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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 ...

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