Opinion
01-CV-0924E(Sr).
July 9, 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, which was granted in part and denied without prejudice in part by an Order of this Court dated March 29, 2004 ("March 29 Order"). The March 29 Order (1) dismissed DiStefano's "claims based on conduct occurring before September 1, 2000" as time-barred, (2) dismissed DiStefano's reasonable accommodation in the job application process claim and (3) denied HSBC's motion without prejudice with respect to DiStefano's remaining claims on the ground that HSBC never submitted DiStefano's job application. On April 27, 2004 HSBC filed its renewed motion for summary judgment seeking dismissal of DiStefano's remaining claims relating to HSBC's decision not to re-hire him. This matter was argued and submitted on June 18, 2004. For the reasons set forth below, HSBC's motion will be granted.
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. 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. In April of 2000 DiStefano was diagnosed as suffering from panic attacks, anxiety and depression.
On September 28, 2000 DiStefano sought re-employment with HSBC by submitting an application for employment. Because he had been terminated, HSBC considered DiStefano 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 applying for 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 internal candidates. Of the two open positions in the Operations Department, one was filled by an internal candidate and the other was canceled. 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 the latter positions 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 of HSBC." In his deposition, however, DiStefano indicated that he had not applied for a particular position and that he had applied for "anything available." DiStefano Dep., at 60-65, 133.
In an Order dated June 29, 2004, this Court directed the defendant to produce certain information, which it did on July 6, 2004. Defendant's July 6 submission confirms that, despite DiStefano's assertions to the contrary during his deposition, former HSBC employee Deborah McCrossan was neither interviewed nor hired for any position in the Operations Department during the relevant period.
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 20, 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." 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.
Anderson, at 248; see also id. 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." 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. 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." Summary judgment may be appropriate in discrimination cases.
St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). 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).
Goenaga, supra note 5, at 18.
Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001).
As noted above, DiStefano's remaining claims are 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 first promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. The McDonnell Douglas burden-shifting analysis first requires plaintiff to establish a prima facie case of discrimination; if the plaintiff meets this burden, the burden 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 Reg'l Econ. Cmty. Action Prog., Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002) (applying McDonnell Douglas test to, inter alia, ADA claims); Mauro v. S. New Eng. Telecomms., Inc., 208 F.3d 384, 386 (2d Cir. 2000) (applying McDonnell Douglas test to an ADEA claim).
Holtz, supra note 10, at 77 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-143 (2000)).
Burdine, supra note 11, at 253.
In determining whether DiStefano has established a prima facie case of discrimination under Title VII, the ADEA and the ADA, this Court must examine whether DiStefano applied for a specific position with HSBC. This Court's March 29 Order required HSBC to either produce DiStefano's application or provide adequate explanation for its absence. Although HSBC has indicated that it cannot locate DiStefano's application, it has nonetheless produced a copy of the electronic form that HSBC completed when it received DiStefano's application. In any event, it is undisputed that DiStefano applied for "anything available." DiStefano Dep., at 60-65, 133. Because DiStefano concedes that he sought "anything available," this Court need not make a negative inference with respect to HSBC's inability to produce DiStefano's application. Consequently, this Court must address HSBC's argument that DiStefano has failed to make a prima facie showing of discrimination because he failed to apply for a specific position.
The second prong of McDonnell Douglas — a case involving a former employee's application for re-employment — requires DiStefano to demonstrate "that he applied and was qualified for a job for which the employer was seeking applicants." McDonnell Douglas, at 802. Although the Second Circuit Court of Appeals has primarily applied this prong in the failure-to-promote context, McDonnell Douglas demonstrates that a former employee seeking to be re-hired must apply for a specific position — i.e., a position for which the employer is seeking applicants. Ibid. DiStefano did not apply for a specific position by submitting an application seeking "anything available." DiStefano Dep., 60-65, 133. Indeed, employers cannot reasonably be expected to consider such an open application for every available position, especially where an employer has hundreds or thousands of available positions at any given time. Although DiStefano testified that he orally asked Bilas about specific positions, he failed to produce any evidence that he applied for any such position. Consequently, DiStefano has failed to raise a genuine issue of material fact whether he applied for a specific position. Accordingly, DiStefano's remaining claims will be dismissed because he failed to satisfy the second prong of McDonnell Douglas.
See, e.g., Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998) ("We read McDonnell Douglas and Burdine generally to require a plaintiff to allege that he or she applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she or he generally requested promotion."); Kinsella v. Rumsfeld, 320 F.3d 309, 314-315 (2d Cir. 2003) (applying Brown in the failure to promote context); see also McKnight v. Graphic Controls Corp., 2000 WL 1887824, at *6 (W.D.N.Y. 2000) (same).
See Kaster v. Safeco Ins. Co. of Am., 212 F. Supp.2d 1264, 1271-1272 (D. Kan. 2002) (granting defendant's summary judgment motion and dismissing plaintiff's discrimination claims because "plaintiff cannot establish a prima facie case of discrimination with respect to his claim that defendant refused to place him in `any available position' because plaintiff has not identified any specific position (other than the ones discussed below) that he should have or would have received absent defendant's alleged discrimination") (citing Brown — see fn. 14), aff'd, 2003 WL 22854633 (10th Cir. 2003); cf. Johnson v. City Univ. of N.Y., 2002 WL 1750841, at *4 (S.D.N.Y. 2002) (granting motion to dismiss because pro se plaintiff "fail[ed] to indicate for which available position CUNY failed to hire him" where he merely alleged that "I feel there were positions available") (citing Brown).
DiStefano Dep., at 64-70, 125-129, 134-135, 152-153. In any event, HSBC indicated that it does not consider oral applications.
Although DiStefano sought any available position, HSBC posted positions available to outside applicants such as Distefano. Consequently, this case is distinguishable from Mauro, supra note 11, at 387, which involved, inter alia, a failure-to-promote claim with respect to un-posted positions. See, e.g., Evans v. Port Auth. of N.Y. N.J., 192 F. Supp.2d 247, 266-267 (S.D.N.Y. 2002) (" Brown and Mauro require both that (1) the plaintiff be unaware of the position or express general interest and (2) the job not be posted.").
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and that the Clerk of this Court shall close this case.