19

‐ 1036

‐ cv

Montgomery v. New York City Transit Auth.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

ʺ SUMMARY ORDER ʺ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 18 th day of March, two thousand twenty.

PRESENT: REENA RAGGI,

DENNY CHIN,

RICHARD J. SULLIVAN,

Circuit Judges

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

VIOLET V. MONTGOMERY,

Plaintiff

‐ Appellant

,

‐ v ‐ 19

‐ 1036

‐ cv

NEW YORK CITY TRANSIT AUTHORITY,

Defendant

‐ Appellee

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

FOR PLAINTIFF

‐ APPELLANT: LOCKSLEY O. WADE, Law Office of

Locksley O. Wade, LLC, New York,

New York.‐ 2

‐ FOR DEFENDANT

‐ APPELLEE: STEVEN GERBER (Beth L. Kaufman

and Jeremy Miguel Weintraub, on the

brief ), Schoeman Updike Kaufman &

Gerber LLP, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Furman, J. ).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED

.

Plaintiff

‐ appellant Violet V. Montgomery appeals from a judgment of the

district court entered March 20, 2019, dismissing her claims against defendant

‐ appellee

New York City Transit Authority ( ʺ NYCTA ʺ ). By memorandum opinion and order

entered March 19, 2019, the district court granted NYCTA ʹ s motion for summary

judgment, dismissing Montgomery ʹ s gender

‐ and race

‐ based employment

discrimination claims under Title VII of the Civil Rights Act of 1964 ( ʺ Title VII ʺ ), 42

U.S.C. § 2000e et seq. ; Section 1981 of the Civil Rights Act of 1871 ( ʺ Section 1981 ʺ ), 42

U.S.C. § 1981; the New York State Human Rights Law (the ʺ NYSHRL ʺ ), N.Y. Exec. Law

§ 290 et seq. ; and the New York City Human Rights Law (the ʺ NYCHRL ʺ ), N.Y.C.

Admin. Code § 8

‐ 101 et seq. On appeal, Montgomery argues that the trial court erred in

(1) denying her motion to strike NYCTA ʹ s motion for summary judgment and (2)

granting NYCTA ʹ s motion for summary judgment. We assume the parties ʹ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.‐ 3

‐ BACKGROUND

In 2012, NYCTA posted a job opening for a management position. Eight

candidates, including Montgomery and Robert Gorvetzian, were interviewed for the

position by a four

‐ person panel. 1 The panel preferred Gorvetzian for the position, but it

did not extend him an offer because an investigation by NYCTA ʹ s Equal Employment

Opportunity ( ʺ EEO ʺ ) office revealed there was a ʺ perception ʺ that the hiring process

was ʺ tainted. ʺ J. App ʹ x at 264. The EEO office recommended that the interview process

begin afresh with a new panel. In January 2014, NYCTA re

‐ posted the job opening and

replaced two people on the panel. Of the 46 applicants, seven were chosen for

interviews. 2 Because one candidate withdrew, six candidates were interviewed for the

position, including Montgomery and Gorvetzian. The panelists independently scored

each candidate on a 1

‐ to

‐ 5 scale across seven categories, wrote notes about each

candidate ʹ s strengths and weaknesses, and ranked the candidates in order of

preference. 3

Each member of the panel ranked Montgomery as their third or fourth

choice for the position, primarily awarding her 3s and 4s across all seven categories.

1 There was one non

‐ voting member on the panel from Human Resources.

2 Of the 46 resumes NYCTA reviewed, three appeared to be from female applicants. Two

of these three candidates were selected for interviews.

3 Like the first panel, there was one non

‐ voting member on the 2014 panel. Nonetheless,

the Record contains four evaluation sheets for Montgomery and three evaluation sheets for

Gorvetzian. All four members of the panel emailed their rankings after the interviews were

conducted.‐ 4

‐ The only category where her average was higher than Gorvetzian ʹ s was ʺ Education, ʺ

where she received several scores of 4 or better. As a strength, the hiring manager on

the panel, Robert Moakler, noted that Montgomery was ʺ enthusiastic

‐‐ very

loud/thunderous, ʺ J. App ʹ x at 115, but each panelist noted at least one weakness, with

two members commenting that she did not present her ideas clearly and another noting

that she ʺ was not specific about anything, ʺ J. App ʹ x at 117.

In contrast, each member of the panel ranked Gorvetzian as his or her top

choice for the position. Indeed, every panelist awarded him 5s for ʺ Related Job

Experience ʺ and ʺ Communication Skills, ʺ and he earned a 5 from at least one panelist in

every category except ʺ Education, ʺ where he received 3s across the board. J. App ʹ x at

119

‐ 21. None of the panelists provided any negative comments about Gorvetzian, and

all made positive comments about his presentation. Following the interviews, Moakler

sent a memo to Human Resources explaining that Gorvetzian was ʺ the best candidate

for the position, ʺ noting specifically how his role as superintendent prepared him for

the promotion. J. App ʹ x at 129. Thereafter, Gorvetzian was offered and accepted the

job.

Montgomery filed a complaint with the U.S. Equal Employment

Opportunity Commission (the ʺ EEOC ʺ ) claiming she was discriminated against based

on her gender and race. Specifically, she alleged that ʺ a white male with less education,

qualifications, and experience ʺ was given the job instead of her, J. App ʹ x 143, and she‐ 5

‐ expressed dissatisfaction that two members of the 2012 panel were on the 2014 hiring

panel despite the EEO office ʹ s prior recommendation. Moreover, according to

Montgomery ʹ s district court complaint, ʺ [t]he EEOC found that there was probable

cause to believe that Montgomery was a victim of unlawful workplace discrimination

based on her race and gender. ʺ D. Ct. Dkt. No. 32 at Ex. 7.

During discovery, Moakler was deposed on April 20, 2018, and was asked,

in part, about two notes he took during the 2012 interview process ‐‐ that Montgomery

ʺ began to get loud, ʺ J. App ʹ x at 416, and that Montgomery ʺ [b]egan yelling to

demonstrate ʺ how she handled insubordinates, J. App ʹ x 418. He stated that those notes

were observations about Montgomery ʹ s volume. Another member of the 2012 panel,

Barry Henry, was deposed the same day, and he was asked to search for the notes he

took during the initial interview process. 4 NYCTA moved for summary judgment on

June 27, 2018, and produced Henry ʹ s notes on July 10, 2018, several weeks before

Montgomery filed her memorandum in opposition to NYCTA ʹ s motion for summary

judgment but after the close of discovery. In her memorandum in opposition,

Montgomery moved to strike NYCTA ʹ s motion for summary judgment and reopen

discovery because NYCTA disclosed certain information after discovery closed;

Montgomery claimed she would have changed her litigation strategy in light of the

later

‐ produced documents. By memorandum opinion and order entered March 19,

4 Henry was one of the two panelists replaced for the 2014 interviews.‐ 6

‐ 2019, the district court granted NYCTA ʹ s motion for summary judgment. In a footnote,

the district court denied Montgomery ʹ s motion to strike as moot, noting that the court

did not rely on any of the materials that formed the basis of Montgomery ʹ s objections.

This appeal followed.

DISCUSSION

1. Montgomery ʹ s Motion to Strike

ʺ A district court has broad discretion to manage pre

‐ trial discovery

and we review its decisions on these matters only for abuse of discretion. ʺ Wood v.

F.B.I.

, 432 F.3d 78, 84

‐ 85 (2d Cir. 2005). Under Federal Rule of Civil Procedure 56, ʺ [i]f a

nonmovant shows by affidavit or declaration that, for specified reasons

, it cannot present

facts essential to justify its opposition ʺ to summary judgment, the court may defer or

deny summary judgment, reopen limited discovery, or ʺ issue any other appropriate

order. ʺ Fed. R. Civ. P. 56(d) (emphasis added).

Here, the district court did not abuse its discretion when it denied

Montgomery ʹ s motion to strike and refused to reopen discovery. First, the district court

did not rely on Henry ʹ s notes to grant summary judgment. This was not an abuse of

discretion, as those notes were from the 2012 interview process, and Henry was not

involved in the 2014 interview process. Second, Montgomery has not alleged any

ʺ specified reasons, ʺ id.

, as to how her litigation strategy would have changed had she

seen Henry ʹ s notes earlier. Third, the other documents NYCTA produced after the close‐ 7

‐ of discovery related to NYCTA ʹ s attempt to prove that Montgomery worked for an

entity other than NYCTA, which, as the district court noted, had no bearing on the

success of Montgomery ʹ s discrimination claim. Accordingly, the district court did not

abuse its discretion when it denied Montgomery ʹ s motion to strike NYCTA ʹ s summary

judgment motion and reopen discovery.

2. NYCTA ʹ s Motion for Summary Judgment

ʺ We review a district court ʹ s grant of summary judgment de novo

. ʺ Marvel

Characters, Inc. v. Kirby

, 726 F.3d 119, 135 (2d Cir. 2013). On review, we ʺ constru[e] the

evidence in the light most favorable to the non

‐ moving party and draw[] all reasonable

inferences in her favor. ʺ Abbey House Media, Inc. v. Simon & Schuster, Inc.

, 869 F.3d 53, 55

(2d Cir. 2017). Summary judgment can only be entered when ʺ there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law. ʺ Fed. R. Civ. P. 56(a). A genuine dispute requires evidence that ʺ would permit a

reasonable juror to find for the party opposing the motion. ʺ Figueroa v. Mazza

, 825 F.3d

89, 98 (2d Cir. 2016).

To defeat summary judgment in an employment discrimination case

under Title VII, Section 1981, and the NYSHRL, the plaintiff ʹ s ʺ admissible evidence

must show circumstances that would be sufficient to permit a rational finder of fact to

infer that the employer ʹ s employment decision was more likely than not based in whole

or in part on discrimination. ʺ Kirkland v. Cablevision Sys.

, 760 F.3d 223, 225 (2d Cir. 2014)‐ 8

‐ (alterations omitted); see also Gorzynski v. JetBlue Airways Corp.

, 596 F.3d 93, 106 (2d Cir.

2010) (describing burden

‐ shifting framework for proving an employment

discrimination claim). Here, the district court determined that Montgomery failed to

present evidence that would permit a reasonable factfinder to conclude that NYCTA ʹ s

reasons for promoting Gorvetzian were pretextual or that NYCTA picked Gorvetzian

over Montgomery more likely than not for a discriminatory reason. We agree.

First, there was ample, contemporaneous evidence that Gorvetzian was

the best applicant for the promotion. The panelists independently rated each candidate

across seven categories and independently ranked each candidate. Every member of

the panel rated Gorvetzian as the best applicant, and no member of the panel ranked

Montogmery better than third. Indeed, Gorvetzian was given a higher rating than

Montgomery in six out of the seven categories, and no panelist wrote a negative

comment about him. Moreover, Moakler wrote a detailed, one

‐ page memo explaining

why the panel selected Gorvetzian for the promotion. Montgomery presented no

evidence of pretext.

Second, Montgomery failed to present any concrete evidence that she was

discriminated against because of her gender or race. To prove both her gender and race

discrimination claims, she relied entirely on Moakler ʹ s comments about her being

ʺ loud, ʺ claiming these were coded language for both gender and racial stereotypes. The

record, however, belies this point. Most notably, Moakler ʹ s 2014 comment

‐‐ that she‐ 9

‐ was ʺ enthusiastic

‐‐ very loud/thunderous, ʺ J. App ʹ x at 115

‐‐ is listed as one of

Montgomery ʹ s strengths. And to the extent Moakler ʹ s 2012 comments

‐‐ which he

explained in his deposition were objective statements about Montgomery ʹ s volume

during the interview

‐‐ are relevant, they are not enough for a reasonable jury to

conclude that discrimination played a role in NYCTA ʹ s decision to hire Gorvetzian

instead of Montgomery. Given the absence of evidence of discrimination and the

extensive evidence that Gorvetzian was the better

‐ qualified applicant, no reasonable

jury could find pretext or a discriminatory motive. Accordingly, the district court did

not err in granting NYCTA ʹ s motion for summary judgment on Montgomery ʹ s federal

and state claims.

We also agree with the district court that Montgomery failed to prove her

NYCHRL claim. Such a claim must be analyzed separately from the federal and state

claims, as the NYCHRL is broader and more permissive. See Velazco v. Columbus

Citizens Found.

, 778 F.3d 409, 411 (2d Cir. 2015). A discrimination claim is actionable

under the NYCHRL where an employee is treated ʺ less well ʺ because she belongs to a

protected class. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.

, 715 F.3d 102, 110

‐ 11 (2d

Cir. 2013). Under the NYCHRL ʺ summary judgment is appropriate if the record

establishes as a matter of law that discrimination or retaliation played no role in the

defendant ʹ s actions. ʺ Ya

‐ Chen Chen v. City Univ. of New York

, 805 F.3d 59, 76 (2d Cir.

2015) (internal quotation marks and alterations omitted). Despite this less stringent‐ 10

‐ standard, no reasonable juror could find that Montgomery was treated ʺ less well ʺ

because she belongs to a protected class or that discrimination played any role in the

application process. Accordingly, the district court did not err when it granted

summary judgment on Montgomery ʹ s NYCHRL claim.

* * *

We have considered Montgomery ʹ s remaining arguments and conclude

they are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk