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ALVAREZ v. NICHOLSON

August 3, 2005.

GLADYS ALVAREZ, Plaintiff,
v.
R. JAMES NICHOLSON, Secretary, and DEPARTMENT OF VETERANS AFFAIRS, Defendants.



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

MEMORANDUM & ORDER

Gladys Alvarez ("Plaintiff") brought this employment-discrimination action against the Department of Veterans Affairs (the "VA"), and its Secretary, R. James Nicholson*fn1 ("Defendants") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., for failure to promote her and for retaliation based on her national origin and age. Defendants have moved for summary judgment. For the following reasons, the motion for summary judgment is GRANTED.

I. BACKGROUND

  Plaintiff is a Hispanic female, of Puerto Rican descent, born on July 21, 1945. (Alvarez Dep. at 55; Compl. ¶ 5.) Plaintiff was employed as a personnel assistant in the human resources service of the Department of Veterans Affairs Medical Center in New York City ("Manhattan Medical Center").*fn2 (Defendants' Local Rule 56.1 Statement ("Defs.' 56.1 Stmt.") ¶ 1; Plaintiff's Counter-Statement Pursuant to Local Rule 56.1 ("Pl.'s 56.1 Stmt.") ¶ 1.) Sarah Gurwitz was the personnel officer in charge of the human resources services at the time Plaintiff began work at the Manhattan Medical Center, and served in that capacity until on or about February 28, 1999. (Defs' 56.1 Stmt. ¶ 3; Pl.'s 56.1 Stmt. ¶ 3.) Defendants claim that Gurwitz hired Plaintiff for her first job as a clerk in the human resources service of the Manhattan Medical Center. (Defs.' 56.1 Stmt. ¶ 4.) During her employment with the VA, Plaintiff claims that Gurwitz discriminated against her based on her age and national origin by not promoting her to open positions. (Pl.'s Aff. ¶ 6.) As a result, Plaintiff filed a compliant with the VA's Office of Equal Employment Opportunity ("EEO"), and the complaint was settled through Plaintiff's promotion to a higher position. (Id.)

  A. Employee Relations Specialist Position

  In 1997, Plaintiff applied for an employee-relations position (the "Employee Relations Vacancy") announced in a vacancy announcement (the "Employment Relations Announcement"). (Defs.' 56.1 Stmt. ¶ 6; Pl.'s 56.1 Stmt. ¶ 6.) The duties of this position included providing consultation services for VA managers and supervisors on issues related to attendance, discipline, and performance management; proposing disciplinary actions; and advising and representing management in grievance procedures and during negotiations. (Defs.' 56.1 Stmt. ¶ 8; Pl.'s 56.1 Stmt. ¶ 8; Rosberger Decl., Ex. B at 21.)

  The VA selected candidates for the Employee Relations Vacancy by evaluating their knowledge of pertinent federal regulations and VA policies and procedures relating to disciplinary actions, their ability to write reports in a clear and concise manner, and their ability to effectively communicate orally. (Defs.' 56.1 Stmt. ¶ 9; Pl.'s 56.1 Stmt. ¶ 9.) Plaintiff and two other VA employees named Dana Taylor and Yvonne Morris interviewed for the Employee Relations Vacancy. (Defs.' 56.1 Stmt. ¶ 10; Pl.'s 56.1 Stmt. ¶ 10.) Two panels interviewed the candidates. (Defs.' 56.1 Stmt. ¶ 11; Pl.'s 56.1 Stmt. ¶ 11.) The first panel was composed of individuals who would be peers of the employee selected for the open position, while the second panel consisted of the position's supervisors, including Gurwitz. (Id.) The panels asked a set of questions that were given to the applicants prior to the interviews, as well as other follow-up questions. (Defs.' 56.1 Stmt. ¶ 12; Pl.'s 56.1 Stmt. ¶ 12.) While Taylor and Morris were qualified for the positions, Plaintiff contends that she was more qualified as she had "more years of experience . . . working in human resources." (Alvarez Dep. at 148.) Taylor, who Defendants claim had relevant work experience as a union steward, was ultimately selected for the Employee Relations Vacancy. (Defs.' 56.1 Stmt. ¶¶ 14-15.) According to Gurwitz, Taylor performed better at her interview than Plaintiff, and was selected based exclusively on her experience, work performance, and interview. (Gurwitz Decl. ¶¶ 10-11.) Plaintiff filed an EEO complaint on or about March 25, 1998 alleging that the VA failed to promote her because she was of Puerto Rican national origin and because of her age. (Rosberger Decl. at 1.)

  B. Personnel Management Specialist Positions

  About four weeks after filing her EEO complaint, Plaintiff applied for two vacancies (the "Personnel Management Vacancies") for personnel management specialists, which were announced in a separate vacancy announcement (the "Personnel Management Announcement"). (Defs.'s 56.1 Stmt. ¶ 20; Pl.'s 56.1 Stmt. ¶ 20; Compl. ¶ 19.) Angelita Bennett, Yvonne Morris, and other VA employees also applied for these positions. (Defs.' 56.1 Stmt. ¶ 21; Pl.'s 56.1 Stmt. ¶ 21.) The duties of the positions included providing assistance in recruiting and placing clinical and administrative personnel. (Defs.' 56.1 Stmt. ¶ 22; Pl.'s 56.1 Stmt. ¶ 22.) Candidates were evaluated for the position based on their knowledge of personnel procedures and policies, their knowledge of personnel recruitment programs, the ability to gather and analyze information, and oral and written communication skills. (Defs.' 56.1 Stmt. ¶ 23; Pl.'s 56.1 Stmt. ¶ 23.) Defendants claim that Edith Hebert established an interviewing panel, which both parties concede interviewed the candidates. (Defs.' 56.1 Stmt. ¶¶ 24-25; Pl.'s 56.1 Stmt. ¶¶ 24-25.) Defendants claim that the panel recommended Bennett, Morris and a third candidate for a final interview with Gurwitz and other supervisors. (Defs.' 56.1 Stmt. ¶ 26.) The panel did not recommend Plaintiff for an interview with Gurwitz. (Defs.' 56.1 Stmt. ¶ 26; Pl.'s 56.1 Stmt. ¶ 26.) According to Hebert, the panel believed that the recommended candidates answered questions more substantively and responsively than Plaintiff. (Defs.' 56.1 Stmt. ¶ 27.) The panel determined that Bennett and Morris were better qualified for the position. (Id. ¶ 28.) Plaintiff admits that Morris and Bennett were probably qualified to fill the open positions; however, she alleges she was more qualified than either individual for the position. (Pl.'s Aff. ¶ 12; Alvarez Dep. at 178.) While Herbert states she recommended the selected candidates based on their interviews, work performance and experience, Plaintiff claims that, at the behest of Gurwitz, Herbert retaliated against Plaintiff for filing the complaint with the EEO in March 1998. (Defs.' 56.1 Stmt. ¶ 29; Pl.'s 56.1 Stmt. ¶ 29.) II. DISCUSSION

  A. Summary Judgment Standard

  Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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." Summary judgment should only be granted if "the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Berger v. United States, 87 F.3d 60, 65 (2d Cir. 1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). When viewing the evidence, the Court must assess the record in the light most favorable to the nonmovant, resolve all ambiguities and draw all reasonable inferences in its favor. See Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990).

  B. Burden-Shifting Analysis Under Title VII and the ADEA

  Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). The ADEA prohibits age discrimination in employment when the employee is over the age of forty. 29 U.S.C. §§ 623(a), 631(a). Both claims are analyzed under the same burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001).

  Under both statutes, once a plaintiff establishes a prima facie case, a presumption arises that the employer unlawfully discriminated against the plaintiff. Id. The burden then shifts to the defendant to offer a legitimate, nondiscriminatory rationale for its actions. Id. This burden is one of production, not persuasion; it "can involve no credibility assessment." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993). Once the defendant has shown a neutral reason for its action, the presumption of discrimination drops out, and the burden shifts back to the plaintiff. Roge, 257 F.3d at 168. The plaintiff's evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decisions "were ...


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