Opinion
Case No. 02-CV-4157 (FB)(LB)
November 24, 2003
PATRICK D'CUNHA, Pro Se, Flushing, NY, for Plaintiff
JAMES BUCCI, ESQ., GREGORY HYMAN, ESQ., Spector, Gadon Rosen, P.C., Philadelphia, PA, for Defendants
MEMORANDUM ORDER
Alleging that defendant Genovese/Eckerd Corporation ("Eckerd") refused to hire him because of his age, pro se plaintiff Patrick D'Cunha ("D'Cunha") brings this action pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Eckerd moves for summary judgment. Concluding that there are no genuine issues of material fact and that Eckerd is entitled to judgment as a matter of law, the Court grants Eckerd's motion.
I.
The following facts, drawn largely from D'Cunha's Affidavit in Opposition to Defendant's Motion ("D'Cunha Aff."), are taken as true for purposes of Eckerd's motion. See Saks v. Franklin Covey Co., 316 F.3d 337, 348 (2d Cir. 2003) ("we must accept as true the allegations of the party defending against the summary judgment motion") (citation omitted). D'Cunha, a native of India, was born in 1952. He arrived in the United States in 1990, graduated from St. John's University School of Pharmacy in 1994, has held various pharmacy-related jobs, and lives in Flushing, New York. He holds a Pharmacist's license from New Jersey, but not New York. Eckerd owns and operates a chain of drug stores.
In July of 2001, D'Cunha received in the mail a flier from Eckerd pertaining to job openings for pharmacists throughout Eckerd's New Jersey locations. The flier featured on its cover "a photo of a very young pharmacist." D'Cunha Aff. at ¶ 4.12(i). In response to the flier, D'Cunha telephoned Jenifer Dolan ("Dolan"), Eckerd's Pharmacy Recruiter for the North and Central New Jersey Region. Dolan conducted a phone interview with D'Cunha on August 1, 2001, during which D'Cunha related enough of his prior experiences for Dolan to infer that D'Cunha was over the age of forty, although he did not explicitly tell her how old he was. D'Cunha told Dolan that he was flexible as to working on holidays and weekends, and that although he preferred a position closer to New York City, he was willing to relocate.
Dolan told D'Cunha that she would refer his name to Jimmy Tran ("Iran"), Eckerd's District Pharmacy Supervisor for the New York Metro Region. Three weeks later, Tran still had not contacted D'Cunha, leading D'Cunha to "give up hope of getting th[e] position, because I believed that Mr. Tran had already decided not to hire me." D'Cunha Aff. at ¶ 4.26(h). However, during the evening of August 27, 2001, Tran phoned D'Cunha and scheduled an interview for the next morning; D'Cunha alleges that
[I]n spite of Mr. Tran's attempt to unsettle me by informing me just [the] previous night about an interview at 9:00 a.m. the next day, I managed to reach the interview location without any difficulty [.] I believed this incident was a clear instance of Mr. Tran's negative bias toward people who are old (40 years).Id. at ¶ 4.26(m, n). At the interview, D'Cunha provided his resume and a completed application form. Because they were face-to-face, Tran observed D'Cunha's "double chin, wrinkled skin and grey hair." Id. at 4.30(b). Tran later ran a credit check on D'Cunha, which, according to D'Cunha, allowed Tran to discover "not only that I was over 40 years old, but he found out my exact age and decided definitely not to hire a 49 year old man." Id. at ¶ 4.28(z). Despite the existence of several job openings and D'Cunha's professed willingness to relocate and accept temporary or "floater" positions, Tran did not extend an offer of employment to D'Cunha. He did, however, extend one to another candidate, Arleen Stern ("Stern"), a forty-seven year old woman with twenty-five years' experience.
On February 12, 2002, D'Cunha telephoned Dolan to inquire about his application and express his intention to file an age discrimination charge against Eckerd. D'Cunha and Tran met one week later. Although there was a position available in Sussex, New Jersey, Tran was told by the store manager that it was not readily accessible by public transportation, leading Tran to believe that D'Cunha, who did not have an automobile, would not be interested in it. D'Cunha contends that indeed he was interested in the position and that he later learned that "[t]here is a shuttle bus that stops about 5 to 10 blocks from the store." Id. at ¶ 4.48. Tran once again declined to extend an offer of employment to D'Cunha; instead, a position was offered to a forty-two year old woman, Deanna Babeu ("Babeu"), who accepted. Eckerd declined to offer D'Cunha the job based on his lack of experience and its belief that D'Cunha was not interested in the position because it was not close to public transportation. See Plaintiffs Decl. at Exh. Q (bi-weekly field recruitment activity report stating "no offer extended based on experience"); Defendant's Decl. at Exh. G (deposition testimony of Tran that Sussex position was "too far for the plaintiff"). D'Cunha alleges that Eckerd's reasons "are mere excuses (pretexts) to hide the real reason which is unlawful discrimination because of my age (49)." Id. at 4.28(s).
On April 3, 2002, D'Cunha filed an age discrimination charge with the Equal Employment Opportunity Commission ("EEOC"), which, after determining that it was "unable to conclude that the information obtained establishes violations of the statutes[,]" issued a right-to-sue letter. As part of its motion for summary judgment, Eckerd served D'Cunha with a "Notice to Pro Se Litigants Opposing Summary Judgment," as required by Local Rule 56.2.
II.
A motion for summary judgment may not be granted unless the Court determines that there is no genuine issue of material fact to be tried and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "[T]he moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). Although pro se plaintiffs' papers are to be read "liberally" and interpreted to "to raise the strongest arguments that they suggest," Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003), the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[T]he nonmoving party [must] go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admission on file,' `designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).
The ADEA provides that "it shall be unlawful" for employers to "refuse to hire . . . any individual [who is at least 40 years of age]. . . because of such individual's age[.]" 29 U.S.C. § 623(a)(1), 631(a). To establish a prima facie case of age discrimination under the ADEA, a claimant must demonstrate that: 1) he was within the protected age group; 2) he applied for a job for which he was qualified; 3) he was rejected; and 4) the rejection occurred under "circumstances giving rise to an inference of discrimination." Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003); see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.").
The only circumstances D'Cunha cites to substantiate his claim that Eckerd refused to hire him because of his age are (1) the existence of a picture of a young woman on the flier D'Cunha received from Eckerd; (2) Tran's telephone call of August 27, 2001, in which he scheduled an interview for the following day; (3) Tran's and Dolan's knowledge that D'Cunha was more than 40 years old; and (4) Tran's allegedly pretextual statement that he believed D'Cunha was not interested in the Sussex position because it was not sufficiently near public transportation. These facts simply do not permit a reasonable factfinder to infer that Eckerd discriminated against D'Cunha on the basis of his age. Despite the caution customarily exercised by courts in assessing summary judgment motions in employment discrimination cases involving intent, a "plaintiff [still] must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). In addition, the Court notes that Eckerd extended job offers to Stern, who was forty-seven, and Babeu, who was forty-two, further undermining D'Cunha's claim. See James v. New York Racing Ass'n, 233 F.3d 149, 152-153 (2d Cir. 2000) (affirming grant of summary judgment; lack of age-based animus established in part by "uncontradicted evidence" that defendant had recently hired sixty-six and sixty-seven year old employees); Zhang v. Barr Laboratories, Inc., 2000 WL 565185, at *7 (S.D.N.Y. 2000) (granting summary judgment; "defendant submitted undisputed evidence of the ages of other [employees of defendant] who were over the age of fifty when they were hired to work"). D'Cunha's meager, unsupported allegations of age discrimination are insufficient to establish a prima facie case of age discrimination, making summary judgment against him appropriate. See Mitchell v. Washingtonville Cent. School Dist., 190 F.3d 1, 9 (2d Cir. 1999) (plaintiff "failed to make out a prima facie claim of discrimination . . . [s]ummary judgment in favor of the [defendant] was, therefore, properly granted").
CONCLUSION
Eckerd's motion for summary judgment is granted.
SO ORDERED.