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Angioletti v. Foxx

United States District Court, E.D. New York

January 23, 2017

ANTHONY FOXX, Secretary, U.S. Department of Transportation, Defendant.

          Locksley 0. Wade, Esq. and Felicia Nestor, Esq. Attorneys for Plaintiff.

          United States Attorneys Office By: Diane C. Leonardo-Beckmann, Esq., James H. Knapp, Esq., & Susan L. Riley, Esq. Attorneys for Defendant.



         Plaintiff Edith Angioletti ("plaintiff or "Angioletti") commenced this action against Anthony Foxx, as Secretary of the United States Department of Transportation, asserting claims of gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. A trial commenced on November 14, 2016. A jury was selected to hear and decide plaintiffs Title VII claims of gender discrimination and retaliation, but was informed that the age discrimination claim under the ADEA would be decided by the Court. At the close of evidence on November 16, 2016, defendant's motion to dismiss the Title VII claims pursuant to Rule 50 of the Federal Rules of Civil Procedure was granted. This Court also granted defendant's motion to dismiss the ADEA claim pursuant to Rule 52 of the Federal Rules of Civil Procedure and indicated that a written decision would follow. This memorandum constitutes the Court's findings of facts and conclusions of law.


         A. Angioletti's Employment at the Academy

         Plaintiff worked at the Merchant Marine Academy (the "Academy") for approximately five years. From 2005 to 2007 she held temporary positions through an agency. In February 2008, plaintiff was hired directly to work at the Academy and held the position of chapel manager. In 2008, plaintiff was 59 years old.[1] At the time of her hiring, plaintiff was classified as a Non-Appropriated Fund Instrumentality ("NAFI") employee. NAFI employees were paid from funds that were not appropriated by Congress.

         Sometime in 2008, an audit of the Academy's funding for its employees was conducted.[2]As a result of the audit, it was determined that non-appropriated funds could no longer be used to pay the salaries of NAFI employees. The Academy was directed to convert the NAFI positions to federal positions. At the time this decision was made, the jobs of approximately 67 NAFI employees were affected. Those employees were told that they had to compete for jobs through the federal hiring system if they wanted to be converted to federal positions. The process of converting the positions took several steps. It was necessary to create a job description for each position so that it could be classified within federal system and given a job series, title, and grade. Once approved, the job would be posted on the U.S. AJOBS federal hiring website and opened to applicants.

         The Academy was given a deadline of February 2009 to complete the NAFI conversions. At the approach of that deadline, a number of positions, including the chapel manager job, had yet to be converted or posted. An act of Congress gave the Academy special authority to hire the remaining NAFI employees as federal employees on a temporary, term basis. Twelve employees, including plaintiff, were offered these positions, and on February 11, 2009, plaintiff signed a document entitled "Conditions of Employment" for a term of employment not to exceed February 14, 2011, or two years. Angioletti conceded that she could have refused to sign the document, but noted that she would have been out of a job immediately had she done so. Indeed, as the non-appropriated funding was gone, the term positions were the only option available for continued employment. All 12 NAFIs, regardless of age or gender, were offered and accepted the same two year, term positions.

         Plaintiff testified that she was told by some unspecified person or persons that the term positions were just a formality. Between the commencement of the term position in 2009 and December 2010, Angioletti claims that "they kept assuring us our jobs would be posted. It was just a formality, don't worry, you will not lose your job." Trial Transcript ("Tr.") 33:15-17. She claims that she repeatedly asked her supervisor, Captain Eric Wallischeck, to post her job and to find out what was going on. Tr. 36:14-16 ("every chance I get whenever I would bring my time sheet in to be signed by Captain Wallischeck I would ask what was going on."). Captain Wallischeck also testified that Angioletti would inquire about the conversion process as she was concerned for her job. Neither Angioletti nor Wallischeck testified, however, that Angioletti raised any concern or belief that her age as an issue in the conversion.

         In December 2010, a meeting was held with the remaining NAFI employees working under the two-year term agreements. At that time, they were given information about their separation from employment to occur in February 2011. Angioletti was not fired; her employment ended when her two year term expired on February 14, 2011. After her employment ended, plaintiff filed a complaint with the Maritime Administration ("MARAD") in Washington, D.C. There is no evidence that Angioletti made a formal or informal complaint of discrimination prior to that time.[3]B. Filling of the Chapel Manager Position The Department of Transportation is the cabinet level agency that oversees a number of agencies, including the Federal Highway Administration ("FHA") and MARAD. The Academy operates within MARAD. Human Resources for the FHA acted as the executive agent for the Department of Transportation and was responsible for the posting of the positions to be filled at the Academy. Using the job listings provided by the Academy, FHA posted the positions, including the chapel manager position, on the USAJOBS website.

         The chapel manager position was posted on the website on February 8, 2011, with a closing date of February 15, 2011. Angioletti applied for the job through the USAJOBS government website. She was not interviewed and claims that she was not rehired because "[t]hey weren't hiring old broads." Tr. 56:16.

         The FHA reviewed the applicants for the chapel manager position. There were 192 applicants for the job. The position was subject to a veterans' preference such that qualified veterans would be hired before qualified non-veterans. Of the applicants, approximately 18 were veterans, and 10 of those were deemed qualified for the position. By operation of law, as there were two or more qualified veterans, only veterans would be referred for consideration and a non-veteran, such as plaintiff, could not be considered.

         The FHA compiled a hiring list or "Certificate of Eligibles" for the chapel manager position that contained the names of the 10 qualified veterans and forwarded it to the Academy. Angioletti was not on the hiring list. Academy personnel had no role in the compilation of the list, nor could the list be changed by the Academy. Of the 10 qualified veterans, seven were men and three were women. The hiring list and supporting documentation were ...

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