Rosen v. Thornburgh
| Decision Date | 13 March 1991 |
| Docket Number | No. 448,D,448 |
| Citation | 928 F.2d 528 |
| Parties | 55 Fair Empl.Prac.Cas. 580, 56 Empl. Prac. Dec. P 40,633 Paul ROSEN, Plaintiff-Appellant, v. Richard L. THORNBURGH, as Attorney General of the United States, United States Department of Justice, John Lawn, as Administrator, Drug Enforcement Administration, Carl E. Hinds, as Division Director, New York Division of the Drug Enforcement Administration, Defendants-Appellees. ocket 90-6133. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul Rosen, Brooklyn, N.Y., pro se.
Beverly Kolenberg, Sp. Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for the Southern District of New York, Edward T. Ferguson, III, Asst. U.S. Atty., New York City, of counsel), for defendants-appellees.
Before MESKILL and ALTIMARI, Circuit Judges, and METZNER, Senior District Judge. *
Plaintiff-appellant Paul Rosen, proceeding pro se, appeals from a judgment, entered in the United States District Court for the Southern District of New York (Michael B. Mukasey, Judge ), granting defendants-appellees' motion for summary judgment. Rosen, who is Jewish, alleges that he was unlawfully dismissed from his position as a Special Agent trainee of the Drug Enforcement Administration ("DEA") in violation of, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. The district court granted summary judgment in favor of the defendants on the ground that Rosen had not established a prima facie case of discrimination and, alternatively, that Rosen had failed to rebut the DEA's stated reasons for dismissing him. On this appeal, Rosen contends that the district court failed to consider all of the evidence and to draw permissible inferences in his favor.
For the reasons set forth below, we reverse the judgment of the district court and remand for further proceedings.
On March 23, 1983, Paul Rosen was officially offered a position as a DEA Special Agent, contingent upon the successful completion of a twelve-week training program and a one-year probationary period. At the end of April 1983, the DEA sent Rosen to the Federal Law Enforcement Training Center ("FLETC") in Glynco, Georgia for training. The FLETC is part of the Department of the Treasury and provides training to various law enforcement personnel. For the most part, Rosen's instructors and counselors at the FLETC were DEA Special Agents. However, FLETC employees provided driving instruction and evaluated the driving portion of the training program. On June 3, 1983, as a consequence of an allegedly poor performance on a driving examination, Rosen was dismissed from the FLETC and terminated as a DEA Special Agent trainee. Rosen subsequently filed a Title VII action in District Court, naming as defendants various Department of Justice and DEA officials and
alleging that the defendants had discriminated against him on the basis of his religion.
After a period of discovery, the defendants moved for summary judgment. See Fed.R.Civ.P. 56(b). In support of their motion, the defendants relied predominately upon the deposition testimony and affidavits of FLETC instructor Billie Everett and DEA Special Agent Patricia McCurdy, as well as various DEA internal memoranda. According to the defendants, the evidence demonstrated that on May 14, 1983, Rosen participated in a practical driving session. The session consisted of five different driving exercises and required the trainees to drive around a track at high speeds while executing a series of turns. According to Everett, Rosen's performance was marred by several driving errors, most notably a near collision with another car. As a result, the DEA officials responsible for the FLETC training camp decided that Rosen needed remedial driving instruction and that he would be forbidden from driving a government vehicle until he demonstrated adequate driving skills.
On June 2, Rosen was told to report for remedial training the following day. According to Billie Everett, Rosen's remedial driving instructor, the June 3 remedial driving session consisted of two hours of demonstrations and specific instructions on proper driving techniques. Everett then evaluated Rosen's driving skills, based on a two lap test, and concluded that he failed to meet the DEA's driving standards. Consequently, Everett informed the DEA officials that Rosen lacked basic driving skills and that further remedial training would be of no value. Based on Everett's recommendation, the DEA officials decided that Rosen was unable to satisfy DEA training requirements and dismissed him from the program. Less than one week later, the DEA officially terminated Rosen's employment.
The defendants also noted that since April 1983, nine individuals, including Rosen, have been deemed to have failed the vehicle driving portion of the training program. Three of these nine subsequently satisfied the driving requirement; the remaining six were dismissed, in whole or in part, because of their lack of driving proficiency.
Based on the foregoing, the defendants argued that Rosen was not qualified to be a DEA Special Agent and, therefore, could not establish a prima facie case of employment discrimination. Further, the defendants asserted that Rosen's failure to pass the driving test was a legitimate, nondiscriminatory reason to dismiss him.
Rosen opposed the defendants' motion for summary judgment, arguing that there existed genuine issues of material fact to be tried. Specifically, Rosen disputed the defendants' claim that his dismissal was predicated solely upon his failure to demonstrate adequate driving skills. In essence, Rosen asserted that he was capable of satisfying the DEA driving requirement and that the test he failed was improperly administered by DEA and FLETC staff members who were motivated by anti-Jewish animus.
To support his allegations, Rosen provided a detailed affidavit setting forth his version of the relevant events. According to Rosen, upon arrival at the FLETC, Robert Drew Moren, the DEA class coordinator, welcomed the new trainees by advising them that the DEA had been "stabbed in the back by Congress, the Courts and other commie pinko fags who were out to destroy this organization." Shortly thereafter, DEA Counselor Patricia McCurdy derisively asked Rosen what kind of name "Rosen" is, and stated that she did not like the name and would henceforth call him "Franklin." During one class, Rosen claims that an instructor questioned him about whether he enjoyed lox and bagels and repeatedly referred to New York as "Rosenland." In another class, apparently as part of a lecture on the cultural diversity that a Special Agent must be prepared to encounter, the Rosen also asserts that his counselors and instructors condoned the anti-semitic behavior of his DEA classmates. In particular, one trainee called Rosen a "half-breed jew bastard" and made other religious slurs. Although the staff was aware of this trainee's expressed anti-semitism, Rosen was paired with this individual for various practical training sessions.
instructor explained that Jews only care about their money. Another instructor made derogatory remarks about the Jewish population in Miami, Florida.
Over the Memorial Day Weekend, after approximately six weeks at the FLETC, Rosen was permitted to visit his home in New York. While in New York, Rosen consulted with an attorney about his experiences during DEA training. When he returned to the FLETC, based upon the lawyer's advice, Rosen informed his DEA counselors that he wished to file a formal discrimination complaint. The counselors advised Rosen against taking any action or publicly discussing his complaints. Nonetheless, Rosen insisted that his claims of discrimination be addressed. Consequently, on June 1, 1983, Robert Drew Moren met with Rosen to discuss his grievances. According to Rosen, Moren became extremely annoyed after Rosen described his numerous encounters with anti-semitism at the FLETC. Moren insisted that any problems encountered within the DEA must be resolved internally and that Rosen should not discuss his complaint with anyone outside the DEA.
On June 2, the day after Rosen's acrimonious meeting with Moren, Rosen was told to report for remedial driving instruction on June 3. Rosen concedes that he had previously heard rumors from fellow trainees that he had not adequately performed in the practical driving session conducted on May 14. Indeed, Rosen acknowledges that his performance was marred by a near collision with another car, which was driven by FLETC instructor Billie Everett. Rosen contends, however, that the mishap was Everett's fault. Rosen also claims that, following the near accident, Everett decided to ride in his car and provide him with specific driving instructions. These instructions, however, were virtually incomprehensible and caused Rosen to drive erratically. Despite the foregoing, it was not until June 2 that Rosen was informed that his driving skills were deficient, and that they potentially imperiled his status as a DEA Special Agent. Moreover, throughout this period, Rosen was permitted to drive government vehicles.
On June 3, at 6:00 a.m., Rosen reported to the driving course and discovered that Billie Everett would be his instructor. According to Rosen, the remedial instruction consisted of Everett driving through the course once while explaining his technique to Rosen, who was in the passenger seat. After completing the lap and providing some additional tips, Everett exited the car and directed Rosen to drive through the course. As Rosen drove, Everett (apparently communicating via two-way radio) gave him a few directions concerning the proper speed to maintain; Everett did not provide any other significant instructions or criticism. Once Rosen completed a single lap, he was...
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