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United States District Court, S.D. New York

August 3, 2005.


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


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.


  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 not its true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation marks omitted); see also Roge, 257 F.3d at 168.

  C. Plaintiff's Discrimination Claims

  1. Plaintiff's Prima Facie Case

  Plaintiff has established a prima facie case of discrimination under Title VII and the ADEA. To meet this initial burden, Plaintiff must show "circumstances giving rise to an inference of discrimination." Cronin v. Aetna Life. Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995). To do so, she must first demonstrate evidence that: (1) she is a member of a protected class, (2) she was qualified for the position, (3) she was denied the position, and (4) that the denial occurred under circumstances giving rise to an inference of discriminatory intent. Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000). The Court determines whether the "`proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn.'" Cronin, 46 F.3d at 204 (quoting Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 38 (2d Cir. 1994)).

  It is undisputed that Plaintiff has shown she is a member of a protected class under Title VII and the ADEA. At the time of the action, she was fifty-seven years old, Hispanic, and of Puerto Rican race or national origin.*fn3 Plaintiff has also shown qualification for the open position. To be qualified, Plaintiff must only demonstrate a minimal showing that she possesses the basic skills necessary to perform the job. Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001). Since Plaintiff has been continually employed by the VA since 1988 and has been promoted in the past, there exists an inference that she possesses the basic skills required for her job. Id. Gurwitz has not alleged that Plaintiff was unqualified for the Employee Relations Specialist position, only that the selected candidate had more relevant work experience. (Gurwitz Decl. ¶ 10.) When construing the evidence in a light most favorable to Plaintiff, this Court finds that Plaintiff satisfies the qualification prong of her prima facie case.

  It is further undisputed that Plaintiff was denied the open position, and that such denial was an adverse employment action. She did not receive the position advertised in the Employment Relations Announcement, which is an adverse employment action under Title VII and the ADEA. See Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) (recognizing a refusal to promote constitutes an adverse employment action). Finally, Plaintiff has demonstrated an inference of discriminatory intent. The "mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis." Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001). Since the candidate selected for the Employee Relations Specialist position was not Hispanic, (Pl.'s Aff. ¶ 10), Plaintiff has established an inference of discrimination under Title VII. Plaintiff has also demonstrated discriminatory intent for her ADEA claim. An employer's decision to promote a significantly younger worker can support an inference of intentional age discrimination even when both persons are members of the protected class under the ADEA. O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996). Plaintiff contends Taylor was significantly younger than Plaintiff, (Pl.'s Aff. ¶ 10.), and her selection therefore satisfies this requirement. In addition, some evidence that the Defendants were aware of Plaintiff's age is necessary to establish a prima facie case. Woodman v. WWOR-TV, Inc., 411 F.3d 69, 79-80 (2d Cir. 2005). Plaintiff claims Gurwitz remarked that she was "over the hill." (Pl.'s Aff. ¶ 8.) While stray remarks of a decisionmaker are not sufficient by themselves to prove a claim of employment discrimination, these comments by Gurwitz at a minimum demonstrate that she was aware of Plaintiff's age. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001). The Court is therefore satisfied that Plaintiff has established a prima facie case of discrimination under the ADEA.

  2. Defendants' Nondiscriminatory Reasons

  Defendants need only articulate the existence of a nondiscriminatory reason for the failure to promote that, if believed by a fact-finder, would support a judgment in Defendants' favor. See St. Mary's Honor Center, 509 U.S. at 507. Evidence that a more qualified candidate was selected for the open position will rebut any presumption that discrimination was involved in the employment decision. Holt v. KMI-Cont'l, Inc., 95 F.3d 123, 130 (2d Cir. 1996). Defendants argue that the individual selected for the Employee Relations Vacancy was more qualified than Plaintiff due to her relevant work experience as a union shop steward. (Gurwitz Decl. ¶¶ 10-11.) They also contend that Plaintiff did not interview as well as the selected candidate. (Id. ¶ 11.) Plaintiff has conceded that the selected individual was qualified for the position. (Alvarez Dep. at 147.) Defendants' explanations that the candidate was either equally or more qualified for the position and interviewed better than Plaintiff are sufficient to satisfy their burden of articulating a nondiscriminatory reason for the employment action. See Voels v. New York, 180 F. Supp. 2d 508, 516 (S.D.N.Y. 2002) (holding that the defendants' contention that the chosen candidate was more qualified satisfied their burden of proffering a nondiscriminatory reason for failure to promote the plaintiff).

  3. Pretext

  Plaintiff has not presented sufficient evidence to show that Defendants' nondiscriminatory reasons for the employment action are pretextual. First, citing Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985), Plaintiff contends that when a defendant's intent and state of mind is at issue, summary judgment is inappropriate. However, the Meiri court also explained:

The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation.
Id at 998. Plaintiff "may not avoid summary judgment by simply declaring that state of mind is at issue." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998).

  Plaintiff next contends that she was more qualified than Dana Taylor for the Employee Relations Vacancy. (Pl.'s Aff. ¶ 10.) However, she does not offer any evidence to demonstrate that she was more qualified. In order to prove a case of discrimination, Plaintiff "may not rely simply on conclusory statements." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Plaintiff alleges that Taylor received the position solely due to her younger age and because she was not Hispanic. (Pl.'s Aff. ¶ 10.) Plaintiff also stated that she was better qualified for the Employee Relations Vacancy as she has "more years of experience in human resources." (Alvarez Dep. at 148). Plaintiff concedes that this is the only reason she thinks she was more qualified than Taylor. (Id.) Plaintiff has offered no evidence to counter Defendants' proffered nondiscriminatory reason that Taylor was hired due to her work experience as a union shop steward and her superior job interview. Plaintiff only presents statements that in her own opinion she was more qualified than Taylor. An employee's subjective belief that an adverse employment action was "`a result of discrimination, without more, is not enough to survive a summary judgment motion.'" Shabat v. Blue Cross Blue Shield, 925 F. Supp. 977, 988 (W.D.N.Y. 1996) (quoting Douglass v. United Services Auto. Ass'n, 65 F.3d 452, 459 (5th Cir. 1995)), aff'd sub nom., Shabat v. Billotti, 108 F.3d 1370 (2d Cir. 1997). Plaintiff's personal belief that she was more qualified for the position than Taylor is therefore insufficient to rebut Defendants' nondiscriminatory reasons for their employment action.*fn4 Plaintiff's claim that Gurwitz held an animus towards those who are Puerto Rican and over forty years old also fails. Plaintiff states that Gurwitz told her on occasion "not to speak `Puerto Rican' because `We are in America.'" (Pl.'s Aff. ¶ 11.) Plaintiff also states that Gurwitz called her "over the hill," although she said it "in a kidding mood." (Alvarez Dep. at 164-67.) Plaintiff's co-workers have also submitted affidavits that Gurwitz told them not to speak Spanish while at work. (Ramos Aff. ¶ 2; Batista Aff. ¶ 2.) However, "`statements by decisionmakers unrelated to the decisional process itself'" are not sufficient to prove pretext. Monte v. Ernst & Young LLP, 330 F. Supp. 2d 350, 361 (S.D.N.Y. 2004) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring)). Even if Gurwitz's isolated comments showed an animus towards Plaintiff due to her age and race, verbal comments may only constitute evidence of discrimination when they are "proximate in time to the adverse employment action." Santos v. Costco Wholesale, Inc., 271 F. Supp. 2d 565, 575 (S.D.N.Y. 2003); Ruane v. Cont'l Cas. Co., No. 96 Civ. 7153 (LBS), 1998 U.S. Dist. LEXIS 8141, at *23-*24 (S.D.N.Y., June 3, 1998); see also Atkin v. Lincoln Prop. Co., 991 F.2d 268, 272 (5th Cir. 1993) (holding that age-related comments that are vague and remote in time are stray remarks and are insufficient to establish discrimination); McCarthy v. Kemper Life Ins. Co., 924 F.2d 683, 686 (7th Cir. 1991) (holding that unless the remarks on which the plaintiff relies are "related to the employment decision in question, they cannot be evidence of a discriminatory discharge").

  And Plaintiff does not know when Gurwitz made the remarks. For the three occasions when Plaintiff recalls Gurwitz telling her not to speak Puerto Rican, Plaintiff cannot recall if the comments occurred before or after 1990 or before or after 1995. (Alvarez Dep. at 124-25, 126-27, 132.) Plaintiff therefore cannot show that these comments were proximate to the employment action that occurred in 1997. See Burrell v. Bensen, No. 91 Civ. 2654 (KMW) (NRB), 1993 U.S. Dist. LEXIS 18005, at *40 (S.D.N.Y. Dec. 21, 1993) (holding that remarks which could be construed as a racial slight were not relatively contemporaneous nor related to an employment decision in question, and therefore could not be used to demonstrate that the defendant's nondiscriminatory explanation was pretextual), aff'd, 50 F.3d 3 (2d Cir. 1995); see also Ahmad v. Nassau Health Care Corp., 234 F. Supp. 2d 185, 194 (E.D.N.Y. 2002) (holding that lack of specificity in time and place of many of the defendant's alleged comments weakened the plaintiff's claims of discrimination), aff'd, 71 Fed. Appx. 98 (2d Cir. 2003) (summary order).

  Plaintiff further submits that her former supervisor, Juan Jennings, told her that "Ms. Gurwitz did not like Puerto Ricans, and would not hire anyone unless they were young." (Pl.'s Aff. ¶ 8.)*fn5 The admission of Jennings's statements as to Gurwitz's state of mind raise hearsay within hearsay concerns. Hearsay testimony that would not be admissible at trial may not be considered in a motion for summary judgment under Rule 56(e). See Fed.R.Civ.P. 56(e); H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991). For the Court to consider Jennings's statements, "`each link in the chain must be admissible, either because it is an admission and thus not hearsay or under some other hearsay exception.'" Phipps v. Comprehensive Cmty. Dev. Corp., No. 00 Civ. 6063 (RJH) (KNF), 2005 U.S. Dist. LEXIS 1672, at *37 (S.D.N.Y. Feb. 2, 2005) (quoting Vazquez v. Lopez-Rosario, 134 F.3d 28, 34 (1st Cir. 1998)); see also Fed.R. Evid. 805.

  Statements from Jennings concerning the employment action in question are potentially admissible. A statement is not hearsay if "the statement is offered against a party and is . . . a statement by a party's agent or servant concerning a matter within the scope of employment, made during the existence of the relationship." Fed.R. Evid. 801(d)(2)(D). In order to fall within the scope of employment, the declarant must be "an advisor or other significant participant in the decision-making process that is the subject matter of the statement." United States v. Rioux, 97 F.3d 648, 661 (2d Cir. 1996). Jennings was a decisionmaker for the Employee Relations Vacancy — he sat on the first panel that interviewed Plaintiff and judged Plaintiff's qualifications for the position. (Gurwitz Decl. ¶¶ 8, 10, 11.) However, it is not clear whether Jennings was a significant participant in the employment decision, which is necessary to place his statements within Rule 801(d)(2)(D) as nonhearsay.

  Even assuming Jennings was a significant participant in the employment action, these particular statements by Jennings concerning Gurwitz's beliefs are still inadmissible. When a witness is not an expert, his "testimony in the form of opinions or inferences is limited to those opinions and inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Fed.R. Evid. 701. When a witness has not identified the objective bases for his opinion, the proffered opinion fails to meet the requirements of Rule 701, as there is no way for the court to assess whether it is rationally based on the witness's perceptions. United States v. Rea, 958 F.2d 1206, 1216 (2d Cir. 1992). Plaintiff has asserted no basis for Jennings's opinions concerning Gurwitz's state of mind. Furthermore, Rule 701(b) bars opinion testimony that amounts to a naked speculation concerning the motivation for a defendant's adverse employment decision. Hester v. BIC Corp., 225 F.3d 178, 185 (2d Cir. 2000). Jennings's speculation here falls outside Rule 701(b), and therefore Plaintiff cannot rely on it to prove discriminatory intent. See Mitroff v. Xomox Corp., 797 F.2d 271, 276 (6th Cir. 1986) (holding that declarant's out-of-court opinion that there was a pattern of age discrimination was inadmissible under Rule 701).

  Plaintiff has therefore offered insufficient evidence to show that the nondiscriminatory reasons proffered by Defendants are pretextual. Defendants' motion for summary judgment is therefore granted on the discrimination claims.

  D. Plaintiff's Retaliation Claim

  To establish a prima facie case for retaliation under Title VII, Plaintiff must show that: (1) she was engaged in a protected activity under Title VII, (2) Defendants were aware of Plaintiff's participation in the protected activity, (3) Defendants took adverse action against Plaintiff, and (4) a causal connection existed between Plaintiff's protected activity and the adverse action. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000). Plaintiff filed a complaint with the EEO on or about March 25, 1998; this constitutes a protected activity under Title VII. See 42 U.S.C. § 2000e-3(a); Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 64 (2d Cir. 1992). Plaintiff's deposition shows that Gurwitz had knowledge of the EEO complaint, since she was interviewed by the EEO investigator, satisfying the second prong of the prima facie case. (Alvarez Dep. at 202-03.) Plaintiff alleges that Defendants took three adverse actions against her: (1) pejorative remarks made by Gurwitz and Edith Hebert, (2) denial of training and responsibilities in her current position, and (3) selecting other employees for the Personnel Management Vacancies.

  Plaintiff alleges that both Hebert, who was the selecting official for the Personnel Management Positions, and Gurwitz made pejorative remarks towards her. (Pl.'s Aff. ¶¶ 12, 14.) Plaintiff overheard Gurwitz referring to her, stating: "I can't stand that woman," and "I don't know who the hell she thinks she is." (Alvarez Dep. at 186.) Plaintiff also states that Gurwitz retaliated by claiming Plaintiff "wasn't going to go anywhere and that [she] might as well leave the service." (Id. at 170.) When Plaintiff went to Hebert to complain about not being selected for the Personnel Management Vacancies, Hebert remarked, "If you don't like it, why don't you leave?" (Id. at 182.) These remarks do not constitute adverse employment actions. Retaliation must subject an employee to a materially adverse change in the terms and conditions of employment. Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999). Occasional comments by a supervisor do not constitute an adverse change in employment. See Brennan v. City of White Plains, 67 F. Supp. 2d 362, 374 (S.D.N.Y. 1999) (holding that verbal abuse without more does not rise to the level of actionable retaliation); Pormilio v. Wachtell Lipton Rosen & Katz, No. 97 Civ. 2230 (MBM), 1999 U.S. Dist. LEXIS 53, at *23-*24 (S.D.N.Y. Jan. 6, 1999) (holding that insults do not rise to the level of actionable discrimination because they do not materially affect the terms and conditions of employment). Gurwitz's and Hebert's remarks therefore do not rise to the level of adverse actions, and Plaintiff cannot establish retaliation based on those remarks.

  Plaintiff also alleges as an adverse action that she was denied training and was not allowed to perform certain duties in her current job. (Pl.'s Aff. ¶ 15.) In order to constitute an adverse employment action, the materially adverse change in the terms of Plaintiff's employment must be "more than a mere inconvenience or an alteration of job responsibilities." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks omitted). However, this Court need not reach the issue as to whether Plaintiff's change in duties were a mere inconvenience. It is uncontested that the denial of training and permission to do certain duties took place before Plaintiff filed her EEO complaint, and therefore could not have been an adverse retaliatory action. Finally, Plaintiff asserts that the selection of Angelita Bennett and Yvonne Morris over her for the Personnel Management Vacancies constitutes an adverse action. Assuming solely for this last proffered adverse action that Plaintiff has satisfied her prima facie case for retaliation, the burden of production shifts to the Defendants to offer a legitimate, nondiscriminatory reason for selecting Bennett and Morris over Plaintiff. See Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003). Defendants contend that the selected candidates were better qualified for the positions than Plaintiff based on their interviews, work performance, and work experience. (Defs' 56.1 Stmt. ¶¶ 28-29.) A poor performance at an interview is a legitimate, nondiscriminatory reason for an adverse employment action. See Wechsler v. RD Mgmt. Corp., 861 F. Supp. 1153, 1160 (E.D.N.Y. 1994).

  As proof that this proffered reason is pretextual, Plaintiff contends that she was more qualified since she trained both candidates in certain job activities. (Pl.'s 56.1 Stmt. ¶ 31.) When attempting to demonstrate that the superiority of Plaintiff's qualifications for the open positions show pretext, Plaintiff would have to prove at trial that "no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question." Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001). Plaintiff cannot meet this burden. Plaintiff concedes that the selected individuals were "probably" qualified for the positions. (Alvarez Dep. at 178.) Plaintiff also admits that minimal previous training was necessary to be qualified for the open positions. (Id.) She has not contested that her interview was weaker than the selected candidates, but only offers her length of work experience and training of the candidates in certain tasks as evidence of her qualifications. In deciding whether there is evidence that discrimination motivated Defendants' employment decision, the Court's role is not to second-guess their business judgment. Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988). Defendants can rely on subjective criteria to choose a candidate, rather than superior qualifications on paper, as long as they do not use a wholly unarticulated standard in evaluating Plaintiff. See Byrnie, 243 F.3d at 104. Here, the fact that all candidates were asked the same prepared questions helps to defeat the inference of discrimination, as the selection process did not treat the applicants differently. See id. at 100. Defendant's decisions regarding the experience and characteristics of the candidates, and the panel's evaluation of Plaintiff's qualifications are entitled to deference. See Sarmiento v. Queens College, No. 01 CV 5266 (SJ), 2005 U.S. Dist. LEXIS 6117, at *10 (E.D.N.Y. Feb. 11, 2005). Based on the standardized questions asked during the interviews, the panel could have reasonably and nondiscriminatively chosen the selected candidates over Plaintiff. Plaintiff has therefore failed to present sufficient evidence that Defendants' subjective reasons for selecting other candidates were motivated by discrimination, and she has hence failed to meet her burden to show evidence that the reasons are pretextual. Defendants' motion for summary judgment is therefore granted on the retaliation claim.


  For the foregoing reasons, Defendants' motion for summary judgment is GRANTED. The Clerk of the Court is directed to close this case and remove it from the Court's active docket.

  So Ordered.

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