The opinion of the court was delivered by: Chesler, U.S.D.J.
This matter comes before the Court on the motion for summary judgment filed by Defendant Port Authority Trans-Hudson Corporation ("PATH") [docket item no. 36]. Plaintiff, Anna McClement, has opposed this motion [docket item no. 38]. After consideration of the parties' briefing, the Court has determined that it will grant Defendant's motion for summary judgment. In the following discussion, the Court gives its reasons for the decision.
Plaintiff filed this retaliation and age discrimination action in this Court on February 5, 2009. An Amended Complaint followed on October 28, 2009. Based on the submissions currently before the Court, a brief summary of the relevant events follows.
Plaintiff, age fifty-one, began working for PATH on May 13, 2002 as a certified locomotive engineer. PATH is a bi-state governmental entity that was created in 1921 by a compact between New York and New Jersey, with the consent of Congress. See N.J.S.A. 32:1-1 et seq.; King v. Port Authority of NY & NJ, 909 F. Supp. 938, 943 n.4 (D.N.J. 1995), aff'd, 106 F.3d 385 (3d Cir. 1996). The PATH promotional process begins with a bulletin announcing the promotional opportunity. (Brophy Decl., Ex. E at 10:17-23). In the instant case, a bulletin was posted June 17, 2008 advertising the operations examiner training program in which Plaintiff was interested. (Brophy Decl., Ex. F.) The bulletin explicitly stated: "An unsatisfactory attendance record, and/or pending disciplinary action will disqualify a candidate from this promotional opportunity." Id. PATH's policy is that discipline does not expire until one year after it is instituted and employees can therefore be screened out of promotional opportunities during that year. (Brophy Decl., Ex. E at 60:19-61:21). However, even where an employee is not screened out of the opportunity, management of the hiring PATH Division has the discretion to pick the best candidate. (Brophy Decl., Ex. I at 43:20-22).
On July 6, 2007 Plaintiff used her cell phone to order food while operating a seven train passenger car. (Brophy Decl., Ex. K at 56:11-25). On July 17, 2007, Plaintiff was formally charged with violating the PATH Book of Rules as a result of this incident. (Brophy Decl., Ex. O). Plaintiff herself accepted responsibility for the infraction on July 30, 2007, and her union representative and the Superintendent of Transportation for PATH both signed off on August 1, 2007. Id.
Plaintiff applied for the operations examiner training program on July 1, 2008. (Brophy Decl., Ex. K at 65:20-66:2). Plaintiff was repeatedly advised that she was screened out of taking the promotional test due to her discipline within the prior year. (Brophy Decl., Exs. G, H, Q, R, and S). Plaintiff was among five employees that were screened out of the promotional opportunity. (Brophy Decl., Ex. T at 60:11-15). Plaintiff applied for a subsequent promotion posted October 15, 2008, and was not screened out because her disciplinary period had expired. (Brophy Decl., Exs. X and Y).
On September 27, 2008, Plaintiff filed an EEOC charge, alleging age and gender discrimination arising from events in December 2007. (Brophy Decl., Ex. U). Ultimately PATH officials received a dismissal and notice of rights indicating that Plaintiff's charge was not timely filed. (Brophy Decl., Ex. W).
On December 9, 2008, Plaintiff used a counterfeit parking pass to park in an unauthorized parking space. (Brophy Decl., Ex. GG). When questioned about the origin of the tag, Plaintiff responded that she "got [it] from PATH." Id. On December 12, 2008, Plaintiff was charged with displaying a fraudulent parking permit and for giving an inaccurate account of how she obtained that permit. (Brophy Decl., Ex. NN). On February 9, 2009, a hearing was held to investigate the charges against Plaintiff. (Brophy Decl., Exs. OO and K at 110:1-111:17). As a result of this hearing the charges stemming from the use of the fraudulent parking pass were sustained. (Brophy Decl., Ex. SS). Plaintiff's union representative requested an appeal, which was denied. (Brophy Decl, Exs. UU and VV). Finally, the Public Law Board sustained the denial. (Brophy Decl., Ex. WW).
Summary judgment is appropriate under FED. R. CIV. P. 56 when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by 'showing' ...