OTERO v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SHARON OTERO,

Plaintzff,

Civil Action No. 19-12634 (RK) TQ)

. OPINION

PORT AUTHORITY OF NEW YORK AND

NEW JERSEY, et al.,

Defendants.

KIRSCH, District Judge

THIS MATTER comes before the Court upon a Motion for Summary Judgment by the

Port Authority of New York and New Jersey (“Port Authority” or ““Defendant”). (ECF No. 54.)

Plaintiff Sharon Otero (“Officer Otero” or “Plaintiff’) filed a brief in opposition, (ECF No. 60),

and Defendant filed a reply brief, (ECF No. 62).' The Court has considered the parties’

submissions and resolves the matter without oral argument pursuant to Federal Rule of Civil

Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, Defendant’s Motion for

Summary Judgment is GRANTED.

I BACKGROUND

A. Plaintiff’s Background and Employment at Port Authority

This action stems from Officer Otero’s nearly twenty-year tenure serving as a Port

Authority police officer. Plaintiff joined the Port Authority Policy Academy in September 2002.

' After the subject motion was fully briefed, this matter was transferred to the Undersigned on May 15,

2023, (See ECF No. 69.)

(See “SOF,” ECF No. 54-2 4 9.) Plaintiff served at various posts around New York City, including

the Holland Tunnel, the LaGuardia Airport, and the World Trade Center. (/d. J 10.) In April 2021,

Plaintiff retired from the Port Authority Police Department. (SOF ¥ 10; see also “Pl. Dep. Tr.,”

ECF No. 61-2 at 31:11-16.) Plaintiff, at her deposition, testified that she sought to retire before

the age of 50 and for health reasons. (Pl. Dep. Tr. 31:17-20.) Plaintiff did not claim constructive

discharge or that her voluntarily decision to retire was premised on any aspect of discrimination.

Prior to her employment with Port Authority, Plaintiff served as a police officer with the

New York Police Department (“NYPD”) from July 1999 to September 2002. (SOF § 11.) During

Plaintiff's time at the NYPD, the September 11, 2001 terrorist attacks occurred, and Plaintiff was

one of the heroic first-responders who helped both in the immediate evacuation and the cleanup of

the World Trade Center. Ud. J 12; see also ECF No. 54-22, Ex. R at *5.) As a result of her work

at the World Trade Center, Plaintiff developed chronic sinus issues and gastroesophageal reflux

disease (“GERD”), as well as upper respiratory issues. (Pl. Dep. Tr. at 155:20-156:14.) These

symptoms——which have continued until the present—materialize about three to four times per

year, require Plaintiff to see a doctor, and take approximately one to two weeks off of work. (Id.

at 159:15-160:3; 161:15-19.)

B. 2010-2012 Promotions

In March 2010, Port Authority announced it would be seeking officer applicants who

sought to considered for a promotion to Sergeant. (SOF ¥ 13.) To be eligible for the promotion, an

officer had to pass a written examination, at which point they would be added to what is referred

to as the “Horizontal Roster,” or the list of eligible officers. Ud. | 16-17.) In April 2010, the

The Court notes that this Statement of Facts, provided by Defendant, at times contains duplicative

numbering. The Court therefore refers to the facts as numbered in Plaintiff’s response to Defendant’s

Statement of Facts, (ECF No. 68-1), which does not contain any duplicates.

written examination was administered, and thereafter in March 2011, the Horizontal Roster was

created which included 465 officers. (d. § 17.) Once the Horizontal Roster was created, Port

Authority, in June 2011 and February 2012, chose at random 60 and 70 officers, respectively, to

proceed in the promotional process. (fd. J] 19-20.) These randomly selected candidates then

would participate in a Qualifications Review Meeting (“QRM”) with members of Port Authority’s

Human Resources and Public Safety Departments. Ud. § 22.) The QRM interview would consist

“of behavioral and situational questions designed to determine [a candidate’s] qualifications

relative to the job.” (Ud. { 23.) The candidate would then be evaluated for promotion based on a

number of factors by a Promotions Review Board, consisting of a Public Safety Officer, a Human

Resources Employee, and a Senior Line Department Manager. (Id. J 24.) A candidate was

appraised for their performance in seven categories: (1) experience, (2) promotional appraisal, (3)

QRM, (4) attendance record, (5) discipline history, (6) civilian complaints, and (7) Internal Affairs

investigations. Ud.) These factors would form the basis for the Promotions Review Board’s

recommendation, after which the candidate would receive a score of “Highly Recommended,”

“Recommended,” or “Not Recommended” for promotion. (/d.)

For purposes of the above category four, the candidate’s attendance record was assessed

over the prior three-year period. (See ECF No. 54-11, Ex. G at *2.) A candidate was only eligible

for promotion if such candidate had “3 or fewer sick absence occasions and 11 or fewer sick days

in 2 of the last 3 years.” (/d.)? Absences related to injury on duty, maternity leave, or hospitalization

were excluded from “‘sick leave.” (/d.)

In November 2012, Port Authority again considered candidates from the Horizontal Roster

for promotion. (SOF § 26.) Port Authority screened candidates for attendance based on the same

3 The parties do not elaborate on the differences between sick absences and sick days.

criteria described above and for the three-year period prior to November 2012, and if a candidate

did not meet the attendance threshold, the candidate was not considered for promotion. (/d. {| 27—

28.)

In June 2011, Officer Otero participated in the promotional process and sought to be

considered for the role of Sergeant. Ud. 31.) She took and passed the written examination, which

resulted in her being added to the Horizontal Roster. (/d.) Officer Otero was then randomly

selected to continue on in the promotional process, which included a QRM. (d. { 33.) On August

10, 2011, following the QRM, Plaintiff received a letter from Michael Ford, a member of the Port

Authority Human Resources Department, with her ratings on the various categories applicable to

the promotional process, as well as feedback on her QRM and other ways to improve her

candidacy. (ECF No. 54-14, Ex. J at *2.) Ford explained that Plaintiff received four “Outstanding”

ratings, but an “Unacceptable” in the “Attendance Category” and a “Needs Development” based

on her QRM. (ECF No. 54-14, Ex. J at *2.) As such, Plaintiff was not recommended for a

promotion. (/d.)

In February 2012, Plaintiff was not among the randomly selected officers from the

Horizontal Roster to be considered for a promotion. (SOF { 35.) With respect to the November

2012 promotional process, Plaintiff was screened out due to failing to meet the attendance

requirement. (/d. {| 36-37.)

C. 2015 Promotions

In March 2015, Port Authority again announced that it would consider officers for a

promotion to Sergeant. (/d. | 40.) To be added to a new Horizontal Roster, a candidate had to take

a written examination. (Ud. JJ 40, 42.) To sit for the test, a candidate was required to have five

years of experience. (/d.) Once on the Horizontal Roster, the officer was screened to ensure they

met certain requirements, including attendance. Ud. J 45.) Plaintiff was placed on the Horizontal

Roster. (See ECF No. 54-19, Ex. O.) However, in September 2015, Port Authority alerted Plaintiff

that she did not meet the attendance requirement, and therefore was not considered for a promotion.

(d.; SOF 47.) Plaintiff, on her own volition, did not apply to participate in the 2018 promotional

process. (Pl. Dep. Tr. at 148:6—15.) As stated, Plaintiff retired from the Port Authority Police Force

in April 2021. (SOF □ 10.)

D. Plaintiff?s Medical Conditions

During her tenure at Port Authority, Plaintiff did not tell her employer that she was

disabled, nor did she request an accommodation for a disability:

Q: Did you ever tell the Port Authority that you had a disability? A:

The exact word disability, no. But I said I was involved in 9/11....

Q: [] I’m asking if you ever went to OMS or anyone at the Port

Authority and said, “I am disabled.’?”

A: No.

Q: Did you ever request any kind of accommodation from work?

A: No.

Q: Did you need an accommodation because of your disability? A:

No.

(Pl. Dep. Tr. at 175:14-176:25; SOF { 48 (spacing added).) When Plaintiff was absent at various

points, she received sick pay. (SOF § 49.) As Plaintiff's injuries related to the World Trade Center

evacuation and recovery and occurred prior to her employment at Port Authority, Plaintiff was not

considered injured on duty for purposes of and as defined by Port Authority. (SOF { 50; Pl. Dep.

Tr. at 62:4-10; see also ECF No. 61-3.)

On December 9, 2015, Plaintiff received a letter from the World Trade Center Health

Program, which certified her GERD and Upper Respiratory Disease as conditions covered for

«

payment by the program. (See ECF No. 52-20, Ex. P.) Plaintiff provided this letter to Port

Authority in January 2016. (SOF ¥ 52.)

In 2018, then Governor Andrew Cuomo issued a new policy, which Port Authority

adopted, that retroactively, beginning in 2017 and extending to the future, counted any injury

which occurred on duty with the NYPD as a Port Authority injury on duty. (PL. Dep. Tr. at 62:18-

63:10.)

E. EEOC Complaint and Lawsuit

On October 15, 2014, Plaintiff filed a charge with the Equal Employment Opportunity

Commission (“EEOC”), alleging discrimination under the Americans with Disabilities Act, 42

U.S.C. § 12101 et seg. (“ADA”). (ECF No. 54-22, Ex. R.)* On May 17, 2019, Plaintiff filed the

subject one-count lawsuit, alleging that Defendant violated the ADA. (See generally, “Compl.,”

ECF No. 1.)° Following the close of discovery, Defendant moved for summary judgment on July

8, 2022. (ECF No. 54.) Defendant filed a brief supporting its Motion, (“Def. MSJ,” ECF No, 54-

1), Plaintiff filed a brief in opposition, (Pl. Opp’n,” ECF No. 60), and Defendant filed a reply brief,

(“Reply,” ECF No. 62). In support of its Motion, Defendant also filed a Statement of Facts. (SOF,

ECF No. 54-2.) Plaintiff filed a Response to Defendant’ Statement of Facts. (Pl. SOF Response”,

ECF No. 68-1.)®

* The Court notes that the parties did not provide the Court with any notice or response Plaintiff received

from the EEOC.

> Plaintiff originally filed suit, along with two other plaintiffs, in 2014, alleging, inter alia, violations of

42 U.S.C. § 1983 and the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-2, (See No. 14-1655, ECF

No. 1.) That case was consolidated with other actions by former police officers. (See ECF No. 1, Ex. A.)

As such, on March 27, 2019, the Honorable Esther Salas, U.S.D.J., severed Plaintiff's ADA claim and

allowed it to proceed in a separate action, which became the case at bar. Ud.)

6 Plaintiff originally failed to file a response to Defendant’s Statement of Facts with its opposition brief, in

violation of Local Civil Rule 56.1(a). The Honorable Georgette Castner, U.S.D.J., permitted Plaintiff to

file a belated response, (ECF No. 67.) Plaintiff chose not to furnish a supplemental statement of facts.

ko

I. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that the Court should grant summary judgment

“Sf 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). The Court must “view[] the facts in

the light most favorable to the party against whom summary judgment was entered.” Marino y.

Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986)). A “material fact” is one that “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine dispute”

about a fact exists “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248. “In considering a motion for summary judgment, a

district court may not make credibility determinations or engage in any weighing of the evidence;

instead, the nonmoving party’s evidence ‘is to be believed and all justifiable inferences are to be

drawn in his favor.’” Marino v. Indus. Crating Co., 358 F. 3d 241, 247 (3d Cir. 2004) (quoting

Anderson, 477 U.S. at 255).

The party moving for summary judgment has the initial burden of establishing its right to

summary judgment. See Celotex Corp., 477 U.S. at 323. To show that a material fact is not

genuinely disputed, it “must... cit{e] to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only), admissions, interrogatory answers, or

other materials.” Fed. R. Civ. P. 56(c)(1)(A). The moving party may also meet its burden by

“showing that the materials cited do not establish the absence or presence of a genuine dispute, or

that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1)(B). Once the movant meets its threshold burden under Rule 56, the non-moving party

must present evidence to establish a genuine issue as to a material fact. See Anderson, 477 US. at

248; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

(the non-movant “must do more than simply show that there is some metaphysical doubt as to

material facts.”).

DISCUSSION

Defendant moves for summary judgment on Plaintiff's ADA claim, the sole clatm in the

complaint. (See generally, Def. Br.) First, Defendant contends that Plaintiff failed to exhaust her

administrative remedies before the Equal Employment Opportunity Commission (“EEOC”).

Second, Defendant argues that Plaintiff was not subject to discrimination, and legitimate non-

discriminatory reasons exist for Port Authority’s decision not to promote Plaintiff. The Court first

addresses the merits of Plaintiff's ADA claim. 7

A. ADA

Plaintiff brings suit against Defendant for violation of the ADA. (See generally, Compl.).

Specifically, Plaintiff contends that Defendant “developed and implemented policies that

intentionally, knowingly, recklessly and/or negligently discriminated against Plaintiff based on her

disability and/or handicap” and “[a]s a result of Plaintiff's disability and/or handicap, which was

developed as a result of Plaintiff's work-related duties on and after 9/11, Plaintiff has been denied

a promotion to Sergeant.” (Compl. ff 113-14.)

The ADA serves to protect employees from unlawful discrimination in the workplace. The

ADA was enacted in 1990 “to remedy widespread discrimination against disabled individuals.”

PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). Title I of the ADA states that “[n]o covered

7 As the Court grants Defendant summary judgment on the merits of Plaintiff's ADA claim, the Court

need not address Defendant’s additional argument that Plaintiff failed to exhaust her administrative

remedies.

°

entity shall discriminate against a qualified individual with a disability because of the disability of

such individual in regard to . . . [the] terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). A “covered entity” under the ADA includes an “employer,” which is “a person

engaged in an industry affecting commerce who has 15 or more employees... and any agent of

such person... 42 U.S.C. § 12111) & (5)(A). Title IV of the ADA prohibits retaliation for

exercising the rights guaranteed under Title | of the ADA. It provides: “No person shall

discriminate against any individual because such individual has opposed any act or practice made

unlawful by this chapter or because such individual made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42

U.S.C. § 12203(a).

ADA claims are analyzed under the three-step burden-shifting test laid out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.

2007). Under this test, a plaintiff must “carry the initial burden under the statute of establishing a

prima facie case of [unlawful] discrimination.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)

(quoting McDonnell Douglas, 411 U.S. at 802). To demonstrate a prima facie case for disability

discrimination, a plaintiff must show ‘(1) [s]he is a disabled person within the meaning of the

ADA; (2) [s]he is otherwise qualified to perform the essential functions of the job, with or without

reasonable accommodations by the employer; and (3) [s]he has suffered an otherwise adverse

employment decision as a result of discrimination.” Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580

(3d Cir. 1998) (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)).

If the plaintiff establishes a prima facie case, “the burden of production shifts to the

defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”

Fuentes, 32 F.3d at 763 (quoting McDonnell Douglas, 411 U.S. at 802) (emphasis in original).

The “employer need not prove, however, that the proffered reasons actually motivate[] the

[employment] decision.” Kautz v. Met-Pro Corp., 412 F.3d 463, 465 (3d Cir. 2005) (quoting

Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000)) (brackets in original). This is because

“throughout this burden-shifting paradigm, the ultimate burden of proving intentional

discrimination always rests with the plaintiff.” Fuentes, 32 F.3d at 763. The Third Circuit has

described the employer’s responsibility in the second-prong as a “light burden.” Jd.

If the employer proffers “evidence which, taken as true, would permit the conclusion that

there was a nondiscriminatory reason for the unfavorable employment decision,” the burden shifts

back to the plaintiff to demonstrate “by a preponderance of the evidence that the employer’s

explanation is pretextual.” Id. The plaintiff “bears the final burden to demonstrate .. . through

evidence that the [employer’s] provided rationale is false or that the real reason for the adverse

action was discriminatory or retaliatory animus.” Valente v. PNC Bank, No. 20-710, 2023 WL

5608943, at *4 (D.N.J. Aug. 30, 2023).

A plaintiff may demonstrate pretext in two ways. See Klimek v. United Steel Workers Loc.

397, 618 F. App’x 77, 80 (3d Cir. 2015). The plaintiff “must present some evidence “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.’” Jd. (quoting Fuentes, 32 F.3d at 764). As the Third

Circuit has explained:

To discredit the employer’s proffered reason . . . the plaintiff cannot

simply show 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. Rather, the nonmoving plaintiff must

demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered

nh

legitimate reasons for its actions that a reasonable factfinder could

rationally find them unworthy of credence.

Keller v. Orix Credit All. Inc., 130 F.3d 1101, 1108-09 (3d Cir. 1997) (quoting Fuentes, 32 F.3d

at 765). Courts are not a “‘a super-personnel department’ tasked with correcting unduly harsh

employment actions.” Klimek, 618 F. App’x at 80 (quoting Brewer v. Quaker State Oil Ref. Corp.,

72 F.3d 326, 332 (3d Cir.1995); see also Atkinson v. LaFayette Coll., 460 F.3d 447, 454 (3d Cir.

2006) (“The question is not whether the employer made the best, or even a sound, business

decision; it is whether the real reason is discrimination.” (cleaned up)).

1. Step One: Plaintiff’s Prima Facie Burden

The Court first addresses Plaintiff's prima facie discrimination claim. To briefly

summarize the parties’ respective arguments, Defendant contends that Plaintiff cannot establish

her prima facie burden because she failed to alert Port Authority to the fact that she was disabled.

(Def. MSJ at 15-16.) As such, Defendant could not have discriminated against her due to its lack

of knowledge regarding her alleged disability. (/d.) Defendant contends that, other than a coded

notation, such as “Sick Leave” indicating that Plaintiff was absent, no explanation was given for

the absence. (/d. at 18.) Therefore, Defendant was not aware Plaintiff’s absences were due to a

purported disability, and Plaintiff was screened out of the promotional process due to her

unspecified absences. (Jd.)

In response, Plaintiff contends that there is a clear issue of material fact as to whether

Defendant was aware of Plaintiff's disability. (Pl. Opp’n at 12.) Plaintiff argues that Defendant

was aware that Plaintiff required extended medical leaves, and she recetved memoranda which

noted the number of sick absences Plaintiff incurred. (/d. at 11.) Plaintiff also avers she met with

Port Authority doctors both after first joining Port Authority and upon her returns from sick leave.

(d.) Therefore, based on Plaintiff's absences and alleged conversations with Port Authority

14

doctors regarding her medical conditions, Plaintiff contends that there is a genuine issue of material

fact as to whether Port Authority knew of Plaintiff's disability. (7d. at 12.)

As mentioned above, Plaintiff may establish a prima facie case under the ADA by showing

that “ (1) [s]he is a disabled person within the meaning of the ADA; (2) [s]he is otherwise qualified

to perform the essential functions of the job, with or without reasonable accommodations by the

employer; and (3) [s]he has suffered an otherwise adverse employment decision as a result of

discrimination.” Gaul, 134 F.3d at 580 (citing Shiring, 90 F.3d at 831. “In order to prevail under

the ADA, a plaintiff must first establish a prima facie case by producing evidence sufficient to

support an inference of discrimination.” Equal Emp. Opportunity Comm’n v. Hussey Copper Ltd.,

696 F. Supp. 2d 505, 516 (W.D. Pa. 2010). To meet her burden at Step One, a plaintiff need only

overcome a “low bar.” Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d

535, 539 (3d Cir. 2006) (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 523 □□

Cir, 1992)),

Plaintiff's prima facie case fails for two reasons—Plaintiff fails to demonstrate that she

was disabled within the meaning of the ADA, and Plaintiff fails to raise an inference of

discrimination related to Port Authority’s decision not to promote her.

A plaintiff may raise an inference of discrimination in two ways, by “(1) introduc[ing]

evidence of comparators (i.e., similarly situated employees who (a) were not members of the same

protected class and (b) were treated more favorably under similar circumstances); or (2) rely[ing]

on circumstantial evidence that otherwise shows a causal nexus between his membership in a

protected class and the adverse employment action.” Greene v. Virgin Islands Water & Power

Auth., 557 F. App’x 189, 195 (3d Cir. 2014).

44

Plaintiff fails to point to any similarly situated employee. “[E]mployees are similarly

situated when their conduct on the job—or misconduct—is similar in nature.” Oakley v.

Orthopaedic Assocs. of Allentown, Ltd., 742 F. Supp. 2d 601, 608 (E.D. Pa. 2010); Wilcher v.

Postmaster Gen., 441 F. App’x. 879, 881-82 (3d Cir. 2011) (explaining the “‘similarly situated”

analysis “takes into account factors such as the employees’ job responsibilities, the supervisors

and decision-makers, and the nature of the misconduct engaged in’). In the case at bar, aside from

a passing conjectural reference to employees Plaintiff believed were promoted over her, (see e.g.,

Pl. Dep. Tr. at 96:11—15), which Plaintiff surmises were due to “cronyism and nepotism,” (id. at

97:8-11). Plaintiff proffers no evidence that these officers were similarly situated to her. There is

no evidence that these officers had similar roles, attendance records, or performances in the QRM.

Plaintiff also fails to demonstrate any circumstantial evidence in the record that gives rise

to an inference that Plaintiff's disability was the cause of Plaintiffs lack of promotion. Plaintiff

does not point to comments or remarks by any supervisors, or any other evidence that could

demonstrate Port Authority’s decision occurred “as a result of discrimination.” Gaul, 134 F.3d at

580. Moreover, Plaintiff provides no evidence, nor even raises the argument, that Defendant

adopted the attendance requirement in its promotional policy in order to undermine or single out

officers with disabilities. As such, Plaintiff does not raise an inference of discrimination.

More importantly, Plaintiff has not established a genuine issue of material fact that Port

Authority, and those in charge of promotional decisions, knew Plaintiff was disabled. In her

opposition brief, Plaintiff states she told Port Authority physicians of her conditions when she first

joined Port Authority in 2003 and received sick absence counseling at various points throughout

her tenure. (See Pl. Opp’n at 11.) However, these absences were considered sick leave and did not

indictate either an injury on duty or that Plaintiff was out on disability leave. (See ECF No. 61-3.)

179

Moreover, Plaintiff’ lingering and chronic medical conditions which prompted repeated absences,

by themselves, do not put the Port Authority on notice that Plaintiff was legally disabled as defined

by the ADA, 42 U.S.C. § 12101 et seg.

The counseling memoranda on which Plaintiff relies simply note the number of days

Plaintiff was absent and warn that Plaintiff's pay may be cut due to future prolonged absences.

(id.) In addition, Plaintiff fails in her burden, aside from a reference to a presumably confidential

conversation subject to a doctor and patient relationship in which she claims to have alerted Port

Authority doctors that she was “involved in 9/11,” and somehow extrapolating same as tantamount

to imputing knowledge to Port Authority, let alone to those at Port Authority involved in the

promotional decision, that she had a legal disability. (See Pl. Dep. Tr. at 205:16—22.)

Plaintiff admits that she did not tell Port Authority that she had a disability, and only passed

along the certification dated December 9, 2015 from the World Trade Center Health Program in

January 2016. (PL. Dep. Tr. at 175:14—-176:7, see also ECF No. 54-20, Ex. P.) This one-page letter,

sent by an organization which does not appear to be an arm of the Port Authority, certified

Plaintiff's GERD and Upper Respiratory Disease as “covered for treatment benefits . . . for

medically necessary treatment(s).” (See ECF No. 54-20, Ex. P.)® It is not tantamount to a

declaration of a disability under the ADA as Plaintiff claimed in her deposition. (See Pl. Dep. Tr.

at 190:15—-19 (“Q: Telling someone your condition is not the same thing as being disabled, would

you agree with that? A: Yes, until I was certified, yes.’’).)

Plaintiff received notices from the Port Authority that she was not selected for a promotion

on August 10, 2011, (ECF No. 54-14, Ex. J), February 4, 2013, (ECF No. 54-15, Ex. K), and

8 Plaintiff appears to conflate this certification as a de facto notice of a disability under the ADA without

providing any evidence in the record or support for such assertion. As explained herein, the Court need

not resolve this issue.

14

September 29, 2015, (ECF No. 54-19, Ex. O). However, Plaintiff admits that she gave notice to

Port Authority of her World Trade Center Health Program certified medical conditions in January

2016, (Pl. Dep. Tr. at 175:14-176:7), well after she was notified that she was not selected for

promotion. Assuming arguendo that said certification constitutes de facto proof of disability, this

supposed notice was admittedly provided to Port Authority several months after her last denial for

promotion. In addition, Plaintiff was not selected for promotion well before Governor Cuomo’s

2018 change in policy applied Plaintiff's duty injuries from the NYPD to Port Authority,

retroactive to January 1, 2017. (See id. at 213:8-21.)

Thus, Plaintiff has not established that Port Authority knew of her disability. See Jones v.

United Parcel Serv., 214 F.3d 402, 406 (3d Cir. 2000) (“It is, of course, an axiom of any ADA

claim that the plaintiff be disabled and that the employer be aware of the disability.”); Rinehimer

v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir. 2002) (““[T]o establish discrimination because of a

disability, an employer must know of the disability.”’).

Even if Plaintiff established that someone or unidentified personnel at Port Authority knew

of her claimed disability, there is no evidence in the record that those involved in the Promotion

Review Board or those that drafted the attendance requirement knew about Plaintiff's purported

disability. See Grisso-Leahey v. Centers Health Care, No. 21-04433, 2022 WL 18425527, at *6

(D.N.J. Dec. 30, 2022) (“Tt is axiomatic that an adverse employment decision cannot have been

based on discriminatory animus if the decision-maker had no knowledge of the alleged disability.”

(quoting Glass v. Armstrong Utilities, No. 13-1173, 2014 WL 7015966, * 7 (W.D. Pa. Dec. 11,

2014))).

Plaintiff provides no support, beyond mere conjecture, that Port Authority denied her a

promotion based on her disability, See Williams v. Rowan Univ., No. 10-6542, 2014 WL 7011162,

16

at *15 (D.N.J. Dec. 11, 2014) (“An inference based upon speculation or conjecture does not create

a material factual dispute sufficient to defeat entry of summary judgment” (quoting Johnson v.

Multi-Solutions, Inc., 493 F. App’x 289, 292 (3d Cir. June 28, 2012))); Skoorka v. Kean Univ.,

No. 16-3842, 2018 WL 3122331, at *14 (D.N.J. June 26, 2018) (finding no inference of

discrimination where Plaintiff “point[ed] to no other evidence—not even a stray derogatory

remark” aside from subjective belief that actions were grounded in discrimination). Thus, Plaintiff

fails to establish her prima facie burden of disability discrimination. See Etheridge v. Novo Nordisk

Inc., No. 19-13676, 2022 WL 1689910, at *9 (D.N.J. May 26, 2022) (holding Plaintiff failed to

establish prima facie burden where plaintiff only provided conclusory allegations of

discrimination),

2. Step Two: Defendant’s Nondiscriminatory Justifications

Even though the Court concludes that Plaintiff has failed in establishing a prima facie

showing of disability discrimination, the Court nonetheless will evaluate the second step of the

McDonnell Douglas burden-shifting test. Under the second step of the burden-shifting test,

Defendant must meet a “relatively light burden” of setting forth a “nondiscriminatory reason for

the unfavorable employment decision.” Fuentes, 32 F.3d at 763. To explain their decision not to

promote Plaintiff, Defendant points to Plaintiff's poor interview performance and the application

of a neutral promotional policy as the legitimate reasons Plaintiff was not promoted. (See Defs.

MSJ at 19-22.) On August 10, 2011, following her interview as part of the 2011 promotional

process, Plaintiff received a letter from Ford with feedback regarding her ratings from the Review

Board. (ECF No. 54-14, Ex. J at *2.) This included comments based on her QRM, at which

Plaintiff was asked “a series of behavioral and situational questions designed to determine [her]

qualifications relative to the job.” (See SOF § 23.) As Ford explained, Plaintiff received four

“Outstanding” ratings, but an “Unacceptable” in the “Attendance Category” and a “Needs

te

Development” based on her responses in the QRM. (ECF No. 54-14, Ex. J at *2.) As such, Plaintiff

was not recommended for a promotion. (/d.) Regarding the QRM, Plaintiff was given feedback on

how to improve:

Respond to questions in a manner that clearly and concisely

demonstrate your qualifications. Organize your thoughts prior to

responding to each question. Think through and thoroughly address

all of the aspect of the question. Communicate in a manner that

clearly communicates the message you intend to convey. Expand

your experience, knowledge and/or skill level in areas relevant to

the job of Police Sergeant.

(Id. at *3 (emphasis in original).) Further, in light of her “more then 11 sick days in the three-year

period considered for promotion,” Plaintiff received the unacceptable rating. (ECF No. 54-3 { 42.)

Plaintiff was advised to “[iJmprove [her] attendance record by minimizing the number of

occasions/days you go out sick and/or avoid sick patterns around holidays, weekends, or peak

vacation periods or other patterns for using sick time.” (ECF No. 54-14, Ex. J at *3.) In February

2013 and September 2015, Plaintiff was deemed ineligible for promotion based on failing to meet

the attendance requirement in Port Authority’s promotional process. (See ECF No. 54-15, Ex. K;

ECF No. 54-19, Ex. O.)

Here, Defendant has set forth sufficient evidence for a reasonable factfinder to conclude

that Plaintiff's poor interview performance and Defendant’s application of a neutral attendance

policy were legitimate, nondiscriminatory reasons for Port Authority’s decision not to promote

Plaintiff. In the Third Circuit, “[p]oor performance in an interview is a well-recognized legitimate

nondiscriminatory reason for failure to hire or promote.” Carr v. New Jersey, No. 09-913, 2012

WL 3757028, at *3 (D.N.J. Aug. 28, 2012), aff'd, 534 F. App’x 149 (3d Cir. 2013) (citing Green

v. Postmaster General of U.S., 437 F. App’x 174, 176-77 (3d Cir. 2011)); McCann vy. Astrue, 293

17

App’x 848, 851 Gd Cir. 2008) (same); Thompson v. Bridgeton Bd. of Educ., 9 F. Supp. 3d 446,

455 (D.N.J. 2014), aff'd, 613 F. App’x 105 (3d Cir. 2015).

Moreover, application of a neutral policy “plainly satisfie[s] [an employer’s] obligation

under McDonnell Douglas to provide a legitimate, nondiscriminatory reason” for an adverse

employment action. Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003); Munoz v. Nutrisystem,

Inc., No. 13-4416, 2014 WL 3765498, at *5 (E.D. Pa. July 30, 2014) (“violation of an employer’s

attendance policy to constitute a legitimate and non-discriminatory basis for termination”);

Zielinski v. Pulte Grp., Inc., No. 10-6761, 2011 WL 2937427, at *4 (E.D. Pa. July 21, 2011)

(“implementation of company policy constitutes a legitimate, nondiscriminatory reason for firing

her’); Russell y. Aid to Developmentally Disabled, Inc., 753 F. App’x 9, 14 Qd Cir. 2018)

(“Applying [a] neutral attendance policy is ‘a neutral reason for the complained of action.’”

(quoting Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014))). Therefore, assuming

arguendo that Plaintiff established her prima facie burden, Defendant has offered a

nondiscriminatory rationale for her lack of promotion at Step Two.

3. Step Three: Pretext

Because Defendant satisfied the second prong of McDonnell Douglas, the burden shifts

back to Plaintiff to “show by a preponderance of the evidence that the employer’s explanation is

pretextual.” Fuentes, 32 F.3d at 763. As noted above, Plaintiff must either point to evidence from

which the factfinder may infer discrimination or establish “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in the proffered legitimate reason for

termination. Keller, 130 F.3d at 1108-09, 1111; see Lawrence v. Nat’l Westminster Bank New

Jersey, 98 F.3d 61, 66 Gd Cir. 1996) (the plaintiff must “demonstrate that the employer’s stated

10

reasons were not its true reasons but were a pretext for discrimination” (quoting Sempier v.

Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995)).

Plaintiff contends that “even if the jury believes that Plaintiff's performance at the QRM

was the motivating factor in her being passed for a promotion in August 2011, Plaintiff can still

prove her case as a result of the attendance requirement in the subsequent promotion

announcements that precluded her from consideration.” (Pl. Opp’n at 12-13.) Plaintiff contends

that she could not meet the “stringent attendance requirement” applicable in Port Authority’s

promotional process because of “her chronic medical disabilities.” Ud. at 12.) Further, Plaintiff

contends that there were no exceptions for officers with disabilities, and thus, despite Port

Authority’s alleged neutral policy, it affected officers with disabilities, such as Plaintiff, who were

forced to take lengthy absences and therefore could not qualify for a promotion. (/d. at 13.)

Plaintiff fails to meet her burden at Step Three to show such “weaknesses, implausibilities,

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

its actions,” Fuentes, 32 F.3d at 765, such that a reasonable jury could reject Port Authority’s

nondiscriminatory basis for Plaintiff’s termination. Plaintiff does not attempt to identify any bases

for a jury to reject Defendant’s reasons for not promoting her or any weaknesses in Defendant’s

proffered justifications.

In her deposition, Plaintiff testified that she believed Port Authority should have exempted

her from the attendance requirement in the promotional policy. (Pl. Dep. Tr. at 204:3-17.) While

Plaintiff curiously does not allege a failure to accommodate claim in her complaint, Plaintiff, in

essence, complains about a lack of accommodation yet admits she never requested an

accommodation. (/d. at 176:20-25.) As such, to the extent Plaintiff seeks to assert a failure to

accommodate claim, this claim would also fail, as Plaintiff never requested an accommodation.

See Armstrong v. Burdette Tomlin Mem’! Hosp., 438 F.3d 240, 247 Gd Cir. 2006) (affirming

dismissal of failure to accommodate claim where plaintiff failed to request an accommodation).

Plaintiff does not contend, nor is there any evidence in the record, that undermine Port

Authority’s proffered reasons. She argues that Port Authority should have treated her absences as

disability because “[t]o me, it was an [injury on duty] regardless that Port Authority didn’t

recognize it,” (P]. Dep. Tr. at 152:3-15), and the attendance policy should not have applied to her,

even though she agreed she never told Port Authority she was disabled, (id. at 204:3-17).

Plaintiff admits she did not alert Port Authority of her disability upon entering her

employment. (See id. at 204:23-205:6 (“Q: . . . When you first started to work for the Port

Authority, which is what year? A: September 27, 2002. Q: Did you inform them of your condition

as it related to the injuries sustained at the World Trade Center on 9/11? A: No.”).) Nor did Plaintiff

explain in her QRM that her sick absences were related to her purported disability:

Q: With respect to your illness or your IODs, did any of the

individuals at the -- the QRM is it?

A: Yes.

Q: Anyone ever ask you about them?

A: They may have. I'm not sure. But I did tell them in my history

that I was prior NYPD and I was involved in 9/11.

Q: And did you indicate to them that you had absences related to

9/11?

A: I don’t recall.

(See id. at 208:9-19 (spacing added).)

The undisputed evidence in the record makes clear that Plaintiff was denied a promotion

in August 2011, February 2013, and September 2015, (see ECF Nos. 54-14, 54-15, and 54-19)—

all of which occurred before Plaintiff disclosed to Port Authority that the World Trade Center

Health Program had certified her medical conditions—and before Governor Cuomo retroactively

applied her NYPD injuries on duty to the Port Authority. Plaintiff admits she did not apply for a

promotion in 2018, (See Pl. Dep. Tr. at 148:12-13), and thus Plaintiff failed to avail herself of

retroactive imputation of her injuries on duty from NYPD to Port Authority. Had she applied for

promotion in 2018, Plaintiff may have been able to achieve a different result.

That Plaintiff believed she should have been exempt from the attendance requirement or

given injury on duty leave—which Port Authority exempted from the attendance requirements—

does not establish that the attendance requirement in Port Authority’s policy was pretextual.

Moreover, Plaintiff presents no arguments that Port Authority adopted the attendance requirement

with discriminatory intent or to with the goal to negatively impact officers with a disability. As

discussed above, application of a neutral policy is a nondiscriminatory reason for an adverse

employment action. Raytheon Co, 540 U.S. at 53. Plaintiff's acknowledgement that she never

disclosed her now claimed disability mandates summary judgment here.

In her deposition, Plaintiff testified that she believed that Port Authority did not randomly

select individuals to advance to the QRM. (PI. Dep. at 48:10—-16.) In her view, Port Authority

“showed favoritism.” (/d. at 49:23-50:4; id. at 52:17—21 (“So it was constantly being manipulated

to, I guess, get the people they wanted to select.”).) Plaintiff also contends that “cronyism” and

“nepotism” impact Port Authority’s promotional decisions, as officers who taught at the police

academy received promotions over those who did not. Ud. at 95:8-97:11.) However, Plaintiff

admits she does not know their qualifications or records, how they performed in their jobs or how

they interviewed. (/d. at 100:12-102:25.) Not only does this alleged favoritism or cronyism fail to

establish pretext as to disability related animus, Plaintiff again advances mere conjecture in an

attempt to raise a genuine issue of material fact.

a4

Plaintiff's subjective surmise cannot create a genuine issue of material fact to survive

summary judgment. See Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 414 Gd Cir. 1999)

(holding that “allegations in [plaintiff’s] affidavit which he predicates on nothing more than his

beliefs without having actual knowledge of them” failed to establish pretext); Williams, 2014 WL

7011162, at *15 (“An inference based upon speculation or conjecture does not create a material

factual dispute sufficient to defeat entry of summary judgment.” (quoting Johnson v. Multi—

Solutions, Inc., 493 Fed. Appx. 289, 292 (3d Cir. June 28, 2012))); Boykins v. SEPTA, 722 F.

App’x 148, 155 (3d Cir. 2018) (affirming grant of summary judgment where “no evidence in the

record suggesting [employment decision] was influenced by prejudice and ‘belief alone is

insufficient to raise an issue of material fact.’” (quoting Bray v. Marriott Hotels, 110 F.3d 986,

996 (3d Cir. 1997))); Lexington Ins. Co. v. W. Pennsylvania Hosp., 423 F.3d 318, 333 (3d Cir.

2005) (“Speculation does not create a genuine issue of fact; instead, it creates a false issue, the

demolition of which is a primary goal of summary judgment.” (quoting Hedberg v. Indiana Bell

Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995))).

Plaintiff fails to show that discriminatory animus motivated or was any way involved in

Port Authority’s decision not to promote Plaintiff. See Fuentes, 32 F.3d at 765 (“To discredit the

employer’s proffered reason, however, the plaintiff cannot simply show 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.”). Here,

there is no evidence of discriminatory animus.

For the first time in her opposition brief, five years after the commencement of this

litigation and after the close of discovery, Plaintiff advances a disparate impact claim and argues

that Port Authority’s policy was not neutral, and thus impacted officers with disabilities more than

ay

those without. (Pl. Opp’n at 13.) As such, according to Plaintiff, this so-called neutral policy was

not, in fact neutral and violated the ADA. (/d.)

As the Supreme Court has explained, “disparate-impact claims ‘involve employment

practices that are facially neutral in their treatment of different groups but that in fact fall more

harshly on one group than another and cannot be justified by business necessity.’” Raytheon Co.,

540 U.S. at 52 (quoting Teamsters v. United States, 431 U.S. 324, 335, n.15 (1977)). This claim is

markedly different from that put forward by Plaintiff in her complaint—one of disparate

treatment—which involves “an employer treat[ing | some people less favorably than others because

of their race, color, religion, sex, or [other protected characteristic].” Raytheon Co., 540 U.S. at 52

(quoting Teamsters, 431 U.S. at 335, n.15). In a disparate impact case, a plaintiff may challenge a

“facially neutral employment practice ... without evidence of the employer’s subjective intent to

discriminate that is required in a ‘disparate-treatment’ case.” Raytheon, 520 U.S. at 52-53

(citations and internal quotation marks omitted). While it is true that a disparate impact claim is

cognizable under the ADA, see id., Plaintiffs claim fails.

First, Plaintiff advances this theory for the first time in her opposition brief to Defendant’ s

Summary Judgment Motion. In her Complaint and EEOC Charge, Plaintiff alleges that she was

treated differently because of her disability. (See generally, Compl.; ECF No. 54-22, Ex. R.)

Plaintiff makes no allegations regarding Port Authority’s promotional policy as a whole. Thus, it

is clear that Plaintiff was not advancing a theory of disparate impact. Nor did Plaintiff move to file

an amended pleading. In fact, Plaintiff was granted leave to file an amended complaint, (see ECF

No, 47), but chose not to do so,

Plaintiff may not advance a novel disparate impact claim on summary judgment. See

Summy-Long v. Pennsylvania State Univ., 715 F. App’x 179, 182 (3d Cir. 2017) (explaining that

y4

the Third Circuit affirms “decisions made by district courts rejecting disparate impact claims that

were raised for the first time in summary judgment, expressing concerns over potential prejudice,

expansion of burdens, and delay”); Spence v. City of Philadelphia, 147 F. App’x 289, 292 (3d Cir.

2005) (affirming grant of summary judgment on disparate impact claim where plaintiff did not

move to amend complaint, did not include the claim in complaint, and failed to give defendant

notice of new claim, and as such, “was precluded from raising the disparate impact claim for the

first time at the summary judgment phase”); Fulton-Walker v. Se. Pennsylvania Transportation

Auth., No. 22-224, 2023 WL 1864865, at *1 (E.D. Pa. Feb. 9, 2023) (declining to consider

disparate impact claims “raised, for the first time ... in [plaintiffs’] brief in opposition to

defendant’s motion for summary judgment”). For this reason alone, the Court grants summary

judgment to Defendant on Plaintiff's disparate impact claim.

Notwithstanding, even if the Court permitted Plaintiff to proffer a disparate impact claim

at this stage in the proceeding, Plaintiffs claim still fails. “[T]o establish a prima facie case of

disparate impact discrimination, the plaintiff must demonstrate that application of a facially neutral

standard has caused a ‘significantly discriminatory [] pattern.’” Newark Branch, N.A.A.C.P. v. City

of Bayonne, N.J., 134 F.3d 113, 121 (3d Cir. 1998) (quoting Newark Branch, NAACP v. Town of

Harrison, 940 F.2d 792, 798 (3d Cir.1991)). Typically, a plaintiff must demonstrate such patterns

through “statistical disparities.” City of Bayonne, 134 F.3d at 121. “A comparison between the []

composition of those qualified persons in the relevant labor market and that of those in the jobs at

issue typically ‘forms the proper basis for the initial inquiry in a disparate impact case.’” Meditz v.

City of Newark, 658 F.3d 364, 370 (3d Cir. 2011) (quoting N.A.A.C.P. v. Harrison, 940 P.2d 792,

798 (3d Cir.1991)).

aA

In the case at bar, Plaintiff proffers no evidence, nor is there any in the record, regarding

the impact of Port Authority’s neutral promotional process on officers with disabilities. Nor does

it appear that Plaintiff attempted to offer any statistics or other evidence regarding the number of

officers with disabilities who did or did not receive promotions. As such, on the merits, the Court

grants Defendant summary judgment on Plaintiff's disparate impact claim.

Therefore, the Court concludes that even if Plaintiff had met her burden at Step One to

establish that a prima facie case of discrimination, Defendant has offered a nondiscriminatory

reason for the decision not to promote Plaintiff that Plaintiff has failed to show was pretext.

Summary judgment will be granted for Defendant on Plaintiff's ADA claim.

ne

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED,

and judgment for Port Authority and Michael Fedorko will be entered.’ An appropriate Order will

accompany this Opinion. woo ee

ROBERT KIRSCH Tag

UNITED STATES DISTRICT JUDGE

Dated: June 26, 2024

? Plaintiff also brought suit against Fedorko, who Plaintiff alleges was Superintendent of the Port

Authority Police Department. (See Compl. § 16.) Fedorko moved to dismiss Plaintiff's claims, and the

Honorable Michael A. Shipp, U.S.D.J,, in his March 8, 2022 Memorandum Opinion and Order, (ECF

Nos. 46 and 47), held that Plaintiff’s claims against Fedorko could proceed only to the extent Plaintiff

seeks prospective injunctive relief. (See ECF No. 46 at 6.) Of note, Judge Shipp found Plaintiff’ s

Complaint alleged “some prospective relief’ such as “ongoing violations of the ADA and continuing to

fail to promote Otero to Sergeant.” (See id. at 5.) Judge Shipp dismissed Plaintiffs Complaint against

Fedorko to the extent it sought retrospective relief against Fedorko. (ECF No. 47.) As Plaintiff retired

from Port Authority in April 2021, (SOF { 10), Plaintiff can no longer seek prospective relief, as the

Court cannot enjoin any future action related to her employment with Port Authority because she no

longer works there. Therefore, the Court dismisses any claims against Fedorko as moot. See Mollett v.

Leicth, 511 F. App’x 172, 174 (Gd Cir. 2013) (affirming dismissal of claims as moot where district court

was “unable to grant the relief sought”).

IL