Lomotey v. State of Connecticut-Department of Transportation , 355 F. App'x 478 ( 2009 )

09-0466-cv
Lomotey v. State of CT, Dept of Transportation
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders filed after
January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and Federal Rule of
Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a summary order, in each
paragraph in which a citation appears, at least one citation must either be to the Federal Appendix or
be accompanied by the notation: “(summary order).” A party citing a summary order must serve a
copy of that summary order together with the paper in which the summary order is cited on any party
not represented by counsel unless the summary order is available in an electronic database which is
publicly accessible without payment of fee (such as the database available at
http://www.ca2.uscourts.gov/). If no copy is served by reason of the availability of the order on such
a database, the citation must include reference to that database and the docket number of the case in
which the order was entered.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 4th day of December, two thousand nine.
Present: AMALYA L. KEARSE,
ROBERT D. SACK,
ROBERT A. KATZMANN,
Circuit Judges.
____________________________________________________________
SOWATEI LOMOTEY,
Plaintiff-Appellant,
No. 09-0466-cv
-v-
STATE OF CONNECTICUT-DEPARTMENT OF TRANSPORTATION
and ROBERT ZAFFETTI, PE,
Defendants-Appellees.*
____________________________________________________________
For Appellant: JOSEPHINE S. MILLER, Danbury, CT
*
The Clerk of the Court is directed to amend the official caption as set forth above.
For Appellees: ELEANOR MAY MULLEN , Assistant Attorney General
(for Richard Blumenthal, Attorney General), Hartford,
CT
Appeal from a judgment of the United States District Court for the District of
Connecticut (Dorsey, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Sowatei Lomotey appeals from a judgment of the United States
District Court for the District of Connecticut (Dorsey, J.) dated January 9, 2009, granting
Defendants-Appellees Connecticut Department of Transportation’s (“DOT”) and Robert
Zaffetti’s motion for summary judgment. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
We review a district court’s grant of summary judgment de novo. Back v. Hastings On
Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004). Summary judgment is
appropriate only if there exists “no genuine issue of material fact and, based on the undisputed
facts, the moving party is entitled to judgment as a matter of law.” D’Amico v. City of New York,
132 F.3d 145, 149 (2d Cir. 1998); see Fed. R. Civ. P. 56 (c). We affirm the grant of summary
judgment if, after drawing all inferences in favor of the non-moving party, no rational jury could
find in favor of the non-moving party. D’Amico, 132 F.3d at 149. In a disparate treatment case
like this, where the merits of the dispute turn on the employer’s intent, there will rarely be direct
evidence of such intent, and we must pay particular attention to circumstantial evidence which, if
believed, would show discrimination. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008).
At the same time, we must “distinguish between evidence that allows for a reasonable inference
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of discrimination and evidence that gives rise to mere speculation and conjecture. A non-moving
party cannot avoid summary judgment simply by asserting a metaphysical doubt as to the
material facts.” Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005) (citations and
internal quotation marks omitted).
A. Failure to Promote Claim
Title VII makes it unlawful for an employer to “fail or refuse to hire . . . or otherwise to
discriminate against any individual . . . because of such individual’s race, color, [or] . . . national
origin.” 42 U.S.C. 2000e-2(a)(1). A plaintiff asserting a Title VII discrimination claim based on
a failure to promote establishes a prima facie case by showing that at the relevant time: (i) the
plaintiff was a member of a protected class; (ii) the plaintiff applied for and was qualified for the
job; (iii) the plaintiff was rejected for the position; and (iv) the rejection of the plaintiff’s
application occurred under circumstances giving rise to an inference of discrimination. Aulicino
v. New York City Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009). A prima facie case
gives rise to a presumption of unlawful discrimination, and the burden of production then shifts
to the defendant to proffer a “legitimate, nondiscriminatory reason” for the challenged
employment action. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001). If
a proper reason is advanced, the presumption of discrimination drops out and “the final burden
rests on the plaintiff to prove . . . that the proffered nondiscriminatory reason was pretexutal . . .
.” Id. Here, the district court properly found that although Lomotey had established a prima
facie case, he had failed to proffer evidence sufficient to permit a rational factfinder to conclude
that the DOT’s explanation for failing to promote him was pretextual.
Lomotey argues that the district court overlooked significant evidence of pretext. We
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disagree. First, Lomotey’s stated qualifications do not establish that his credentials were, in any
instance, so superior to those of the person selected for promotion so as to make the selection of
that person unreasonable, as we have required for a credentials-based finding of pretext. Byrnie
v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001). Lomotey has also failed to
proffer evidence that the DOT downplayed his credentials. Specifically, Lomotey’s evidence that
he had some supervisory responsibility in his past positions does not show how that experience
was of the kind and level required for the positions to which he was seeking promotion.
In addition, Lomotey’s evidence cannot support a finding that the DOT’s defenses have
changed over time. The arguments in the DOT’s reply brief submitted to the district court
offered further explanation in support of the reason for nonpromotion originally advanced in the
DOT’s motion to dismiss; they were not completely new reasons advanced after evidence
produced in the litigation showed that the original reason was clearly false. See, e.g., EEOC v.
Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994); Carlton v. Mystic Transp., Inc., 202 F.3d 129,
137 (2d Cir. 2000).
Lomotey’s allegation that the DOT favored Caucasian employees by giving them
temporary placements in order to help them get relevant experience that would facilitate
promotion is also not supported by sufficient evidence. Lomotey’s evidence that only
Caucasians were selected for these placements amounts to nothing more than raw numbers
which, without further information on key considerations such as the racial composition of the
qualified labor pool, cannot support an inference of discrimination. See Hollander v. Am.
Cyanamid Co., 172 F.3d 192, 203 (2d Cir. 1999) (abrogated on other grounds); Luciano v. Olsten
Corp., 110 F.3d 210, 217 (2d Cir. 1997).
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Lomotey also argues that the district court erred when it “failed to examine each failure to
promote claim separately” and instead “lump[ed] the incidences together.” The district court
discussed similar instances together only after explaining why the key considerations were the
same across those instances, and did take care to explore specific instances that merited separate
discussion. We see no error in the district court’s decision.
B. Retaliation Claim
Title VII makes it unlawful for an employer “to discriminate against any of his employees
. . . because he has opposed any . . . unlawful employment practice” or because the employee has
“made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title
VII, plaintiffs must show that: (1) they engaged in a protected activity; (2) their employer was
aware of this activity; (3) the employer took adverse employment action against them; and (4) a
causal connection exists between the alleged adverse action and the protected activity. Schiano
v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006). If a plaintiff meets this burden
and the defendant then points to evidence of a legitimate, nonretaliatory reason for the challenged
employment decision, the plaintiff must offer evidence sufficient to permit a rational factfinder to
conclude that the employer’s explanation is merely a pretext for impermissible retaliation. Cifra
v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001).
Even if Lomotey has established adequate evidence of causation, the district court
properly found that Lomotey has not produced adequate evidence of pretext. The DOT’s stated
non-discriminatory reason for not promoting Lomotey was that “in each instance, another
candidate was better qualified” and Lomotey “did not perform as well in the interview.”
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Lomotey has not pointed to any direct evidence that his participation in protected activities
factored into the DOT’s decision not to promote him. See Terry v. Ashcroft, 336 F.3d 128, 141
(2d Cir. 2003). Although Lomotey argues that the DOT refused to promote him because he
testified on behalf of an employee who had filed a complaint against the DOT with the
Connecticut Commission on Human Rights and Opportunities (“CHRO”), Lomotey has not
offered any evidence that shows any negative animus by anyone at the DOT related to those
activities. Lomotey points to his repeated nonpromotion and incidents of conflict with coworkers
as evidence of retaliation, but this at best creates an inference that Lomotey’s superiors and
coworkers disliked him. This is not evidence that shows that the DOT failed to promote
Lomotey after he became involved in CHRO activities. Further, as described in the analysis of
Lomotey’s failure to promote claim, Lomotey’s attacks on the DOT’s credibility are insufficient
to constitute circumstantial evidence of pretext.
We have considered all of Plaintiff’s arguments and find them to be without merit.
Accordingly, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
By: ________________________________
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