Gina M. Fanelli (“Fanelli” or “plaintiff’) commenced this action against defendants the State of New York, James Gilmore (“Gilmore”), Peter A. Scully (“Scully”) (collectively, “defendants”) asserting claims of gender-based discrimination and retaliatory employment practices in violation of 42 U.S.C. § 2000e (Title VII) and New York Human Rights Law (“NYHRL”), Executive Law § 296. In a decision dated August 18, 2014, the Honorable Arthur D. Spatt dismissed some of plaintiffs claims such that only Title VII claims against the State of New York based on allegations of discriminatory acts committed prior to October 26, 2010 and NYHRL claims against Gilmore in his official capacity remain. Fanelli v. New York,
Presently before the Court is defendants’ motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”) seeking dismissal of the remaining claims. For the reasons set forth below, the defendants’ motion is granted.
BACKGROUND
The following facts, drawn from the parties’ Local Rule 56.1 statements, the plead
Plaintiffs Employment at DEC
Plaintiff, a woman, began working at the New York State Department of Environmental Conservation' (“DEC”) in April of 2005 when she was hired as a Marine Biologist I Trainee at DEC’S Region 1 Office. Scully was the Regional Director of Region 1 during all times relevant to this motion. Between 2005 and early 2009, plaintiff worked in ' the Tidal Wetlands Regulatory Program (“TW Program”). During that time, she worked under the direction of Karen Graulich (“Graulich”). On April 22, 2007, plaintiff was given the title of Biologist 1 (Marine). In October of 2007, defendant Gilmore was appointed as Chief of the Bureau of Marine Resources (“BMR”) located in East Setauket, New York and has held that position at all times relevant to this motion.
On January 15, 2009, .executive staff including Scully met with staff of the Region 1 TW Program, including Graulich and Fanelli, to discuss implementation of improvements to the TW Program. According to defendants, plaintiffs conduct during the meeting “made it clear that ... she was resistant to the changes being proposed, by repeatedly shaking her head and stating that [the] program staff was ‘being punished for doing a good job.’” (Defs.’ R. 56.1 Stmt. ¶ 20.) Plaintiff, however, disputes that she behaved in such a way.
The Biologist 2 (Marine) Position
Plaintiff applied for the position of Biologist 2 (Marine) in or about December 2010. This position was responsible for supervising the employees of the unit and directing the work of the unit, and it involved participation in the tactical committees of the Atlantic State Marine Fisheries Commissions. Both plaintiff and another candidate, John Maniscalco (“Maniscalco”),. scored 75 “on the eligible list.”
At all times relevant to this motion, DEC policy required that when a person of a protected class was interviewed for a position and not selected, a written justification letter must be sent to Juan Abadía (“Abadía”), DEC’s Affirmative Action Officer, for approval. On December 13, 2010 Gilmore sent such a justification to Abadía, and on December 17, 2010, Abadía approved the hiring of Maniscalco.
The Biologist 2 (Ecology) Position
Shortly thereafter, plaintiff applied for the Biologist 2 (Ecology) position. “In reviewing the eligible list for this managerial position, individuals who scored a 70 and above were canvassed for interviews.” (Defs.’ R. 56.1 Stmt. ¶ 43.) Plaintiff had a score of 75 and Andrew Walker (“Walker”) had a score of 70 on the eligible list. How
On or about December 28, 2010, five individuals, including plaintiff, were interviewed by Robert Marsh, Biologist 3 (Ecology), to whom the person occupying the position would report at Region 1, and JR Jacobson, Biologist 3 (Ecology), who was from the DEC’s Central Office in -Albany. Ultimately, Andrew Walker (“Walker”) was recommended for the position, Since plaintiff was a protected class candidate who .had not been selected for. the position, a justification letter needed to be sent to Abadia for approval. In his justification memorandum dated December 30, 2010, Marsh reported that Walker was found by interviewers to have a stronger educational background in marine sciences, more relevant regulatory and marine habitat experience and more experience with supervision of regulatory staff. However, the justification letter did not specifically address why the interviewers believed that plaintiff herself could not perform the duties of the position. Subsequently, Aba-dia rejected the justification. As a result, Scully, head of DEC’s Region 1 -office, submitted a supplemental justification that underscored plaintiffs “past resistance and expressed opposition to ongoing efforts to implement reforms to address acknowledged and longstanding dysfunction in the Tidal Wetlands regulatory program, which would become the direct responsibility of the successful candidate for the position.” (Defs.’ R. 56.1 Stmt. ¶ 53.) Abadia then approved Walker’s hiring.
Investigation of Plaintiff’s Internet Use
In July 2011, Environmental Conservation Captain Dorothy Thumm (“Thumm”) informed Gilmore verbally that another employee, Christopher Spies from Region 1 Pesticides, had been posting inappropriate internet blogs on Noreast.com, disseminating both confidential DEC information and voicing disagreements with BMR fisheries management decisions. Thumm contacted Mr. Spies’ supervisor, .Vincent Palmer, regarding Spies’s activities, and thereafter informed Gilmore that plaintiff, who was living with Spies at the time, was involved in similar activities. Upon learning of plaintiffs alleged internet activity, Graulich verbally counselled plaintiff to restrict her internet use while at work. Subsequently, Employee Relations informed Gilmore that it would take the lead on investigating plaintiffs, internet use during work and any possible communication of confidential information to the public. In April, 2012, after its investigation, Employee Relations decided not to bring disciplinary action against plaintiff.
Compressed Work Schedule
At DEC, employees can apply for a compressed pay period schedule where they work longer hours on some days in order to be allowed to work nine days over a two week pay period. According to the DEC’s website, “[i]t is the policy of the [DEC] to provide alternative work schedules when it is clearly demonstrated that such schedules will not impair the delivery of services to the public, will maintain and enhance productivity, will retain and attract the most talented individuals or will reduce absenteeism and/or tardiness without compromising management and supervision of Department programs.” (Pl.’s Ex. 20.) The website also provides that “[establishment of an alternative work schedule is at the discretion of the DEC and can be revoked by management at any time.” Moreover, the website states that “[s]ubject to management approval, compressed pay period schedules are available to full time annual salaried DEC employees” when, inter alia, “[t]he employee’s work performance is such that he/she has clearly demonstrated the ability to work independently and with minimum supervision.”
MRAC Meetings
Marine Resources Advisory Council (“MRAC”) was “established by law in 1987 to advise the DEC on marine resources issues, such as commercial and recreational fishing, proposed regulations and the protection and utilization of New York’s valuable marine resources.” (Defs.’ R. 56.1 Stmt. ¶ 75.) MRAC meetings occur every two months at the Setauket office and last three hours. Defendants contend that Gilmore has repeatedly directed his entire office, orally or in writing, to only attend MRAC meetings when the topics being discussed relate specifically to an employee’s duties, or if Gilmore personally directs a particular employee to attend. Plaintiff, however, sought to attend meetings unrelated to her duties and claims that Gilmore attempted to preclude her from attending these meetings. Mter discussions with Employee Relations, plaintiff was allowed to take her personal time to attend meetings not related to her specific duties.
DISCUSSION
I. Applicable Law and Legal Standards
Summary judgment pursuant to Rule 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other' documentation demonstrates the absence of a genuine issue of material fact, and one party’s entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am.,
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc.,
The district court, in considering a summary judgment motion, must also be “mindful ... of the undérlying standards and burdens of proof,” Pickett v. RTS Helicopter,
Summary judgment is generally inappropriate where questions of the defendant’s state of mind are at issue, Gelb v. Bd. of Elections of the City of N.Y.,
II. Plaintiffs Discrimination Claim
A. Legal Standard
In McDonnell Douglas Corporation v. Green,
If the plaintiff establishes a pri-ma facie case, the burden then shifts to the employer to “articulate some legitimate, nondiscriminatory reason for [the adverse act].” Leibowitz v. Cornell Univ.,
Should the employer satisfy its burden, the McDonnell Douglas framework and its presumptions and burdens disappear, leaving the sole remaining issue of “discrimination vel non.” See Reeves,
Finally, “the standards for proving discrimination under Section 296 of the New York Executive Law are the same as under Title VII.” Lucas v. South Nassau Cmtys. Hosp.,
B. Application to Plaintiff’s Discrimination Claim
As described above, the Court begins its analysis by determining whether the plaintiff has made out a prima facie case. Defendants do not contest that the plaintiff, who is a woman, is a member of a protected group or that plaintiff suffered adverse employment actions when she was not promoted to Biologist 2. Defendants, however, dispute that plaintiff was qualified for the Biologist 2 positions she applied for and that “her not being selected for these two promotions ‘occurred under circumstances giving rise to an. inference of discrimination.’” (Defs.’ Mem. in Supp. at 6.) The Court will address each of these arguments in turn.
Plaintiffs Qualifications
In order to make out a prima facie case that plaintiff is qualified, “all that is required is that the plaintiff establish basic eligibility for the position at issue, and not the greater showing' that he
In order to demonstrate that plaintiff was not qualified for the Biologist 2 (Marine) position, defendants point out that “Maniscalco received a much higher total score [using the point matrix] than any of the other candidates,” including plaintiff. (Defs.’ Mem. in Supp. at 7.) Moreover, with respect to the Biologist 2 (Ecology) position, defendants point out that the supplemental justification letter sent to Aba-día noted plaintiffs past resistance and opposition ’ to reform efforts in the TW Program. Additionally, defendants' note that the candidates who were ultimately chosen for the positions held Master’s of Science degrees, while plaintiff did not. While these facts may explain defendants’ position that plaintiff was not the preferred candidate, they do not support that plaintiff was unqualified such that she did not possess a basic eligibility for the positions. Moreover, plaintiff points out that she was on the eligibility list for both positions and that Heins, who interviewed plaintiff for the Biology 2 (Marine) position testified that plaintiff was qualified for that position. (Pl.’s Ex. 10, Heins Dep. at 77.) Accordingly, a genuine question of fact exists as' to whether plaintiff was qualified for the Biology 2 positions.
Inference of Discrimination
Plaintiff argues that she “easily meets this prong because she is a woman, who was qualified for the [Biology 2 positions she applied for], which went to [men].” (Pl.’s Mem. in. Opp’n at 10.) As plaintiff points out, “[generally, a plaintiff can establish the fourth prong of the prima facie case where the position sought was given to .a person outside the plaintiffs protected class.” Separ v. Nassau Cty. Dep’t of Social Servs.,
Pretext
Since plaintiff has satisfied her burden of establishing a prima facie case, this Court will shift the burden to the employer to offer a legitimate, non-discriminatory reason for its actions. See Patterson v. Cty. of Oneida, N.Y.,
The Biology 2 (Marine) Position
Plaintiff argues that “Defendants’ proffered justifications for not promoting Plaintiff to the Marine Position ... are
With respect to plaintiffs first argument, she takes issue with defendants’ position that she was denied the promotion because she scored lower on the point matrix used during the interview. Plaintiff argues that because “the matrix criteria [were] themselves subjective, it is not a valid justification.” (Pl.’s Sur-reply at 5.) Plaintiff relies primarily on Goosby v. Johnson & Johnson Medical, Inc.,
Moreover, plaintiffs assertion that there are inconsistencies between defendants’ justification letter and the defendants’ argued reasons for denying her a Biology 2 (Marine) promotion is unfounded. Particularly, plaintiff takes issue with the fact that her lack of a master’s degree and lack of management experience, which defendants now proffer as an explanation for denying her the promotion, were not mentioned in the justification sent to Abadía. (Pl.’s Sur-reply at 6.) The justification letter, however, does mention that Maniscalco’s “qualifications, training, experience and attitude were far superior to [that of] the other candidates” and notes plaintiffs lack of management, experience. (Pl.’s Ex. 41.) This does not amount to an inconsistency evidencing discrimination, especially when compared with that found in E.E.O.C. v. Ethan Allen, Inc.,
Additionally, plaintiff attempts to challenge the credibility of the justification letter by pointing to Gilmore’s admission at his deposition that he did not review plaintiffs positive employment evaluations prior to writing the letter; however,, as plaintiff also notes, Gilmore testified that he did not do so because he assumed her evaluations were satisfactory since they had not been brought to his attention previously. (Pl.’s Ex. 3 at 198.) Based on that testimony, it is not clear how Gilmore’s failure to consider the performance evaluations could be construed as evidence of discrimination.
The Biology 2 (Ecology) Position
Plaintiff also argues that defendants’ reasons for not promoting plaintiff to the
As with the Biology 2 (Marine) position, plaintiff has not pointed to any inconsistencies that suggest the defendants’ decision not to promote the plaintiff was a pretext for discrimination. For example, plaintiff attempts to manufacture an inconsistency between defendants’ treatment of plaintiffs graduate work and Walker’s master’s degree. She points to the December 30th justification letter stating that plaintiff’s “graduate work in Biology and Education offer little additional value as most of the biological coursework will be no more advanced than what was already taken at the undergraduate level,” (Pl.’s Ex. 51), and compares that to defendants’ assertion that Walker’s Master’s of Science degree was “very relevant” to his selection. (Defs.’ Reply at 7.) However, these two statements are not inconsistent. It is undisputed that unlike Walker plaintiff did not obtain a Master’s degree, and the statement regarding her coursework in the justification letter merely suggests that her particular coursework was not considered valuable for the position, not that all Master’s degrees are invaluable. Therefore, defendants were not inconsistent in assigning little value to plaintiffs graduate coursework while considering Walker’s Master’s of Science degree highly relevant.
Moreover, plaintiff attempts to raise evidence of pretext by arguing that Scully’s supplemental justification letter contained false information. Plaintiff argues that Scully’s statement at his deposition that the letter contained secondhand information and the fact that he did not document his observation of plaintiff’s purported oppositional behavior at the January 19, 2009 meeting cast doubt upon Scully’s credibility and the truth of the supplemental justification. These facts, however, are not sufficient to raise a genuine question regarding whether the defendants’ justification was a pretext for discrimination as they do not demonstrate that defendants’ reasons for termination were “a guise for a discriminatoiy motive.” Forte v. Liquidnet Holdings, Inc.,
Gender Stereotypes
Finally, plaintiff argues that “Defendants’ attempts to dismiss Plaintiffs sex claims should also be rejected since they have not conclusively shown that stereotyping did not affect the promotional process.” (Pl.’s Sur-reply at 9.) Specifically, plaintiff argues that defendants “unlawfully made stereotypical assumptions about [plaintiffs] 'interpersonal skills’ ” and that their descriptions of plaintiff evidence defendants’ disfavor of assertiveness in female candidates. (Pl.’s Opp’n at 11.) For example, plaintiff notes Gilmore’s description of plaintiff in the justification letter for the Marine position as “impulsive” and someone who “will challenge a decision” as well as-Scully’s discussion in the supplemental justification of plaintiffs opposition to implementation of reforms in the TW Program. (Pl.’s Opp’n at 12, 14; Pl.’s Exs. 41, 55.) Plaintiff argues that these descriptions evidence a bias against plaintiffs assertiveness, which would not have been viewed negatively in a male candidate.
Plaintiff relies heavily on Price Waterhouse v. Hopkins, where the Supreme Court recognized that “sex stereotyping” that occurs when “an employer ... acts on
III. Plaintiffs Retaliation Claim
A. Legal Standard
“Section 704(a) of Title VII makes it unlawful to retaliate against an employee, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Deravin v. Kerik,
Claims of retaliation pursuant to Title VII are analyzed according to the burden-shifting framework set forth in McDonnell Douglas. See Terry,
B. Application to Plaintiffs Retaliation Claim
Plaintiff claims that as a result of filing an Equal Employment Opportunity Commission (“EEOC”)-complaint on August 22, 2011, she was retaliated against because Gilmore investigated her internet usage at work, attempted to include a negative comment in her performance evaluation related to her internet usage, attempted to preclude her from attending MRAC meetings, and denied her an alternative work schedule. (Pl.’s Mem. in Opp’n at 22; Pl.’s Sur-reply at 14.)
Defendants argue that the investigation into plaintiffs internet use, denial of the compressed work schedule, and restriction of attending MRAC meetings do not constitute adverse employment actions. What qualifies as an adverse employment action in the context of a claim of retaliation is much broader than a claim of discrimination. See Burlington N. & Santa Fe Ry. Co. v. White,
Here, the Court need not analyze whether the challenged actions meet that standard because even assuming they do, plaintiff has failed to offer sufficient evidence of retaliatory intent. She argues that “many of the adverse actions complained of, such as the investigation occurred within months—even weeks—of Plaintiff filing the Charge,” and that “[t]his close temporal proximity, sufficiently establishes proximate causation.” However, even if this were sufficient to satisfy plaintiffs prima facie burden, the mere fact that a plaintiffs alleged adverse actions may have taken place in close temporal proximity to the protected activity is not sufficient evidence of pretext. El Sayed v. Hilton Hotels Corp.,
Moreover, plaintiff has failed to identify any further evidence of pretext. Plaintiff in her declaration claims that Graulich told her that Gilmore had commented to Graulich that “the filing of [plaintiffs] EEOC charge would adversely affect [her] future chances of promotion” and that he could not understand why she was “going against the agency.” (Pl.’s Ex. 25, ¶ 35.) However, there is no evidence, that plaintiff applied for any promotions after filing the charge, nor does plaintiff argue that her EEOC charge lead to a failed promotion. With respect to the adverse actions that plaintiff does assert resulted from the EEOC charge, plaintiff fails to raise evidence that defendants’ proffered reasons for those actions were a pretext for retaliation.
First, regarding defendants’ investigation into plaintiffs internet use, defendants
With respect to Gilmore’s alleged attempt to include a statement in plaintiffs 2012-2013 performance evaluation regarding her internet use, defendants argue that “it was entirely appropriate for management to remind Plaintiff in her 2012-2013 performance program of the importance of adhering to the Internet Acceptable Use Policy,” (Defs.’ Reply at 15), while plaintiff argues that Gilmore’s attempt to include this comment was' against DEC policy. Plaintiff, however, has not provided any evidence that it was against such policy— only an email from another employee to Gilmore stating that inclusion of the comment was “not appropriate” without any mention of why or discussion of DEC policy. (Pl.’s Ex. 71.) This is unlike the situation in Greenway v. Buffalo Hilton Hotel,
Regarding plaintiffs attendance át MRAC meetings, defendants proffer that the restriction' on plaintiffs attendance was pursuant to a policy that Gilmore put in place in 2009 directing thé entire office to only attend meetings relating to an employee’s job duties or if directed to do so by a- supervisor. Plaintiffs attempt to cast doubt upon this explanation by arguing that defendants applied this policy disparately to plaintiff fails. In order to show disparate treatment, plaintiff must raise evidence of defendants’ treatment of similarly situated employees outside the plaintiffs protected class who engaged in similar conduct. Abdul-Hakeem v. Parkinson,
Finally, defendants argue that plaintiff was denied her request for a compressed work schedule due “to Plaintiffs prior in
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment pursuant to Rule 56 is granted in its entirety. Plaintiffs claims under 42 U.S.C. § 2000e et. seq. (Title VII), and New York’s Human Rights Law, Executive Law § 296 are dismissed.
SO ORDERED.
Notes
. "Where a candidate scores on the eligible list is used for selecting which candidates to interview.” (Defs.’ R. 56.1 Stmt. ¶ 31.)