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Angelvelez v. John Mchugh

March 2, 2011



Plaintiff Angel Velez alleges that his employer, the Department of the Army ("Army"), discriminated against him by failing to promote him because of his race and national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII), 42 U.S.C. § 2000e et seq. Presently before this Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCP"). For the reasons set forth below, Defendant's motion is granted.*fn2


The following facts -- taken in the light most favorable to Plaintiff -- are gleaned from the parties' statements pursuant to Local Civil Rule 56.1 of the United States District Courts for the Southern and Eastern Districts of New York, from the pleadings and from affidavits, affirmations and exhibits submitted by the parties in support of their contentions.

A. Plaintiff's Employment and Non-Selection for Promotion

Plaintiff Velez is a Hispanic man from Puerto Rico. He has been employed by the Army as a pipefitter at the United States Military Academy at West Point, New York since approximately 1981.

On August 17, 2007, the Army issued an announcement for a temporary position of Pipefitter Work Leader. This supervisory position was located at West Point and open to both agency employees and non-agency United States citizens. Lists of the best qualified candidates were made for both internal and external applicants. Plaintiff applied for the position and was placed on the list of best qualified internal applicants. However, the hiring official responsible for filling the position chose not to make a selection from the internal list, as he would be unable to backfill the position vacated by the employee and would therefore be short a worker. The position was ultimately offered to Plaintiff's Caucasian co-worker, who had erroneously applied as a non-agency employee and was on the external best qualified list. However, the Caucasian co-worker declined the position, which went unfilled.

On October 1, 2007 the Army re-advertised the position, this time solely to agency employees. A list of the six best qualified internal applicants was created, including Plaintiff and the Caucasian co-worker who had previously been offered the position. Interviews were conducted on November 21, 2007, and the four-person panel asked each candidate the same series of questions. The position was subsequently offered to the same Caucasian co-worker as before, who again declined to accept it. A second Caucasian co-worker was then offered the position, which he accepted. Plaintiff learned of his non-selection in December 2007.

On February 14, 2008 Plaintiff filed his EEO complaint alleging that his non-selection for the supervisory position was due to discrimination against him based on his race and national origin. The Army denied Plaintiff's EEO complaint on December 18, 2008, finding that management had advanced legitimate, non-discriminatory reasons for not promoting Plaintiff, and that Plaintiff had failed to produce sufficient evidence that those reasons were a pretext for discrimination.

Plaintiff commenced the instant action on February 3, 2009.


A. Legal Standard

Summary judgment is appropriate only where there are no genuine issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Bryant v. Mafucci, 923 F.2d 979, 982 (2d Cir. 1991). A fact is material when its resolution would "affect the outcome of the suit under the governing law" and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

When deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences in favor of that party from the submitted affidavits, exhibits, interrogatory answers, and depositions. Anderson, 477 U.S. at 255; Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). "Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005). However, "[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380(2007).

Caution should be exercised in addressing summary judgment motions in discrimination cases where intent and state of mind are at issue because "careful scrutiny of the factual allegations may reveal circumstantial evidence to support the required inference of discrimination." Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000) (citations omitted). Nonetheless, the Second Circuit has expressly "remind[ed the] district courts that the impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable." See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quotation and citation omitted). On the one hand, mere conclusory allegations of discrimination will not defeat a summary judgment motion; a plaintiff in a discrimination case must proffer "concrete particulars" to substantiate his claim. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). On the other hand, courts must be aware of the fact that "discrimination will seldom manifest itself overtly." Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999). Courts must therefore "carefully distinguish between evidence that allows for a reasonable inference of ...

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