Dunadee v. County of Monroe

188 Misc. 2d 605, 729 N.Y.S.2d 605, 2001 N.Y. Misc. LEXIS 258
CourtNew York Supreme Court
DecidedJuly 23, 2001
StatusPublished
Cited by1 cases

This text of 188 Misc. 2d 605 (Dunadee v. County of Monroe) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunadee v. County of Monroe, 188 Misc. 2d 605, 729 N.Y.S.2d 605, 2001 N.Y. Misc. LEXIS 258 (N.Y. Super. Ct. 2001).

Opinion

OPINION OF THE COURT

Andrew V. Siracuse, J.

This is a summary judgment motion by the defendant. The plaintiff in this case, Andrew Dunadee, is 75. He applied to the defendant County for three separate clerk/typist jobs, and although his civil service examination scores placed him among the three highest-scoring examinees, he was not hired for any of the three positions. He brought this lawsuit alleging age discrimination.

[606]*606The threefold pattern of application, interview and rejection is at the heart of the case; no interviewer at any time suggested a discriminatory intent, but plaintiff finds the fact that he was rejected three times as itself creating a suggestion of discrimination. Beyond this pattern, however, he has presented no evidence to call the County’s explanations into question, only argument and supposition. Because no question of fact exists as to the bona tides of these explanations, the County’s summary judgment motion must be granted.

In moving for summary judgment, the County submitted affidavits from the interviewers in all three jobs, and their depositions (along with the plaintiff’s) are in the plaintiff’s answering papers. These statements present facially valid and convincing nondiscriminatory reasons for hiring other candidates for the positions at issue.

Plaintiff first applied to the County Law Department. The open position required an employee who could run papers to the courthouse and who would be able to do extensive periods of copying while standing at a copier. Mr. Dunadee stated at the interview that he had a bad knee and could neither stand for any length of time nor bring papers to the courthouse. He did not ask if accommodation could be made for this disability. He also sang at the interview, something that “was considered inappropriate.” Another eligible candidate was eventually offered the job. Although not one of the three highest-scoring examinees, the successful applicant was a current employee hired through the internal transfer process. In his deposition, plaintiff first denied any recollection of the interviewer’s questioning him about the copying and messengering duties, then qualified his denial by adding that the subject probably came up, but that he did not recall it.

Plaintiff was next interviewed for a clerk/typist position at the County’s HIV clinic, and the supervisor decided to hire another candidate who had extensive customer service experience. Because much of the work of this position involved interacting with clients, many of them distressed and critical of their care, the supervisor preferred a person who had a history of handling complaints from dissatisfied customers. Although the person hired had experience only in retail, the retail experience and the candidate’s interpersonal skills were felt to fit better with the needs of the clinic. This person’s examination score was comparable to Mr. Dunadee’s.

The final position for which Mr. Dunadee was interviewed was as a clerk/typist within the Civil Service Unit itself, and [607]*607early in the interview Mr. Dunadee told the interviewer “emphatically” that he did not like the civil service system. He also preferred to deal with people face-to-face rather than by telephone. The interviewer was concerned about both assertions, since the position was often the first contact people had with the civil service system and its occupant was frequently called upon to guide people through the application process. Mr. Dunadee’s dislike of the system would make it difficult for him to carry out these duties properly. Furthermore, most contact with the public was by phone.

As the Court of Appeals has recently stated, “[t]o defeat a properly supported motion for summary judgment in an age discrimination case, plaintiffs must ‘show that there is a material issue of fact as to whether (1) the employer’s asserted reason for [the challenged action] is false or unworthy of belief and (2) more likely than not the employee’s age was the real reason’ ” (Ferrante v American Lung Assn., 90 NY2d 623, 630 [citations omitted]). The County concedes that the plaintiff has established a prima facie case sufficiently to cast upon the defendant the burden of showing nondiscriminatory reasons for its actions. After having done so, however, the defendant essentially nullified the plaintiff’s prima facie case, with its explanations, and it is then incumbent upon the plaintiff to present evidence in admissible form to call those reasons into question:

“[I]f plaintiff * * * [is] unable to raise a question of fact concerning either the falsity of defendant’s proffered basis for the termination or that discrimination was more likely the real reason, summary judgment * * * [is] appropriate” (Ferrante v American Lung Assn., 90 NY2d 623, 631, supra).

The Court of Appeals upheld a grant of summary judgment under these circumstances in Scott v Citicorp Servs. (91 NY2d 823, 825), holding:

“Defendants in this race discrimination action moved for summary judgment, and met their burden of rebutting the prima facie case of discrimination by setting forth evidence of an independent, nondiscriminatory reason for terminating plaintiff’s employment. In response, plaintiff did not raise a question of fact concerning the falsity of defendants’ proffered basis for the termination and that discrimination was more likely the real reason for his termination (compare, Ferrante v American Lung [608]*608Assn., 90 NY2d 623). Accordingly, defendants’ motion for summary judgment was properly granted.”

Plaintiff in the present case has, similarly, presented no evidence at all on these crucial points. Instead, he apparently relies on a recent Second Department case (Matter of Classic Coach v Mercado, 280 AD2d 164), suggesting that, since the recent Supreme Court decision in Reeves v Sanderson Plumbing Prods. (530 US 133), there is always a question of fact as to the bona tides of the defendant’s explanations for its acts.

Classic Coach, however, was an appellate review of a determination of the State Division of Human Rights, and the Appellate Division was required to decide only if there was substantial evidence to support the decision. It is not a guide to the standard of proof required in summary judgment posture. Contrary to what the plaintiff suggests, this standard was not changed by Sanderson. Although that case called into question certain interpretations of the earlier case of St. Mary’s Honor Ctr. v Hicks (509 US 502), it reiterated the summary judgment standard adhered to by the Court of Appeals, as the italicized portions of this excerpt suggest:

“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.
“This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational fact-finder could conclude that the action was discriminatory.

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Related

Hutchinson v. New York City Transit Authority
309 A.D.2d 901 (Appellate Division of the Supreme Court of New York, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
188 Misc. 2d 605, 729 N.Y.S.2d 605, 2001 N.Y. Misc. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunadee-v-county-of-monroe-nysupct-2001.