Schupbach v. Shinseki

905 F. Supp. 2d 422, 2012 WL 3638791, 2012 U.S. Dist. LEXIS 119851
CourtDistrict Court, E.D. New York
DecidedAugust 23, 2012
DocketNo. 09-cv-3513 (JFB)(AKT)
StatusPublished
Cited by9 cases

This text of 905 F. Supp. 2d 422 (Schupbach v. Shinseki) 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
Schupbach v. Shinseki, 905 F. Supp. 2d 422, 2012 WL 3638791, 2012 U.S. Dist. LEXIS 119851 (E.D.N.Y. 2012).

Opinion

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Andreana C. Schupbach (“plaintiff” or “Schupbach”), brought this action against Eric K. Shinseki in his capacity as Secretary of the Department of Veteran Affairs (“defendant” or “Shinseki”), alleging that: (1) defendant discriminated against plaintiff on the basis of race in violation of Title VTI of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended (“Title VII”); and (2) defendant unlawful retaliated against plaintiff for engaging in activities protected by the aforementioned statute. In particular, plaintiff, who is a Financial Account Technician at the Veterans Administration Medical Center (“VAMC”) in Northport New York, claims that she was not selected for two positions for which she applied in 2007 — an Accounting Technician position and a Civilian Payroll Technician position — because she is African American and because she filed a complaint in 2005, and another complaint in November 2007, with the Equal Employment Opportunity Commission.

Defendant now moves for summary judgment on all claims. For the reasons set forth below, the Court grants defendant’s motion in its entirety. With respect to the race discrimination claims, defendant has articulated a legitimate, non-discriminatory reason for the employment decisions — namely, that more qualified individuals were selected for the open positions without consideration of race or color. In fact, it is undisputed that an African-American candidate was selected for one of the three open Account Technician positions for which plaintiff applied. In response, plaintiff has failed to put forth any evidence from which a rational jury could conclude that the reason was pretext and, instead, the decisions were motivated by race. The three pieces of evidence relied upon by plaintiff are grossly insufficient, even in combination, to defeat the summary judgment motion. First, the EEO affidavit of a union steward at the VAMC contains inadmissible hearsay statements and conclusory opinions about the VAMC’s purported historical treatment of minorities. The affidavit is not based upon any personal knowledge by the affiant of plaintiffs situation or any other particular instances of discrimination at the VAMC and, thus, provides no basis for an inference of discrimination. Second, the hiring statistics provided by plaintiff are rendered meaningless by the fact that plaintiff failed to present the race or color of the larger applicant pool from which the candidates for each position were selected. At oral argument, plaintiffs counsel attributed the failure to develop the EEO affidavit and hiring statistics into admissible and potentially relevant evidence to a lack of resources. However, a purported lack of resources does not cure the defective nature of this evidence, and does not transform it into an admissible and relevant form upon which a jury could reasonably rely to show discrimination. Finally, plaintiffs claim that she was subject to an unfair interview because she was asked about how she handled stress certainly does not provide an inference of discrimination. The question was asked because, as acknowledged in plaintiffs opposition papers, plaintiff had taken a prior leave for stress-related issues. In any event, there is simply no evidence that the question, or that any aspect of the interview and selection process, were motivated by plaintiffs race or color.

Plaintiff’s retaliation claims also cannot survive summary judgment. Plaintiff asserts in a conclusory fashion that her failure to obtain the open positions in 2007 [426]*426was retaliation for filing EEO complaints in 2005 and 2007. However, plaintiff has put forth no evidence from which a rational jury could find a causal connection between the protected activity and the adverse action. With respect to the Civilian Payroll Technician position, the approximately two years between the protected activity and adverse action is simply too attenuated to give rise to an inference of retaliation, and there is simply nothing in the record to support an inference of retaliation. Similarly, with respect to the Accounting Technician positions, although plaintiffs non-selection was within several months of her November 2007 EEO complaint, defendant has offered a legitimate, nondiscriminatory reason for the decisions (i.e., better qualified applicants), and plaintiff has proffered no evidence from which a reasonable jury could conclude that defendant was motivated by a retaliatory animus. In short, even construing the evidence most favorably to plaintiff, there is simply no evidence in the record from which a rational jury could find the failure to hire plaintiff for the open positions were a pretext for retaliation. Accordingly, summary judgment on the retaliation claims is also warranted.

I. Facts

A. Factual Background

The facts, construed in the light most favorable to plaintiff, the non-moving party, see Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005), are as follows:

On July 15, 1990, plaintiff was hired by the Veterans Administration Medical Center (the “VAMC”) in Northport, New York, to perform voucher audits. (Def.’s 56.1 Statement ¶ 1.)1 In 2001, plaintiff became a Financial Account Technician at the VAMC, and she continues to hold that position today. (Id. ¶ 2.) In 2006, Mary Pat Hessman (“Hessman”) was hired as the Chief of Financial Services at the VAMC and has held that position since that time. (Id. ¶ 3.) Plaintiff became a member of Hessman’s staff when Hessman was hired in 2006. (Id ¶ 4.) Plaintiffs immediate supervisor was John DeRudder (“DeRudder”). ■ (Id. ¶ 5.) DeRudder’s immediate supervisor was Nancy Salas (“Salas”). (Id.) Salas’s immediate supervisor was Hessman. (Id.)

1. Plaintiffs EEO Activity

In 2005, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (the “EEOC”) regarding “forgery” against Nancy Salas. (Id. ¶ 6.) The 2005 complaint was dismissed by the EEOC. (Id. ¶ 7; Pl.’s 56.1 ¶ 6.)

2. Plaintiff Applies for the Civilian Payroll Technician Position

In April 2007, plaintiff applied for the position of Civilian Payroll Technician (“CPT”) at the VAMC. (Id. ¶ 8.) The CPT position wa.s first announced to employees of the VAMC and, in the event no internal candidates were selected, the position would then be offered to outside applicants. (Id. ¶ 9.)

Plaintiff was deemed a qualified internal candidate for the CPT position by the VAMC Human Resources Department, was referred for an interview, and was subsequently interviewed by a panel consisting of VAMC employees Joann Beck-man (“Beckman”), Maria Colon (“Colon”) and Eleanor Desmond (“Desmond”). (Id. ¶¶ 10, 11.) Hessman did not interview the plaintiff for the position. However, Hess-[427]*427man, Salas, and Colon selected the interview panel. (Id. ¶ 12.) Hessman testified at her deposition to the following: (1) Desmond was selected for the panel because she worked in the CPT position that was being filled; (2) Colon was selected because she was the supervisor of the CPT vacancy; and (3) Beckman was chosen because she had payroll processing experience in other departments. (Id. ¶¶ 13, 14, 15; PL’s 56.1 Statement ¶¶ 13, 14, 15.)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nguyen v. Department of Corrections & Community Services
169 F. Supp. 3d 375 (S.D. New York, 2016)
Sattar v. Johnson
129 F. Supp. 3d 123 (S.D. New York, 2015)
Johnson v. Strive East Harlem Employment Group
990 F. Supp. 2d 435 (S.D. New York, 2014)
Weber v. City of New York
973 F. Supp. 2d 227 (E.D. New York, 2013)
Widomski v. State University
933 F. Supp. 2d 534 (S.D. New York, 2013)
Yoselovsky v. Associated Press
917 F. Supp. 2d 262 (S.D. New York, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
905 F. Supp. 2d 422, 2012 WL 3638791, 2012 U.S. Dist. LEXIS 119851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schupbach-v-shinseki-nyed-2012.