The opinion of the court was delivered by: Denise Cote, District Judge
Plaintiff Yusuf O'Neal brings this action alleging that his discharge from employment with the Bronx VA Medical Center (the "Bronx VA") was motivated by discrimination on the basis of his race and sex. Defendant moves for summary judgment, arguing that O'Neal has failed to make a prima facie case and that, moreover, there was a legitimate, non-discriminatory reason for their decision. Defendant's motion is granted.
The following facts are undisputed, except where specifically noted.*fn1 From November 25, 2002 to July 17, 2003, plaintiff Yusuf O'Neal worked as a police officer for the United States Department of Veteran Affairs (the "VA") at the Bronx VA. All probationary VA police officers must successfully complete a mandatory Basic Police Officer Training Course (the "Course") as a condition of their continued employment. The Course is administered at the VA Law Enforcement Training Center in Little Rock, Arkansas (the "LETC").
Before the Course begins, though, students take a pre-training course offered at their station of origin. Completion of the pre-training is mandatory and students must certify that they have completed all pre-training before reporting to the LETC. The Course begins with an entry exam which tests students' knowledge of the material covered in the pre-training. Students must maintain an average of 75 or higher to remain in the Course; those with a cumulative average of less than 75 after the first two weeks are dismissed. Students must also pass the final exam with a score of at least 75 percent. The Course includes physical fitness and side-handle baton (also known as "PR-24") training, as well as classroom instruction.
All probationary officers must successfully complete all portions of the Course in order to have law enforcement and arrest authority. The VA may terminate the probationary employment of any officer who fails the Course. When this happens to a Bronx VA probationer, Bronx VA Chief of Police Albert Aviles may submit a recommendation to the Bronx VA Human Resources Department ("HR") that the employment of the probationary officer be terminated. An HR specialist initiates the termination process after verifying that termination is appropriate and consistent with applicable regulations. A termination letter sent from a Human Resources Officer officially discharges the officer from the VA.
O'Neal attended the Course in May and June 2003. Although defendant offers as evidence a certification signed by O'Neal representing that he had completed the pre-training, O'Neal claims that he received only twenty-eight of the required eighty hours of pre-training. He argues that the instructor signatures on his certification form were forged, but does not explain his own signature. He stated in deposition testimony that he does not believe that he was denied pre-training as a result of discrimination by his employer. O'Neal failed the entry exam for the Course and also failed the next two weekly exams. After two weeks in the Course, O'Neal had a 69 percent average and was consequently dismissed.
Aviles and LETC Deputy Director Christopher Price submitted affidavits in support of this motion relaying the content of a conversation the two men had after O'Neal's dismissal from the Course. Price informed Aviles that O'Neal had not been a good student; that he had trouble comprehending the material; that he declined to participate in study groups despite the urging of LETC staff; that an LETC instruction worked separately with O'Neal to assist him; and that O'Neal appeared indifferent when advised of his failure.
O'Neal presents a different picture of his experience at LETC. He claims to have studied every day, to have attended a study group taught by his law professor, and to have tried as hard as he could to understand the material. O'Neal states that he was surprised and distraught to hear that he was being dismissed.
Aviles recommended to HR that O'Neal's employment at the Bronx VA be terminated. HR Specialist Gerda Lloyd reviewed the recommendation and agreed that termination was appropriate. O'Neal was informed by a letter dated July 1, 2003 that his discharge would be effective July 17. O'Neal claims that he had a conversation with Aviles before the letter was sent in which he expressed interest in attending the Course again. Aviles told him that nobody who fails gets a second chance to take the Course.
The parties agree, though, that one student did receive a second chance. Leslie Torres, an Hispanic female, attended the Course in August 2003. She had an average of 81 going into the final exam, but failed the final exam by two points. Prior to taking the exam, Torres learned that her father had suffered a stroke. When Aviles and Price spoke later, Price informed the Chief that Torres was a very good student; that she had no difficulties learning the material; that she worked diligently and attended study groups and after-hours training; and that she had an overall passing score but had failed the final exam by two points after learning of her father's condition. Aviles believed that Torres presented an exceptional case and deserved a second opportunity to attend the Course. Torres re-enrolled in the Course in February 2004 but withdrew after the second week to attend to her father, whose health had deteriorated further. In light of her strong performance at the time of withdrawal (she had a 90 percent average) and the circumstances of her father's illness, Torres was permitted to enroll for a third time in the Course in September 2004. She passed with an 85 percent average.
Summary judgment is appropriate only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465 (2d Cir. 2000). The same standard is applied in employment discrimination cases as in all others. Id. (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000)). Thus, even though the evidence must be viewed in the light most favorable to the non-moving party, with all reasonable inferences drawn in its favor, "the test for summary judgment" even in discrimination cases "is whether the evidence can reasonable support a verdict in the plaintiff's favor." James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000); see also Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001) ("A court is to examine the entire record to determine whether the plaintiff could satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." (citation omitted)).
O'Neal's claims of discrimination on the bases of race and sex are analyzed under the burden-shifting framework first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The initial burden falls onto the plaintiff to establish a prima facie case of discrimination. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142 (2000). If the plaintiff succeeds, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. The defendant's burden is one of production, not persuasion. Id. If the employer meets its burden, "the McDonnell Douglas presumptions disappear from the case," James, 233 F.3d at 156, and "the trier of fact proceeds to decide the ...