Andretta v. Napolitano

922 F. Supp. 2d 411, 2013 WL 525408, 2013 U.S. Dist. LEXIS 19525, 117 Fair Empl. Prac. Cas. (BNA) 1375
CourtDistrict Court, E.D. New York
DecidedFebruary 13, 2013
DocketNo. 09-cv-4759 (WFK)(JO)
StatusPublished
Cited by6 cases

This text of 922 F. Supp. 2d 411 (Andretta v. Napolitano) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andretta v. Napolitano, 922 F. Supp. 2d 411, 2013 WL 525408, 2013 U.S. Dist. LEXIS 19525, 117 Fair Empl. Prac. Cas. (BNA) 1375 (E.D.N.Y. 2013).

Opinion

MEMORANDUM AND ORDER

WILLIAM F. KUNTZ II, District Judge.

Paul Andretta (“Plaintiff’) brings this action against his employer, United States Department of Homeland Security (“DHS”) (“Defendant”), by its secretary Janet Napolitano, alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, 2302 (“ADEA”). Plaintiff, who was sixty-one years old at the time of the events giving rise to this action, asserts Defendant discriminated against him on the basis of his age by failing to promote him. Défendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, this Court grants Defendant’s motion.

[414]*414I. FACTUAL BACKGROUND

Defendant is a federal agency and an employer within the meaning of the ADEA. Defs.’ Rule 56.1 St., at ¶ 10.1 Plaintiff is a Supply Chain Security Specialist at the Bureau of Customs and Border Protection (“CBP”), an agency organized within Defendant DHS. PL’s Rule 56.1 St., at ¶¶ 2, 4.

Plaintiff began working for the United States Customs Service in 1970 as a General Schedule level 5 (GS-5) employee stationed at John F. Kennedy Airport (“JFK”). Defs.’ Rule 56.1 St., at ¶¶2, 7; Andretta Dep. Tr. at 31:11-23. In 1982, Plaintiff was assigned to the Contraband Enforcement Team as a Senior Inspector (GS-11), where he was responsible for searching and reviewing cargo from high risk aircraft. Andretta Dep. Tr. at 46:10-22. After approximately two years in that position, in 1984, Plaintiff moved to a Passenger Division, where he was responsible for supervising up to 20 Customs Inspectors at a time. Id. at 46:22-24, 51:8-52:8. In 1986, Plaintiff applied and was selected for a promotion to Supervisory Customs Inspector and Supervisory Customs and Border Protection Officer (GS-12), in which position he remained for over nineteen years. Defs.’ Rule 56.1 St., at ¶ 2; Andretta Dep. Tr. at 45:24-46:3.

The United States Customs Service was reorganized under Defendant DHS in 2006. Defs.’ Rule 56.1 St., at ¶ 2, n. 2. At the time of the reorganization, Plaintiff applied for and was selected for a non-supervisory position as a Supply Chain Security Specialist (GS-13) within the Office of Field Operations, Customs Trade Partnership Against Terrorism (“CTPAT”) Pivision, a division within the CBP. Id. at ¶¶ 2, 4; PL’s Rule 56.1 St., at ¶ 4; Defs.’ Decl. in Supp. of Summ. J., Ex. I. Plaintiff has remained in this position to date; he was not selected for five GS-13 supervisory positions to which he applied prior to 2008. Defs.’ Rule 56.1 Reply St., at ¶ 18.

As a Supply Chain Security Specialist, Plaintiff validates business partner entities in the C-TPAT program. Id., at ¶¶ 5, 6. His responsibilities include “ensuring] that the international supply chains utilized by U.S. importers and other partners ... [are] secure from intrusion by terrorist organizations” and “vetting each potential partner” through a multi-step process involving multiple database and on-site reviews. Defs. ’ Ded. in Supp. of Summ. J., Ex. I. Plaintiff performs these responsibilities in plain clothes and he does not carry a weapon. Defs.’ Rule 56.1 Reply St., at ¶ 8. He has not worked as a first-line SCBPO since April 2006, approximately two years prior to the events described below. Id., at ¶ 70.

In January 2008, Plaintiff responded to a posted Vacancy Announcement for the position of Supervisory Customs and Border Protection Officer (“SCBPO Position”), GS-1895-13, a second-line supervisory position. Id., at ¶¶ 9, 17. He was sixty-one years old at the time. Id., at ¶ 1. A GS-13 SCBPO is responsible for “planning, directing, coordinating, assigning and evaluating all work activities regarding the full range of inspection, intelligence, analysis, examination, and law enforcement activities relating to the arrival and departure of persons, conveyances, and merchandise at Ports of Entry.” Id., at ¶ 19. Defendant sought to fill three vacancies for the SCBPO Position. PL’s Rule 56.1 St., at ¶ 38.

The Recommending Official for the 2008 SCBPO Position was Susan Mitchell, the [415]*415Executive Director of CBP Operations. Id., at ¶ 12. Camille Polimeni, the JFK Area Director, was responsible for preparing a recommendation memorandum for Ms. Mitchell to fill the SCBPO Position. Id., at ¶ 13. Following the receipt of applications for the SCBPO Position, the Minneapolis Hiring Center prepared two certificates of eligible candidates, a noncompetitive list of candidates who held GS-13 positions and a competitive list of candidates who met the requirements for the position but did not hold GS-13 positions at the time. Id., ■ at ¶¶ 22, 23. A total of twenty-seven candidates were certified as eligible for the Position: four (including Plaintiff) on the non-competitive list and twenty-three on the competitive list. Id., at ¶ 24. The Minneapolis Hiring Center provided these lists to Ms. Polimeni along with the twenty-seven individual application packages. Id., at ¶22. After receiving these materials, Ms. Polimeni’s administrative assistant prepared matrices of the competitive and non-competitive candidate lists, which compared the applicants based on their education above high school, awards/commendations within the last ten years, variety of assignments, and other factors such as special skills and relatives that work for DHS/CBP. Id., at ¶¶27, 28. The administrative assistant also sent out a supervisory checklist to the applicants’ supervisors and a questionnaire to the applicants regarding conflicts of interest. Id., at ¶ 26. Equipped with the application packages and these three supplemental tools — the matrices, the checklists and the questionnaires — Ms. Polimeni and three Assistant Area Directors, Robert C. Meekins, Richard B. O’Connell and John Mirandona, individually reviewed the applications and met to' discuss each of the applicants. Id., at ¶¶ 29-34. Executive Director Mitchell stated that this recommendation process was the same process used in prior selection and recommendation processes. Pis.’ Rule 56.1 St., at ¶ 21.

At her meeting with the Assistant Area Directors, Ms. Polimeni testified that Mr. Meekins informed her that Mr. Andretta “was not engaged ... [and] refused to go out in the field”. Polimeni Dep. Tr. at 13:20-25.2 In addition to this feedback, Ms. Polimeni also met with Plaintiff personally in a non-routine meeting scheduled at Plaintiffs request. Defs.’ Rule 56.1 Reply St., at ¶¶ 38-44. Plaintiff requested the meeting because he wanted to express his serious interest in the SCBPO Position, despite having been away from a uniformed position for two years, and to reassure Ms. Polimeni that he did not plan to retire in the next two years. Pl.’s Rule 56.1 St., at ¶¶ 38-39. At the meeting, Plaintiff also expressed his desire to earn pensionable overtime, which he was not receiving in his present position. Id., at ¶¶ 38-42. In particular, Plaintiff told Ms.

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Bluebook (online)
922 F. Supp. 2d 411, 2013 WL 525408, 2013 U.S. Dist. LEXIS 19525, 117 Fair Empl. Prac. Cas. (BNA) 1375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andretta-v-napolitano-nyed-2013.