GLAESENER v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

DONNA GLAESENER,

Plaintiff.

Civ. No. 2:20-cv-02294 (WJM)

v.

PORT AUTHORITY OF NEW YORK AND OPINION

NEW JERSEY, PORT AUTHORITY TRANS-

HUDSON

Defendants.

WILLIAM J. MARTINI, U.S.D.J.:

Presently in this action alleging race discrimination and retaliation in violation of

Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. {| 2000e, ef seg. (“Title

VI”), is a motion by Defendants Port Authority Of New York And New Jersey, Port

Authority Trans-Hudson (“Defendants”) for summary judgment pursuant to Fed. R. Civ.

P. 56. ECF No. 67. The Court decides this motion without oral argument. Fed. R. Civ. P.

78(b). For the reasons below, Defendants’ motion for summary judgment ts granted.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Donna Glaesener (“Plaintiff or “Glaesener”) is an Aftican American

female who has been working at the Port Authority Trans-Hudson Corp. (“PATH”) since

November 12, 1996. Defs.’ Statement of Material Facts “DSMEF”), J 8, ECF No. 67-1.

She commenced this action on March 3, 2020,! ECF No. 1, and filed an Amended

Complaint on December 5, 2022 alleging race discrimination (Count I) and retaliation

(Count Il). ECF No. 54.

Defendants move for summary judgment arguing that Plaintiffhas failed to establish

a prima facie case of discrimination or retaliation and that Defendants have legitimate

business reasons for their decisions. Defendants also contend that claims arising before

June 15, 2018 are time barred and that any request for punitive damages must fail because

Defendants are hybrid entities immune from punitive damages. In response, Plaintiff is no

' Glaesener initially filed an action on November 21, 2019 with another Plaintiff, Astagne Avril, claiming

discrimination and retaliation in violation of Title VH. Plaintiffs in that case, No. 19-cv-20570 (J, Cecchi), were

ordered to file a separate action with facts pertaining only to Glaesener, see March 2, 2020 J. Kiel Order, Declaration

of Juan M. Barragan (“Barragan Decl.”), Ex. D, ECF No. 68-4, which resulted in the above captioned matter.

Uniess otherwise noted, all exhibits referenced herein are attached to the Barragan Decl.

longer pursuing claims that Defendants failed to promote her in 2016 and 2017, see infra

n. 2, 3, and has also stipulated to the dismissal of her punitive damage claim, See Pl. Opp’n

Br. at 28. Thus, the remaining issues are whether Defendants failed to promote Plaintiff to

the following 4 positions in violation of Title VI:

1) Race Discrimination:

- Systems Safety & Environmental Manager (“Safety Manager”) in 2018 (David

Volk, a white male, was selected); and

- Chief Operations Examiner (“COE”) in 2018 (Mike Moran, a white male, was

selected)

2) Retaliation:

- Principal Programs & Training Coordinator (“PPT Coordinator”) in 2019 (Raishea

Haines, a Black female, was selected)

- Superintendent of Transportation in 2022 (Ms. Haines was selected)

For the reasons set forth below, Defendants are entitled to summary judgment on these

remaining claims.

Plaintiff began at PATH in 1996 as a train conductor, then was promoted to Train

Engineer in February 1997, to Acting Terminal Dispatcher in 2002, to Operations

Examiner also in 2002, to Assistant Trainmaster in 2008, to Chief Safety Supervisor in

2016, and then to Acting Superintendent of Night Operations in January 2020. DSMP, □□□

9-26. She has been the Superintendent of Night Operations since November 2020. Id. at Jf]

3, 27.

David Volk joined PATH’s Safety Department as the Safety Programs Coordinator

in 2016. 7d. at 156. As such, he was responsible for the administration of all safety training

for all PATH divisions to ensure compliance with regulatory mandated training, serving as

the primary back-up for PATH’s drug and alcohol coordinator, and emergency

preparedness. Jd. In 2017, after a division restructuring, Mr. Volk was promoted to

Principal Safety and Training Coordinator, /d. at [9 57, 58, 61, 63.

On April 4, 2018, Plaintiff met with Flora Heun in Human Resources to discuss her

concems on various topics regarding her employment at PATH. /d. at § 109. Thereafter,

Ms. Heun sent an “EEO Complaint Summary,” containing Plaintiff's grievances to the

Office of Equal Opportunity Compliance, Diversity & Inclusion (“OCDI”) on September

18, 2018. fd. at J 112-113. The EEO Complaint Summary alleged that the “department

was not diverse” and that Plaintiff suffered race-based discrimination.2 EEO Compl., Ex.

ECF No. 69-9,

* Plaintiff alleges that in November 2016, the role of System Safety Investigator was offered to her on less favorable

terms than offered to Bradley Neggers, a Caucasian male, who accepted the job after Plaintiff declined it, Defendants

dispute that Plaintiff was offered different terms and insist she turned down the job due to salary expectations,

In June 2018, Louis Dulfer, a white male who was Safety Manager since 2016,

announced his intention to retire from PATH. Jd. at 66. According to Mr. Dulfer, when

Plaintiff expressed her interest in the position, he had already identified Mr. Volk as one

of two people whom he decided to mentor as he believed they would be the best fit to

replace him; the other possible candidate, Marco Salcedo, was to be deployed to active

military duty. Jd. at 68-69, 73-74. Mr. Dulfer emailed Michael Marino, the then director

of PATH, that Mr. Volk was an “outstanding” performer in 2017 and 2018, that he had

“formed strong working relations with department and division staff as well as both senior

management and represented staff,” was “seen as the go to person” in Mr. Dulfer’s absence,

and that his “demonstrated managerial skills have been as asset to the Safety Division and

PATH.” Aug. 17, 2018 E-mail, Ex. X, ECF No. 68-24. On about September 17, 2018, Mr.

Volk was appointed as Safety Manager. /d. at 978.

PATH posted a vacancy for the COE role on July 23, 2018. DSMF, {] 82; see Job

Posting, Ex. AA, ECF No. 69-1. Plaintiff applied for the position and was one of four

candidates invited to interview; the other three were Monica Lam, Shawn Greene, and

Michael Moran. DSMF, ¢ 86. Plaintiffs interview was conducted by then PATH

Superintendent of Transportation, Kevin Lejda, and the recruiter for the COE position, Ben

Lau. /d. at J 89. The interviewers were given a question sheet, instructions, a script to

follow at certain parts of the interview, as well as forms to rate from one to five each

candidate’s communication skills and response to each question. /d. at J 90-92. The

interview scores were: Plaintiff - 24, Ms. Lam - 25, Mr. Greene - 22, and Mr. Moran - 27.

Id. at | 96. Mr. Moran was selected to be COE on or about October 15, 2018. Score Sheet,

Ex. BB, ECF No, 69-2.

On or about October 9, 2018, Plaintiff complained to OCDI about Mr. Volk’s

promotion. /d. at (121-122. Upon investigating, the OCDI concluded that there had been

no discriminatory or retaliatory practices by PATH in violation of Title VIT or employer

employment policies, OCDI Investigation Memorandum, Ex. Z, ECF No, 68-26,

Shortly thereafter, on December 6, 2018, PATH posted the PPT Coordinator

position for which Plaintiff was one of three candidates invited to interview. DSMF, □□□□

126, 130. The other two were Wendy Wright and Ms. Haines, both African American

fernales. Jd. at J] 130-131. The interviewers were given a sheet of questions specifically

tailored for the PPT Coordinator position, instructions, a script to follow at certain parts of

the interview, as well as forms to rate from one to five each candidate’s communication

skills and response to each of the ten questions. /d. at 4] 132-137. Plaintiff scored 41; Ms.

Haines — 42.75; Ms. Wright — 29, Score Sheet, Ex. MM, ECF No, 69-13. Ms. Haines was

selected as PPT Coordinator, DSMF, § 145, On February 15, 2019, Mr, Lau sent Plaintiff

an email advising her that she had not been selected for the job. Jd. at | 140.

Plaintiff filed a Charge of Discrimination with the Equai Employment Opportunity

Commission (“EEOC”) on December 12, 2018, alleging that Defendant engaged in

discriminatory and retaliatory hiring practices.’ See EEOC Charge, Ex. A, ECF No. 68-1.

On January 16, 2020, PATH posted the Superintendent of Night Operations

vacancy. DSMEF, § 155. Plaintiff was one of four candidates invited to interview for the

position. Again, interviewers were given a sheet of questions, instructions, a script to

follow at certain parts of the interview, as well as forms to rate from one to five each

candidate’s communication skills and response to each of the questions. Jd. at J] 159-165.

Plaintiffreceived the highest score — 26, Other candidates scored as follows: Dan Weland,

22; Brandan McCann, 21; and Suleiman Muhammad, 17. Score Sheet, Ex. CCC, ECF No.

70-3. In November 2020, after the present action had been filed against Defendants,

Plaintiff received the promotion to Superintendent of Night Operations, which is a senior

management position with PATH. DSMF, 4167-169.

On April 28, 2022, PATH posted an opening for the Superintendent of

Transportation. /d, at § 170. Plaintiff was one of four applicants invited to interview for the

position. The other three were Ms. Haines, Shawn Greene, and Dominick Lombardi. Jd. at

{| 172. The interviewers were provided with a sheet of questions specifically tailored for

the position, a script to follow at certain parts of the interview, as well as forms to rate each

candidate. Jd. at 99 174-175. Plaintiff received an interview score of 18, Mr. Green — 18,

Mr. Lombardi — 20, and Ms. Haines — 44. Score Sheet, Ex. TT, ECF No. 69-20. Plaintiff

was notified on September 27, 2022 that she was not selected to be Superintendent of

Transportation, Amended Compl, 48.

Il. STANDARD AND BURDEN OF PROOF

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper

when “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.” “A fact is ‘material’... if its existence

or nonexistence might impact the outcome of the suit under the applicable substantive law.”

Santini vy, Fuentes, 795 F.3d 410, 416 Gd Cir. 2015) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). “A dispute over a material fact is ‘genuine’ if ‘a reasonable

jury could return a verdict for the nonmoving party.’” fd. (quoting Anderson, 477 U.S. at

248). “After making all reasonable inferences in the nonmoving party's favor, there is a

genuine issue of material fact if a reasonable jury could find for the nonmoving party.”

Pignataro v. Port Auth. of New York & New Jersey, 593 F.3d 265, 268 (3d Cir. 2010). The

Court’s role at the summary judgment stage “is ‘not... to weigh the evidence and

3 The EEOC Complaint charges Defendants with violations of Title VII: 1) in February 2017, the System Safety

Investigator position was offered to Mr. Neggers on more favorable terms, see supra 1.2; 2) in Inly 2017, Mr, Volk

was appointed fo be Principal Safety and Training Coordinator; 3) on October 5, 2018, Mr. Volk was appointed as

Acting Safety Manager; and 4) on October 16, 2018, Mr. Moran was selected to be COE over her in retaliation for

requesting an investigation into alleged discriminatory hiring practices. As noted earlier, Plaintiffis no longer pursuing

claims of discrimination based on events that occurred in 2016 or 2017, namely the System Safety Investigator as well

as the Principal Safety and Training Coordinator positions. See Pl. Opp’n Br. at 6, n.2; supra, n.2.

determine the truth of the matter but to determine whether there is a genuine issue for

trial.” Baloga v. Pittston Area Sch, Dist., 927 F.3d 742, 752 (3d Cir. 2019) (quoting

Anderson, 477 U.S. at 249),

The party moving for summary judgment bears the initial burden of showing the

basis for its motion and identifying those portions of the record which it believes

demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). If the moving party meets its burden, the burden then shifts to the

non-moving patty to “come forward with specific facts showing that there is a genuine

issue for trial and do more than simply show that there is some metaphysical doubt as to

the material facts.” United States v. Donovan, 661 F.3d 174, 185 □□□ Cir. 2011) (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (emphasis

in original and internal quotation marks omitted). “[U]nsupported assertions, speculation,

or conclusory allegations” are insufficient to defeat a summary judgment motion.

Longstreet v. Holy Spirit Hosp., 67 F, App’x 123, 126 Gd. Cir. 2003), “{T]here must be

evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477

US. at 252.

DISCUSSION

A. McDonnell Douglas Burden Shifting Framework

Title VI prohibits employment discrimination on the basis of race, color, or sex,

among other grounds. 42 U.S.C. § 2000e-2(a)(1). Under Title VII, in the absence of direct

evidence of retaliation, discrimination claims based on circumstantial evidence are

determined under the McDonnell Douglas burden-shifting test. McDonnell Douglas Corp.

v, Green, 411 U.S. 792, 802 (1973); see also Jones v. Sch. Dist. of Philadelphia, 198 F.3d

403, 410 (3d Cir. 1999). The plaintiff carries the initial burden of establishing a prima facie

claim, which the defendant may rebut by showing some legitimate, non-discriminatory

reason for the adverse action. /d.; Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 254,

(1981), If the employer meets this “relatively light burden,” Fuentes vy. Perskie, 32 F.3d

759, 763 (3d Cir. 1994), a plaintiff then must prove that the employer's given reason was

pretext for discrimination. Jones, 198 F.3d at 413.

To show pretext and avoid summary judgment, a plaintiff must identify “some

evidence, direct or circumstantial, from which a factfinder could reasonably either (1)

disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or determinative cause of the

employer's action.” Fuentes, 32 F.3d at 764 (citations omitted). Discrediting the

employer’s proffered reason requires more than simply showing that “the employer’s

decision was wrong or mistaken, since the factual dispute at issue is whether

discriminatory animus motivated the employer, not whether the employer is wise,

shrewd, prudent, or competent.” /d. at 765 (citations omitted), “Rather, the non-moving

plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

action that a reasonable factfinder could rationally find them ‘unworthy of credence,’

and hence infer ‘that the employer did not act for [the asserted] non-discriminatory

reasons,’” /d. (alteration in original) (citations omitted).

Despite the shifting burdens of production, the plaintiff retains the burden of

persuasion at all times by a preponderance of the evidence. Burdine, 450 U.S. at 253.

Claims of failure-to-promote based on race “are analyzed under the well known burden-

shifting” McDonnell Douglas framework. Young v. Pennsauken Twp. Sch. Dist., 47 F.

App'x 160, 161 (3d Cir. 2002). This framework also applies to claims of retaliation under

Title VU. See Waddell v. Small Tube Prod., 799 F.2d 69, 73 (3d Cir. 1986).

B. Race Discrimination under Title VI

Under McDonnell Douglas, a plaintiff must first make out a prima facie case of

discrimination by showing: (1) she is a member of a protected class; (2) she sought and

was qualified for the promotion; (3) she was rejected for the promotion; and (4) the adverse

employment action must have occurred “under circumstances that give rise to an inference

of unlawful discrimination.” Burdine, 450 U.S. at 253, n.6. An event that may create an

inference of unlawful discrimination is ifthe employer treats a plaintiff less favorably than

similarly situated employees outside his protected class. Jones, 198 F.3d at 413 (citations

omitted); see Young, 47 Fed. Appx. at 161.

There is no dispute that Plaintiff is a member of a protected class and that she was

not promoted to Safety Manager or COE. But even if Plaintiff has made a prima facie case

of discrimination, she fails to proffer sufficient evidence to show that Defendants’

legitimate, non-discriminatory reasons for their promotion decisions were pretextual.

1. Systems Safety & Environmental Manager

Plaintiff fails to identify any evidence that shows that Plaintiff was not promoted to

Safety Manager due to race-based discrimination.* At the outset, the employers’ policies

did not require “that every position be filled by a competitive process. A department

director has the discretion to fill a position through either a competitive process or use of a

Plaintiff contends she should have been promoted to Principal Safety and Training Coordinator, which then would

have given her the opportunity to shadow Mr. Dulfer and acquire additional skills to be promoted to Safety Manager

in 2018. However, as Plaintiff is no longer pursuing a discrimination claim regarding the 2017 Principal Safety and

Training Coordinator position, see supra n.3, the Court need not address that claim. Nevertheless, given Plaintiff's

attempt to link those promotions, the Court notes that even if Plaintiff was qualified for the promotion, she does not

know who else was interested in the Principal Safety and Training Coordinator position in 2017. Pl. Dep., 85:5-6, Ex.

L, ECF No. 68-12. The fact that a single Caucasian was promoted does not necessarily create an inference of

discrimination. See Pivirotto v. Innovative Sys., inc., 191 F.3d 344, 359 (3d Cir. 1999) (finding “evidence of

differential treatment of a single member of the non-protected class is insufficient to give rise to an inference of

discrimination.” (internal quotations and citation omitted)).

direct departmental option [“DDO”].”° Feb. 7, 2019 Investigation Close Out, Ex. Z at

PA7406, ECF No. 68-26. Between 2017 and January 2020, DDO was used 344 times, of

which a non-Caucasian was promoted 153 times. Christopher Wolff Aff. at 4] 7-8, Ex. 1,

ECF No. 74-3. Among the 153 promoted, 47 were African American. fd. at 9. Within

PATH, the DDO was used 14 times during that period and 7 of those were non-Caucasian

employees. Id, at 4] 10-11.

Even if Plaintiff could establish a prima facie case, Defendants present sufficient

evidence of a legitimate non-discriminatory reason for promoting Mr. Volk to that role

over Plaintiff, The undisputed evidence clearly demonstrates that any requisite experience

Plaintiff possessed in safety training and compliance was less than that of Mr, Voli. Mr.

Dulfer testified that he believed Plaintiff was “not ready” and did not have the skill set to

replace him as Safety Manager because she had limited interaction with regulators and “no

managerial experience from the standpoint of developing budget, capital programs, no

experience with direct employees,” all of which are required for the Safety Manager

position. Dulfer Dep., 44:16-22, Ex. W, ECF No. 68-23. Plaintiff had not developed or

implemented any safety compliance or emergency management programs at PATH. See

PL. Dep., 62:20-25, 64:17-21, In addition, by the time Mr. Dulfer had decided to groom Mr.

Volk in mid-2018, Plaintiff had been Chief Safety Supervisor since only 2016; that was

the first role she had where her primary task expanded from oversight of train operation to

safety training and compliance. See Pl. CV, Ex. C, Weintraub Cert., ECF No. 71-3.

In contrast, Mr. Volk, as director/chief of the City of Perth Amboy Fire Department

from 2009 to 2013, had extensive background in safety training and compliance as well as

experience in developing budgets and capital programs, managing employees, and dealing

with regulatory agencies such as OSHA and NIOSH. Volk CV, Ex. V, ECF No. 68-22. He

oversaw a $7 million operating budget and a $2 million capital budget, and also managed

50 career employees, 55 volunteers, and 35 EMS employees. Jd. Moreover, Mr. Dulfer

described Mr. Volk as, among other things, an “outstanding” performer and the “go to

person” in Mr. Dulfer’s absence. Aug. 17, 2018 E-mail at PA7526, Plaintiff does not

dispute that as Principal Safety and Training Coordinator, Mr. Volk gained experience that

better prepared him to assume the Safety Manager role. Dulfer Dep., 62:8-13; 63:14-64:19.

Thus, Defendants have presented sufficient evidence of a legitimate non-discriminatory

reason for promoting Mr. Volk. See e.g., Shahin v. Delaware, 531 Fed. Appx. 200, 203 Gd

Cir. 2013) (holding plaintiff's lack of desirable experience relative to hired candidates was

legitimate, non-discriminatory reason for not hiring plaintiff); Nelson v. Borgata Hotel

Casino & Spa, 05-5705, 2007 WL 2121643, at *6 (D.N.J. July 23, 2007) (finding that

employer rebutted prima facie discrimination by showing that plaintiff “was not as

experienced with modern equipment and technology as the individuals that [the defendant]

chose to hire.”),

> The direct departmental option permits a director or hiring manager to fill a vacancy with a qualified candidate from

within his/her department, HRP 3,06 at 2, Ex. P, ECF No. 68-16.

To show pretext, Plaintiff highlights that Mr. Volk had only been with the Safety

Division since 2016 and concludes that she, as a 22-year veteran of PATH, was equally, if

not more qualified than Mr. Volk to be groomed to become Safety Manager. However,

Plaintiff ignores Mr. Volk’s employment history prior to the PATH. Indeed, an employee’s

duration of employment does not automatically mean that that employee is the most

qualified. Clarelle DeGraffe, who is an African American female Director and General

Manager of PATH, which is the highest position at PATH, testified that promotions for a

management position are based on qualifications and not how long the employee has been

at PATH. DeGraffe Dep., 173:23-22, Ex. ZZ, ECF No. 69-26. In any event, even if

Defendants’ decision to promote Mr. Volk was wrong or mistaken, Plaintiffhas offered no

credible evidence upon which a jury could conclude that Defendants’ legitimate non-

discriminatory reasons for promoting Mr. Volk to Safety Manager were pretext for racial

animus.

2. Chief Operations Examiner

Because Plaintiff was among the candidates interviewed for the COE role, Plaintiff

has met her prima facie burden to demonstrate that she was qualified for COE

consideration. See Evans v. Port Auth. of New York & New Jersey, 438 Fed. App'x 117,

119 (3d Cir. 2011) (reiterating that plaintiff meets burden of prima facie case by showing

that he “was sufficiently qualified to be among those persons from whom a selection, to

some extent discretionary, would be made’) (internal quotation marks and citation

omitted)).

However, Defendants have articulated a legitimate, nondiscriminatory reason for

promoting Mr. Moran to the COE role over Plaintiff: Mr. Moran, not Plaintiff, had the

highest interview score (27) and was the most qualified candidate. Out of the four

candidates invited to interview for the position, Plaintiff's score was three points lower

than the highest score and in fact, was the second lowest. Poor interview performance is a

legitimate non-discriminatory reason for failure to promote. See e.g, id. (affirming

summary judgment where plaintiff received next-to-lowest interview rating and plaintiff

failed to show proffered reason for failure to promote was pretextual); Alcantara v.

Aerotek, Inc., 765 F. App’x 692, 697 (3d Cir, 2019) (finding plaintiffs poor performance

during interview and month-long working interview was legitimate non-discriminatory

reason).

Next, Plaintiff insists that Defendant’s proffered reason was pretext for

discrimination because 1) she was significantly more qualified than Mr. Moran for the role

of COE; 2) subjective interview scoring is susceptible to abuse and serves to mask

discriminatory animus; and 3) Mr. Lejda, the hiring manager, had discretion to promote

her because the score difference between her and Mr. Moran was only three points, These

contentions lack merit.

First, the COE position required “5 years’ experience as an Operations Examiner in

PATH or a combination of experience including Dispatcher/Tower/Engineer totaling 10

years and/or 5 years of Supervisory experience.” See COE Job Post, Ex. AA, ECF No. 69-

1, When Mr. Moran applied for the position, he had been an Operations Examiner for about

14 years. Moran CV, Ex. FF, ECF No. 69-6. While Plaintiff does not dispute that Mr.

Moran met the minim qualifications, Pl. Dep., 132:8-9, she maintains she was more

qualified because Plaintiff has a bachelor’s and master’s degrees while Mr. Moran does

not, Those degrees, however, were not job requirements. See COE Job Post. Additionally,

although the resume and experience were “essential” to getting an interview, the interview

itself was the “main determining factor” of selecting the COE. Lau Dep., 35:22-36:4, Ex.

EE, ECF No. 69-5. Under the McDonnell Douglas test, courts are not to “second guess the

method an employer uses to evaluate its employees.” Thompson v. Bridgeton Bd. of Educ.,

613 Fed. App'x 105, 108 (3d Cir. 2015) (citing Kautz v. Met-Pro Corp., 412 F.3d 463, 468

(3d Cir. 2005)).

Second, while a subjective process could be susceptible to abuse, an interview

process is always subjective so that alone cannot be the criteria for determining whether it

is pretext for discrimination. See Williams v. Rohm & Haas Co., 90 F. App'x 627, 629 (3d

Cir. 2004) (agreeing that use of subjective criteria alone did not establish pretext, and that

plaintiff failed to identify “some other evidence” from which reasonable juror could

consider subjective criteria to be mask for discrimination”); Boykins v. SEPTA, 722 F.

App'x 148, 155 (3d Cir. 2018) (rejecting plaintiff's assertion of pretext where plaintiff did

not point to evidence that suggested “scoring was influenced by prejudice and ‘belief alone

is insufficient to raise an issue of material fact.’” (citing Bray v. Marriott Hotels, 110 F.3d

986, 996 (3d Cir. 1997)). There is no evidence here of manipulation or abuse in the

selection process or any basis for a reasonable juror to conclude that the decision to hire

the highest scoring candidate to COE, even if discretionary, was pretext for discrimination,

In fact, Plaintiff sent Mr. Lau an email affirming that Mr. Moran was a “great choice” for

COE. Oct. 15, 2018 Email, Ex. GG, ECF No. 69-7.

C. Retaliation

Title VII prohibits an employer from discriminating against an employee who

“opposed any ... unlawful employment practice” or if “he has made a charge ... or

participated in any manner in an investigation ....” 42 U.S.C. § 2000e-3(a). To sustain a

prima facie retaliation claim, a plaintiff must show: “(1) a protected employee activity; (2)

adverse action by the employer either after or contemporaneous with the employee's

protected activity; and (3) a causal connection between the protected activity and the

employer's adverse action.” Jones v. Southeastern Pennsylvania Transp. Auth., 796 F.3d

323, 329 (3d Cir. 2015) (citation and quotation marks omitted).

As to the causation requirement, “Title VII retaliation claims require proof that the

desire to retaliate was the but-for cause of the challenged employment action.” Univ. of

Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013). When examining evidence of

causation on summary judgment, the Court should look to “evidence gleaned from the

record as a whole from which causation can be inferred.” Farrell vy. Planters Lifesavers

Co., 206 F.3d 271, 281 (3d Cir. 2000). One evidentiary basis from which causal inference

can be drawn is “unusually suggestive” temporal proximity between the protected activity

and the adverse employment action. See id. at 280. For “mere temporal proximity” to

suggest such causality “the temporal proximity must be ‘very close.’” Clark Cnty. Sch.

Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). “The adverse action must occur within days,

not months, of the protected activity.” Mercer v. SEPTA, 608 Fed, Appx. 60, 65 (3d Cir.

2015), A causal link may also be substantiated by evidence of ongoing antagonism

following the protected conduct or the employer giving inconsistent reasons for a particular

adverse employment action.® Farrell, 206 F.3d at 280-81. But these are only some kinds

of evidence that may be sufficient, and the Court must consider all possible probative

evidence. /d. at 281.

1. Principal Programs and Training Coordinator

Assuming Plaintiff can establish the first two factors of a prima facie retaliation

case, she proffers no evidence of causation. The temporal proximity between any protected

employee activity and adverse employer decision is by itself insufficient to show causation.

Plaintiff complained about discrimination arguably as early as April 2018 and filed an

EEOC Discrimination Charge in December 2018. In February 2019, Plaintiff was denied

the position of PPT Coordinator. The two to ten-month lapse between Plaintiffs protected

activity and the alleged adverse employer action is not an “unusually suggestive” temporal

proximity that alone creates an inference of a causal link, See Williams v. Philadelphia

Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004) (noting cases in which two to

ten days of temporal proximity have supported inference of causal connection, but finding

two-month lapse was “not unduly suggestive temporal relationship” where plaintiff failed

to proffer any other evidence of retaliation), superseded by statute on other grounds,

Moody v. Ail. City Bd. of Educ., 870 F.3d 206, 221 (3d Cir, 2017) (“An inference of “unduly

suggestive” temporal proximity begins to dissipate where there is a gap of three months or

more between the protected activity and the adverse action.”); Leboon v. Lancaster Jewish

Cmty, Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007) (finding no “unduly suggestive temporal

proximity” when three months passed between an employee's protected activity and the

adverse action). Plaintiff makes no allegations or submits any evidence of any ongoing

antagonism following her complaints of discrimination. Setting aside whether the hiring

manager even knew of Plaintiff's grievances, Plaintiff fails to identify any evidence that

6 “Although an examination of the employer's proffered legitimate reason for the adverse action is frequently delayed

until the second and third parts of the familiar AfeDonne/l Douglas burden-shifting framework in pretext cases,

‘evidence supporting the prima facie case is often helpful in the pretext stage and nothing about the AfcDonnelf

Dougtas formula requires us to ration the evidence between one stage or the other.’” LeBaon, 503 F.3d at 234, n.10

(citing Farrell, 206 F.3d at 286)).

10

credibly supports any but-for causation underlying the decision not to select her as PPT

Coordinator. □

Even if Plaintiff could establish causation to meet her prima facie burden,

Defendants offer a legitimate non-discriminatory reason for hiring Ms. Haines over

Plaintiff. Among the three candidates interviewed, Ms, Haines had the highest score. The

scores were based on retaliation-neutral questions relating to general competency, technical

knowledge, and oral communication skills. Interview Question Sheet, Ex. OO, ECF No.

69-15.

To establish pretext, Plaintiff argues that Ms. Haines did not engage in protected

activity, had less seniority and experience, and was a less qualified candidate. Such

contentions are without merit, Plaintiff's theory that Ms. Haines received the promotion

because she had not engaged in protected activity is pure speculation as it lacks any factual

basis. Next, Plaintiff insists Ms. Haines lacked the requisite experience and seniority for

the role and was ineligible for a band-to-band’ promotion, The coordinator role required

five years of supervisory experience and three years of regulatory compliance with

“FRA/OSHA/EPA/NFPA.” Principal Programs & Training Coordinator Job Post, Ex. LL,

ECF No, 69-12; see also DSMF, § 148-150 (indicating that required experience with

regulatory compliance was disjunctive rather than conjunctive). Ms. Haines met the

supervisory requirement in her job as Operations Examiner from 2010 to 2014 and as

Assistant Trainmaster from June 2014 to at least May 2018. Hanes Dep., 16:3-24, 34:5-7,

Ex. XX, ECF No. 69-24; Ex. YY, ECF No. 69-25. Ms. Haines also satisfied the regulatory

compliance requirement because she had experience with FRA regulations as an

Operations Examiner from 2010 to 2014, Hanes Dep., 34:8-35:3. Finally, the head of

PATH, Mr. Marino, authorized the requisite override to allow Ms. Haines to interview for

a “band to band” promotion. Lau Dep., 165:15-166:1, Ex. EE, ECF No, 69-5. Thus, Ms.

Haines did meet the minimum requirements for the position. That Mr. Voll may have had

the discretion to select a candidate that scored lower than the top-rated candidate but did

not do so is not evidence of pretext. Moreover, as discussed earlier, Plaintiff's emphasis on

seniority is misplaced, Although Plaintiff believes that “longevity at PATH” should be

maybe 80% of the consideration in determining a promotion, see Pl. Dep., 222:3-19, the

key component to a management position is the qualification of the candidate as

determined by an interview panel. DeGraffe Dep., 174:7-22. In short, there are no facts

that support Plaintiffs position that Defendants’ legitimate non-discriminatory reason for

hiring Ms. Haines was pretext for retaliation.

7 All “non-represented positions” are classified on a banding scale that organizes job titles based on “responsibilities,

complexity, and impact.” DMSF, 7 41. For band-to-band promotions, an employee must be in their current position

for at least 12 months prior to being promoted to another position im another band. fd. at 44. However, the time and

role requirements for band-to-band promotions can be overridden by the chief or director of a given department based

on operational need. Id. at 45.

Il

2. Superintendent of Transportation

Plaintiff posits that there is temporal proximity to satisfy the causation element of

her prima facie burden despite the years-long time gap between Plaintiff's discrimination

charges (the EEO charge in April 2018, the EEOC charge in December 2018, and the initial

discrimination lawsuit in November 2019) and her September 2022 interview for the

Superintendent of Transportation position. Plaintiff contends that each deposition of

Defendants’ employees in this ongoing litigation is a “continuum of protected conduct”

that establishes temporal proximity but provides no caselaw to support that position. Nor

is there evidence of any pattern of antagonism or any credible evidence sufficient for a

reasonable juror to infer causality between any protected activity and the failure to promote

Plaintiff to Superintendent of Transportation years later, particularly in view of her

promotion to Superintendent of Night Operations in November 2020 after she had filed her

discrimination claims.

Even if a reasonable jury could infer a causal connection, Defendants offer a

legitimate non-discriminatory reason for its hiring decision, Plaintiff's interview score of

18 was 26 points lower than Ms. Haines’ score of 44 and was in fact tied for lowest among

the four interviewees. Plaintiff's interview did not go well. For example, one of the

interviewers, Cynthia Bacon, described the interview as having been “very challenged

unfortunate,” that Plaintiff was “very flustered,” “emotional,” “there were tears,” and that

Plaintiff “slapped the table a few times out of maybe frustration.” Bacon Dep., 45:4-15,

Ex, VV, ECF No. 69-22. Evelyn Perez, another interviewer, wrote in her notes that

Plaintiff's answers often “lack[ed] cohesion and organization.” Perez Interview Rating

Form at PA7993, Ex. UU, ECF No. 69-22. Interviewer notes and deposition testimony

regarding Plaintiffs interview for Superintendent of Transportation show that she was

denied for specific reasons unrelated to retaliation.

Nevertheless, Plaintiff contends that the interview notes reveal inconsistencies that

evidence pretext. For instance, one of the interviewers, Joseph Vartalone, rated one of

Plaintiff's responses as “Needs Development” for failing to break down the process of

onboarding in 30, 60, and 90 days, but rated Ms. Haines’ response “Outstanding.”

Although Ms, Haines’ response is not fully documented in the interviewer’s notes, there is

no inconsistency. Both Mr. Vartolone and Ms, Perez gave deposition testimony that Ms.

Haines did in fact break down the process. Vartolone Dep., 70:10-21, Ex. WW, ECF No.

69-23; Perez Dep., 81:18-25, Ex. AAA, ECF No. 70-1. Next, when candidates. were

prompted to “discuss various management styles required, the purpose for them and the

desired outcomes,” Ms. Bacon rated Ms. Haines’ response as “Outstanding” because Ms.

Haines discussed various management styles. Interview Questions and Rating Form at

PA7962; see also Bacon Dep., 50:14-51:3, In contrast, Ms. Bacon rated Plaintiff's response

as “Needs Development,” Interview Questions and Rating Form at PA7995, Ex. NNN,

ECF No. 70-14, because Plaintiff's response was to list “job progression” rather than

discuss “style or accomplishments,” Bacon Dep., 23:4-12. More notably, Plaintiff

12

displayed a “very challenged communications style” and lacked a “cohesive response to

the question,” id. at 24:17-25. The notes, scoring, and deposition testimony are consistent

with Defendants’ nonretaliatory explanation that Plaintiff did not interview as well as Ms.

Haines. See e.g., Carr v. New Jersey, 543 Fed. Appx. 149, 152 (3d Cir. 2013), That the

interview notes on these and other questions may not completely document the details of

each candidate’s every response do not amount to inconsistencies that substantiate a causal

link or show that Defendant’s proffered reasons for not promoting Plaintiff to

Superintendent of Transportation are weak, implausible, or so inconsistent to be unworthy

of credence.

In sum, Plaintiff has failed to present evidence that would permit a reasonable jury

to find that Defendants were motivated by retaliatory animus when they promoted Ms.

Haines to PPT Coordinator and to Superintendent of Transportation or that any articulated

legitimate reasons were pretext. Defendants’ motion for summary judgment on the

retaliation claims is granted,

IV. CONCLUSION

Making all reasonable inferences in the nonmoving party's favor, Plaintiff has not

met her burden to show that there are any genuine issues of material facts upon which a

reasonable jury could find that Defendants discriminated against her based on her race or

retaliated against her in violation of Title VII. Defendants’ motion for sammary judgment

is granted.

. MARTINI, U.S.D.J.

Date: November), 2023

13