UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 31, 2006
YUSUF O'NEAL, PLAINTIFF,
JIM NICHOLSON, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF VETERAN AFFAIRS, DEFENDANT.
The opinion of the court was delivered by: Denise Cote, District Judge
OPINION & ORDER
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 ultimate question: whether plaintiff has proven that the defendant intentionally discriminated against him because of his race." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
To establish a prima facie case of discriminatory discharge, a plaintiff must establish that he (1) is a member of a protected class; (2) was qualified for the position; (3) was discharged; and (4) that his discharge occurred under circumstances giving rise to an inference of discrimination on the basis of membership in the protected class. Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 91 (2d Cir. 2001). The burden of establishing a prima facie case to support a claim of employment discrimination is minimal. McGuiness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001). The parties do not dispute that O'Neal is a member of a protected class with respect to both of his discrimination claims (black and male), nor that he was discharged. There is significant dispute, however, regarding the second and fourth elements of his prima facie case.
To satisfy the qualification prong of a prima facie case, a plaintiff "must show only that he possesses the basic skills necessary for performance of the job." Slattery, 248 F.3d at 92 (citation omitted). The Second Circuit has warned that district courts are not to interpret this prong in such a way "as to shift onto the plaintiff an obligation to anticipate and disprove, in his prima facie case, the employer's proffer of a legitimate, non-discriminatory basis for its decision." Id. Consequently, "the qualification necessary to shift the burden to defendant . . . is minimal." Id.
Although the plaintiff's burden is minimal, his qualifications must still be assessed by reference to "the criteria the employer has specified for the position." Thornley v. Penton Publ'g, 104 F.3d 26, 29 (2d Cir. 1997) (emphasis added). O'Neal argues that he performed his duties satisfactorily. He offers as evidence a performance appraisal and certificates of completion of various VA training sessions. Yet he does not deny that he was dismissed from the Course after failing every test he took. Nor does he deny that successful completion of the course is mandatory for probationary officers. The evidence is therefore uncontradicted that O'Neal did not possess the "employer's honestly-held expectations" regarding the qualifications of probationary officers. Id. at 30.*fn2 In light of his failure to prove his qualification, Shannon O'Neal cannot carry his burden with respect to the second element of his prima facie case.*fn3
With respect to the fourth element of the prima facie case, a plaintiff may carry his burden "by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group." Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). In order to raise an inference of discrimination, the plaintiff must be "similarly situated in all material respects" to the individuals with whom he seeks to compare himself. Shumway v. United Parcel Serv., 118 F.3d 60, 64 (2d Cir. 1997) (affirming finding that plaintiff failed to present prima facie evidence of discrimination). "A plaintiff is not obligated to show disparate treatment of an identically situated employee" when presenting prima facie evidence of discrimination, but the object of comparison "must have a situation sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributable to discrimination." McGuiness, 263 F.3d at 54. A plaintiff meets this standard by demonstrating that the employees to whom he compares himself "were subject to the same workplace standards" as the plaintiff and had engaged in conduct of "comparable seriousness." Graham, 230 F.3d at 40.
O'Neal supports his claim of disparate treatment by pointing to Torres, who was permitted to re-enroll in the Course after failing it. Both O'Neal and Torres were probationary officers subject to the same workplace standard, namely the requirement that they successfully complete the Course in order to retain employment as police officers at the Bronx VA. Whether they were similarly situated thus depends on the comparability of their conduct.
"The determination that two acts are of comparable seriousness requires --- in addition to an examination of the acts --- an examination of the context and surrounding circumstances in which those acts are evaluated." Graham, 230 F.3d at 40. While Torres and O'Neal did both fail to complete the Course successfully, they in fact failed in quite different ways. O'Neal failed every exam he took and was dismissed from the Course after only two weeks. Torres, in contrast, passed every exam except for the last, and finished the Course with an overall passing average. Furthermore, the circumstances surrounding the two failures are markedly different. Torres had been informed before taking her final exam that her father, already in poor health, had suffered a stroke. O'Neal points to no similar emergency that might have distracted his attention from his studies. Given these significant differences in the experiences of Torres and O'Neal at the LETC, it cannot be said that there is "a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases" such that the two could be considered similarly situated in all material respects. Id. at 40. O'Neal has therefore failed to carry his burden with respect to the fourth element of his prima facie case as well.
Even assuming arguendo that he had made out a prima facie case of discrimination, though, defendant has met his burden of production of evidence that O'Neal was fired for a legitimate, non-discriminatory reason. Aviles and HR Specialist Gerda Lloyd both submitted affidavits stating that O'Neal was terminated solely because of his poor performance at the LETC. Having met its burden, the defendant is entitled to judgment as a matter of law unless O'Neal offers sufficient admissible evidence that would enable a reasonable factfinder to conclude that the VA's proffered justification is pretextual and that the true reason for his discharge is discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993). ("It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.").
For essentially the same reasons he has failed to make a prima facie case, O'Neal has failed to raise a genuine issue of fact as to whether the VA intentionally discriminated against him on the basis of race or sex. O'Neal offers conclusory allegations that Aviles dislikes blacks and prefers Hispanics, but no evidence, either direct or circumstantial that Aviles harbored any discriminatory animus toward him.*fn4 These are insufficient to defeat a motion for summary judgment. See Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) ("Nor is a genuine issue created merely by the presentation of assertions that are conclusory.").
O'Neal has not demonstrated that he was performing satisfactorily at the time of his discharge or that his discharge occurred under circumstances that would support a reasonable inference of discrimination based on his membership in a protected class. For these reasons, he has failed to establish a prima facie case of discrimination, and defendant is entitled to judgment as a matter of law. Moreover, even if O'Neal had succeeded in carrying this minimal burden, the VA's proffered nondiscriminatory reason for O'Neal's discharge "is dispositive and forecloses any issue of material fact." Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 124 (2d Cir. 2004) (citation omitted). Defendant's motion for summary judgment is granted; the Clerk of the Court shall close the case.
DENISE COTE United States District Judge