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O'Leary v. NY State Unified Court System


August 6, 2007


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1


On July 26, 2005, Frances O'Leary ("O'Leary" or "Plaintiff") filed a complaint against her employer, the New York State Unified Court System ("OCA" or "Defendant") that alleged sex, national origin, and race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e) et seq., New York State Human Rights Laws, N.Y. Exec. L. §290, et seq. ("State HRL"), and New York City Human Rights Law, N.Y.C. Admin. C. §8-101, et seq. ("City HRL") ("Compl."). On November 15, 2006, Plaintiff amended her complaint ("Am. Compl."), and alleged she was not selected for an interview or considered for Chief Clerk position(s) by OCA based on her sex, national origin, and age. On November 29, 2006, counsel for both parties met with the Court and agreed that all national origin and age discrimination claims would be dropped, and that the only remaining claims are those for race and sex discrimination. The charge, in essence, by the Plaintiff is that OCA hired non-Caucasian females, as well as Caucasian and non-Caucasian males, while discriminating against Caucasian women like her. OCA now moves this Court for summary judgment with respect to the remaining claims.*fn2 For the reasons stated below, the motion is GRANTED in its entirety.


A. O'Leary's Employment with the New York State Unified Court System

From 1978 to July 2005 (inception of this action), O'Leary, an Irish-American female (Compl. ¶ 9), worked for OCA and held various positions in both New York and BronX Counties. From 1978-1983, O'Leary was a Uniformed Court Officer in New York and Bronx Counties. Am. Compl. ¶ 10. From September 1983 through February 1985, O'Leary was employed as Senior Court Clerk in Bronx County Surrogate's Court, and on February 7, 1985, O'Leary was appointed as Senior Court Clerk in New York City Civil Court. Id. From 1985 through 2005, O'Leary was employed as a Senior, Associate, and Court Attorney for various justices in the New York County and Bronx County Supreme Courts.*fn3

B. The Unified Court System's Employment Application and Appointment Process

The selection process for positions in New York City courts spans four separate stages --

(1) solicitation of applications for a position, (2) interview of qualified applicants for the position, (3) identification of the person most qualified for the position, and (4) the actual appointment of the selected applicant to the position. Affidavit of John Sullivan, Apr. 9, 2007 ("Sullivan Aff.") ¶ 17. Job announcements, which identify the position to be filled, its duties, the minimum qualifications for appointment and describe the application procedures, are posted in court facilities throughout New York State to afford eligible persons the opportunity to apply. Id. All applications submitted in response to a job announcement are reviewed by an interview panel consisting of at least four persons who typically are well-acquainted with the advertised position. Id. ¶ 18. OCA application forms omit any provisions for an applicant to identify his or her race, sex, color, or national origin. Sullivan Aff. ¶ 19. After reviewing each application in light of the duties of the position, the interview panel identifies those applicants deemed to be the most qualified for the position and invites a number of them for a job interview. Id. After the panel completes its interviews, it selects the three "most qualified candidates for the position," and from these three identifies the top applicant to whom it would like to extend an offer of employment, then the panel sends its recommendation to the Deputy Chief Administrative Judge of the New York City courts, who then forwards the list and supporting documents with his or her recommendation to the OCA Administrative Director. Id. at ¶ 20.

C. O'Leary's Applications for Positions with OCA

O'Leary applied for eight positions with OCA in eight years,*fn4 and each of the positions was given to a non-Caucasian woman, or a man. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") 12-13. Plaintiff contends she was only granted three interviews. Id.

(1) O'Leary's Employment Applications, 2002-2004

In December 2002, O'Leary applied for the Deputy Chief Clerk V position*fn5 and was granted an interview; however, OCA ultimately hired a Hispanic female. Reply to Def's 56.1 Statement and Statement of Additional Facts ("Pl.'s Reply to Def's 56.1") ¶ 2; Pl.'s Opp'n 8. Thereafter, on March 5, 2004, O'Leary applied for the position of Chief Clerk VII of the Bronx County Supreme Court.*fn6 Def.'s 56.1 Statement ¶ 12. All seventy-seven applications received, including O'Leary's, were sent to the interview panel: three of the four interviewers were Caucasian, and three of the four were women. Def's 56.1 Statement ¶ 12. Twenty-four individuals were invited to interview on May 27, 2004, but Plaintiff was not one of them. Pl.'s Reply to Def.'s 56.1 Statement ¶¶ 12-14, 39; Am. Compl. ¶ 16. On July 12, 2004, OCA announced its selection of a Hispanic female for the Chief Clerk VII position. Pl.'s Opp'n 6.

Also in March of 2004, O'Leary applied for the position of Chief Clerk VII of the Kings County Supreme Court.*fn7 Def.'s 56.1 Statement ¶ 21. Of the seventy-two applications for this position, ten people were interviewed for this position, but O'Leary was not one of them. Def.'s 56.1 Statement ¶¶ 21, 24. O'Leary's application failed to note any managerial or supervisory experience required for this position. Def.'s 56.1 Statement ¶ 25.*fn8 Ultimately, OCA selected a Caucasian male for the position. Pl.'s Opp'n 6.

On March 16, 2004, O'Leary applied for the Court Clerk Specialist position in the New York County Supreme Court,Criminal Term.*fn9 Am. Compl. ¶ 14. The interview panel reviewed the forty-six applications submitted, and eleven people were selected to interview, but O'Leary was not chosen. Def.'s 56.1 Statement ¶ 32. A Black male received OCA's offer of employment. Pl's Opp'n 7.

Between March and May 2004, O'Leary repeatedly requested intervention by OCA's Director of Workforce Diversity. Am. Compl. ¶ 17. On May 28, 2004, O'Leary filed a written complaint withthe New York State Unified Court System Office of Inspector General ("IG") alleging race, color, national origin, sex, age, and education-based discrimination in promotions. Pl.'s Reply to Def's 56.1 ¶ 1.

On July 19, 2004, O'Leary filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights alleging discrimination based on age and national origin. Sullivan Aff. Ex. 1. On April 29, 2005, O'Leary's EEOC Charge was dismissed, and she received a right to sue letter. Am. Compl. ¶ 22. On July 27, 2005, O'Leary commenced this action in this Court. Id. ¶ 23.

(2) O'Leary's Employment Applications, 2004-2006

O'Leary applied for four additional positions with OCA after filing her first complaint with the EEOC, and was granted interviews for three of these positions. However, ultimately, Plaintiff was not offered any of the positions she applied for. In November 2004, O'Leary applied for the position of Court Clerk Specialist of Fiduciary Clerk Guardianship in BronX County ("Fiduciary Clerk"),*fn10 and interviewed for this position on February 15, 2005. Am. Compl. ¶¶ 24, 26.*fn11 On March 3, 2005, OCA appointed a Caucasian male to the position. Pl.'s Opp'n. 7.

In October 2005, O'Leary applied for the position of Chief Clerk VI for the Bronx County Surrogate's Court,*fn12 but did not receive an interview. Am. Compl. ¶¶ 30-31. None of the people who interviewed were Caucasian females (Id. ¶ 35), and a Hispanic female was ultimately selected for the position. Id. ¶ 33. In February 2006, O'Leary applied for the Court Clerk Specialist of Bronx County Surrogate's Court*fn13 (Am. Compl. ¶¶ 30(b), 36), and interviewed on March 1, 2006, but OCA selected a Black male for the position. Id. ¶ 37. In May 2006, O'Leary applied for the Court Clerk Specialist position in the Supreme Court, Matrimonial Bureau in Bronx County and interviewed for the position on May 22, 2006; however, the OCA selected a Black female. Id. ¶ 39.

On July 13, 2006, O'Leary filed a second charge of discrimination with the EEOC, which alleged incidents of OCA's continuing discriminatory conduct based on race and sex. Sullivan Aff. Ex. 3. On October 25, 2006, O'Leary's second EEOC charge was dismissed, and the Plaintiff received a right to sue letter. Am. Compl. ¶ 47. The Amended Complaint was filed on November 13, 2006. Id. at 12.


On a motion for summary judgment, the movant must establish that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A disputed issue of material fact alone is insufficient to deny a motion for summary judgment; it must be "material to the outcome of the litigation," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), and backed by evidence that would allow "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Not every disputed factual issue is material in light of the substantive law that governs the case. Deleon v. Putnam Valley Bd. of Educ., No. 03-CV-10274, 2006 U.S. Dist. LEXIS 3337, *16 (S.D.N.Y., Jan. 26, 2006) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment.") (internal quotations and citation omitted). On a summary judgment motion, the court resolves all ambiguities and draws all inferences in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987).

"In employment discrimination cases where it is necessary to explore an employer's intent and motivation, summary judgment may not be appropriate." See generally Bhaduri v. Summit Sec. Servs., No. 05-CV-7024, 2006 U.S. Dist. LEXIS 79830, at *11-12 (S.D.N.Y. Nov. 2, 2006) (Baer, J.), citing Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). Consequently, affidavits and deposition testimony must be scrutinized for circumstantial evidence, which if believed, would support a finding of discrimination. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). However, Plaintiff must still produce sufficient evidence in support of her claim so that a rational juror could find in his or her favor. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases."). Goss v. Bernier, No. 05-CV-9592, 2007 U.S. Dist. LEXIS 3206, *9 (S.D.N.Y. Jan. 18, 2007) (Baer, J.). However, "[e]ven courts mindful of the fact that summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated have nonetheless granted summary judgment at the pretext stage where the plaintiff has provided no indication that any evidence exists that would permit the trier of fact to draw a reasonable inference of pretext." Johnson v. Conn., Dep't of Corr., 392 F. Supp. 2d 326, 334 (citing Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985)).


In order to ascertain whether a rational juror could find in Ms. O'Leary's favor, it is necessary to consider evidence of how OCA conducted its interviewing and hiring, and what information was reviewed with respect to the qualifications of the applicants. While it is unnecessary for the Court to engage in a subjective review and determination of Ms. O'Leary's qualifications for the positions at issue here, I am charged with the difficult task of going into some detail to compare the qualifications of the Plaintiff with the qualifications of those who were accepted for the various positions based on the information (resume, writing sample) submitted to the Defendant.*fn14

A. Title VII Violations

(1) Plaintiff's Title VII Discrimination Claims Based on Race and Sex

In disparate treatment cases, such as the instant one, the plaintiff is required to prove that the defendant had a discriminatory intent or motive. The Supreme Court's shifting evidentiary burdens are "intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dept. of Cmty Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). Specifically, "[u]nder that scheme, a prima facie case is ordinarily established by proof that the employer, after having rejected the plaintiff's application for a job or promotion, continued to seek applicants with qualifications similar to the plaintiff's." Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 985-86 (1988) (citation omitted).

O'Leary's discrimination claim based on OCA's failure to hire*fn15 her and to hire only non-Caucasian females both Caucasian and non-Caucasian males must be measured pursuant to the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). To establish a prima facie case of discrimination under Title VII, the plaintiff must show that (1) she is a member of a protected class; (2) she was qualified for the job; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discriminatory intent. Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004). It is well recognized that, on summary judgment, the plaintiff's burden of making a prima facie showing is "de minimis." Id. (citation omitted). If the Plaintiff establishes a prima facie case, she "creates a presumption that the employer unlawfully discriminated, and the burden of production will shift to the employer to proffer a nondiscriminatory reason for its action." James v. New York Racing Assn., 233 F.3d 149, 154 (2d Cir. 2000) (citation omitted). If the Defendant provides evidence of a nondiscriminatory reason for its employment decision, the Plaintiff may still prevail if she provides "admissible evidence that would be sufficient to permit a rational finder of fact to infer that the employer's proffered reason is pretext foran impermissible motivation." Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (vacating and remanding district court's dismissal of plaintiff's Title VII claims on summary judgment on the grounds that plaintiff presented evidence from which a rational juror could find for her); cf. Altman v. N.Y. City Dep't of Educ., No. 06-CV-6319, 2007 U.S. Dist. LEXIS 32320, *19 (S.D.N.Y., May 3, 2007) (granting employer's motion for summary judgment on plaintiff's age discrimination claims; plaintiff put forth no comments or actions by any of her supervisors relating to her age that might give rise to an inference of discrimination, and the only evidence she put forth was conclusory allegations in her complaint).

Even with such a showing, however, "the plaintiff is not entitled to judgment unless []he shows that the challenged employment decision was more likely than not motivated, in whole or in part, by unlawful discrimination." Id. In fact, the Supreme Court has "cautioned that these shifting burdens are meant only to aid courts and litigants in arranging the presentation of evidence and that 'the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988) (internal quotation and citation omitted). To demonstrate pretext, Plaintiff would have to show her credentials were so superior to those of candidates selected that no reasonable person would have chosen them over Plaintiff. Byrnie v. Town of Cromwell, 243 F.3d 93, 103 (2d Cir. 2001).

Here, Defendant does not contest O'Leary's membership in a protected class or that Ms. O'Leary suffered an adverse employment action - i.e. she was not hired. Rather, OCA contends that Plaintiff fails to establish a prima facie case of race or sex-based discrimination here because she fails the last two prongs set forth in McDonnell Douglas Corp.-she was not qualified for four out of the seven positions,*fn16 and for the remaining three where she did meet the minimum qualifications, she cannot show that OCA's failure to hire her gives rise to an inference of discrimination.

a. Chief Clerk VII Positions

Plaintiff applied for two Chief Clerk VII positions*fn17 in March 2004-one in BronX

County Supreme Court, Civil Term, and the other in the Kings County Supreme Court. Chief Clerk VII is the highest ranking non-judicial employee in New York City's Civil, Criminal, and Family Courts responsible for "managing court operations related to case processing, budget and payroll preparation, personnel management and employee relations, deployment of non-judicial personnel, coordination with non-court agencies, and for performing other related duties." Sullivan Aff. ¶ 28. According to the job announcement, "[t]o qualify for appointment as a Chief Clerk VII [in either county], a candidate must have a Bachelor's degree from an accredited college and six years of work experience involving managerial responsibilities such as human resources administration, budget preparation, and review of documents for compliance with policies, rules, and procedures, or the equivalent combination of education and experience." Sullivan Aff. Ex. 7.

Plaintiff failed to establish a prima facie case of race or sex discrimination because she failed to show she was qualified for either position. Defendant received a total of 77 applications (including Plaintiff's) for the Bronx County position, all, including Plaintiff's, were submitted to the interview panel, and the panel selected 24 individuals (both men and women of different races) to interview but not Plaintiff. Sulllivan Aff. ¶¶ 31, 33. The resumes of the people invited to interview, according to Defendant, either met or exceeded the minimum qualifications for the two positions in the job announcements, particularly with regards to the managerial and supervisory experience. Id. ¶ 34. Plaintiff's resume and application, on the other hand, simply listed prior positions in the court system which do not typically perform the duties required by the Clerk VII position. See Sullivan Aff. Ex. 6. A Hispanic female was ultimately selected for the position in the Bronx County Supreme Court, and unlike Plaintiff, the selected candidates' resumes provided information that illustrated substantial supervisory and managerial experience. For example, the Hispanic female selected for the Bronx Supreme Court noted that she had ascended through a series of three increasingly more responsible court managerial positions,*fn18 had a total of seventeen years of managerial experience in court operations and specialized units, and developed and supervised the first child protective/permanency planning unit in the state. Sullivan Aff. ¶ 37. Similarly, the resume of the Caucasian male selected for the Kings County position states and describes the requisite managerial and supervisory experience,*fn19 while Plaintiff failed to list any managerial experience.

"Whether an individual is 'qualified' for a job must be assessed in relation to the criteria the employer has specified for the position, not criteria that seem reasonable to the litigant, or to this Court." Sarmiento v. Queens College, 386 F. Supp. 2d 93, 97 (E.D.N.Y. 2005) (citations omitted). "Defendant's decisions regarding the professional experience and characteristics sought in a candidate, as well as the search committee's evaluation of Plaintiff's qualifications, are entitled to deference." Id. at 97-98. The Court's role "is not to evaluate the wisdom of personnel decisions, but merely to determine whether the decisions were rational and non-discriminatory." Id. (citations omitted). O'Leary has failed to show that she was qualified for the position and thus, cannot support a prima facie case for either sex or race discrimination.*fn20

b. Court Clerk Specialist Positions

Plaintiff applied to four Court Clerk Specialist Positions in different courts between 2004 and 2005.*fn21 According to the job announcement, Court Clerk Specialists work in the largest New York Supreme, Surrogate's, and Appellate Courts, or in counties with populations exceeding 400,000 where they supervise a staff of Principal Court Clerks and other subordinate personnel.*fn22 The interview panel rated Plaintiff as "qualified" for three of the four positions,*fn23 and invited her to interview for those three positions. The only instance where Plaintiff was denied an interview for this position was in the New York Supreme Court, where Plaintiff, unlike all the applicants chosen for an interview, failed to submit a written statement with her application, and thus fails to show that she was qualified.*fn24 Therefore, I review these three positions below-Court Clerk Specialist of Fiduciary Clerk Guardianship in Bronx County, Court Clerk Specialist of Bronx County Surrogate's Court, and Court Clerk Specialist in Supreme Court, Matrimonial Bureau in Bronx County-solely on the fourth prong of McDonnell Douglas Corp. for an inference of discrimination and find that Plaintiff fails to meet her burden here.

(1) Court Clerk Specialist of Fiduciary Clerk Guardianship in Bronx County

While the interview panel rated Plaintiff as "qualified" for this position, the candidate hired was rated as "highly qualified."*fn25 The applicant ultimately selected had 25 years of experience as a Court Clerk, while Plaintiff had only two years experience in this position. Also, at least two of the eight people selected for interview were Caucasian females.*fn26 Of the seven people on the panel, four were female, five were Caucasian and two of them were Caucasian females. Sullivan Aff. ¶ 62. The totality of circumstances presented here would not permit a rational trier of fact to infer a discriminatory motive. See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000) (mandating a case-by-case approach with the court examining the entire record to determine whether plaintiff could satisfy the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff").

(2) Court Clerk Specialist of Bronx County Surrogate's Court

Once again, Plaintiff fails to show that OCA's failure to hire her occurred under circumstances that give rise to an inference of discrimination and she does not allege any. Three of the nine individuals who were selected to interview for this position were Caucasian females.*fn27 Of the five people on the interview panel, one was female and four were males; four were Caucasian, and one was Black. Further, although Plaintiff was deemed "qualified" for this position by the interview committee, the candidate selected, a Black male, was rated as "highly qualified" by the same panel. The panel noted that he had "extensive Surrogate's court experience [where Plaintiff had none], excellent technical and procedural knowledge [and a] law degree," with no demonstrated weaknesses.*fn28 Sullivan Aff. ¶ 79. Thus, Plaintiff does not show that OCA's decision to hire the Black male gives rise to an inference of discrimination.

(3) Court Clerk Specialist in Supreme Court, Matrimonial Bureau in Bronx County

Here again, Plaintiff has failed to show that the circumstances give rise to an inference of discrimination based on race or sex. Plaintiff was selected to interview for this position, and the interview panel rated her as "qualified." Of the eleven candidates selected to interview, five, including Plaintiff, were Caucasian females. Of the five people on the panel, one was female, and four were males; four were Caucasian, and one was Black. Plaintiffs' credentials were not superior to those of the candidate selected. Indeed, there is evidence that the candidate chosen had far superior credentials to those of the Plaintiff.*fn29 The interview panel rated the chosen candidate as "highly qualified," noting she had "[e]xtensive knowledge of matrimonial practice[,]" "[e]xcellent management skills[,] and had "[d]emonstrated outstanding ability to implement new initiatives." Sullivan Aff. ¶ 85. In contrast, Plaintiff's resume did not mention familiarity with case processing and management practice in general, nor with the department or matrimonial practices in particular. Further, Plaintiff did not have a comparable level of supervisory experience and responsibility in contrast to the applicant who was hired, a Black female.

c. Chief Clerk VI Position

Finally, Plaintiff fails to establish a prima facie case of sex and race discrimination because she has not established that she was qualified for the Chief Clerk VI of the Bronx County Surrogate's Court position. Her resume did not reflect the requisite court managerial, budgetary, supervisory, or human resources experience for this position, the highest non-judicial employee in the Surrogate's Court. The candidate who was ultimately selected for this position, a Hispanic female, had risen through the ranks of several court managerial positions of increasing responsibility for a total of twenty-seven years of experience in the Bronx Surrogate's Court, compared to Plaintiff's two. Thus, O'Leary has not met her burden here.*fn30

B. Plaintiff's Retaliation Claim

Plaintiff also alleges that Defendant retaliated against her for protected activities, e.g. filing an EEOC charge and commencing this lawsuit, and that as a consequence, the Defendant undertook or caused Plaintiff to suffer adverse employment actions by refusing to grant her interviews or otherwise consider her applications for Chief Clerk, Deputy Chief Clerk, or other positions. An employee must show four elements to establish a prima facie retaliation claim: (1) the employee was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered adverse employment decisions; and (4) there was a causal connection between the protected activity and the adverse employment action. Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). "A plaintiff is engaged in 'protected activity' under Title VII if she opposes conduct by her employer with a 'good faith, reasonable belief that the underlying challenged actions of the employer violated the law.'" Collette v. St. Luke's Roosevelt's Hospital, No. 00-CV-4864, 2002 U.S. Dist. LEXIS 18164, * 7-8 (S.D.N.Y. Sept. 26, 2002) (citing Manoharan, 842 F.2d at 593). While the employee need not establish that the opposed conduct was a violation of Title VII to show she was conducting protected activity, she must demonstrate a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law. Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." Id. at 593 (citations omitted).

Plaintiff fails to establish that there was a causal connection between filing her EEOC claim or commencing this lawsuit, and being denied certain positions. Plaintiff applied for four positions after filing her first complaint with the EEOC in July 2004,*fn31 and albeit somewhat strange to me was for the first time in this saga granted interviews for three of these four positions, and, with respect to the fourth position, she did not submit a writing sample pursuant to the application guidelines and was not invited to interview.*fn32 Such evidence does not support a causal connection between Plaintiff's EEOC charge and denial of these positions. Further, the facts on this record show that the Plaintiff, as well as other Caucasian women, was interviewed for three of the positions at issue. Thus, Plaintiff's retaliation claim fails as a matter of law.

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