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Malton v. Federal Reserve Bank of New York

July 18, 2008


The opinion of the court was delivered by: William J. Martini, U.S.D.J.


Defendant has filed a motion for summary judgment seeking to dismiss all four counts of Plaintiff's complaint. Plaintiff alleges that Defendant, Plaintiff's potential employer, engaged in racial discrimination, age discrimination, and retaliation against Plaintiff. Additionally, Plaintiff, a partially disabled veteran, claims that Defendant illegally denied him the preferential hiring consideration he was due as a veteran. This Court finds that Plaintiff has failed to meet his burden of proof for his claims of age discrimination and retaliation and finds that Plaintiff's claims of racial discrimination and failure to receive preferential hiring are procedurally defective. Accordingly, Defendant's motion is GRANTED.


This is an employment discrimination case. Plaintiff asserts that his prospective employer, Defendant, engaged in illegal discrimination and retaliation by failing to hire him.

Plaintiff is Andrew Malton. Malton, an African-American male (Am. Compl. ¶ 14), was forty years old when he first applied for a job with Defendant (see Mem. of Law in Supp. of Def.'s Mot. for Summ. J. Ex. 1 at 8:6--7, 23:24--25). Malton is also a partially disabled veteran. (Am. Compl. ¶ 21; Mot. Ex. 1 at 66:17.)

Malton applied for a position as "protection officer" with the Defendant, the Federal Reserve Bank of New York ("FRBNY"). (Mot. 2; Mot. Ex. 1 at 49:15--16.) Malton was interviewed by an FRBNY staff director. (Mot. 2--3.) Malton thought that the interview went well but heard nothing from the FRBNY for over a year after the interview. (Mot. Ex. 1 at 25:19--20, 26:14--15.)

Malton discussed the lack of response with two friends, Morris Brown and Kenneth Weston, who had also failed to receive a response from the FRBNY following their job applications. Brown and Weston are both older than Malton. (Mot. Ex. 1 at 33:9--11.) Malton and the others decided to file complaints with the Equal Employment Opportunity Commission (EEOC) claiming age discrimination. (Mot. 3--4.)

The FRBNY apparently responded to the complaints by entering into settlement agreements with each of the three men. The parties agreed, inter alia, that the men would not bring suits against the FRBNY and that the FRBNY would grant each man a second job interview. (Mot. Ex. 1 at 36:5--11.) After the job interviews took place, the FRBNY indicated that it would hire the men if they passed psychological examinations. (Mot. Ex. 1 at 42:9 -- 11.)

Following this conditional hiring, Malton took the required psychological examination on July 29, 2006. (Mot. Ex. 1 at 42:14--15.) The FRBNY retains a clinical psychologist, Dr. Edward Fitzsimmons, to conduct these examinations. (Mot. Ex. 4 at 6:8--12, 7:2--6.) Dr. Fitzsimmons reported that Malton had a "high anxiety level" and "problems with logic, concentration, and organizing his thinking." (Mot. Ex. 5 at 5.) Further, Dr. Fitzsimmons reported that Malton had "difficulties comprehending and following basic instructions, showed some signs of cognitive confusion" (Mot. Ex. 5 at 5), and that Malton took over three hours to complete a test that the "average candidate completes . . . in ninety minutes" (Mot. Ex 5 at 2).

As a result of this examination, Dr. Fitzsimmons determined that Malton was not suitable for the job of Protection Officer. (Mot. Ex. 5 at 5.) Brown and Weston, however, passed their tests and were both hired by the FRBNY. (See Mot. Ex. 1 at 71:18--72:16.)

Malton then filed a second complaint with the EEOC, alleging not only age discrimination, but also retaliation. (Mot. Ex. 7.) The EEOC informed Malton that it would not pursue his complaint. (Mot. Ex. 9.) Malton then filed this suit alleging four claims: (1) racial discrimination, (2) age discrimination, (3) retaliation, and (4) failure to give preferential hiring consideration to a veteran.

Defendant now presents the instant motion for summary judgment on all claims. Malton has not opposed Defendant's motion.


A court may grant summary judgment when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine if a reasonable jury could find for the nonmoving party, and a fact is material "when it 'might affect the outcome of the suit under the governing law.'" Connors v. Fawn Mining Corp., 30 F.3d 483, 489 (3d Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248 (1986)). On a motion for summary judgment, the Court must draw all inferences from the record in the light most favorable to the nonmoving party. Id. However, "[t]o defeat a motion for summary judgment, the nonmoving party must set forth specific facts ...

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