An employee of the Port Authority of New York and New Jersey New Jersey
In this appeal to the United States Circuit Court of Appeals, Second Circuit the court initially noted the case was captioned: “Female Port Authority Officer 47708,” until now notwithstanding the fact that the employee did not object to the use of her name in court.
With respect to filing a complaint under a pseudonym, the Second Circuit, citing Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, explained that "[g]iven the presumption in favor of open records, a district court may permit a plaintiff to use a pseudonym only in the unusual circumstances in which 'the plaintiff’s interest in anonymity' outweighs both the public interest in disclosure and any prejudice to the defendant.”
However, the district court never made such a determination, nor, said the Second Circuit, did it "discern any basis for permitting to proceed under a pseudonym,"* and directed the Clerk of Court is directed to amend the caption to read as follows:
Kathleen Howard, Plaintiff-Appellant, v. Port Authority of New York and New Jersey, Port Authority Police Department of New York and New Jersey, John Degnan, Chairman, Michael Fedorko, Superintendent, Police Officer, 18-2423-CV
Howard's Discrimination Complaint
The federal district court dismissed Howard's complaint that (1) she suffered sexual harassment and (2) was terminated from her position as a Port Authority probationary police officer on the basis of her sex, both in violation of 42 U.S.C. §2000e et seq. and 42 U.S.C. §1983. On appeal, however, Howard argued only that she was discriminated against "because she is a woman."
Turning to the merits of this aspect Howard's complaint, the Second Circuit said that Howard primarily substantiates her sex discrimination claim by arguing that [1] although she informed police investigators that she could not recall answers to their questions and was fired, her similarly situated male colleagues lied to police investigators and were not fired and [2] that the Port Authority’s proffered reason for her termination is false.
Apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , the court explained that a plaintiff must [1] establish a prima facie case of discrimination, which [2] shifts the burden to the employer to come forward with a legitimate, nondiscriminatory reason for the adverse employment action. At the summary judgment stage, once the employer comes forward with a permissible reason for the adverse employment action, the plaintiff must present evidence from which a reasonable jury could find that the employer’s justification is a pretext for intentional discrimination.
Here the Circuit Court rejected the Port Authority argument that Howard did not possess the minimal qualifications to be a police officer because she is not a truthful person because the Port Authority did not raise this argument with the district court and it "decline[d] to consider this waived argument."
Assuming, but not deciding, that Howard has satisfied her “minimal” burden to establish that she was “similarly situated in all material respects” to fellow probationary police officers who were not terminated despite engaging in conduct materially similar to Howard’s conduct, the Circuit Court addressed the question of whether Howard has presented evidence from which a reasonable jury could find that she was the victim of intentional sex discrimination by applying the "Reeves" test.**
Reeves requires the court “to examine the entire record” and “make [a] case-specific assessment as to whether a finding of discrimination may reasonably be made.” "After thoroughly reviewing the record," the Circuit Court concluded that a reasonable jury could not find by a preponderance of the evidence that Howard’s termination was motivated by her sex. In the words of the court, "[a]ssuming that Howard has presented sufficient evidence to carry her de minimis burden of establishing a prima facie case, on the record here, such evidence—even combined with some evidence of pretext—is insufficient as a matter of law to carry her ultimate burden at trial."
* The Court also noted that "until now even though the employee did not object to the use of her name in court."
** Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
The decision is posted on the Internet at: