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Sareen v. Port Authority of New York and New Jersey

United States District Court, Second Circuit

December 16, 2013

VIKAS SAREEN, Plaintiff,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, SUSAN M. BAER, RICHARD J. LOUIS, ADRIAN JOHNSTON, JAMES A. STEVEN, RENE PEARSON-SMALLS, Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge.

Pro se plaintiff Vikas Sareen ("Sareen"), a former employee of the Port Authority of New York and New Jersey ("Port Authority"), brings claims of discrimination and retaliation against the Port Authority and several former supervisors and coworkers, Susan M. Baer, Richard J. Louis, Adrian Johnston, James A. Steven, and Rene Pearson-Smalls (collectively, "defendants") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e), et seq. ("Title VII"), 42 U.S.C. § 1981 ("§ 1981"), 42 U.S.C. § 1983 ("§ 1983"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 ("ADEA"), and the New York State Constitution. Sareen contends that defendants unlawfully discriminated against him on the basis of his race, national origin, and age in failing to promote him and refusing to reinstate him at the conclusion of a long-term leave of absence. He also brings claims for fraud, intentional misrepresentation, and intentional infliction of emotional distress under New York law in connection with those events, as well as a claim for a declaratory judgment pursuant to 28 U.S.C. §§ 2201, et seq. Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the motion is granted.

I. Background[1]

A. The Parties

The Port Authority is a bi-state transportation agency that operates various transportation facilities in New York and New Jersey. Def. 56.1 Statement ¶¶ 1, 3; Pl. 56.1 Statement ¶¶ 1, 3. The Port Authority's Aviation Department oversees the operation and management of the aeronautical facilities within the agency's jurisdiction, including John F. Kennedy International Airport ("JFK"), Newark International Airport ("Newark"), and LaGuardia Airport ("LaGuardia"). Def. 56.1 Statement ¶ 4; Pl. 56.1 Statement ¶ 4. The Physical Plant & Redevelopment Unit at JFK (f/k/a the Physical Plant, Structures & Redevelopment Unit) is responsible for overseeing the airport's physical structures and facilities. Steven Aff. ¶ 1. Within the Physical Plant & Redevelopment Unit, the Tenant Facilities Office is responsible for, inter alia, construction and maintenance of airport facilities. Id. ¶ 3.

From 2007 to 2008, Susan Baer ("Baer") was the General Manager of JFK; in 2008 she became the Deputy Director of the Aviation Department, and in 2009 the Director of Aviation. Lee Decl. Ex. 1 ¶ 8; Sareen Aff. ¶¶ 19, 83. Baer held the position of Director of Aviation for the remainder of the relevant time period.

Before 2008, Richard Louis ("Louis") was the Manager of the Physical Plant & Redevelopment Unit at JFK. In 2008, Louis became the Deputy General Manager of JFK; he held that position for the remainder of the relevant time period. Louis Aff. ¶ 1; Sareen Aff. ¶ 83.

In 2008, James Steven ("Steven") became the Manager of the Physical Plant & Redevelopment Unit; Steven held that position for the remainder of the relevant time period. Steven Aff. ¶¶ 1-5; Sareen Aff. ¶¶ 19, 83.

In 2009, Adrian Johnston ("Johnston") became the Manager of Facilities within the Physical Plant & Redevelopment Unit of JFK. Johnston Aff. ¶ 2. Johnston held that position for the remainder of the relevant time period. In that post, Johnston was responsible for, inter alia, supervising the Tenant Facilities Office. Id.

At all relevant times, Rene Pearson-Smalls ("Pearson-Smalls") was a Senior Human Resources Executive in the Port Authority's Human Resources Department who provided personnel management services to the Aviation Department. Pearson-Smalls Aff. ¶ 2.

Sareen, age 46, is of Indian descent. Sareen Aff. ¶ 3. He holds a Bachelor's Degree in Civil Engineering, a Master's Degree in Structural/Civil Engineering, and a law degree. Id. ¶ 7. He is also a licensed Professional Engineer in New York State. Id. Sareen was a Port Authority employee for more than 20 years before his termination. Between 1988 and 1993, he worked at the World Trade Center in the Engineering Department. Id. ¶ 9. Between 1994 and 2010, he worked in the Aviation Department at JFK Airport. Id.

B. The Port Authority's Promotion Process

When a position within the Aviation Department becomes available, the unit seeking to fill the vacancy may choose to issue a job posting or "bulletin, " listing the responsibilities associated with the position and seeking qualified applicants from within the Port Authority. Bordas Aff. ¶ 3. Interested candidates are directed to submit written applications to the Human Resources Department outlining their qualifications. The Aviation Department and the Human Resources Department then conduct a joint screening process: The Human Resources executive assigned to the Aviation Department reviews the written submissions, and based on those written submissions, determines which candidates are most qualified for the position. Id. ¶ 5. The applicants identified by the Human Resources executive as most qualified are then interviewed by the Aviation Department; the relatively less qualified applicants are not interviewed. The Aviation Department, in consultation with the Human Resources Department, then decides whom to hire from the pool of interviewees. Id. ¶¶ 6, 7.

C. The Port Authority's Ordinary Long-Term Leave Policy

Port Authority employees may request short-term or long-term unpaid leaves of absence from work, "which may be granted to employees when it is clearly desirable in light of an employee's need and is in the best interests of the Port Authority to do so." Human Resources Policy 5:04 (Nov. 1993) ("HRP"), Lee Decl. Ex. 3, at 1 (defining "Unpaid Ordinary Leaves of Absence"). Pursuant to Port Authority policy, such leave "may be granted for personal exigencies not covered by other time off policies, " including "Vacation, Personal Leave, Maternity Leave, Excused Absence, Military Leave, Sick Leave, Family and Medical Leave." Id.

Permanent employees who have completed their probationary year, and whose job performance record is satisfactory, may request long-term leave in excess of 14 days, not to exceed one year. Id. Pursuant to official agency policy, "[t]he Port Authority does not guarantee return to employment to employees on Long-Term Leave, and requests for reinstatement will be considered based upon job availability." Id .; see also Office of the Executive Director, Administrative Instruction: Unpaid Ordinary Leaves of Absence (Mar. 5, 1999), Lee Decl. Ex. 4, at 2 ("Long-Term Ordinary Leaves of Absence carry no guarantee of return to work following the expiration of the leave. Employees on such leaves may request reinstatement, but such reinstatement may not be granted. All employees on Long-Term Ordinary Leave who are not reinstated for whatever reason following expiration of the leave are considered to have voluntarily resigned their employment with the Port Authority.").

An employee requesting long-term leave must submit to his or her Unit Supervisor a written request "includ[ing] the estimated period of time desired, approximate starting and ending dates, and the reason(s) why leave is necessary." HRP at 2. In that request, the employee should also acknowledge that reinstatement is not guaranteed and is subject to job availability at the time of the request for reinstatement. See id. at 6. The employee's Unit Supervisor must sign the request, and then forward it to the Department/Office Director for approval. Id. at 2. If the Department/Office Director approves the request, he or she will then forward it to the Director of the Human Resources Department for final approval. Id.

Before the expiration of a term of long-term leave, an employee may make a written application for reinstatement to the Department/Office Director. See id. at 3. Upon receiving an application for reinstatement, the Department/Office Director either approves or disapproves the application based on job availability, and then forwards the application to the Human Resources Department so the decision can be reflected in the employee's records. See id.; Pearson-Smalls Aff. ¶¶ 11-12.

D. Facts of the Instant Case

In August 2007, Sareen applied for the position of Manager of the Plant, Structures & Redevelopment Unit at Newark Airport, Level B-97, in response to a job bulletin. See Lee Decl. Ex. 17, 18. Fourteen individuals, including Sareen, applied. Of the 14 candidates, eight were screened out by the Human Resources Department based on their written applications, including Sareen. See Lee Decl. Ex. 19; Pearson-Smalls Aff. ¶ 22. Sareen was "screened out of the application process because his written application did not detail his experience in the areas of managing capital and major work programs and project management when compared with other applicants." Pearson-Smalls Aff. ¶ 23. At the time, Sareen was a Supervising Engineer, Level B-95, in Plant, Structures & Redevelopment at JFK. Id. ¶ 19. Following the interview process, the position went to James Heitmann, a 44-year old of Asian/Island Pacific descent who had previously held the position of Manager of Maintenance, Level B-96, at Newark Airport. Id. ¶¶ 25, 26.

In February 2009, Sareen applied for the position of Senior Program Manager of the Plant, Structures & Redevelopment Units at both JFK and LaGuardia, Level B-97. Id. ¶ 27. Of the 21 individuals who applied for these jobs, 12 were screened out by the Human Resources Department based on their written applications, including Sareen. Id. ¶ 31. Sareen was "screened out of the application process because his written application did not detail his experience in the area of project management as compared with other applicants." Id. ¶ 32. At the time, Sareen still held the post of Supervising Engineer, Level B-95, in Plant, Structures & Redevelopment at JFK. Id. ¶ 28. Following the interview process, Paul Johnke, a 51-year old white man who had previously held the position of Senior Program Manager, Level B-97, in the World Trade Center Construction department, was chosen for the position at JFK; Angel Martinez, a 46-year old Hispanic man who had previously held the position of Program Manager, Level B-96, in the Chief Operating Officer's Department, was chosen for the position at LaGuardia. Id. ¶¶ 34-37.

Also in February 2009, Sareen applied for the position of Program Manager of the Plant, Structures & Redevelopment Unit at JFK Airport, Level B-96. Id. ¶ 38. Of the 16 applicants, 10 were screened out by the Human Resources Department based on their written submissions. Id. ¶ 41. Sareen and five other individuals were selected to interview for the position. Id. ¶ 42. Following the interview process, Johnston, a 39-year old white woman who had previously held the position of Supervisor of Maintenance, Planning and Administration at Newark Airport, Level B-94, was selected to fill the position. Id. ¶¶ 44, 45. Steven, who interviewed Sareen, reported that Sareen, although qualified for the position, performed poorly during the interview, and for that reason was not recommended to fill the post. See Steven Aff. ¶ 10.

In November 2009, Sareen approached Louis, his immediate supervisor, to complain about being passed over for these promotions. See Lee Decl. Ex. 2 at 227-28. Sareen expressed to Louis his belief that his race/national origin was a contributing factor, if not the deciding factor, in the selection process. Louis Aff. ¶ 5; Sareen Aff. ¶¶ 24, 25. However, no further action was taken at that time: Louis did not forward Sareen's complaint to his superiors, see Louis Aff. ¶ 7; and Sareen did not file a formal complaint with the Human Resources Department or the Port Authority Equal Employment Opportunity Compliance Office, see Sareen Aff. ¶ 27. See also Lee Decl. Ex. 2 at 232-36, 240, 244.

On May 19, 2010, Sareen submitted a written request for long-term leave to Steven, his Unit Manager, and Baer, the Director of Aviation. See Lee Decl. Ex. 5. His written request indicated that he sought one year's leave, beginning May 20, 2010, in order to tend to legal matters in India. See id. Sareen's request explicitly acknowledged that reinstatement following leave was not guaranteed. See id. ("I understand that my reinstatement upon expiration of the leave is not guaranteed and is subject to job availability at the time that I request such reinstatement.").

On May 20, 2010, Steven approved Sareen's request for leave, and forwarded the request to Baer for her approval. See Lee Decl. Ex. 6. On June 3, 2010, Baer signed off on Sareen's request. See id. The request was then forwarded to the Director of the Human Resources Department, who granted final approval on June 11, 2010. See id. On July 6, 2010, approval for leave "begin[ning] on 5/20/2010 and ...


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