KENNETH M. KARAS, District Judge.
Plaintiff Mildred Tapia ("Plaintiff") brings this Action against her employer, TWC Administration LLC ("Defendant" or "TWC"), alleging that Defendant failed to promote her because of her Hispanic race and Puerto Rican national origin and subjected her to a hostile work environment, both in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (Compl. (Dkt. No. 1).)
The following facts are taken from Defendant's statement pursuant to Local Civil Rule 56.1, (Def.'s Rule 56.1 Statement ("Def.'s 56.1") (Dkt. No. 52)), Plaintiff's response to Defendant's 56.1 statement, (Pl.'s Resp. to Def.'s 56.1 Statement ("Pl.'s 56.1") (Dkt. No. 57)), Defendant's reply to Plaintiff's 56.1 (Def.'s Reply to Pl.'s Resp. to Def.'s 56.1 Statement ("Def.'s Reply 56.1")), and the exhibits submitted by both Parties, (Decl. of Abigail Stecker Romero, Esq. in Supp. of Mot. for Summ. J. ("Romero Decl.") (Dkt. No. 50); Decl. of Kasie Phillips in Supp. of Mot. for Summ. J. ("Phillips Decl.") (Dkt. No. 51); Decl. of Russell A. Schindler in Opp'n to Mot. for Summ. J. ("Schindler Decl.") (Dkt. No. 53)). The facts are recounted "in the light most favorable to" Plaintiff, the non-movant. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (internal quotation marks omitted). The facts as described below are not in dispute unless indicated otherwise.
Plaintiff was born and raised in Puerto Rico, and speaks both English and Spanish. TWC first hired Plaintiff as a Customer Care Representative in 2009. (Def.'s 56.1 ¶ 5.) In 2011, Sheila Frazier ("Frazier") selected Plaintiff to serve as a Quality Assurance Specialist under Frazier's supervision. (Id. ¶ 6.) In this position, Plaintiff monitored calls between TWC's customer care representatives and TWC's customers for quality assurance purposes. (Id. ¶ 7.) Plaintiff "[v]ery seldom" had to monitor or review a call where the agent and customer were speaking in Spanish. (Def.'s 56.1 Reply ¶ 8; Romero Decl. Ex. A ("Pl.'s Dep.") 33, 67.) After becoming a Quality Assurance Specialist, Plaintiff received generally satisfactory performance evaluations. (Def.'s 56.1 ¶ 10.) Plaintiff has been on leave from work since approximately May 20, 2016. (Id. ¶ 12.)
TWC received numerous complaints from its employees about Plaintiff. Plaintiff contends the complaints related to her speaking Spanish while at work. (Pl.'s 56.1 ¶ 15; Pl.'s Dep. 46.). The record shows, however, that the complaints were about Plaintiff regularly taking personal phone calls at her desk in a loud and disruptive manner. (Def.'s 56.1 ¶ 15; Def.'s 56.1 Reply ¶ 15; Phillips Decl. ¶ 12; id. Ex. 5, at 2.) Plaintiff conceded in testimony that she "probably" took personal calls at her desk from her mother. (Pl.'s Dep. at 68-69.) And Plaintiff acknowledges that she has no first-hand knowledge regarding any complaints made to TWC. Rather, Plaintiff asserts that other people in the Quality Assurance department told her that employees from the nearby Help Desk department "ha[d] a problem [with] her speaking Spanish." (Pl.'s Dep. 46; see also Def.'s 56.1 ¶ 71 (coworker testified that she never heard any coworkers make statements to Plaintiff regarding her use of Spanish in the workplace).) Plaintiff confronted the Help Desk employees about their comments, and after she left, she overheard one of the employees call her a "Spanish spic." (Pl.'s Dep. 60.) She spoke with Joseph Ploof ("Ploof"), TWC's Director of Customer Operations, about the comment and her ability to speak Spanish at the office, and Ploof asked her to also bring these concerns to Thomas Frost ("Frost"), TWC's Human Resources Generalist. (Id. ¶ 60-61.) Ploof and Frost both "advised [Plaintiff] that she was allowed to speak in Spanish at work, to both co-workers and customers." (Def.'s 56.1 ¶ 64.) Around 2016, the same Help Desk employees made statements, within earshot of Plaintiff, such as "[w]e are in America and we speak English here in America," and "I don't know why they don't speak English." (Def.'s 56.1 ¶ 70; Pl.'s 56.1 ¶ 70.) However, Plaintiff did not testify that these statements were made directly to Plaintiff. (Pl.'s Dep. 49-50, 161.)
TWC also received complaints that Plaintiff was unreasonably loud even when not on the phone, such as when Plaintiff would speak with coworkers. (Def.'s 56.1 ¶ 17.) During Plaintiff's deposition, she testified about a time she was talking to a coworker and employees from the Help Desk started saying "Shhhhh." (Pl.'s Dep. 162.) The coworker who complained about Plaintiff also submitted a complaint against a white, male, English-speaking coworker for being loud and disruptive. (Def.'s 56.1 ¶ 18.) Plaintiff asked to be moved, (Pl.'s Dep. 67), and TWC gave Plaintiff a private office, which made her "happy" to be away from the Help Desk employees and eliminated issues with her purportedly loud and disruptive conduct, (Def.'s 56.1 ¶ 20).
On April 17, 2013, June 3, 2015, August 28, 2015, and December 2, 2015, Plaintiff applied for a position as a Customer Care Supervisor—a promotion from her position as a Quality Assurance Specialist. (Phillips Decl. ¶ 15.) TWC's customer care supervisors were required to "plan, staff and assist in supervising a staff of customer care representatives." (Def.'s 56.1 ¶ 23 (quoting Phillips Decl., Ex. 6, at 1, 3, 5, 7 (applicable job descriptions)).) Customer Care Supervisors also coached those representatives on "attendance, punctuality and overall performance . . . [and] complete[ed] annual performance reviews." (Id. ¶ 24 (quoting Phillips Decl., Ex. 6, at 1, 3, 5, 7 (applicable job descriptions)).) TWC additionally required all of its Customer Care Supervisors to have "excellent communication" skills, (id. ¶ 25 (quoting Phillips Decl., Ex. 6, at 1, 4, 6, 8 (applicable job descriptions))), and written communication skills were considered particularly important because they were required to prepare "comprehensive documents," (Digilio Dep. 34). According to Defendant, Plaintiff did not possess the skills necessary to perform the duties of a Customer Care Supervisor—namely, she struggled with her time management skills, productivity, and written communication skills. (Def.'s 56.1 ¶ 26.)
Following her first application on April 17, 2013, Plaintiff was interviewed for the position in May 2013 by Mary Digilio, a Customer Care Manager. (Def.'s 56.1 ¶ 32.)
Following her June 3, 2015 application, Plaintiff was separately interviewed by Digilio and Ploof on June 11, 2015. (Id. ¶ 17.) While Ploof described Plaintiff's interview as "good," particularly regarding her answers in relation to teamwork and quality scoring, (Pl.'s 56.1 ¶ 40; Ploof Dep. 15-16), he also testified that Plaintiff did not have a good answer to the "leadership questions" because she did not have "details on who she coached and developed before in lead teams," (Def.'s Reply 56.1 ¶ 40; Ploof Dep. 7, 15-17). Digilio testified that Plaintiff was "vague on her answers to [Digilio's] questions or did not answer them satisfactorily." (Digilio Dep. 29-30.) In considering Plaintiff for the position, Digilio also asked Frazier for feedback regarding Plaintiff's "readiness for a care supervisor position." (Def.'s 56.1 ¶ 42.) Frazier responded that Plaintiff "certainly has the desire to be a leader and contribute to our collective goals and success," but that she "continues to receive coaching and feedback on the importance of managing her time to avoid impacting productivity," and needed to continue working on her "written communication skills and communication responsiveness." (Id. ¶ 43.) Frazier's opinion was consistent with comments she had written in Plaintiff's annual performance reviews beginning in 2011. (Pl.'s Dep. Exs. 8-12 ("Performance Reviews") (Dkt. No. 50).) TWC selected another employee for the June 2015 Customer Care Supervisor position, (Def.'s 56.1 ¶ 44), and notified Plaintiff of the decision on June 18, 2015, (id. ¶ 45). TWC did not believe Plaintiff had the skills to effectively supervise others or to resolve the type of difficult customer issues Plaintiff would regularly encounter as a Customer Care Supervisor. (Def.'s 56.1 ¶ 41.)
The successful candidate ("M.F.") was a Hispanic woman who speaks Spanish, (id. ¶ 46), and had completed TWC's Supervisor Intern Program, (id. ¶ 47).
After submitting her August 28, 2015 application, Plaintiff was not re-interviewed. (Def.'s 56.1 ¶ 52.) Defendant contends this was because Defendant's supervisors had recently interviewed Plaintiff for the same position a few months earlier in June 2015. (Phillips Decl. ¶ 18.) TWC selected an African American woman ("N.H."). (Def.'s 56.1 ¶ 53.) TWC decided to promote N.H. because she was "able to connect with agents in her communication, very passionate about customer service, [and] very passionate about professionalism." (Def.'s 56.1 ¶ 54 (quoting Digilio Dep. 49).) N.H. was also a part of the Supervisor Intern Program. (Digilio Dep. 49.) Plaintiff believes she had more education and experience than N.H., noting that based on conversations about N.H. in the workplace, Plaintiff was under the impression she had no prior supervisor experience and did not have a bachelor's degree. (Pl.'s 56.1 ¶¶ 54-55 (citing Pl.'s Dep. 94-96).) In her deposition, Digilio could not recall N.H.'s prior supervisory experience. (Digilio Dep. 49.)
After submitting her December 2, 2015 application, Plaintiff was not re-interviewed. (Def.'s 56.1 ¶ 57.) Defendant contends this was because Defendant had interviewed Plaintiff within the past six months for the same position. (Phillips Decl. ¶ 19.) Plaintiff counters in her 56.1 statement that she "was told she did not need to apply anymore." (Pl.'s 56.1 ¶ 57 (citing Pl.'s Dep. 83-85.) What this statement means, however, is not entirely clear from the record. Plaintiff's deposition testimony suggests that she was told she was not going to be interviewed, and that Defendant knew about her application and she didn't need to apply again for the December 2015 position. (Pl.'s Dep. 82-85.) Defendant selected another employee for this position, who had successfully completed the Supervisor Intern Program. (Def.'s 56.1 ¶ 58.)
In her deposition, Plaintiff complained that she was not treated "equally as [her] male coworkers" when Frazier declined Plaintiff's request to allow one of TWC's other employees to temporarily work alongside, or "shadow," Plaintiff in February 2016. (Def.'s 56.1 ¶ 65.) Frazier did not deny Plaintiff's request due to "the fact that [Plaintiff] spoke Spanish . . . or the fact that [she] was Hispanic." (Id. ¶ 66.) Rather, Plaintiff testified that the reason for the denial was "more politics," because Frazier was a "bully" who treated "some [quality assurance] agents different than others" based on "what you have gone through with her." (Id. ¶ 67 (quoting Pl.'s Dep. 182-83).)
Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") dated April 20, 2016, alleging that she was passed over for promotions and subject to a hostile work environment due to her race and national origin. (Def.'s 56.1 ¶ 13.) TWC investigated Plaintiff's charge as if it was an open-door complaint pursuant to its policy of encouraging employees to report suspected discrimination or harassment to its Human Resources Department. (Id. ¶ 14.) Kasie Phillips, Employee Relations Manager, wrote Plaintif a letter on August 2, 2016 explaining the investigation concluded the complaint was unsubstantiated. (Phillips Decl. Ex. 5 (Dkt. No. 51).)
Plaintiff filed the Complaint on January 20, 2017. (Compl.) After receiving two extensions of time, (Dkt. Nos. 7, 9), Defendant filed its Answer on March 13, 2017, (Answer (Dkt. No. 11)). Court mediation was held but unsuccessful. (Dkt. No. 23.) On October 10, 2017, the Court adopted the Parties' joint proposed discovery schedule. (Dkt. No. 27.)
On December 8, 2017, Defendant filed a pre-motion letter indicating the grounds on which it would move for summary judgment. (Letter from J. Scott Carr, Esq. to Court (Dec. 8, 2017) (Dkt. No. 35).) Plaintiff responded, arguing that Defendant's proposed motion lacked merit. (Letter from Russell A. Schindler, Esq. to Court (Dec. 21, 2017) (Dkt. No. 37).) The Court then held a conference on January 11, 2018 and adopted a briefing schedule. (See Mot. Scheduling Order (Dkt. No. 38).) Defendant filed the instant Motion for Summary Judgment and supporting papers on February 16, 2018. (Not. of Mot. For Summ J.; Mem. of Law in Supp. of Mot. For Summ. J. ("Def.'s Mem.") (Dkt. No. 49); Def.'s 56.1; Romero Decl.; Phillips Decl.)
Summary judgment is appropriate where the movant shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir. 2014) (same). "In determining whether summary judgment is appropriate," a court must "construe the facts in the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y. 2014) (same). "It is the movant's burden to show that no genuine factual dispute exists." Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v. Marchinkowski, 137 F.Supp.3d 495, 521 (S.D.N.Y. 2015).
"However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim," in which case "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration and internal quotation marks omitted). Further, "[t]o survive a [summary judgment] motion . . ., [a nonmovant] need[s] to create more than a `metaphysical' possibility that his allegations were correct; [s]he need[s] to `come forward with specific facts showing that there is a genuine issue for trial,'" Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), "and cannot rely on the mere allegations or denials contained in the pleadings," Guardian Life Ins. Co. v. Gilmore, 45 F.Supp.3d 310, 322 (S.D.N.Y. 2014;) (internal quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) ("When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading . . . ."). Indeed, "[w]hile summary judgment must be granted with caution in employment discrimination actions, . . . a plaintiff must prove more than conclusory allegations of discrimination to defeat a motion for summary judgment." Aspilaire v. Wyeth Pharm., Inc., 612 F.Supp.2d 289, 302 (S.D.N.Y. 2009) (citations and internal quotation marks omitted); see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006) ("[I]t is the law of this Circuit that summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact, and may be appropriate even in the fact-intensive context of discrimination cases." (citations and internal quotation marks omitted)).
"On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law." Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At this stage, "[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Brod, 653 F.3d at 164 (internal quotation marks omitted). Thus, a court's goal should be "to isolate and dispose of factually unsupported claims." Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). However, a district court should consider only evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). "[W]here a party relies on affidavits . . . to establish facts, the statements `must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated.'" DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4)).
Plaintiff claims that Defendant violated Title VII of the Civil Rights Act of 1964 by failing to promote her to customer care supervisor because of her race and national origin. (See generally Compl.) Defendant argues that Plaintiff failed to establish a prima facie case of race or national origin discrimination or pretext. (Def.'s Mem. 15-20.)
"An aggrieved employee wishing to bring a Title VII claim in district court must file an administrative complaint with the EEOC within 300 days of the alleged discriminatory act." Petrosino v. Bell Atl., 385 F.3d 210, 219 (2d Cir. 2004); see also 42 U.S.C. § 2000e-5(e). Plaintiff filed her charge on April 20, 2016. (Def.'s 56.1 ¶ 13.) As noted, Plaintiff filed her EEOC complaint on April 30, 2016. Thus, any claims for discrimination based on Defendant's failure to promote Plaintiff that accrued prior to June 25, 2015 are time-barred.
"[E]very failure to promote is a discrete act that potentially gives rise to a freestanding Title VII claim with its own filing deadline. Discrete acts of this sort, which fall outside the limitations period, cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period. Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 157 (2d Cir. 2012). Accordingly, the claims for failure to promote Plaintiff based on her April 17, 2013 and June 3, 2015 applications are untimely.
To establish a claim of race or national origin discrimination under Title VII, a plaintiff must meet the burden of proving that the adverse employment decision was motivated, at least in part, by the "impermissible reason" of race or national origin. See Fields v. N.Y. State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 120 (2d Cir. 1997). This claim is analyzed under the familiar three-part burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014). To establish a prima facie case of discrimination due to a failure to promote, Plaintiff must show that "(1) she is a member of a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the [P]laintiff's qualifications." Opoku v. Brega, No. 15-CV-2213, 2016 WL 5720807, at *11 (S.D.N.Y. Sept. 30, 2016) (alterations and internal quotation marks omitted). The fourth factor may also be demonstrated by other "circumstances which give rise to an inference of discrimination." Morris v. Ales Grp. USA, Inc., No. 04-CV-8239, 2007 WL 1893729, at *9 (S.D.N.Y. June 29, 2007)
Here, there is no dispute that Plaintiff is a member of a protected class under Title VII. It is also undisputed that Defendant did not promote Plaintiff to Customer Care Supervisor. Accordingly, the Court's inquiry focuses on whether Plaintiff has presented evidence to support the two remaining elements necessary to establish a prima facie case of discrimination.
Under the McDonnell Douglas framework, a "plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Where a plaintiff cannot show that she was eligible for the position sought, she fails to make a prima facie case under Title VII. See Workneh v. Pall Corp., 897 F.Supp.2d 121, 131 (E.D.N.Y. 2012) (dismissing the plaintiff's failure-to-promote claim "because he has not met his prima facie burden of establishing he was qualified for [the relevant] position" (italics omitted)); Velez v. SES Operating Corp., No. 07-CV-10946, 2009 WL 3817461, at *8 (S.D.N.Y. Nov. 12, 2009) (explaining that "the plaintiff [must] establish basic eligibility for the position at issue" in order to make out a prima facie case of discrimination (internal quotation marks omitted) (citing Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001))).
"[B]eing `qualified' refers to the criteria the employer has specified for the positions," Workneh, 897 F. Supp. 2d at 131 (some internal quotation marks omitted) (citing Williams, 368 F.3d at 127), which as relevant here required, among other things, coaching customer care representatives on "attendance, punctuality and overall performance," "good leadership," and "excellent communication" skills. (Phillips Decl., Ex. 6, at 1-8; Def.'s 56.1 ¶ 24-25, 41.) The record evidence demonstrates that Frazier, Plaintiff's immediate supervisor, expressed concerns about Plaintiff's time management and productivity, as well as written communication skills and communication responsiveness. (Def.'s 56.1 ¶ 43; Pl.'s Dep. Ex. 7 ("Frazier Email") 127 (Dk. No. 50).) Frazier also expressed concerns about Plaintiff's receptiveness to feedback noting that "full ownership and accountability [were] not demonstrated in her actions," and concluded she was not the best fit for the role. (Def.'s 56.1 ¶ 43; Frazier Email 127.) These were the same concerns that Frazier repeatedly raised in Plaintiff's performance reviews. (Performance Reviews.) Additionally, Plaintiff's interviewers found her answers to questions regarding her leadership abilities to be lacking in detail, (Def.'s Reply 56.1 ¶ 40; Ploof Dep. 7, 15-17), and her answers to other interview questions to be "vague" or not "sasifactor[]y," (Digilio Decl. 29-30). Thus, the record contains evidence that Plaintiff was not qualified for the position. See Muszak v. Sears, Roebuck & Co., 63 F.Supp.2d 292, 297 (W.D.N.Y. 1999) (finding prima facie case not satisfied where "communication skills were a part of the job" and the plaintiff's "language skills were not sufficient").
Plaintiff argues in her opposition that she was qualified for the position because she: (i) previously worked as a supervisor in the repairs department at Verizon, (Pl.'s Mem. 2-3); (ii) received generally satisfactory performance evaluations as a Quality Assurance Specialist, (id. at 3); and (iii) learned the "Compass" software, which was used to evaluate agents' handling of customer calls and improving business metrics, (id.). Plaintiff does not cite a single page in the record to support these arguments. Thus, the Court's analysis of this claim could end here. See Berry, 137 F. Supp. 3d at 503 n.1 (disregarding all assertions in opposition papers that "do not contain citations to the record, or are not supported by the citations in the record"); Gonzalez v. K-Mart Corp., 585 F.Supp.2d 501, 503 (S.D.N.Y. 2008) ("[J]udges are not like pigs, hunting for truffles buried in the record." (internal quotation marks omitted)). However, the Court will briefly address these arguments. First, Plaintiff does not demonstrate how any of these three alleged facts align with the "criteria [TWC] has specified for the positions," and make her qualified for the position. Workneh, 897 F. Supp. 2d at 131. While the job description did note "supervisory experience preferred," (Phillips Decl., Ex. 6), the mere fact that she was a supervisor for some unknown duration during an unknown time period prior to her employment at TWC in January 2009 does not directly bear on her ability to meet the criteria for the promotion at TWC in 2015. See, e.g., Chang v. Cargill, Inc., 168 F.Supp.2d 1003, 1008 (D. Minn. 2001) (finding "successful employment" at "three previous employers," particularly "regarding different job titles and different responsibilities," fails to demonstrate prima facie case of qualification).
Second, Plaintiff's prior evaluations actually serve as evidence that she was not, in fact, qualified for the promotion, as they demonstrate she struggled with productivity and her written communication skills. (Performance Reviews.) For example, the 2015 Performance Review noted Plaintiff should "ensure she recognizes and avoids potential time snares that may impact her productivity goals" and "keep alert to potential opportunities to meet the daily audit productivity goal." (Pl.'s Dep. Ex. 12 ("2015 Performance Review") 164 (Dkt. No. 50).) And, the 2014 Performance Review noted that "[Plaintiff] continues to receive coaching and feedback to ensure her written communication content is error free as it aligns with the value of Initiative and the Q[uality] A[ssurance] Performance Management Criteria." (Pl.'s Dep. Ex. 11 ("2014 Performance Review") 157 (Dkt. No. 50).)
Plaintiff also argues that the suggestion that Plaintiff did not have good communication skills is belied by Digilio's testimony that she is able to understand Plaintiff and her accent was not a factor in whether she received the promotion. (Pl.'s Mem. 3.) Again, Plaintiff does not cite to record evidence to support this assertion, nor does she explain how Digilio's ability to understand Plaintiff when she spoke creates a dispute of fact regarding the sufficiency of her written communication skills or demonstrates she was qualified for the promotion. Even more problematic is the fact that this testimony undercuts Plaintiff's claim that her Spanish accent somehow contributed to her not getting promoted. (See Pl.'s Mem. 1 (asserting that Plaintiff "speaking in English with a heavy accent was a substantial factor in the Defendant's refusal to promote her").) Accordingly, Plaintiff has failed to point to any record evidence to demonstrate that she was qualified for the position. See Siddiqi v. N.Y.C. Health & Hosps. Corp., 572 F.Supp.2d 353, 369 (S.D.N.Y. 2008) (holding the "[p]laintiff fail[ed] to make a prima facie case that [the] [d]efendant's failure to promote [him] was discriminatory," where the plaintiff failed to that show he was qualified for the relevant position); Williams v. R.H. Donnelley Inc., 199 F.Supp.2d 172, 177 (S.D.N.Y. 2002) (finding that "summary judgment on behalf of [the] defendant is appropriate" where the plaintiff "was not qualified for the promotion"), aff'd, 368 F.3d 123 (2d Cir. 2004).
However, even assuming there is a dispute of fact that Plaintiff was qualified for the promotion, Plaintiff fails to establish the fourth element of a prima facie case, as she presents no evidence of circumstances giving rise to an inference of discrimination. "[T]here is no unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996). A plaintiff can support such an inference by (a) "demonstrating that similarly situated employees of a different race or national origin were treated more favorably," (b) "showing that there were remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus," or (c) "proving that there were other circumstances giving rise to an inference of discrimination on the basis of [the] plaintiff's race or national origin." Gelin v. Geithner, No. 06-CV-10176, 2009 WL 804144, at *15 (S.D.N.Y. Mar. 26, 2009) (citations and internal quotation marks omitted), aff'd, 376 F. App'x. 127 (2d Cir. 2010). Conclusory and speculative allegations will not suffice to demonstrate discriminatory intent. Rather, a plaintiff "must point to facts that suggest" that the adverse employment action was motivated, at least in part, by discriminatory animus. Kalsi v. N.Y.C. Transit Auth., 62 F.Supp.2d 745, 753 (E.D.N.Y.1998), aff'd, 189 F.3d 461 (2d Cir. 1999); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (reaffirming that, in order to prove a case of discrimination, a plaintiff "may not rely simply on conclusory statements"); Anderson v. Port Auth., No. 04-CV-4331, 2009 WL 102211, at *4 (S.D.N.Y. Jan. 12, 2009) ("[M]ere conclusory allegations of discrimination will not defeat a summary judgment motion; a plaintiff in a discrimination case must proffer `concrete particulars' to substantiate his claim."). "Although the burden of meeting the prima facie case is `de minimis,' [a] [p]laintiff must adduce some admissible evidence that would support [her] claims." Henny v. N.Y. State, 842 F.Supp.2d 530, 553 (S.D.N.Y. 2012) (alterations and internal quotation marks omitted). Although Plaintiff's brief contains no record citations or citation to cases on the question, the Court construes Plaintiff to be arguing that four factors suggest an inference of discrimination: (1) she was more qualified than the candidates chosen for the promotion, (Pl.'s Mem. 6); (2) Help Desk employees made negative comments about her use of Spanish in the office, (id. at 5); (3) she was passed over for a promotion more than once, (id. at 4); and (4) she was not re-interviewed for the August 28, 2015 or December 2, 2015 position, (id. at 5).
Plaintiff maintains that she was more qualified for the Customer Care Specialist position. (See Pl.'s 56.1 Reply ¶¶ 54-55; Pl.'s Opp'n 4.)
The fact that certain Help Desk employees allegedly made comments about Plaintiff's use of Spanish at work also does not support an inference of discrimination by Ploof and Digilio in choosing not to promote Plaintiff. First, Plaintiff has not presented evidence that the discriminatory remarks were made by one of her supervisors, anyone involved in the promotion decisions, or that the comments bore any weight on the decision not to promote Plaintiff.
Third, the fact that Plaintiff was denied a promotion four times does not support an inference of discrimination, especially in the absence of any evidence that the decision was tainted by discriminatory comments by the decision-makers or that those promoted instead of Plaintiff were so unqualified that only a discriminatory motive could explain their promotion. See Johnson v. Connecticut Dep't of Corr., 392 F.Supp.2d 326, 339 (D. Conn. 2005) ("That [the plaintiff] has been unable to secure a promotion despite his long tenure . . . is not itself evidence of discrimination, and that many instances of non-promotion occurred do not give rise to an inference of discrimination."). Fourth, Plaintiff cannot demonstrate pretext from the fact that Plaintiff was not interviewed again following her August 25, 2015 and December 2, 2105 application, as it is undisputed that an interview was not necessary because Plaintiff had interviewed recently for the same position. (Phillips Decl. ¶¶ 18, 19.)
In the end, "Plaintiff has provided no concrete evidence of circumstances giving rise to an inference of discrimination." Nguyen, 169 F. Supp. 3d at 392. Her failure-to-promote claim ultimately rests on "nothing more than h[er] own subjective belief that [s]he was discriminated against, which is not enough to make out a prima facie discrimination case under Title VII." Gibbs v. Metro. Transp. Auth., No. 13-CV-1583, 2014 WL 5842833, at *5 (E.D.N.Y. Nov. 12, 2014); Gellin, 2009 WL 804144, at *16 (noting that "[t]the Second Circuit has rejected precisely the type of speculation . . . where [the plaintiff] has "done little more than cite to [his] mistreatment and ask the [C]ourt to conclude that it must have been related to [her] race."); White v. Fuji Photo Film USA, Inc., 434 F.Supp.2d 144, 151 (S.D.N.Y. 2006) ("Courts within the Second Circuit have not hesitated to grant defendants summary judgment in such case[s] where [a] plaintiff has offered little or no evidence of discrimination." (internal quotation marks omitted)). In the absence of any evidence supporting an inference of discrimination, there is simply no basis in the record for a reasonable factfinder to conclude that Plaintiff was not promoted because of any discriminatory animus.
Even assuming Plaintiff has satisfied a prima facie case of race or national origin discrimination because she was a qualified candidate who lost the job to a non-Hispanic, non-Puerto Rican candidate, see Opoku, 2016 WL 5720807, at *11 (setting forth elements of prima facie case), Plaintiff fails to raise a dispute of material fact as to whether Defendant's nondiscriminatory reasons for not choosing Plaintiff were a pretext for race or national origin discrimination. At this second stage of the McDonnell Douglas framework, an employer's burden is to "clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (italics and internal quotation marks omitted); see also McCaskill v. ShopRite Supermarket, No. 13-CV-238, 2015 WL 419658, at *8 (N.D.N.Y. Jan. 30, 2015) (same). This "burden of showing a legitimate[,] non-discriminatory reason for its actions is not a particularly steep hurdle." Brierly v. Deer Park Union Free Sch. Dist., 359 F.Supp.2d 275, 291 (E.D.N.Y. 2005).
Defendant proffered legitimate, non-discriminatory reasons for choosing N.H. for the August 28, 2015 position: N.H. had completed the Supervisor Intern Program and Defendant believed she was more qualified because she was "able to connect with agents in her communication, very passionate about customer service, [and] very passionate about professionalism." (Def.'s 56.1 ¶ 54 (quoting Digilio Dep. 49.) Additionally, on December 2, 2015, Defendant again selected a candidate who had completed the Supervisor Intern Program. (Def.'s 56.1 ¶ 58.) Ploof observed that Plaintiff did not have answers to the "leadership questions" at her June 2015 interview, and, in particular, that she did not have "details on who she coached and developed before in lead teams." (Def.'s Reply 56.1 ¶ 40; Ploof Dep. 7, 15-17). Digilio also believed that Plaintiff was "vague on her answers to [Digilio's] questions or did not answer them satisfactorily." (Digilio Dep. 29-30.) And, Frazier's feedback regarding Plaintiff's readiness for the position was not favorable. (Def.'s 56.1 ¶ 43.) This is sufficient evidence to satisfy Defendant's burden at step two of McDonnell Douglas. See Mandell v. Cty. of Suffolk, 316 F.3d 368, 380 (2d Cir. 2003) (finding that the employer proffered sufficient evidence of legitimate reasons not to promote the plaintiff through supervisor's testimony that he found the other candidate more qualified and got a negative impression of the plaintiff in an interview); Nguyen, 169 F. Supp. 3d at 393 (finding non-discriminatory reasons for not promoting the plaintiff, such as "performance during the job interviews, qualifications, and experience," sustained the burden); Aspilaire v. Wyeth Pharm., Inc., 612 F.Supp.2d 289, 306-07 (S.D.N.Y. 2009) (finding employer's belief that another candidate "was the most qualified applicant for the job based on [their] experience" and concerns about the plaintiff's work were sufficient legitimate, non-discriminatory reasons for not promoting the plaintiff); Jimenez v. City of N.Y., 605 F.Supp.2d 485, 524-25 (S.D.N.Y. 2009) (noting that "employers enjoy unfettered discretion to choose among qualified candidates and to decide which types of credentials are of the most importance for a particular job" (internal quotation marks omitted)); see also Schupbach v. Shinseki, 905 F.Supp.2d 422, 436 (E.D.N.Y. 2012) (concluding an employer "proffered a legitimate, non-discriminatory reason for not selecting [the] plaintiff—namely, that that there were other candidates that were more qualified than [the] plaintiff"); Milano v. Astrue, No. 05-CV-6527, 2008 WL 4410131, at *30-31 (S.D.N.Y. Sept. 26, 2008) (finding that an employer overcame a prima facie case by coming forward with evidence that certain chosen applicants had prior experience and that the employer was concerned with the plaintiff's ability to handle certain aspects of position), aff'd 382 F. App'x. 4 (2d Cir. 2010). Although Plaintiff may disagree with the decision that the August and December 2015 hires were better suited for the Customer Care Supervisor positions, the "Court is not permitted to second-guess the wisdom of [Defendant's] selection." Lanier v. I.B.M. Corp., 319 F.Supp.2d 374, 387 (S.D.N.Y.2004) (internal quotation marks omitted); see also James v. Newsweek, No. 96-CV-0390, 1999 WL 796173, at *11 (S.D.N.Y. Sept. 30, 1999) ("Plaintiff's objections to the decisions made by [Defendant] amount to a difference of opinion as to her qualifications, and these are business decisions which [the Court] is instructed not to second-guess.").
Because Defendant has shown legitimate, non-discriminatory reasons for its hiring decisions, the burden returns to Plaintiff to come forward with evidence that the reasons cited are "mere pretext for actual discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). To meet this burden, which is "higher than that . . . applied for analyzing the prima facie case," Geoghan v. Long Is. R.R., No. 06-CV-1435, 2009 WL 982451, at *21 (E.D.N.Y. Apr. 9, 2009) (italics omitted), a "plaintiff must produce not simply `some' evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action," Weinstock, 224 F.3d at 42 (alterations and some internal quotation marks omitted). That evidence may be either direct or circumstantial, Jimenez, 605 F. Supp. 2d at 522 (citing Burdine, 450 U.S. at 256)), but must, "taken as a whole, support[ ] a sufficient rational inference of discrimination," Weinstock, 224 F.3d at 42. "[I]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." St. Mary's Honor Ctr., 509 U.S. at 519 (emphasis omitted). That the Court cannot do.
Plaintiff offers insufficient evidence, if any at all, to contest the qualifications of either candidate hired for the August 28, 2018 or December 2, 2015 position. To repeat, Plaintiff's subjective belief that she was more qualified for the position, without any evidence showing she was clearly more qualified, is insufficient to show that race or national origin played a motivating role in the decision not to promote Plaintiff. See Byrnie, 243 F.3d at 103 (explaining that, to defeat summary judgment, "the plaintiff's credentials would have to be so superior to the credentials of the person selected for the job that no reasonable person . . . could have chosen the candidate selected over the plaintiff for the job in question" (internal quotation marks omitted)); Holt, 95 F.3d at 130 (reaffirming that a plaintiff cannot show pretext simply "by asserting her personal belief that she was the most qualified person for the various positions"); Nguyen 169 F. Supp. 3d at 394 (finding the plaintiff's subjective belief "that he had greater experience, or `more seniority,'" was insufficient to establish pretext); Jones v. N.Y.C. Bd. of Educ., No. 09-CV-4815, 2012 WL 1116906, at *12 (S.D.N.Y. Apr. 2, 2012) ("The [p]laintiff's subjective belief that she was more qualified . . . is insufficient to establish pretext."); Subramanian v. Prudential Sec., Inc., No. 01-CV-6500, 2003 WL 23340865, at *9 (E.D.N.Y. Nov. 20, 2003) ("[The plaintiff's] subjective belief that he was more qualified is insufficient to create a genuine issue of material fact as to whether he was the target of discrimination.").
In sum, Digilio and Ploof made a business judgment that M.H. and the December 2015 hire were better candidates than Plaintiff, and, absent evidence that that decision was motivated even in part because of Plaintiff's race or national origin, the Court should not substitute its own judgment for Defendant's. See Byrnie, 243 F.3d at 103 (noting that where the other candidate was not unqualified and the employer was not unreasonable in selecting that candidate "in light of a comparison of her paper credentials with [the plaintiff's]," the plaintiff failed to show pretext); Newsome v. IDB Capital Corp., No. 13-CV-6576, 2016 WL 1254393, at *22 (S.D.N.Y. Mar. 28, 2016) ("At their heart, [the] [p]laintiffs' claims reflect their disagreement with the [d]efendants' business judgments and assessments of the quality of their work or reflect the [p]laintiffs' subjective feelings and perceptions that they were being discriminated against because of their . . . gender. Such claims are, however, insufficient to establish discrimination."); Sattar v. Johnson, No. 12-CV-7828, 2015 WL 5439064, at *12 (S.D.N.Y. Sept. 11, 2015) ("To fault the [employer] for selecting [another candidate] over [the plaintiff] would improperly require the factfinder to act as a `super personnel department,' secondguessing the merits of the [employer's] decision to select [the other candidate] for the position over [the plaintiff]" (internal quotation marks omitted)). Plaintiff's unsubstantiated selfassessment does not create a genuine issue of material fact on the issue of pretext.
Moreover, in some of the instances where Plaintiff disputes a fact, the 56.1 statement fails to cite the supporting portions of the record. (E.g., Pl.'s 56.1 ¶¶ 18, 26-28, 60.) The Court may deem such challenged facts undisputed. L. Civ. R. 56.1(d) ("Each statement by the . . . opponent . . . . must be followed by citation to evidence which would be admissible."); Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (explaining that a court is not required to search the record for genuine issues of material fact that the party opposing summary judgment failed to bring to the court's attention in the 56.1 statement); Baity, 51 F. Supp. 3d at 418 (collecting cases holding that "responses that do not point to any evidence in the record that may create a genuine issue of material fact do not function as denials, and will be deemed admissions of the stated fact" (alteration and internal quotation marks omitted)).
