19‐1036‐cv
Montgomery v. New York City Transit Auth.

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). 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 18th 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.
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 (ʺNYCTAʺ). By memorandum opinion and order

entered March 19, 2019, the district court granted NYCTAʹs motion for summary

judgment, dismissing Montgomeryʹs gender‐ and race‐based employment

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

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

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

§ 290 et seq.; and the New York City Human Rights Law (the ʺNYCHRLʺ), 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 NYCTAʹs motion for summary judgment and (2)

granting NYCTAʹs motion for summary judgment. We assume the partiesʹ familiarity

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


                                             ‐2‐
                                     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 NYCTAʹs Equal Employment

Opportunity (ʺEEOʺ) office revealed there was a ʺperceptionʺ that the hiring process

was ʺtainted.ʺ J. Appʹx 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

candidateʹs 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.

                                             ‐3‐
The only category where her average was higher than Gorvetzianʹs was ʺEducation,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 ʺenthusiastic ‐‐ very

loud/thunderous,ʺ J. Appʹx 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 ʺwas not specific about anything,ʺ J. Appʹx 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 ʺRelated Job

Experienceʺ and ʺCommunication Skills,ʺ and he earned a 5 from at least one panelist in

every category except ʺEducation,ʺ where he received 3s across the board. J. Appʹx 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 ʺthe best candidate

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

the promotion. J. Appʹx at 129. Thereafter, Gorvetzian was offered and accepted the

job.

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

Opportunity Commission (the ʺEEOCʺ) claiming she was discriminated against based

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

qualifications, and experienceʺ was given the job instead of her, J. Appʹx 143, and she


                                            ‐4‐
expressed dissatisfaction that two members of the 2012 panel were on the 2014 hiring

panel despite the EEO officeʹs prior recommendation. Moreover, according to

Montgomeryʹs 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

ʺbegan to get loud,ʺ J. Appʹx at 416, and that Montgomery ʺ[b]egan yelling to

demonstrateʺ how she handled insubordinates, J. Appʹx 418. He stated that those notes

were observations about Montgomeryʹs 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 Henryʹs notes on July 10, 2018, several weeks before

Montgomery filed her memorandum in opposition to NYCTAʹs motion for summary

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

Montgomery moved to strike NYCTAʹs 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.

                                             ‐5‐
2019, the district court granted NYCTAʹs motion for summary judgment. In a footnote,

the district court denied Montgomeryʹs motion to strike as moot, noting that the court

did not rely on any of the materials that formed the basis of Montgomeryʹs objections.

This appeal followed.

                                      DISCUSSION

1.     Montgomeryʹs Motion to Strike

              ʺA 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 oppositionʺ to summary judgment, the court may defer or

deny summary judgment, reopen limited discovery, or ʺissue 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

Montgomeryʹs motion to strike and refused to reopen discovery. First, the district court

did not rely on Henryʹs 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

ʺspecified reasons,ʺ id., as to how her litigation strategy would have changed had she

seen Henryʹs notes earlier. Third, the other documents NYCTA produced after the close


                                             ‐6‐
of discovery related to NYCTAʹs 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 Montgomeryʹs discrimination claim. Accordingly, the district court did not

abuse its discretion when it denied Montgomeryʹs motion to strike NYCTAʹs summary

judgment motion and reopen discovery.

2.     NYCTAʹs Motion for Summary Judgment

              ʺWe review a district courtʹs grant of summary judgment de novo.ʺ Marvel

Characters, Inc. v. Kirby, 726 F.3d 119, 135 (2d Cir. 2013). On review, we ʺconstru[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 ʺthere 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 ʺwould 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 plaintiffʹs ʺadmissible evidence

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

infer that the employerʹs 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)


                                             ‐7‐
(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 NYCTAʹs

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 Moaklerʹs comments about her being

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

record, however, belies this point. Most notably, Moaklerʹs 2014 comment ‐‐ that she


                                             ‐8‐
was ʺenthusiastic ‐‐ very loud/thunderous,ʺ J. Appʹx at 115 ‐‐ is listed as one of

Montgomeryʹs strengths. And to the extent Moaklerʹs 2012 comments ‐‐ which he

explained in his deposition were objective statements about Montgomeryʹs volume

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

conclude that discrimination played a role in NYCTAʹs 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 NYCTAʹs motion for summary judgment on Montgomeryʹs 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 ʺless wellʺ 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 ʺsummary judgment is appropriate if the record

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

defendantʹs 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


                                            ‐9‐
standard, no reasonable juror could find that Montgomery was treated ʺless wellʺ

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 Montgomeryʹs NYCHRL claim.

                                          * * *

                  We have considered Montgomeryʹs remaining arguments and conclude

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

district court.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk




                                           ‐10‐
