United States District Court, E.D. New York
Locksley 0. Wade, Esq. and Felicia Nestor, Esq. Attorneys for
States Attorneys Office By: Diane C. Leonardo-Beckmann, Esq.,
James H. Knapp, Esq., & Susan L. Riley, Esq. Attorneys
FINDINGS OF FACT AND CONCLUSIONS OF LAW
LEONARD D. WEXLER, UNITED STATES DISTRICT JUDGE
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.
FINDINGS OF FACT
Angioletti's Employment at the Academy
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. 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.
in 2008, an audit of the Academy's funding for its
employees was conducted.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.
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.
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
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.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.
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.
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.
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 ...