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United States District Court, S.D. New York

June 3, 2005.

SAMUEL MASON, Plaintiff,

The opinion of the court was delivered by: DENNY CHIN, District Judge


In this employment discrimination case, plaintiff Samuel Mason alleges that defendant New York City Transit Authority ("NYCTA") failed to promote him because of his race and age, in violation of federal law. Defendant moves for summary judgment dismissing all claims. For the reasons set forth below, the motion is granted.


  A. The Facts

  Construed in the light most favorable to plaintiff, the non-moving party, the facts are as follows:*fn1

  1. Background

  Mason is an African-American man, born on February 13, 1957. Mason received a Bachelors degree in General Studies from the University of Michigan in 1979, a Master of Science degree in Administration from Central Michigan University in 1993, and a Master of Science degree in Transportation Management from Polytechnic University in 2002. (Mason Dep. at 19; Pl. Ex. 4; Pl. Mem. at 1). Mason is a member of the high-IQ society "Mensa," having scored in the top two percent of the general population in standardized intelligence tests. (Mason Dep. at 19, 65). Mason was hired as an Associate Staff Analyst by NYCTA on November 1, 1993,*fn2 the position that he retains today. (Def. Ex. 5; Mason Dep. at 5). During his employment with NYCTA, Mason has completed numerous internal training classes. (Pl. Ex. 4). Mason has never been promoted. (Mason Dep. at 6). 2. Plaintiff's Job Performance

  Mason has been moved among units within NYCTA throughout his employment with defendant. He has been transferred at least six times among units within the Paratransit Division. (Def. 56.1 Statement ¶¶ 2, 4-8). Mason's supervisors at his multiple assignments universally have expressed dissatisfaction with Mason's job performance. Beverly Morris — an African-American woman, older than Mason — supervised Mason in his first assignment as an Associate Staff Analyst in the Planning Unit of the Paratransit Division, from 1993 through 1998, during which time she "realized that plaintiff failed to meet work time schedules or produce quality work without constant and careful scrutiny and supervision . . . [and] underachieved to the extent of just doing enough to meet the minimum standards for job performance." (Morris Aff. ¶ 2-3). James Wilson,*fn3 head of the Standards and Compliance Unit during Mason's various assignments in that unit,*fn4 commented that "Mason's overall work product was mediocre and he seemed to make relatively straight forward jobs into major projects." (Wilson Aff. ¶ 2).

  In 2001, upon Mason's transfer back to the Planning Unit of the Paratransit Division, Anthony Spicola — an Hispanic man, older than Mason — assigned Mason to two relatively simple projects based on Mason's reputation as "unmotivated and lacking initiative." (Spicola Aff. ¶ 2). One of the projects involved riding Access-A-Ride vehicles and completing surveys on whether the vehicles performed trips on time, a task usually performed by part-time college interns. (Id.; Barnes-Chung Aff. ¶¶ 2-3). In this study, Mason was directly supervised by Zulema Barnes-Chung, an African-American woman. Contrary to instructions, Mason did not complete the surveys while in the field, but instead did so later at his desk. Mason also would disappear from the office for an hour at a time. (Barnes-Chung Aff. ¶ 3).

  Later, Mason was sent "on loan" to the Eligibility Determination Unit to perform a task sorting and scanning documents, a job usually performed by temporary employees. Mason's supervisors (a Hispanic woman, 45 years old, and a Black woman, 46 years old) "found that plaintiff frequently left the work area" and could not be found "for periods of time"; "asked questions over and over regarding simple tasks that were performed successfully by unskilled temporary workers with little [sic] if any questions asked"; and "often seemed to be idle and gave the sense that he was not motivated."*fn5 (Mullins Aff. ¶ 2; Malave Aff. ¶ 2).

  3. Plaintiff's Applications for Promotions

  Plaintiff's complaint focuses on four positions for promotion that were denied to him.

  i. Job Posting # 1284*fn6

  Mason applied for a promotion to the position of Principal Transportation Planner in the Eligibility Determination Unit, Paratransit Division, posted on December 28, 2001 as Job # 001284 (Job # 1284). (Pl. Mem. at 11; Def. 56.1 Statement ¶ 9; Def. Ex. 2). The selection panel for the position consisted of Noel Malave, Elese Mullins, and Anthony Spicola, all three of whom had previously supervised Mason. (Malave Aff. ¶¶ 2-3; Mullins Aff. ¶¶ 2-3; Spicola Aff. ¶¶ 2-3). Malave is Hispanic and forty-five years of age; Mullins is African-American and forty-six years old; and Spicola is Caucasian and fifty years old. (Malave Aff. ¶ 4; Mullins Aff. ¶ 4; Spicola Aff. ¶ 4). Mullins and Malave reviewed the resumes and selected the candidates for interviews. Thirty-eight individuals applied for this position (Pl. Mem. at 12), six of whom were granted interviews. Four of the six candidates interviewed were African-American; of those four, one was forty-five years of age and two were forty-three years of age.*fn7 Mullins and Malave did not select Mason for an interview; while neither remembers reviewing Mason's resume, both were familiar with Mason's work and believe they did not select him based on their negative experiences working with him. (Mullins Aff. ¶ 3; Malave Aff. ¶ 3).

  The successful candidate was a Caucasian man, age 39, who already worked within the Eligibility Determination Unit as an analyst, was familiar with the responsibilities of the job, and had previous supervisory experience with NYCTA. (Def. 56.1 Statement ¶ 9).

  ii. Job Posting # 1350

  On March 15, 2002, NYCTA posted a job vacancy notice for job #001350 ("job #1350"), a Principal Transportation Planner in the Contract Management Unit, Paratransit Division. (Def. Ex. 6). The position "required skills in the area of contracts, procurement, financial analyses and budget, as it involved the oversight of outside contractors' vouchers and invoices amounting to multi-millions of dollars." (Salerno Aff. ¶ 2). The three members of the selection panel were all Caucasian males, older than plaintiff. (Id.). The panel selected five candidates for interviews, all of whom showed experience in these skills, while plaintiff's resume did not reflect such experience. (Id.). The five candidates selected for interviews were African-American and/or age forty or older. (Id.).

  Plaintiff was not selected for an interview. The three members of the panel at the time of the selection were "aware of plaintiff's reputation within Paratransit management as a worker who was not highly productive." (Id.). The successful candidate was a Caucasian man, age forty, who "had experience in the financial industry with spread sheets, budgets, cost control, etc." (Id.).

  iii. Job Posting # 1419*fn8

  On May 10, 2002, NYCTA posted a notice for job #001419 ("job #1419"), a position as Associate City Planner I in the Operations Planning Department. (Def. Ex. 15). The job responsibilities included analyzing proposed permanent changes to New York City bus routes and involved transportation planning at a high level. (Id.). The job required a B.A. degree and at least three years of full-time experience in city planning, up to two years of which could be substituted by an advanced degree in city planning or a law degree. (Id.).

  Theodore Orosz — Caucasian, age fifty-two — and Buckley Young — Asian, age forty-one — selected fifteen individuals for interviews, from ninety resumes received. (Def. 56.1 Statement ¶ 13). Mason was selected for an interview, based on his qualifications as indicated by his resume, but was not offered the position. (Pl. Mem. at 13; Orosz Aff. ¶ 2). Orosz and Yung ranked Mason fourteenth out of fifteen candidates interviewed; given that most internal candidates were ranked in the upper half of the group, Orosz and Yung characterized Mason's ranking as indicating "a very lackluster interview." (Orosz Aff. ¶ 3). They found that plaintiff "had not managed any transportation planning projects and had little, if any, relevant planning experience or experience dealing with community interest groups." (Yung Aff. ¶ 3).

  The successful candidate was an Asian woman, age 30, who had "four years of . . . transportation planning experience that included managing, directing and administrating actual planning projects, preparing and analyzing budgets, [and] working with community board and outside consultants." (Def. 56.1 Statement ¶ 13). She was the only candidate to present a CD portfolio of her projects. (Orosz Aff. ¶ 3; Yung Aff. ¶ 3). iv. Job Posting # 1546

  On September 20, 2002, NYCTA posted a vacancy notice for job #001546 ("job #1546"), Principal Transportation Planner in the Planning Unit of the Paratransit Division. (Def. Ex. 10). The position involved "complex tasks including . . . researching different types of Intelligent Transportation Systems such as Global Position Satellite and Radio Frequency based Automatic Vehicle Location and Monitoring (AVLM) systems)" and reported to the Director of the Planning Unit. (Def. Ex. 12).

  The selection panel was comprised of Anthony Spicola, Noel Malave, and Marcia Thompson. Spicola was the Director of the Planning Unit at the time, and the person to whom the successful candidate would report directly. Spicola reviewed the resumes and selected the candidates for interview. Sixteen candidates were selected for interviews, including an African-American man, and two Asian candidates over the age of forty.*fn9 (Def. 56.1 Statement ¶ 11). Spicola specifically recalls that Mason's resume and cover letter contained typographical errors. Even had the resume and cover letter not contained errors, Spicola would not have considered Mason's application, based on his own experience of supervising Mason and "negative perspective of plaintiff as a worker." (Spicola Aff. ¶ 3).

  B. Procedural History

  Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") on April 14, 2003. (Def. 56.1 Statement ¶ 14; Def. Ex. 6). The EEOC dismissed the complaint and issued a "Right to Sue" letter on September 22, 2003. (Pl. Compl. Ex. 2).

  Plaintiff's complaint in the instant action was received by the Court's Pro Se Office on December 10, 2003; the complaint then was accepted for filing by the Clerk's Office and docketed on January 23, 2004. The complaint alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"), with respect to Mason's race, and the Age Discrimination in Employment Act, 29 U.S.C. § 629 et seq. (the "ADEA"). The parties engaged in discovery and the instant motion for summary judgment followed. For the reasons set forth below, defendant's motion for summary judgment dismissing all claims is granted.


  A. Summary Judgment Standard

  The standards governing motions for summary judgment are well-settled. A court may grant summary judgment only where there is no genuine issue of material fact and the moving party therefore is entitled to judgment as a matter of law. See Fed R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There must be sufficient evidence in the record to support a jury verdict in the nonmoving party's favor to create an issue for trial. See id.

  To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). The nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. Nat'l Union Fire Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989) (quoting R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted)). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).

  B. Failure to Promote Claim

  1. Applicable Law

  The "ultimate issue" in any employment discrimination case is whether the plaintiff has met his or her burden of proving that the adverse employment decision was motivated at least in part by an "impermissible reason," i.e., that there was discriminatory intent. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146 (2000); Fields v. N.Y. State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 119 (2d Cir. 1997). Cases brought under Title VII and the ADEA generally are analyzed pursuant to the three-step test set forth in McDonnell Douglas and refined in later cases. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Stratton v. Dep't for the Aging, 132 F.3d 869, 879 (2d Cir. 1997) (ADEA); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506; Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir. 1997).

  With respect to a discriminatory failure to promote claim, a plaintiff must first establish a prima facie case of unlawful discrimination by showing that (1) he is a member of a protected category, (2) he applied for an available position, (3) he was qualified for the position, and (4) he was rejected under circumstances that give rise to an inference of discrimination. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000); De La Cruz v. N.Y. City Human Resources Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996). "An inference of discrimination may arise if the position remains open and the employer continues to seek applicants of the plaintiff's qualifications ? or if the position was filled by someone not a member of plaintiff's protected class." Gomez v. Pellicone, 986 F. Supp. 220, 228 (S.D.N.Y. 1997) (citing McDonnell Douglas, 411 U.S. at 802; De La Cruz, 82 F.3d at 20).

  Second, if the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises, and the burden then shifts to the defendant to "articulate a legitimate, clear, specific and nondiscriminatory reason" for the employment decision. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995); see also Reeves, 530 U.S. at 143.

  Third, if the employer articulates a nondiscriminatory reason for its actions, the presumption of discrimination is rebutted and it "simply drops out of the picture." St. Mary's Honor Ctr., 509 U.S. at 511 (citation omitted). The burden then shifts back to the plaintiff to show, without the benefit of any presumptions, that more likely than not the employer's decision was motivated, at least in part, by a discriminatory reason. See id. at 515-16; Lanier v. I.B.M. Corp., 319 F. Supp. 2d 374 (S.D.N.Y. 2004).

  To meet this burden, the plaintiff may rely on evidence presented to establish his prima facie case as well as additional evidence. Such additional evidence may include direct or circumstantial evidence of discrimination. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-101 (2003); Harris v. City of New York, No. 03 Civ. 6167 (DLC), 2004 U.S. Dist. LEXIS 25496 at *6 (S.D.N.Y. Dec. 22, 2004). It is not sufficient, however, for a plaintiff merely to show that he satisfies "McDonnell Douglas's minimal requirements of a prima facie case" and to put forward "evidence from which a factfinder could find that the employer's explanation . . . was false." James v. N.Y. Racing Ass'n, 233 F.3d 149, 153 (2d Cir. 2000). Instead, the key is whether there is sufficient evidence in the record from which a reasonable trier of fact could find in favor of plaintiff on the ultimate issue, that is, whether the record contains sufficient evidence to support an inference of discrimination on the basis of race, age, or some other impermissible factor. See id. at 157; Connell v. Consolidated Edison Co. of N.Y., Inc., 109 F. Supp. 2d 202, 207-08 (S.D.N.Y. 2000).

  As the Second Circuit observed in James, "the way to tell whether a plaintiff's case is sufficient to sustain a verdict is to analyze the particular evidence to determine whether it reasonably supports an inference of the facts plaintiff must prove — particularly discrimination." 233 F.3d at 157; see Lapsley v. Columbia Univ., 999 F. Supp. 506, 513-16 (S.D.N.Y. 1998) (advocating elimination of McDonnell Douglas test in favor of simplified approach focusing on ultimate issue of whether sufficient evidence exists to permit jury to find discrimination); see also Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir. 1998) ("The thick accretion of cases interpreting this burden-shifting framework should not obscure the simple principle that lies at the core of anti-discrimination cases. In these, as in most other cases, the plaintiff has the ultimate burden of persuasion.").

  2. Application

  At the outset, I assume that plaintiff has made out the prima facie case required by McDonnell Douglas. Defendant has articulated a legitimate, nondiscriminatory reason for its failure to promote plaintiff to each of the four positions to which he applied. Defendant contends that Mason was not interviewed for three of the positions because the individuals involved in selection were familiar with Mason's work performance and reputation as an unmotivated worker, and that Mason was not offered the fourth position for which he was interviewed because he did not perform well in the interview and lacked required experience. The successful candidates, NYCTA argues, were more qualified than Mason.

  Hence, I proceed directly to the ultimate question of whether plaintiff has presented sufficient evidence from which a reasonable jury could find discrimination. I do so by evaluating first plaintiff's evidence, then defendant's evidence, and finally the record as a whole, keeping in mind the elusiveness of proof of discrimination and the principle that the jury is "entitled to view the evidence as a whole." Stern, 131 F.3d at 314; see also Siano v. Haber, 40 F. Supp. 2d 516, 520 (S.D.N.Y. 1999), aff'd mem., 201 F.3d 432 (2d Cir. 1999).

  i. Plaintiff's Evidence

  Plaintiff offers the following evidence in support of his claims for discrimination on the basis of his race and age:

First, Mason is African-American and over the age of forty.
  Second, Mason has never been promoted, despite his degrees and years of experience with NYCTA.

  Third, of the four positions to which Mason applied and are the subject of the instant case, all were filled by a candidate who was either younger than forty or not African-American.*fn10 (Def. 56.1 Statement ¶¶ 9, 10, 13; Def. Ex. 11).

  Mason alleges NYCTA "has a history with this type of discrimination" (Pl. Mem. at 2), pointing to the $3.5 million settlement of a discrimination suit by African-American employees with Metro-North Railroad. (Pl. Ex. 3). While Metro-North and NYCTA both operate under the umbrella of the Metropolitan Transit Authority ("MTA"), they are separate and distinct entities. N.Y. Urban League v. New York, 71 F.3d 1031, 1033 (2d Cir. 1995) ("NYCTA is a legally separate public benefit corporation affiliated with the MTA, while the LIRR and Metro-North are wholly owned subsidiaries of the MTA" (citation omitted)). NYCTA makes its own hiring decisions. N.Y. Pub. Auth. § 1204(6). Mason makes no showing that the hiring decisions of the two agencies are in any way related; therefore, even if the settlement could somehow serve as some evidence of discrimination by Metro-North, any alleged discrimination by Metro-North does not indicate discriminatory practices at NYCTA.

  Mason also puts forth as evidence the fact that African-American employees within the Paratransit Division of NYCTA on average earn lower salaries than Caucasian employees of the same division. (Pl. Ex. 11). Defendant does not dispute the calculations plaintiff submitted in support of this contention, instead arguing that salary differentials are irrelevant to a failure to promote claim. I disagree: race-based salary differentials surely can be some evidence of a practice of discriminatory treatment. In this case, however, the differentials fail to serve as evidence of discrimination, as Mason has not shown that the differentials are based on race. Plaintiff does not control for seniority, rank, or other possible neutral factors in determining salary. (See Pl. Ex. 11). Mason's own exhibit reflects that some Caucasian employees in the same position as Mason earned a salary equal to or lower than his. (Pl. Ex. 10). Therefore, the mere fact that, on average, the salaries of Caucasian employees was higher than those of African-American employees in the Paratransit Division is not evidence of discrimination.

  Finally, Mason submits a sworn statement that he contends "testif[ies] to the discriminatory environment plaintiff was subjected to." (Pl. Mem. at 10). The statement is given by Izuhunwa Aigbogun, a former college intern with NYCTA. (Aigbogun Aff.; Barnes-Chung Aff. ¶ 5). Aigbogun asserts that he "[could] only postulate that the only reason [Mason] has not been afforded promotional opportunities is the color of his skin or the fact that he is an African[-]American Male." (Aigbogun Aff.). This is simply a conclusory allegation, unsupported by any facts in the declarant's statement. That Mason's supervisor "instructed [Aigbogun] not to share work[-]related or any information with Mr. Mason" similarly fails to serve as evidence of discrimination. (Id.).

  ii. Defendant's Evidence

  Defendant puts forth the following evidence in support of its motion for summary judgment and against an inference of discrimination:

  First, Mason's supervisors universally have been disappointed with his job performance, characterizing Mason as "unmotivated" and "idle," needing "constant and careful scrutiny and supervision," and producing mediocre work.

  Second, the selection committees for the three positions to which Mason applied but was denied an interview consisted of individuals who had either directly supervised Mason and experienced his work, or who were familiar with Mason's reputation as a worker. The committee members based their decisions not to interview Mason on their negative experiences and impressions of him as a worker.

  Third, Mason was granted an interview by individuals unfamiliar with his job performance, who based on his resume deemed him qualified. Upon interviewing Mason, they found him to have performed poorly in the interview and that he lacked necessary experience.

  Fourth, individuals in Mason's protected class — minorities and individuals age forty or older — were interviewed for each of the four positions.

  Fifth, all the individuals responsible for selecting candidates for interviews were minorities and/or age forty or older.

  Sixth, the positions were filled by individuals more qualified that Mason. Job #1284 (Principal Transportation Planner, Eligibility Determination Unit) was filled by an internal candidate from within the Eligibility Determination Unit who was already familiar with the responsibilities of that position and had previous supervisory experience with NYCTA. Job #1350 (Principal Transportation Planner, Contract Management Unit) was filled by a candidate who possessed the required experience with financial analysis and budgets, while Mason did not. (See Def. Ex. 9, plaintiff's resume). Job #1419 (Associate City Planner I, Operations Planning Department) was filled by a candidate with years of transportation planning experience who impressed the interviewers with her CD presentation of her portfolio of projects, and who received highly positive references from highly-regarded sources. (Yung Aff. ¶ 3).*fn11

  iii. The Record As a Whole

  Considering the evidence as a whole, reading pro se plaintiff's claims as liberally as possible, and resolving inferences in plaintiff's favor, I conclude that no reasonable jury could find that plaintiff's race or age were factors in defendant's failure to promote him.

  Mason is obligated to present sufficient evidence to support a finding by a reasonable jury. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2nd Cir. 1996) (to defeat summary judgement, plaintiff is obligated not just to produce "some" evidence, but must produce sufficient evidence to support a rational jury verdict in his favor). Plaintiff offers no evidence of discrimination on the basis of age or race other than (1) he is African-American and over the age of forty, (2) he has never been promoted, and (3) the positions to which he applied were filled by candidates younger than him or not African-American. This evidence, by itself, would not support a jury finding of age or race discrimination.

  Indeed, while defendant has put forth evidence that (1) its supervisors universally considered plaintiff an unproductive and unmotivated employee, (2) it interviewed multiple candidates who were members of plaintiff's protected classes, (3) its selection committees consisted of individuals who were members of plaintiff's protected classes, and (4) the successful candidates were more qualified than Mason, plaintiff has produced no evidence that defendant's proffered reasons for not promoting him were pretextual based on discriminatory intent. Mason puts forth no evidence that disputes his supervisors' assessments of the quality of his work. The Court accepts plaintiff's contention that he is well-educated and a member of Mensa; that alone, however, does not raise a triable issue of fact as to defendant's reasons for not promoting plaintiff. Moreover, "plaintiff must identify affirmative evidence upon which a fact-finder could rely in concluding that he carried his burden of proving . . . defendant's illicit motive." Harris v. City of New York, No. 03 Civ. 6167 (DLC), 2004 U.S. Dist. LEXIS 25496 at *6 (S.D.N.Y. Dec. 22, 2004). Mason has failed to do so. Consequently, on the record before the Court, no reasonable jury could find that plaintiff was discriminated against on the basis of his age or race. Accordingly, defendants' motion for summary judgment is granted.


  For the reasons set forth above, defendant's motion for summary judgment is granted as to all claims. Mason's complaint is dismissed with prejudice and without costs. The Clerk of the Court shall enter judgment accordingly and close this case.


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