Opinion
01-CV-0924E(Sr).
March 29, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Thomas A. DiStefano filed suit against HSBC Bank ("HSBC") on December 20, 2001 for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). HSBC filed a motion for summary judgment on August 7, 2003 and filed its supporting papers on November 25. DiStefano, who is acting pro se, filed no papers in opposition. This matter was argued and submitted on February 6, 2004. For the reasons set forth below, HSBC's motion will be granted in part and denied in part.
At oral argument, DiStefano attempted to submit documents in opposition to HSBC's motion. This Court directed DiStefano to file such documents with the Court in order that HSBC could review such and have an opportunity to respond. DiStefano, however, never filed any such documents.
DiStefano began his employment with HSBC in 1972. In 1999, he was the Vice President and Manager in charge of check processing in the Operations Department on the third shift. On October 6, 1999 DiStefano collapsed at work and was hospitalized; he was thereafter placed on short-term disability. Doctors were unable to diagnose DiStefano's malady until April of 2000, when he was diagnosed as suffering from panic attacks, anxiety and depression. DiStefano applied and was approved for long-term disability benefits, which became effective and resulted in his termination from HSBC on March 6, 2000. DiStefano knew that he would be terminated as a result of being approved for long-term disability benefits.
On September 28, 2000 DiStefano sought re-employment with HSBC by submitting an application for employment. Because he had been terminated, HSBC considered him as an outside applicant. HSBC posts available positions internally before making them available to outside applicants. Joyce Bilas was the Human Resources Department employee who handled DiStefano's application. HSBC stated that DiStefano did not indicate what position he was seeking and that HSBC therefore considered DiStefano for open managerial or officer positions in the Operations Department during the sixty-day period that his application was active. No such position was available for outside applicants in that time-period, although two such positions were available to and filled by internal candidates. DiStefano spoke with Bilas on the phone several times about available positions. Bilas, however, did not consider DiStefano for either (1) internally posted positions or (2) open positions outside the Operations Department. Bilas indicates that she did not consider DiStefano for positions outside the Operations Department because he did not apply for them — and because HSBC does not consider candidates for any and all available positions because to do so would be administratively inefficient. DiStefano stopped calling Bilas sometime in November of 2000 and his application purportedly expired on November 27, 2000.
DiStefano's EEOC charge indicated that he had applied for "the position of AVP Manager/VP Manager with [HSBC] also any other positions available at HSBC." His application form, however, was not submitted by HSBC in support of its motion.
It is not clear when HSBC received DiStefano's application, which was apparently "submitted" on September 28, 2000 — and which DiStefano believes to have been received on October 2, 2000. See Bilas Decl. ¶ 11; DiStefano Dep., at 59-61.
DiStefano filed a charge with the EEOC on June 29, 2001. After receiving a right-to-sue letter from the EEOC on September 24, 2001, DiStefano filed this action on December 21, 2001.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law * * *." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, supra note 5, at 18. Indeed, in order to survive a motion for summary judgment, plaintiffs in discrimination cases must offer more than "purely conclusory allegations of discrimination, absent any concrete particulars * * *." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). Summary judgment is nonetheless appropriate in discrimination cases. Holtz v. Rockefeller, 258 F.3d 62, 69 (2d Cir. 2001).
In discrimination cases, district courts must be "especially chary in handing out summary judgment * * * because in such cases the employer's intent is ordinarily at issue." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).
DiStefano's Title VII, ADEA and ADA claims are barred as untimely to the extent that they relate to conduct that occurred before September 1, 2000 — i.e., more than 300 days before he filed his EEOC charge on June 29, 2001. Consequently, DiStefano's claims based on conduct that occurred before September 1, 2000 are timebarred. Inasmuch as DiStefano's last day at work was October 6, 1999 — and that his last day as an HSBC employee was March 6, 2000 — HSBC's alleged conduct as DiStefano's employer is not actionable.
42 U.S.C. § 2000e-5(e)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA); 29 U.S.C. § 626(d) (ADEA); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10 (2002) (discussing section 2000e-5(e)(1)); Flaherty v. Metromail Corp., 235 F.3d 133, 136 n. 1 (2d Cir. 2000) ("To sustain a claim for unlawful discrimination under Title VII and/or the ADEA, a plaintiff must file administrative charges with the EEOC within 300 days of the alleged discriminatory acts."); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325, 327-328 (2d Cir. 1999) (discussing the 300-day limitations periods for ADA and ADEA claims); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996) (noting that section 2000e-5(e)'s 300-day filing requirement "is analogous to a statute of limitations"); Carcasole-Lacal v. Am. Airlines, Inc., 2003 WL 21525484, at *4 (E.D.N.Y. 2003) (dismissing ADEA claim based on untimeliness under section 626(d)).
DiStefano's remaining claims are thus based solely on HSBC's decision not to hire him when he applied in the fall of 2000. These claims will be reviewed under the burden-shifting framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. The tripartite McDonnell Douglas test first requires plaintiff to establish a prima facie case of discrimination; if the plaintiff meets this burden, the onus of production then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its actions and, if defendant meets this burden, the " McDonnell Douglas framework * * * disappear[s] and the sole remaining issue * * * [is] discrimination vel non." Nevertheless, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 n. 3 (1983); see also Regional Economic Cmty. Action Prog., Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir.) (applying McDonnell Douglas test to, inter alia, ADA claims), cert. denied, 537 U.S. 813 (2002).
Holtz v. Rockefeller Co., 258 F.3d 62, 77 (2d Cir. 2001) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142-143 (2000)).
Burdine, supra note 9, at 253.
HSBC noted that DiStefano testified at his deposition that he required no "special accommodations to fill out an application." See DiStefano Dep., at 87. Accordingly, DiStefano's claim that HSBC failed to provide him with "reasonable accommodations to the application process" will be dismissed.
In determining whether DiStefano has established a prima facie case of discrimination under Title VII, the ADEA and/or the ADA, this Court must examine whether DiStefano applied for a position with HSBC. HSBC stresses the purported fact that DiStefano did not apply for a specific job. HSBC cites to DiStefano's EEOC charge as evidence of what position he sought. DiStefano's job application itself, however, is the best evidence of such position(s). This Court is disinclined to grant HSBC's motion for summary judgment against a pro se party — based largely on what was and was not included in DiStefano's job application — absent submission to this Court of such application, which this Court assumes to be in HSBC's possession. Absent DiStefano's application or an adequate explanation for its absence, this Court finds that HSBC's summary judgment motion is not properly supported by the record under the circumstances of this case. Accordingly, HSBC's motion for summary judgment dismissing DiStefano's remaining claims will be denied without prejudice.
Cf. Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) ("[S]pecial solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment.").
In the event that HSBC files a new motion for summary judgment, it shall (1) file all of its discovery responses, and (2) attach as an exhibit to its moving papers DiStefano's job application submitted in September of 2000 — or explain why such cannot be provided.
HSBC failed to file any of its discovery responses in violation of Rule 7.1(a) of this Court's Local Rules of Civil Procedure, which provides that "all discovery materials in pro se cases shall be filed with the Court." (Emphasis added). Although HSBC filed its interrogatories directed to plaintiff, it failed to file any discovery responses — which are encompassed by the broad term "discovery materials."
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted in part and denied without prejudice in part, that plaintiff's claims based on conduct occurring before September 1, 2000 are dismissed as time-barred, that plaintiff's reasonable accommodation in the job application process claim is dismissed, that plaintiff's remaining claims will not be dismissed at this time, that defendant may file a new motion for summary judgment — one that conforms with this Order as directed above — by May 26, 2004, otherwise, the parties shall appear before Part III of this Court on June 4, 2004 at 3:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.