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December 15, 2005.

MICHAEL CHERTOFF, United States Department of Homeland Security, Defendant.

The opinion of the court was delivered by: GERARD LYNCH, District Judge


Plaintiff Cherlyn Phillips brings this employment discrimination action against her former employer, the Immigration and Naturalization Service ("INS"), which is now housed within the Department of Homeland Security.*fn1 Plaintiff claims that she was passed over for numerous promotions because of her race, sex, and prior complaints of discrimination, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"). Defendant now moves for summary judgment, arguing that plaintiff has not established a prima facie case of discrimination with respect to certain claims and has presented insufficient evidence of discrimination in response to defendant's non-discriminatory justifications with respect to the remaining claims. For the reasons below, defendant's motion will be granted in part and denied in part.


  There are very few factual disputes on the record before the Court, and the following facts have been admitted by both parties pursuant to Local Rule 56.1. Plaintiff, an African-American woman (Phillips Aff. ¶ 2), began working at the INS on June 8, 1997, as a supervisory applications clerk. (Def. Rule 56.1 Stmt. ¶ 1.) During the first approximately one-and-a-half years of her employment at the INS, from June 9, 1997, to September 30, 1998, Phillips received a performance evaluation of "fully successful" from her supervisor at the time, Loretta Wilhite, and her second-line supervisor, Linda Pritchett. (Id. ¶¶ 7, 10.) Following this evaluation, some time in July 1999, the INS announced an opening for an analyst position, for which Phillips applied. (Id. ¶ 16.) Phillips was not awarded the position; instead offers were given to Ferne Cadogan and Monique Saunders, both of whom are African-American women. (Id. ¶¶ 20, 24, 25.) Although she was not selected for the analyst position in July 1999, Phillips performed well in her capacity as a supervisory applications clerk during this period. In her performance evaluation for the period from October 1, 1998, to September 30, 1999, Phillips received a rating of "excellent" from Wilhite and her new second-level supervisor John Byrnes. (Id. ¶¶ 12, 13, 14.)

  In February 2000, Phillips filed her first complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging that as a result of discrimination she was hired at a lower pay grade than she had been promised. (Id. ¶ 30.) This complaint was eventually resolved in October 2000 pursuant to an agreement between Phillips and the INS, whereby Phillips received a retroactive promotion in pay scale. (Id. ¶ 30, 32.)

  With the EEOC complaint pending, in May 2000 the INS announced another vacancy for an analyst position. Again Phillips applied for the vacancy and again the position went to another. This time James Hausle, a white man, received the position. (Id. ¶¶ 35, 37, 41.) Plaintiff's disappointments continued in August 2000, when yet another open analyst position was awarded to someone other than Phillips — Sonia Hernandez, an Hispanic woman. (Id. ¶¶ 42, 49.) During this period, from October 1, 1999, to September 30, 2000, Phillips's job performance regressed to her 1998 rating; she received a "fully successful" evaluation from Byrnes, who was at this time her supervisor, and second-level supervisor Gwynne MacPherson. (Id. ¶¶ 26, 28.)

  In the wake of her three unsuccessful applications for promotion, Phillips filed her second EEOC complaint in March 2001, alleging discrimination based on race, gender, and retaliation in connection with her non-selection for the May 2000 analyst position which was awarded to Hausle. (Id. ¶ 136.) Following this complaint, in October 2001, Phillips received another evaluation of "fully successful" from Michael Borgen, her supervisor, and Byrnes, who was then her second-line supervisor.

  Phillips did not apply for any subsequent analyst openings. Beginning in November 2001, however, Phillips began applying for positions as a District Adjudications Officer ("DAO"). The November 2001 opening resulted in an offer to Thomas Pepitone, a white man. (Id. ¶ 62.) Pepitone declined the position and candidates were reconsidered for the opening. Phillips fared no better in the second round; the job was offered to Karen Washington, a black woman. (Id. ¶¶ 66, 67.) In February 2002, Phillips challenged her non-selection for the DAO opening by filing a complaint with the EEOC alleging discrimination based on race, gender, national origin, and retaliation. (Id. ¶ 137.)

  Over the next seven months Phillips applied for five more DAO positions and received no offers. Offers for openings in April 2002 went to Desiree Goode Clark, a black woman; Kimberlee Kelley, who did not indicate a race or sex but whose name suggests she is female; Valerie Wright, a black woman; Roseann Zenda, a black woman; Yvenice Andres, an Hispanic woman; Carmen Rivera Garcia, an Hispanic woman; Keith McCalman, a black man; Kathleen Gabriel, who did not indicate a race or sex but whose name suggests she is female; Daisy Rodriguez-Figueroa, who did not indicate a race or sex but whose name suggests she is female; and Tanya Marie, a black woman. (Id. ¶¶ 69-87.) Offers for openings in May 2002 went to Marcella Campbell, a white woman, and Lisa Williamson, a black woman. Two openings were announced at the beginning of September 2002. No offers were extended in connection with the first September 2002 opening. (Id. ¶¶ 98-101.) For the second September 2002 opening the only offer went to Maria Passarelli, a white woman. (Id. ¶ 104.) Finally, a third September 2002 opening was announced at the end of the month, and the only offer went to Judith Carty, a black woman. (Id. ¶ 109.)

  Following this string of applications and non-selections, Phillips received two more performance evaluations. Under normal circumstances Phillips would have received an evaluation for the period from October 1, 2001, to September 30, 2002, but because Phillips was on medical leave from May 24, 2002, to September 30, 2002, the evaluation period was extended to January 30, 2003. (Id. ¶¶ 126-128.) Phillips's rating for the extended period was "fully successful" as evaluated by her supervisor Stephen Rosina and her second-line supervisor Ronald Atkinson. (Id. ¶ 129.) Phillips received the same rating of "fully successful" for the most recent relevant period, ending in September 2003, again from Rosina and Atkinson. (Id. ¶ 133.)


  I. Summary Judgment Standard and Title VII Requirements

  Summary judgment shall be granted if the Court determines that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine issue of material fact" exists if the evidence is such that a reasonable jury could find in favor of the non-moving party. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In deciding a summary judgment motion, the Court must "resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion." Cifarelli v. Babylon, 93 F.3d 47, 51 (2d Cir. 1996). In addition, the Court is not to make any credibility assessments or weigh the evidence at this stage. Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996).

  To determine which facts are material, the Court must look to the substantive law that supplies the basis for the claims at issue. See Liberty Lobby, 477 U.S. at 248. The Supreme Court case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides the framework to evaluate a claim under Title VII. First, the plaintiff must make out a prima facie case of discrimination by showing that "(1) she is a member of a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she suffered an adverse employment action; and (4) the circumstances surrounding that action permit an inference of discrimination." Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004); accord, McDonnell Douglas, 411 U.S. at 802. For a claim of retaliation, the plaintiff's prima facie case must show that (1) she participated in a protected activity about which defendant was aware; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. See Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004).

  After plaintiff has made the required prima facie showing, a presumption of discrimination is created and the burden of production shifts to the defendant, who must then offer "evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). The determination whether or not the defendant has met this burden "can involve no credibility assessment." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993). After the defendant produces evidence of a non-discriminatory reason for its actions, the McDonnell Douglas presumption disappears, and all that remains is the ultimate burden of persuasion which must at all times be born by the plaintiff. Id. at 510-11. To avoid summary judgment the plaintiff must then present sufficient evidence for a reasonable fact finder to conclude that the defendant's purported explanation is merely a pretext, and that intentional discrimination was actually a factor in defendant's actions. Reeves, 530 U.S. at 143. II. Phillips's Prima Facie Showing and Defendant's Rebuttal

  Phillips claims that each of the previously discussed nine non-selections for promotions within the INS were motivated by race and sex discrimination and by retaliation for engaging in protected EEOC activity. Therefore, each individual non-selection must be analyzed separately to determine whether it satisfies the requirements of a prima facie claim under Title VII. This approach is not one in which myopic focus on the minutiae of each isolated event is allowed to obscure a larger pattern of discrimination. Rather, the broader series of events will be considered when determining what inferences a fact finder could draw when evaluating the motivations for any one specific non-selection. But to survive summary judgement plaintiff must show that she suffered a specific adverse employment action on the basis of a prohibited ground of decision, and only through a case-by-case analysis can the existence of such a showing be determined.

  In order to analyze these various complaints, the Court will first discuss, as to each separate promotion opportunity, whether plaintiff has established a prima facie case on any of the three claimed bases of discrimination and, where she has done so, whether defendant has set forth a legitimate non-discriminatory reason for its decision. Where the claim survives this analysis, the Court will go on in Part III to address whether plaintiff has presented evidence from which a reasonable fact finder could conclude that the particular failure to promote plaintiff was based on a prohibited ground of discrimination.*fn2 As an initial matter, it is clear that Phillips satisfies the first and third requirements for a prima facie case of race or sex discrimination: as a black woman, she is a member of a protected class with respect to both race and sex, and she was not given an offer in response to any of her applications, each non-selection being an adverse employment action. Defendant does not argue otherwise. Furthermore, defendant does not argue in its briefing that a lack of qualifications prevents Phillips from making out a prima facie case. To the extent defendant argues that Phillips was not qualified, it does so in the course ...

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