# GLAESENER v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

> District Court, D. New Jersey · November 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10277865

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** November 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10277865

## How later opinions describe it (automated extraction)

- 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)
- affirming summary judgment where plaintiff received next-to-lowest interview rating and plaintiff failed to show proffered reason for failure to promote was pretextual
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10277865. Public record. Not legal advice.