336 F.3d 128 (2nd Cir. 2003), 00-6090, Terry v. Ashcroft

Docket Nº:00-6090
Citation:336 F.3d 128
Party Name:Terry v. Ashcroft
Case Date:July 17, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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336 F.3d 128 (2nd Cir. 2003)

Andrew TERRY, Plaintiff-Appellant,


John ASHCROFT, 1 Attorney General of the United States in his official capacity, Department of Justice of the United States, Individually and in their official capacity, United States Immigration and Naturalization Service, Individually and in their official capacity, Defendants-Appellees,

William Slattery, Individually and in his official capacity, Daniel Molerio, Individually and in his official capacity, Edward McElroy, Individually and in his official capacity, Farrell Adams, Individually and in his official capacity, and Charles Ferrigno, Individually and in his official capacity, Defendants.

No. 00-6090.

United States Court of Appeals, Second Circuit

July 17, 2003

Argued: Nov. 6, 2001.

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Eric S. Crusius (Linda M. Cronin, on brief), Cronin & Byczek, LLP, Lake Success, New York, for Appellant.

Nicole L. Gueron, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney, and Jeffrey Oestericher, Assistant United States Attorney, on brief) New York, New York, for Appellees.

Before: KEARSE, MINER, and F.I. PARKER, Circuit Judges.

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F.I. PARKER, Circuit Judge.

Plaintiff, Andrew ("Jack") Jackson Terry, a former Special Agent with the Immigration and Naturalization Service ("INS") appeals from a decision of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge ) granting summary judgment to defendants. See Terry v. United States, No. 98 CIV. 8249, 2000 WL 204522 (S.D.N.Y.2000). Terry had alleged that defendants violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq., by discriminating against him on the basis of race, gender, and age; by retaliating against him for filing related complaints with the agency's Equal Employment Opportunity ("EEO") office; by creating a hostile work environment; and by eventually constructively discharging him. Terry also alleged that defendants violated his rights under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140, alleging that the fact that he was not vested in his pension was a basis for defendants' decision to constructively terminate him. On appeal, Terry argues that defendants were not entitled to summary judgment.


The facts as largely set forth in the district court's opinion are as follows.

Plaintiff, a white male born in 1946, began working for the INS in 1976 at the age of 30 as a Special Agent in the New York District Office, and continued to work for the INS in various positions until 1997.

In October 1992, the INS published Vacancy Announcement 92-59 for the position of supervisory criminal investigator ("Vacancy 92-59"). Plaintiff applied for promotion to this vacancy. Lesley Smail, an INS personnel staffing specialist, reviewed candidates' applications and created a "Best Qualified List" ("BQL") which, according to defendants, indicated those candidates who were best qualified for the position. According to INS policy, such lists are sent to the selecting officer who may nevertheless select a candidate who is not listed. Plaintiff was neither placed on the BQL nor selected for the position. Rather, on December 4, 1992, INS New York District Director William Slattery selected Farrell Adams, an African-American male born in 1954 whose name was on the BQL.

In response to Adams' selection, Terry filed a complaint with the EEO alleging that race and age-based discrimination were behind the decision not to promote him. Plaintiff alleges that he was wrongfully excluded from the BQL and wrongfully denied promotion due to his race and age, as evidenced by the INS's promotion of a younger black man of allegedly inferior qualifications. Defendants contend that the list was compiled without consideration of race or age, and that Slattery selected Adams because Slattery had been impressed by Adams' performance on a difficult assignment for which Adams had volunteered. Slattery swore under oath that he did not know the names of applicants who were not listed on the BQL.

In 1993, the INS published an announcement for Vacancy 93-01 for the position of supervisory criminal investigator ("Vacancy 93-01"). Again plaintiff applied and a "Best Qualified List" was compiled. This time plaintiff's name appeared on the BQL along with those of 14 other employees. Slattery, INS Deputy District Director Edward McElroy, and INS Assistant District Director for Investigations Daniel Molerio reviewed the BQL and selected three other employees: two females under

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the age of 40, and one white male over 40 who was a few years older than plaintiff.

Plaintiff contends that he was denied promotion to Vacancy 93-01 because of his age. 2 In support of this claim, he points to the INS form used to rank candidates (the "Candidates Ranking Form"), apparently compiled by Smail, which shows that he was ranked higher than one of the women promoted. He also testified that Molerio later told him that he would not be promoted because of his age. Specifically, Terry testified that Molerio said to him: "How old are you now? ... Look around you. Everyone else is getting promoted. You're not. Why?" 3 Defendants contend that plaintiff was denied promotion because other employees on the BQL were considered superior and plaintiff was quarrelsome and unexemplary. Terry disputes this characterization, and alleges that he has received written commendations for his "outstanding interpersonal skills." 4

In November 1993, Terry filed a complaint with the EEO alleging that the decision not to promote him to Vacancy 93-01 was discriminatory. In January 1994, plaintiff was hospitalized for chest pains and diagnosed with mitral valve prolapse. The following month he filed a claim for worker's compensation based on his chest pains. Shortly thereafter, Terry attended the "Police Olympics" where he won five gold medals. On June 16, 1994, after learning of Terry's participation in the Police Olympics, Assistant District Director McElroy suspended plaintiff's authorization to carry a firearm and ordered him to undergo a "fitness for duty" medical exam. After undergoing such an exam, Terry was restored to full duty status on August 17, 1994. On September 1, 1994, plaintiff filed an EEO complaint alleging reprisal for his earlier complaints. Less than two months later, plaintiff was reassigned to the Criminal Aliens Section where Farrell Adams was his immediate supervisor. Two days after his reassignment, plaintiff had an altercation with Adams in which he alleges Adams threatened him. The next day, plaintiff was informed by Charles Ferrigno, Chief of the Criminal Alien Processing Section, that he was not allowed to ride in government-owned vehicles.

In April 1995, Brian McDonald, a social worker selected by the INS with whom Terry had met, 5 contacted the INS and issued a warning about plaintiff. In an April 23 letter confirming his warning, McDonald listed several INS employees with whom Terry allegedly had a history of conflict, and noted that they "should be mindful of their actions concerning Special

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Agent Terry." McDonald explained that he breached Terry's right to confidentiality because he had a duty to warn which required such a breach. 6 The following day, the INS placed Terry on paid administrative leave. During plaintiff's leave, Dr. John Pappas twice examined Terry on behalf of the INS to evaluate his fitness for duty, concluding in an October 9, 1996 report that plaintiff was fit for duty. Two months later, on December 17, 1996, the INS advised plaintiff that his paid administrative leave would terminate on January 2, 1997 and that he would be reassigned to the Deportation Branch. Plaintiff contends that the significant delay and reassignment were both retaliation for his EEO complaints.

Plaintiff began work with the Deportation Branch on January 2, 1997. In order to perform field work, however, Terry was required to carry a firearm. To do that, he was required to "qualify" on a firing range. Plaintiff claims that when the firearms qualification schedule was posted two weeks later, his name was omitted from the list in retaliation for his EEO complaints. 7 In support of this allegation, he cites a recorded conversation in which his supervisor Ethan Enzer explicitly stated that he had no clearance to send Terry to the range because of Terry's "ongoing pending action."

On February 7, 1997, plaintiff went on medical leave to have surgery on his toe, and remained on leave until he "retired" that June. Plaintiff alleges that he was constructively discharged as a result of the hostile treatment he endured during the course of his employment.


On February 18, 2000, the United States District Court for the Southern District of New York granted defendants' motion for summary judgment on all claims and dismissed Terry's complaint. Judgment was entered on February 24, 2000.

In granting summary judgment, the district court found that Terry had not stated a prima facie case of either age or racial discrimination in connection with the failure to promote him to Vacancy 92-59 because he could not demonstrate that he had been excluded from the BQL for a discriminatory reason. The district court credited Smail's testimony that she had not considered age or race in forming the list. In addition, the district court found that even if Terry had established a prima facie case...

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