Opinion
No. 04 Civ. 00074 (PKC).
July 5, 2005
MEMORANDUM AND ORDER
Plaintiff Wanda J. Smiarowski, who brings this action pro se, alleges that defendant Philip Morris USA Inc. ("Philip Morris") violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., ("ADEA"). Read generously, she alleges that Philip Morris discriminated against her on the basis of age in not interviewing or hiring her for various positions within the company. In or around August 2002, the defendant ran a newspaper advertisement that solicited applications for a financial analyst position. (Complaint at 4) Smiarowski, who was born in 1947, saw the advertisement, and completed the on-line job application that asked the applicant to identify the "[y]ear you started working professionally." (Complaint at 4) She contends that the question was a disguised means for inquiring into her age, and that she was denied employment on the basis of her age. (Complaint at 3)
This action was filed on January 6, 2004. Discovery is closed. The defendant now moves for summary judgment, pursuant to Rule 56, Fed.R.Civ.P., contending that there are no triable issues of fact and that the action should be dismissed. For the reasons explained below, the defendant's motion is granted.
Background
Between August 21, 2002 and February 7, 2003, Ms. Smiarowski applied for approximately 14 positions at Philip Morris USA Inc. ("Philip Morris") via the defendant's on-line application procedures. (Smiarowski Dep. at 68, 146) Smiarowski's job applications were reviewed by Joyce Hoggard, a staffing specialist in the defendant's human resources department. (Hoggard Aff. ¶¶ 2, 4) Hoggard decided not to submit Smiarowski's applications to the hiring managers responsible for the eventual employment decisions. (Hoggard Aff. ¶ 6) In her affidavit, Ms. Hoggard states that she did not know Ms. Smiarowski's age at the time she reviewed her application. (Hoggard Aff. ¶ 7) Hoggard, who is 52 years of age, contends that Smiarowski was eliminated from consideration because "she lacked current and/or relevant experience, other candidates possessed superior qualifications, and/or the positions were never filled by [defendant]." (Hoggard Aff. ¶ 6)
After Philip Morris declined to hire her, Ms. Smiarowski filed a joint complaint with the New York State Division of Human Rights ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC"), alleging that the defendant violated the New York State Human Rights Law and the ADEA. (attached at Bloom Aff. Ex. E) The NYSDHR dismissed the complaint, finding that there was no probable cause to believe that the defendant engaged in unlawful discrimination. (attached at Bloom Aff. Ex. F) Plaintiff then sought EEOC review of her NYSDHR Complaint, and the EEOC adopted the NYSDHR's findings. (Bloom Aff. Exs. G, H) Smiarowski then commenced this action, alleging that she was discriminated against on the basis of her age. (Bloom Aff. Ex. B) At her deposition, she acknowledged that her claim is premised on a single question in the on-line application, which requested an applicant to provide the "[y]ear you started working professionally." (Smiarowski Dep. at 75, 80-83)
Summary Judgment Standard
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Rule 56(e), Fed.R.Civ.P. In raising a triable issue of fact, the nonmovant carries only "a limited burden of production," but nevertheless "must `demonstrate more than some metaphysical doubt as to the material facts,' and come forward with `specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Medical Examiners, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).
An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248. Caution is particularly warranted when considering a summary judgment motion in a discrimination action, since direct evidence of discriminatory intent is rare, and often must be inferred. Holtz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001). The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted); accord Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. See Fed.R.Civ.P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id.
Philip Morris served the plaintiff, who is proceeding pro se, with the notice explaining the manner in which a party may oppose summary judgment, as is required by Local Rule 56.2. I am mindful of the latitude afforded to a pro se party opposing a summary judgment motion. See Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) ("special solicitude" owed to pro se litigants opposing summary judgment); Shabtai v. U.S. Dep't of Education, 2003 WL 21983025, at *5 (S.D.N.Y. Aug. 20, 2003) (obligation to construe leniently pro se opposition papers on a summary judgment motion). However, a party's pro se status does not vitiate the requirement that triable issues of fact must be raised in order to defeat a summary judgment motion. Miller v. New York City Health Hosp. Corp., 2004 WL 1907310, at *9 (S.D.N.Y. Aug. 25, 2004).
Discussion
Where there is no direct evidence of discrimination, the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), determines whether a plaintiff's ADEA claim survives summary judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000); Jetter v. Knothe Corp., 324 F.3d 73, 75 (2d Cir. 2003). First, the plaintiff must establish a prima facie case of age discrimination. Id. at 75. If a prima facie case is established, then the burden shifts to the employer to set forth a legitimate, nondiscriminatory reason for the employment action. Id. Lastly, if the defendant has established a legitimate, nondiscriminatory reason for its action, the burden shifts back to the plaintiff to show that this stated rationale is a mere pretext for discrimination. Id. at 75-76.
Defendant argues that summary judgment is appropriate because the plaintiff cannot establish a prima facie case of age discrimination. To establish a prima facie case of age discrimination, a plaintiff must show that he or she is a member of a protected class, qualifies for a position, suffered an adverse employment action, and that surrounding circumstances give rise to an inference of discrimination. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.), cert. denied, 534 U.S. 993 (2001). The plaintiff bears the burden of making out a prima facie case. See Scaria v. Rubin, 117 F.3d 652, 653 (2d Cir. 1997) (per curiam). "The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Id.
The defendant argues that the plaintiff has not and cannot set forth a prima facie case of discrimination. First, the defendant contends that there is no evidence that the plaintiff was qualified for the positions that she sought, and thus is unable to raise a triable issue of fact as to her qualifications. The defendant cites to a series of rulings holding that an applicant's subjective opinion of her qualifications is insufficient, as a matter of law, to raise an issue of fact on this prong of the prima facie case. See, e.g., EEOC v. Trans World Airlines, Inc., 544 F. Supp. 1187, 1219 (S.D.N.Y. 1982) (employee's testimony as to his or her own qualifications carries little weight in a summary judgment motion). Here, the movant has failed to set forth the criteria it applied when considering an applicant's job qualifications. In Scaria, for instance, the record before the district court permitted it to evaluate whether, as measured against IRS's hiring criteria, the plaintiff had raised a triable issue of fact as to whether [he/she] was qualified for a position with the IRS. 117 F.3d at 654-55. Similarly, in Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 127 (2d Cir. 2004), the employer's hiring criteria for the position that the plaintiff sought was clear from the record. Here, Philip Morris has provided no such materials in the record. It argues that plaintiff has not shown that she meets Philip Morris's hiring criteria, which the movant itself has not placed in the record. The only relevant evidence of the defendant's hiring criteria is contained in Ms. Hoggard's affidavit, which states that Ms. Smiarowski lacked current or relevant experience, other candidates had superior qualifications, and/or that the positions were never filled. (Hoggard Aff. ¶ 6)
By contrast, the affidavit submitted by the plaintiff, with accompanying documentation, includes a detailed work and educational history. (Smiarowski Aff. ¶¶ 19-21) Ms. Smiarowski's professional and academic background is extensive: she has a Master's Degree in accounting, an M.B.A. in finance, and worked for more than 15 years in fields including financial analysis. (Smiarowski Aff. ¶¶ 15-17) Without further information as to the defendant's hiring criteria, the record before me would permit a reasonable jury to conclude that the plaintiff was a qualified job applicant. Consequently, I cannot rule that, as a matter of law, Ms. Smiarowski was not qualified for the positions she sought at Philip Morris.
Next, the defendant contends that the age-related request on its on-line job application is insufficient to give rise to an inference of discrimination, and that plaintiff has no other facts giving rise to such an inference. As noted, the application requests information as to the "[y]ear you started working professionally." (Bloom Aff. Ex. B) The job application did not directly request an applicant's age or date of birth. It also included fields in which an applicant could enter educational information, including year of graduation. (Bloom Aff. Ex. B) Plaintiff's action is premised on the contention that the form's request seeks impermissible information as to a job applicant's age, and that Philip Morris's decision not to extend a job offer to Ms. Smiarowski arose from discriminatory, age-based reasons. (Complaint at 4; Smiarowski Dep. at 12)
Defendant contends that it was optional for the applicant to submit his or her year of graduation. That assertion is not supported by the version of the job application that was submitted on this motion, nor in the portion of Ms. Smiarowski's deposition that was cited by the defendant. (Bloom Aff. Ex. B; Def. 56.1 ¶ 7; Smiarowski Dep. at 95)
Other courts in this Circuit have held that a prospective employer's request of a job applicant for his or her date of birth does not, in itself, violate the ADEA. In Chudnovsky v. Prudential Securities, Inc., 2000 WL 1576876, at *8 (S.D.N.Y. Oct. 23, 2000), aff'd, 51 Fed, Appx. 901 (2d Cir. 2002), the court rejected an age discrimination claim anchored in an employer's request for an applicant's age, when the plaintiff's only other evidence supporting an inference of discrimination was a conclusory contention about the defendant's history of discriminatory practices, and a claim that the defendant had been previously sued for age discrimination.Id. at *9. The court concluded that such evidence was insufficient to support a prima facie case of age discrimination.Id. In the case before me, Ms. Smiarowski was asked at her deposition for evidence that she was subjected to discrimination on account of her age. Her response was that the question on the job application permitted Philip Morris to determine her age, and that she was qualified for the various positions. (Smiarowski Dep. at 76-77) Ms. Smiarowski, in response to the defendant's motion, has not set forth any additional facts that support her claim of age discrimination.
I note that in Chudnovsky, there was some additional evidence as to defendant's interest in the plaintiff's age: plaintiff's age was discussed in his meeting with defendant's employees. 2000 WL 1576876, at *9.
Other district courts have reached conclusions similar toChudnovsky. In Landau v. Bolger, 1988 WL 69939, at *1 (E.D.N.Y. June 17, 1988), aff'd without opinion, 867 F.2d 1424 (2d Cir. 1988) (table), the plaintiff alleged an ADEA violation arising out of defendant's failure to hire him for a position with the United State Postal Service. The district court held that, without more, a request on a job application for the applicant's date of birth was insufficient to support an ADEA claim. Id. at *3; see also Cady v. Miss Paige, Ltd., 2004 WL 1144044, at *5 (N.D. Ill. Apr. 30, 2004) ("plaintiff cannot maintain a cause of action for a per se violation of the ADEA simply because Miss Paige requires job applicants to disclose their high school attendance dates and/or graduation dates on an employment application.").
An EEOC regulation also provides that a request for a job applicant's age does not, in itself, establish a claim of age discrimination, though depending on surrounding facts it may constitute some evidence of discrimination:
A request on the part of an employer for information such as "Date of Birth" or "State Age" on an employment application form is not, in itself, a violation of the Act. But because the request that an applicant state his age may tend to deter older applicants or otherwise indicate discrimination based on age, employment application forms which request such information will be closely scrutinized to assure that the request is for a permissible purpose and not for purposes proscribed by the Act.29 C.F.R. § 1625.5; see also 29 C.F.R. § 1625.4(b) (requesting an individual's age in "help wanted notices or advertisements" does not violate the ADEA, although such advertisements will be "closely scrutinized"). As the Seventh Circuit observed inKralman v. Illinois Department of Veterans' Affairs, 23 F.3d 150, 155 (7th Cir. 1994), "[b]ecause the EEOC is the primary agency charged with implementing the ADEA, its interpretation is entitled to great deference."
In the face of defendant's motion, plaintiff has failed to come forward with any fact or circumstance that would give rise to an inference of age discrimination, part of her minimal burden in establishing a prima facie case. The breadth and depth of an applicant's experience is a lawful area of inquiry. A more precisely tailored question might have sought the number of years of professional experience possessed by the applicant. Here, the defendant's inquiry was imprecise because a job applicant could have taken a hiatus from the workforce, and, thus, have experience that is both brief and out-of-date. But if age discrimination were the goal, the question would be a poor screen for older workers. By way of example, a person over age 40 and a person in his or her twenties each may have entered the professional workforce in 2001. I cannot conclude that the overly inclusive phrasing of the defendant's question, without any additional facts supporting an inference of discrimination, is sufficient to make out a prima facie case. Having scrutinized the overall content of the job application, and reviewed the record before me, there is no evidence that would permit a jury to infer that the challenged inquiry had an impermissible purpose.
The defendant received job applications via an external software program, BrassRing. (Smiarowski Aff. Ex. 1A et seq.) Ms. Smiarowski argues that the defendant should have either 1.) purchased a program from the same vendor that did not include questions as to when the applicant began working, or 2.) purchased a program from a different vendor that did not include this or similar questions. (Pl. Mem. at 1) Much of her opposition relies upon a contention that the software used by the defendant could have been configured so as to avoid any questions as to when a job applicant began working. (Pl. Mem. at 2-5) Such a contention, even when supported by evidence, does not raise a triable issue of fact to any possible age-based discrimination. Without more, it is immaterial to the underlying issue of whether any aspect of the defendant's conduct supports an inference of age discrimination.
Because, in response to the defendant's motion, the plaintiff has not come forward with any facts that would give rise to an inference of age discrimination, the defendant's motion for summary judgment is granted. Conclusion
The defendant's summary judgment motion is GRANTED. The Clerk is directed to enter judgment in favor of the defendant, and to dismiss this case.
SO ORDERED.