later that same day, which was attended by Napurano, Vara, Shea, Fonos, and Deborah Horne ("Horne"), Vara's first-line supervisor, the conflict-of-interest issue was discussed and, according to both Vara and Napurano, substantially resolved. (Id. at 3; Stock Decl. Ex. D, Napurano DOT Aff. 3.) At the close of the meeting, Napurano stated that if such an incident happened again he would have to "take action." (Stock Decl. Ex. C, Vara DOT Aff. 3.) After the meeting, speaking apropos of rumors, how they spread, and how they can affect the credibility of their subjects, Vara stated to Napurano in the hearing of Fonos and Shea that she had heard a rumor that Napurano and one of his subordinates, Darlene Tsokris ("Tsokris"), had had an affair. (Id.; Stock Decl. Ex. D, Napurano DOT Aff. 3.)

  Napurano spoke the next day with his first-line supervisor, Ronald Ruggeri ("Ruggeri"), about the meeting, and about Vara's comment about the rumored affair. (Stock Decl. Ex. D, Napurano DOT Aff. 4; Ex. F, Ruggeri DOT Aff. 2.) After conducting a preliminary investigation of Napurano's report, in the course of which Ruggeri interviewed all the attendees of the June 27 meeting except Vara and confirmed that the alleged comments had been uttered, Ruggeri concluded that he was required to report the incident to the FAA's Human Resource Management's Accountability Board, which deals with issues of sexual harassment and misconduct within the workplace at the FAA.*fn3 (Stock Decl. Ex. D, Napurano DOT Aff. 4; Ex. F, Ruggeri DOT Aff. 2.) Ruggeri spoke to a representative of the Accountability Board and requested that someone from outside the Islip Facility conduct an investigation of the rumor, but the representative directed Ruggeri to conduct the investigation himself. (Stock Decl. Ex. F, Ruggeri DOT Aff. 2-3.) Ruggeri spoke further to Islip Facility employees, some of whom indicated that Vara had repeated a rumor that Tsokris had received preferential treatment at work because of her relationship with Napurano. (Id. at 3-4, and exhibits.) Shea submitted a written statement affirming that Vara had said "that she has heard rumors on the control room floor that Darlene Tsokris and Ron Napurano have had or are having a sexual relationship and this is the reason why Ms. Tsokris has gotten preferential treatment with regard to her schedule and training." (Parker Decl. Ex. 13.) Ruggeri spoke to Tsokris about the alleged statements. Tsokris became distraught; she was driven home and did not return to work for six weeks on the advice of her personal physician. (Stock Decl. Ex. F.) Tsokris later filed an Equal Employment Opportunity (EEO) complaint against Vara based on the comments Vara made about rumors of an affair. (Parker Decl. Ex. 22.)

  On or about July 7, 1999, Ruggeri called a meeting with Vara, at which were also present Fonos, acting as Vara's union representative, and Janice Filmer, a supervisory employee at the Islip Facility, who attended at Ruggeri's request. (Stock Decl. Ex. E, Ruggeri Dep. 172:2-7; Ex. N, Hilmer Dep. 35:11-36:2.) At the meeting, Ruggeri questioned Vara about the rumor of the affair between Napurano and Tsokris and asked her from whom she had heard the rumor. Vara answered variously that she did not know, did not remember, and did not wish to break any confidences or get another co-worker in trouble. Vara eventually allowed that she may have heard the rumor from another ATCS at the Islip Facility, Bonnie Yancoskie. (Pl. Aff. ¶ 45.) This employee was apparently never interviewed in connection with the investigation, because Vara had not identified her with certainty. (Stock Decl. Ex. E, Ruggeri Dep. 176:5-25.) In August 1999, Vara learned both that Tsokris had filed a complaint against her and that Ruggeri had proposed to suspend her for 30 days for her comments about Napurano's and Fonos' vacation and about the affair rumor. (Pl. Aff. at ¶¶ 50, 52.) Ruggeri based the proposal on his stated conclusion that Vara had violated six of the rules of conduct governing FAA employees, including sexual harassment; negligent performance resulting in injury; disreputable conduct to or about other individuals while on duty; making false or unfounded statements about other employees; intentional falsification, misstatement, or concealment of material fact in connection with employment; and negligent or careless work performance resulting in waste of public funds or resources. (Parker Decl. Ex. 6, 12.) From the table of penalties provided as an appendix to the FAA's conduct and discipline materials, Ruggeri allegedly chose a penalty in the middle of the range prescribed for a first offense for each of the six named violations. (Parker Decl. Ex. 6; Stock Decl. Ex. E, Ruggeri Dep. 141:17-24.)

  After Ruggeri informed Human Resource Management of his proposed penalty, and submitted the documentary basis therefor, he was informed by an employee of that department that it was the responsibility of Vara's first-line supervisor, Horne, to propose any disciplinary action. Ruggeri, therefore, turned over the results of his investigation to Horne. (Stock Decl. Ex. F, Ruggeri DOT Aff. 7.) Horne did not investigate further, but relied on the facts gathered by Ruggeri before deciding what action to take. (Stock Decl. Ex. G, Horne Dep. 32:19-23.) On or about October 26, 1999, Horne delivered a memo to Vara stating that she proposed to suspend Vara for three days for violating one FAA rule of conduct: "making false or unfounded statements about other employees." (Parker Decl. Ex. 18.) Horne wrote that in determining the appropriate penalty, she considered "your deliberate disregard for the reputation of others and the negative impact your comments has [sic] had on your co-workers." (Id.) The penalty prescribed by the table of penalties appended to the FAA's conduct and discipline materials for "making false or suspension [sic] unfounded statements about other employees" is a letter of reprimand for a first offense, although supervisors are permitted to deviate from the guide as circumstances require. (Parker Decl. Ex. 6.)

  Vara responded with a memo dated December 1, 1999, disputing the factual bases for the proposed action, and stating that "I have been singled out for this punishment since I have repeatedly complained about the lack of impartial and effective union representation at this facility" and "I believe that this proposed disciplinary action is an attempt by management to discredit me at a time when I am bidding on staff and supervisory positions." (Parker Decl. Ex. 20.) Horne nonetheless issued a memo dated December 10, 1999, stating that she had found the reasons for the suspension to be supported by the facts, and that Vara would be suspended for three days. (Parker Decl. Ex. 21.) After she received Horne's memo, Vara became visibly upset, and was taken to a medical center for treatment of physical manifestations of that distress. (Parker Decl. Ex. 19.)*fn4

  Vara claims that the disciplinary action taken against her by defendant was contrary to the FAA's own regulations both because the penalty was excessive and because it was based on an incomplete, biased, and improperly conducted investigation. She also asserts that supervisors treated her conduct with far more severity than they did the comparable misconduct of her co-workers, and that that disparity was motivated by gender- and age-based discrimination. (Pl. Opp. Mem. 21-24.)

  B. The Failure to Select

  In August 1999, while the investigation of the events that would lead to Vara's suspension was still ongoing, an opening at the Islip Facility for a support specialist was announced. While the position of support specialist pays the same as the job Vara held at the time, this job entails the performance of management duties and could function as a springboard into better-paying supervisory and management positions. (Pl. Aff. n. 15.) Vara submitted a bid for the position, and she, along with three other applicants, were deemed qualified for consideration and were scheduled to be interviewed.*fn5 (Id. at ¶¶ 47-48, 61.) Vara was the only woman, and the only person older than 50, who submitted a bid. (Id. at ¶ 48.) Ruggeri was the selecting official for the position, and he selected a panel of interviewers, and produced a set of 15 questions to be asked by the panel of each interviewee. One of the interviewers he selected was Janice Hilmer, who had been present at Ruggeri's meeting with Vara on July 7, 1999 regarding his investigation of her comments. (Stock Decl. Ex. N, Hilmer Dep. 35:11-36:2.) Ruggeri based the questions and answers on the FAA's program description for the support specialist position, and on government publications maintained at the Islip Facility that provided information on subjects that support specialists at the Islip facility needed to have knowledge of. Ruggeri identified three main areas of knowledge required of support specialists: the union contract, weather briefings, and training. (Stock Decl. Ex. E, Ruggeri Dep. 46:4-47:6, 222:18-223:2.) A guideline for a correct answer was provided for each of the questions, except for the first two, which were meant to be "warmup" or "breaker" questions. (Id. at 61:12-62:9.) For each of the 15 questions, the panel was to rank the interviewee's answer from one, meaning "extremely weak," to five, meaning "outstanding." The person with the highest numerical score based on his or her performance during the interview would be selected for the position, irrespective of the numerical value earned in the initial objective assessment that determined whether the person was qualified to be considered. (Stock Decl. Ex. F, Ruggeri DOT Aff. 14.) One of the interviewers who had conducted such an interview in the past supplied Ruggeri with sample questions and a guide for conducting and evaluating interviews. (Id. at 13, 28-31.)

  The panel conducted interviews of all four candidates, and conferred afterward to decide what numerical value to award each on each of the 15 questions. After conferring, they found that John Coppola, a male candidate 12 years Vara's junior, had the highest score, having earned 58 out of a possible 75 points. Vara had come in second, with a score of 37. Accordingly, Coppola was selected to fill the position. (Id. at 13-14.)

  After Coppola's selection, Vara submitted a written request for a debriefing on the selection process. (Parker Decl. Ex. F, Ruggeri DOT Aff. 36.) Ruggeri granted this request, in accordance with an applicable union bargaining unit agreement, by meeting with Vara on November 15, 1999 and discussing her performance. (Id. at 15.) Ruggeri asked Hilmer to attend the meeting in order to provide additional feedback. (Id. at 16.) At the meeting, Vara stated that she had not expected questions relating to the union contract at the meeting, to which Ruggeri replied that those questions "were related to what a support specialist does day in and day out" and that "our previous support specialist interacted daily with the union and had to keep me and the facility out of trouble." (Id. at 15.) After the meeting, Vara requested her debriefing in writing, which Ruggeri denied on the grounds that he had satisfied the requirements of the bargaining unit agreement by debriefing her orally. (Id. at 35-36.)

  Vara claims that the selection process was arbitrary and biased against her and in favor of the other candidates, all of whom were male and younger than Vara. First, she contends that Ruggeri's choice to make candidates' interview performance the sole basis for selection disadvantaged her, since her superior professional experience and other objective qualifications were excluded from consideration. Second, she argues that the heavy emphasis on questions about the union contract favored Coppola, who had been a union representative at the facility and who ultimately was selected for the position. Third, she argues that the interview questions were poorly constructed and that the panel lacked articulable standards by which to evaluate interviewees' responses. Fourth, she argues that the presence on the interview panel of Hilmer, who had participated in a meeting with Vara and Ruggeri about the comments that subsequently led to Vara's suspension, prejudiced the panel against her. Vara maintains that these defects in the process were motivated by the intent to prevent her from being selected because of her age and gender.

  C. Administrative Duty Request

  Because of her diagnosed elevated blood pressure, Vara did not have medical clearance to work at her usual air traffic controller duties. She requested to be put on administrative assignment until she was deemed medically fit to resume her job, but Ruggeri did not accommodate her request, so she took 45 days of sick leave. (Pl. Aff. ¶ 74; Stock Decl. Ex. O.) The section of the unit bargaining agreement governing temporary assignments of temporarily disabled FAA employees to alternative duties, Section 51-01, provides that such an employee may request such an assignment, "not to exceed 12 months," and "the facility management shall give such an employee priority for any appropriate assignment available." (Parker Supp. Decl. Ex. 32.) Vara alleges that other disabled FAA workers have been allowed lengthy periods of administrative duty, including one male air traffic controller allegedly assigned to such work for about two years. (Pl. Aff. ¶ 74.) Defendant alleges that no administrative work was available when Vara requested it, and cites to evidence that medically disqualified workers are often turned down for temporary administrative assignments. (Ruggeri Decl. ¶ 5 & Ex. C.) Vara claims that she was denied administrative work in retaliation for complaining about her suspension.

  D. Denial of Access to Grievance Procedure

  Vara attempted to pursue the grievance procedure provided by her employer to complain about her suspension. Through her union representative, in a memo dated January 10, 2000, she requested a 14-day extension of the 30-day deadline prescribed by the union contract for filing a grievance, as she was on sick leave. (Ruggeri DOT Aff. 26.) Ruggeri granted an extension of the deadline until March 3, 2000. (Id. at 27.) However, Vara alleges that Ruggeri later refused to permit Vara to file a grievance. (Stock Decl. Ex. A, Compl. ¶ 39.) Ruggeri states that Vara did not ask him "verbally or in written form if she could file a grievance," but does not address Vara's assertion that Ruggeri refused to process her grievance. (Stock Decl. Ex. F, Ruggeri DOT Aff. 12.) In a memo dated February 10, 2000, Vara objected to Ruggeri's alleged determination that he could not proceed with her grievance because Vara had contacted an EEO counselor about her suspension. (Parker Decl. Ex. 2.) Vara stated that according to her understanding of the rules, a grievance could be filed at any point up until a formal EEOC complaint is filed. (Id.) Vara did not file an EEOC complaint until on or about Aug 23, 2000. (Stock Decl. Ex. O.) There is no evidence that Vara ever filed a grievance.

  Vara argues that Ruggeri refused to permit her to file a grievance in retaliation for her communication with the EEO counselor.

  E. Withholding of Approval of Leave to Attend Union Meetings

  Vara maintains that Ruggeri made it difficult for her to get excused from work to attend Board of Directors meetings of the PWC, an allegation Ruggeri denies. (Parker Decl. Ex. 5; Stock Decl. Ex. F, Ruggeri DOT Aff. 7-9.) Vara claims that Ruggeri's failure to facilitate her excusal, and difficulties in getting paid administrative leave, constituted retaliation for complaining about her suspension. However, Vara does not claim that she was ultimately denied paid administrative leave to attend PWC meetings.


  A. Applicable Law

  Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment"; "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee"; or "to discriminate against any individual . . . in admission to, or employment in, any program established to provide apprenticeship or other training" "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. It also prohibits employers from discriminating against any individual "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3.

  The ADEA, 29 U.S.C. § 621 et seq., was enacted "to promote employment of older persons based on their ability rather than age" and "to prohibit arbitrary age discrimination in employment," 29 U.S.C. § 621, and in terms similar to those employed in the language of Title VII prohibits both discrimination in the workplace on the basis of age (with the exception of certain circumscribed practices, such as seniority systems administered in good faith), and retaliation against employees for complaining about unlawful age-based discrimination. 29 U.S.C. § 623(a), (d).

  B. Summary Judgment Standard

  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Golden Pacific Bancorp. v. F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004) (quoting Fed.R. Civ. P. 56(c)). In reviewing the record, the district court must assess the evidence in "a light most favorable to the non-moving party" and resolve all ambiguities and "draw all reasonable inferences in its favor." Schneider v. Feinberg, 345 F.3d 135, 144 (2d Cir. 2003); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

  An alleged factual dispute between the parties will not by itself defeat a motion for summary judgment, since "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Id. at 256; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "A fact issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004)) (quoting Anderson, 477 U.S. at 248). "A fact is `material' for these purposes if it `might affect the outcome of the suit under governing law.'" Id. (quoting Anderson, 477 U.S. at 248). "[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003) (quoting Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996)).

  In order to defeat a defendant's properly supported motion for summary judgment, a plaintiff in an employment discrimination action must show that there is a material issue of fact as to whether the employee's protected status was a motivating factor in the adverse employment action. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995) (plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the "motivating" factors). Because employment discrimination actions often present factual issues as to the presence or absence of discriminatory intent that are not appropriately resolved at the summary judgment stage, courts must exercise caution in such cases and grant this remedy only when the employer has proffered evidence of a legitimate, non-discriminatory reason for its action which raises "no genuine issue and which no rational trier of fact could reject." Id. at 203.

  D. Title VII and ADEA Standards

  In employment discrimination and retaliation cases brought under either Title VII or the ADEA, courts apply the three-step burden-shifting analysis set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) ("A plaintiff utilizes the same evidentiary framework for demonstrating either age discrimination or sex discrimination."); Hazen Paper Co. v. Biggins, 507 U.S. 604, 612, 113 S. Ct. 1701, 123 L.Ed.2d 338 (1993) (McDonnell Douglas test applied to ADEA cases); Abrahamson v. Bd. of Educ. of Wappingers Falls Cent. Sch. Dist., 374 F.3d 66, 71 (2d Cir. 2004) (same). According to this three-step analysis, the plaintiff is first required to make out a prima facie case. To establish a prima facie case of employment discrimination, the plaintiff must show 1) membership in a protected class, 2) qualification for the position and/or satisfactory job performance, 3) termination from employment or other adverse employment action, and 4) that the adverse employment decision was made under circumstances giving rise to an inference of unlawful discrimination. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997); Thornley v. Penton Publ'g, Inc., 104 F.3d 26, 30 (2d Cir. 1997).

  Plaintiff's burden of making out a prima facie case of retaliation is similar. "To establish a prima facie case of retaliation under Title VII, a plaintiff must show (1) that she was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the employer was aware of that activity; (3) that she suffered an adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 79 (2d Cir. 2001) (internal punctuation omitted); accord Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir. 2003); see Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (burden-shifting analysis applies to discrimination and retaliation claims brought under both ADEA and Title VII).

  Second, once plaintiff has satisfied her prima facie showing, defendant must articulate some legitimate and nondiscriminatory or non-retaliatory reason for its action. McDonnell Douglas, 411 U.S. at 802-03, 93 S. Ct. at 1824. Third, the burden ultimately shifts back to plaintiff, who "must adduce evidence sufficient to raise a fact issue as to whether the employer's reason was merely a pretext" for discrimination or retaliation. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1309 (2d Cir. 1995) (internal punctuation omitted)); McDonnell Douglas, 411 U.S. at 807, 93 S. Ct. at 1827. 1. Discrimination Claims

  Vara alleges discrimination under a disparate treatment theory, claiming that she was subjected to disciplinary action unlike that imposed upon similarly situated employees, and was not selected for a job she was qualified for because management preferred to select a younger man for the job.

  a. Disciplinary action claim

  Vara is able to prove the first three prongs of her prima facie case of discrimination based on her three-day suspension, since (1) she is a member of a protected class, by virtue both of her gender and of her age, see Maresco v. Evans Chemetics, 964 F.2d 106, 110 (2d Cir. 1992) (ADEA "protection extends to employees who are at least 40 years old"); (2) her job performance was satisfactory, given her long tenure at the FAA, her many documented professional accomplishments, and her unblemished disciplinary record prior to her suspension; and (3) suspension without pay constitutes an adverse employment action. However, she has failed to produce any evidence that would allow a rational factfinder to draw an inference of discrimination.

  Vara's primary argument in support of a discriminatory motive for her suspension is her assertion that other Islip Facility employees have not been punished as severely as she was for similar or more serious conduct. She points to several examples of this, including one male employee, Sean Dunleavy, who was charged with failing to disclose certain credit information on his employment application, and who received only a reprimand (Parker Decl. Ex. 27); a male employee, Tom Ulrich, who allegedly was not disciplined for making false time record entries (Pl. Aff. ¶ 8); a male employee and a female employee under 50 years old, Joseph Traviologa and Maxine Roache, who allegedly were not disciplined for sleeping on the job (Id.); and two female employees under 50, Bonnie Yancoskie and Maxine Roache, who were not disciplined for allegedly talking about the same rumor about Napurano and Tsokris that got Vara in trouble (Id.). These examples fail to support Vara's argument that she was punished more severely than similarly situated employees, because the allegations — even if they were all substantiated by evidence other than Vara's conclusory assertions — do not provide a rational factfinder with a basis for concluding that the other employees were in fact similarly situated, or that their conduct was similar to Vara's.

  Sean Dunleavy's mild punishment is not probative of disparate treatment. While Vara makes much of the fact that the FAA regional office initially proposed to suspend Dunleavy for ten days, but that Ruggeri ultimately determined to give him only a reprimand, Ruggeri testified that Dunleavy's discipline was lighter than that initially proposed because it was determined after further investigation that Dunleavy had omitted information from his application inadvertently, not intentionally. Vara offers no evidence to rebut Ruggeri's sworn statement, and the court finds nothing inherently suspect or probative about a supervisor's imposing on an employee a penalty less severe than the one originally proposed after the employee had been given the opportunity to explain himself. Nor does the court find that Ruggeri provided contradictory testimony about this disciplinary incident, contrary to plaintiff's assertion, see id. Ruggeri testified during his deposition that the regional office originally proposed to suspend this employee for ten days (Stock Decl. Ex. E, Ruggeri Dep. 93:10-24), and the record reflects that Ruggeri initially adopted this proposal when he in turned proposed to impose such a penalty (Parker Decl. Ex. 27). Ruggeri's assertion in his declaration that he initially proposed a ten-day suspension (Ruggeri Decl. ¶ 6) in no way contradicts his deposition testimony.

  Plaintiff has also failed to make a showing that the statements she alleges Yancoskie and Roache made about the rumored affair were made under circumstances comparable to her own, i.e., made publicly at a meeting in front of several co-workers, including a subject of the rumor, as opposed to in a private conversation out of the hearing of others. While Vara's conduct may not have been calculated to embarrass Napurano and Tsokris and cast doubt on their integrity, it certainly had the obvious potential to do so, and this fact sets her comment apart from privately whispered rumors. Therefore, the fact that these comments did not draw disciplinary action cannot be the basis for a discrimination claim on a "similarly situated" theory. Moreover, both Yancoskie and Roache are women over forty and any possible disparate treatment would not give rise to an inference of sex or age discrimination. Montana v. First Fed. S&L of Rochester, 869 F.3d 100, 106-07 (2d Cir. 1989); Shumway, 118 F.3d at 63.

  The other instances of alleged employee misconduct (Ulrich, Truviologa and Roache) are not probative of discriminatory treatment of Vara, since the little information Vara supplies about these incidents provides no basis for comparison to Vara's own conduct. Vara argues that "[e]vidence that the employees were subject to the same workplace standards and engaged in comparably serious conduct is sufficient" to show that the employees were similarly situated (Pl.'s Sur-Reply Mem. 8). While this is indeed what the law requires, see Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000), Vara has not offered evidence other than her own unsubstantiated assertions (Pl. Aff. ¶ 8) to show that any of these employees engaged in conduct of comparable seriousness and was not disciplined. Moreover, there is no reason to suppose, absent evidence, that Vara would have personal knowledge of whether such conduct occurred or whether disciplinary actions were taken against these employees. The sorts of conclusory allegations Vara makes here are of the sort that the Second Circuit has treated as insufficient to create a genuine issue of material fact in employment discrimination actions. See Shumway, 118 F.3d at 65.

  Vara contends correctly that "[t]he `similarly situated' test is but one way in which plaintiff can demonstrate an inference of discrimination." Pl. Sur-Reply Mem. 8.) However, such demonstration has not been made through any available means. Vara has not alleged any action or statement by any person involved in the suspension, or in the investigation of the events leading to the suspension, constituting direct or indirect evidence of impermissible bias or a discriminatory motive. Her allegation under deposition that Napurano's "attitude" toward her conveyed gender- or age-based animus does not provide an evidentiary basis for her discrimination claim, since she was not able to articulate any basis for her interpretation of Napurano's attitude. (Stock Decl. Ex. T, Vara Dep. 182:17-185:10.) The only statement attributed to anyone connected to the incident that has anything whatsoever to do with gender or age is a statement allegedly made by Napurano while being interviewed by the EEO counselor investigating Tsokris' complaint against Vara, in which he expressed his "perception" that some female employees at the Islip Facility are "jealous" of Tsokris "because she gets along with the men well" (Parker Decl. Ex. 22 at 5.) — a rather neutral comment that, even read in the light most favorable to Vara, does not express hostility or disrespect toward women sufficient to create an inference of discrimination. More to the point, since Napurano took no action and had no role with respect to Vara's punishment, except to report Vara's comment about the rumored affair to Ruggeri, the probative value of any evidence of discriminatory animus on Napurano's part would be weak at best.

  Even assuming arguendo that Vara had made out a prima facie case, defendant has supplied a legitimate, non-discriminatory reason for his punishment of Vara. Horne, in proposing the three-day suspension, wrote, "Your actions . . . reflect unfavorably upon your co-workers. In determining the level of proposed penalty I have taken into consideration your deliberate disregard for the reputation of others and the negative impact your comments has [sic] had on your co-workers." (Parker Decl. Ex. 18.) Vara does not dispute having made a comment about the rumored affair, but seems to argue that she does not deserve to be punished for it because she did not originate the rumor, was not intending to circulate it, and never stated or implied a belief as to the truth of the rumor. (Parker Decl. Ex. 20.) The fact that Vara's intent in mentioning the rumor was misunderstood or misrepresented, however, does not negate the legitimacy of the concern articulated by Horne in justifying the punishment. Even taking the facts in the light most favorable to plaintiff, and viewing management's response to Vara's comment as a misunderstanding or mischaracterization of an innocent and even well-meaning remark, it is beyond question that defendant's stated reason for penalizing Vara — that she made an embarrassing and potentially damaging public statement about a supervisor and a co-worker — is legitimate and non-discriminatory.

  In finding that defendant has supplied a legitimate, non-discriminatory reason for its action against Vara, the court does not mean to suggest that when examined in the light most favorable to plaintiff, the investigation was procedurally flawless and that the punishment was "fair" measured against some ideal standard. It appears that Home, not Ruggeri, should have conducted the investigation, and that since Vara's conduct was a first offense, under the FAA rules she could have been given a reprimand rather than a three-day suspension. However, in the absence of any genuine issue of material fact as to whether the reason given by defendant for its action was pretextual, or whether plaintiff's age or sex were motivating factors in the decision to suspend her, such errors, if errors they be, cannot ground an employment discrimination action. See Weinstock v. Columbia Univ., 224 F.3d 33, 45 (2d Cir. 2000) (finding procedural irregularities in tenure decision did not indicate pretext, when no evidence existed to show that plaintiff's protected status played a role in the irregularities). See also Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002) (warning that federal courts adjudicating employment discrimination claims must "exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination," or else risk "becom[ing] a court of personnel appeals"); Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) ("[I]t is not the function of a fact-finder to second-guess business decisions or to question a corporation's means to achieve a legitimate goal."); Parcinski v. Outlet Co., 673 F.2d 34, 37 (2d Cir. 1982) ("The Age Discrimination in Employment Act does not authorize the courts to judge the wisdom of a corporation's business decisions."). Defendant's motion is granted as to plaintiff's claim related to her suspension.

  b. Failure to select claim

  In order to support a prima facie case of failure to promote brought under Title VII or the ADEA, a plaintiff must show "that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of discrimination." Gomez v. Pellicone, 986 F. Supp. 220, 228 (S.D.N.Y. 1997) (quoting Burdine, 450 U.S. at 254, 101 S. Ct. at 1094). Such an inference may arise "if the position remains open and the employer continues to seek applicants of the plaintiff's qualifications, McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824, or if the position was filled by someone not a member of plaintiff's protected class. De la Cruz v. New York City Human Resources Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996)." Id.; see also Mauro v. S. New England Telecomms., Inc., 208 F.3d 384, 386 (2d Cir. 2000). Vara can satisfy the de minimis showing required to make her prima facie case because a younger male employee was selected for the position for which she applied, see Byrnie, 243 F.3d at 102 (prima facie case established when 42-year-old female applicant chosen over eminently qualified 64-year-old-male job applicant). The Supreme Court has held that a prima facie case of age discrimination can be grounded on the employer's selection of a candidate significantly younger than the plaintiff, even if the younger candidate is also over 40 and thus protected by the ADEA. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996). This prima facie case is somewhat weak, however, given that (1) it is undisputed that all of the applicants were qualified for the position, based on the fact that they were all "in-grade" applicants, that is, the support specialist position was of the same grade as the grade of each applicant's position at the time each applied (Ruggeri Decl. Ex. A, § 6), and (2) Coppola, the applicant who was selected, was 40 years old at the time, which places him in the class protected by the ADEA (Stock Decl. Ex. A, Compl. ¶ 35).

  Even if Vara has arguably established her prima facie case, defendant has clearly shown that it had a legitimate, clear, specific, non-discriminatory reason for its decision to hire Coppola instead of Vara. The process used for selecting among the applicants was an interview process that used the same three panelists and the same 15 questions for each interviewee. The questions and guideline answers were culled from materials judged by Ruggeri, the selection official, to be relevant to the support specialist position. The answers to each question on the interview were evaluated by the panel as a whole, based on a scale from 1 to 5. The candidate selected for the position was the one who the panel judged, using this scale, to have performed best in the interview. In making this showing as to the process used in selecting Coppola, defendant has sufficiently demonstrated a legitimate and non-discriminatory reason for its decision. See Evans v. Port Auth. of New York and New Jersey, 192 F. Supp. 2d 247, 271 (S.D.N.Y. 2002) ("Where an employer's explanation, offered in clear and specific terms, is reasonably attributable to an honest even though partially subjective evaluation of qualifications, no inference of discrimination can be drawn.") (quoting Byrnie, 243 F.3d at 105) (internal punctuation omitted).

  While plaintiff contends that she was the "most qualified" member of the applicant pool (Stock Decl. Ex. B, Vara Dep. 42:3-4), by virtue of her "stellar qualifications and experience" (Stock Decl. Ex. A, Compl. ¶ 37), such a subjective claim cannot suffice to prove pretext. See Holt, 95 F.3d at 130. Ruggeri's decision ab initio to select the best candidate based entirely on interview performance, and to disregard as irrelevant to the determination the initial ratings earned by each in-grade candidate on their degree of experience, is reflective not of pretext of age or sex discrimination but of the reasonable belief that all candidates were "equally qualified due to their grade" and that the determining factor should be the candidates' interviews. (Ruggeri Decl. ¶¶ 3-4.) Vara contends that the questions' emphasis on the bargaining agreement gave an unfair advantage to Coppola, a former union representative; but the evidence also shows that Vara herself also gained an advantage from the union-related questions, since if scores on these questions were not counted she would have scored third-best out of the four candidates, rather than second-best. (Stock Decl. Ex. F, Ruggeri DOT Aff. 16.) Moreover, defendant has provided evidence that the union-related questions had a legitimate basis, since the support specialist has historically "interacted daily with the union" (Id.). Vara has failed to show any evidence of bad faith or pretext in defendant's selection criteria; absent such evidence, no reasonable trier of fact could conclude that the chosen criteria were discriminatory. See Lanier v. I.B.M. Corp., 319 F. Supp. 2d 394, 387 (S.D.N.Y. 2004) (citing Thornley v. Penton Publishing, Inc., 104 F.3d 26, 29 (2d Cir. 1997)).

  Vara suggests that the participation of Janice Hilmer on the panel prejudiced her, since Hilmer had also been present at a meeting with Vara, Ruggeri and Fonos related to the investigation leading to Vara's suspension. Even if there were any evidence that Hilmer in any way poisoned the panel against Vara — and there is none — this would not be reflective of discriminatory motive: since there is no evidence that Vara's suspension was in any way related to her gender or her age, Hilmer's familiarity with the suspension is not even colorable evidence of an impermissibly tainted selection process.

  In support of her claim that discrimination underlay the decision not to select her for the support specialist position, Vara offers statistical evidence of under-representation of women in supervisory and management-level positions at the FAA. (Parker Decl. Exs. 14-15.) Neither these statistics, nor the alleged comment of Vara's former supervisor that female air controllers in their fifties "face dim prospects of ever being selected for a promotion" to a supervisory or management-level position (Pl. Aff. ¶ 59), nor Vara's own lack of success in her numerous past applications for promotions at the FAA (Id. at ¶ 60, Parker Decl. Ex. 16), are probative of discriminatory motive in Vara's case, since they are not accompanied by any statistical evidence of the number of qualified women who apply for supervisory and management-level positions, and the selection rate for qualified older women compared to the selection rate for other qualified applicants. See Byrnie, 243 F.3d at 101 (granting summary judgment on disparate treatment claim based on statistics showing gender disparities, since no showing of the cause of the statistical disparity was made).

  Because plaintiff has failed to show any genuine issue of material fact as to whether defendant's failure to select her for the support specialist position was motivated by age- or gender-based bias, summary judgment must be granted as to this claim.

  2. Retaliation Claims

  Plaintiff argues that several actions taken by defendant after she spoke to the EEO counselor at the Islip facility constituted retaliation. A threshold question for whether a prima facie case of retaliation has been made is whether the act complained of is an adverse employment action. Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004) (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998)). In the Second Circuit, a plaintiff suffers an adverse employment action if she suffers a "materially adverse change in the terms or conditions of her employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). To constitute a "materially adverse change," an employer's action must be "more disruptive than a mere inconvenience or alteration of job responsibilities." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (quoting Galabya, 202 F.3d at 640). A materially adverse change might be "indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Galabya, 202 F.3d at 640; see Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (ADEA protects the employee against "less flagrant reprisals" than termination or a reduction in wages and benefits).

  Vara complains of three acts which she claims were retaliatory: the denial of her request for administrative duties while she was temporarily disabled, problems getting leave to attend PWC meetings, and Ruggeri's refusal to process her grievance. As to the denial of administrative duties, no material adverse change in the terms or conditions of employment are alleged or demonstrated, since administrative duties are clearly not among the terms or conditions of Vara's employment: the bargaining agreement allows a temporarily disabled employee to request such an assignment, which then may be granted if available. Plaintiff has submitted no evidence that she was refused the right to request such duties, or that such work was available but denied to her. Vara cannot establish a prima facie case of retaliation as to this act. Similarly, the allegation that Vara had problems getting leave to attend Board of Directors meetings of her union does not, as a matter of law, rise to the level of a materially adverse change. Plaintiff does not allege that she was not granted the leave she sought, or even that her supervisors attempted to deny her leave. Rather, she alleges that when she requested leave from Ruggeri, he "would not approve it" (Pl. Aff. ¶ 23), by which she apparently means that Ruggeri would "fan[] [her] off to someone else" when she requested administrative leave time (Id. at ¶ 22). Ruggeri flatly denies that he ever refused her requests for leave, and explains the ways in which Vara's requests were accommodated according to the process by which requests for administrative leave are typically handled. (Stock Decl. Ex. F, Ruggeri DOT Aff. at 7-9.) Because the allegations and evidence point to actions that constituted at worst an inconvenience to Vara, no prima facie case has been established with respect to her requests for administrative leave.

  Vara alleges that she was subjected to retaliation when Ruggeri denied her the right to proceed with a grievance about her suspension, based on the fact that she had spoken to an EEO counselor about the suspension. Although it is not clear from the evidence presented whether defendant continued to deny Vara access to the grievance procedure even when she objected, the defendant has not in any event denied that Vara was refused access to the workplace grievance procedure. Although there is continuing discussion, in this and other circuits, as to whether and under what circumstances restricting the ability of complainants to file grievances is an adverse employment action, see United States v. New York City Trans. Auth., 97 F.3d 672, 679 (2d Cir. 1996); EEOC v. Board of Governors of State Colleges & Univs., 957 F.2d 424 (7th Cir.), cert. denied, 506 U.S. 906, 113 S. Ct. 299, 121 L.Ed.2d 223 (1992), Reilly v. Metro-North Commuter R. Co., No. 93 Civ. 7317, 1996 WL 665620, at *15 (S.D.N.Y. Nov. 15, 1996); Owens v. New York City Hous. Auth., No. 84 Civ. 4932, 1994 WL 97411, at *3 (S.D.N.Y. March 18, 1994), it appears that when grievance procedures are provided for by a collective bargaining agreement, denying access to those procedures can work a materially adverse change in the terms or conditions of one's employment. See United States v. New York City Trans. Auth., 97 F.3d at 678-79 (finding denial of grievance procedure not an adverse employment action, distinguishing facts from those in cases in which the procedure was provided pursuant to a collective bargaining agreement); Owens, 1994 WL 97411, at *2-3 (employer's discontinuance of plea negotiations in connection with a contractual disciplinary proceeding against plaintiff constituted an adverse employment action so as to support plaintiff's retaliation claim). The parties have not thoroughly briefed this issue, so the record is not clear as to whether the procedure was provided pursuant to the FAA employee collective bargaining agreement. However, I find that on the record before me, defendant's denial of the grievance procedure to Vara may fairly be considered an adverse employment action. Plaintiff has therefore established a prima facie claim of retaliation as to this act, since there is evidence that she engaged in protected activity, see Taylor v. Lenox Hill Hosp., No. 00 Civ. 3773, 2003 WL 1787118, at *7 (S.D.N.Y. Apr. 3, 2003) (plaintiff engaged in protected activity when he contacted the EEOC), of which defendant was aware, and there is a causal connection between the protected activity and defendant's action, see Feingold, 366 F.3d at 156 (causal connection between protected activity and adverse employment action is satisfied by the temporal proximity between the two) (citing cases). Since defendant has not offered a legitimate, non-discriminatory reason for its action, a reasonable jury could find that defendant's act was in fact retaliatory. Therefore, summary judgment is inappropriate as to this claim.


  Based on the foregoing, defendant's motion is hereby DENIED as to plaintiff's claim of retaliation based upon defendant's denial of access to the grievance procedure, and GRANTED in all other respects. The parties are directed to appear for a pretrial conference in the courtroom of the Honorable Richard J. Holwell, U.S. District Judge for the Southern District of New York, Room 17B, 500 Pearl Street, on Friday, October 1, 2004, at 2:00 p.m.


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