(and as confirmed by a Xerox internal memorandum concerning the RIF, see Anne Mulcahy Aff., sworn to Apr. 11, 1997, Ex. C), March 19 was simply the date on which plaintiff was put on inactive status. The fact remains that he was notified of his termination on January 18, 1994.
Plaintiff also contends that his ADEA claim is timely under a continuing-violation theory. Where discriminatory acts occur pursuant to a continuing practice and policy of discrimination, the limitations period may be delayed until the last discriminatory act in furtherance of the policy. Miller, 755 F.2d at 25. Where applicable, this rule allows claims of discrimination to be deemed timely even though they would be untimely standing alone. Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 511 U.S. 1052, 114 S. Ct. 1612, 128 L. Ed. 2d 339 (1994).
There is no simple test for determining whether conduct constitutes a continuing violation. Generally, the "exception applies to cases involving specific discriminatory policies or mechanisms ..." Id.; see, e.g., O'Malley v. GTE Serv. Corp., 758 F.2d 818 (2d Cir. 1985) (enforcement of discriminatory mandatory retirement system is continuing violation). Thus, "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Lambert, 10 F.3d at 53.
Plaintiff's continuing-violation theory is based on the fact that he has alleged that both his termination and Xerox's failure to rehire him when he applied for certain positions in 1994 were discriminatory. Plaintiff contends that these events were part of an ongoing practice of age discrimination.
A plaintiff may rely on a continuing-violation theory to avoid having his claim time-barred "provided such a continuing violation is " clearly " asserted both in the EEOC filing and in the complaint. Miller v. Int'l Tel. and Tel. Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985) (emphasis added). Whether plaintiff in the instant case clearly alleged a continuing-violation theory in his EEOC complaint is doubtful at best; he alleged "that he was laid off and not rehired because of his age," and that the last incident of discrimination, which presumably was defendant's failure to rehire plaintiff, occurred on December 23, 1994, Defendant's Motion Ex. B, but he did not expressly allege that these acts constituted an ongoing, continuing violation.
Even giving plaintiff the benefit of the doubt with respect to the adequacy of his EEOC pleading, the proof does not support his claim of a continuing violation. An employer's failure to rehire a plaintiff who alleges a discriminatory discharge does not give rise to a continuing violation. Were that the case, a terminated employee whose claim would otherwise be time-barred could easily circumvent the ADEA's 300-day filing requirement simply by applying for reinstatement. Burnam v. Amoco Container Co., 755 F.2d 893, 894-95 (11th Cir. 1985) (defendant's failure to rehire plaintiff did not make discriminatory-discharge claim timely); Daughtry v. King's Dep't Stores, Inc., 608 F.2d 906, 909 (1st Cir. 1979) (defendant's termination of plaintiff's employment was a "completed, one-time violation," and its failure to rehire him did not give rise to continuing violation); White v. Zema Systems Corp., 1996 U.S. Dist. LEXIS 16915, No. 95 C 7529, 1996 WL 666683 *3 (N.D.Ill. Nov. 14, 1996) (original discharge and failure to rehire were not part of continuing violation); Long v. Sears Roebuck & Co., 1995 U.S. Dist. LEXIS 17618, No. CIV. A. 95-0141, 1995 WL 699926 *5 (E.D.Pa. Nov. 20, 1995) (fact that plaintiff's administrative charge contained generic allegation that defendant's discriminatory practices were "of a continuing nature" did not suffice to permit plaintiff to add failure-to-rehire claim in his lawsuit, since a "claim for failure to rehire cannot be considered a continuation of the original age-based wrongful discharge"); DeFazio v. Delta Air Lines, Inc., 849 F. Supp. 98, 102 (D.Mass.) (allegedly discriminatory discharge "cannot be transformed into a continuing violation by the mere fact of a refusal to rehire"), aff'd, 34 F.3d 1065 (1st Cir. 1994); Herber v. Boatmen's Bank of Tennessee, 781 F. Supp. 1255, 1263-64 (W.D.Tenn. 1991) ("It is well established that such a termination constitutes a completed act at the time it occurred, and that an employer's failure to rehire does not constitute a continuing violation of the ADEA").
Assuming arguendo that plaintiff's HRL claim is not time-barred, I nonetheless decline to exercise supplemental jurisdiction over it. Although, as explained below, I am not dismissing plaintiff's claim concerning RIGP benefits, that claim and the HRL claim concern entirely different matters and do not "form part of the same case or controversy ..." 28 U.S.C. § 1367(a). In addition, the RIGP claim relates to a relatively narrow issue concerning the proper interpretation of defendant's pension plan, and if the two claims were tried together I believe that the HRL claim could "substantially predominate" over the RIGP claim. 28 U.S.C. § 1367(c)(2).
II. Xerox's Failure to Rehire Plaintiff
Plaintiff alleges that at various times after his termination, up to and including December 1994, he applied for certain positions that became open at Xerox, and that despite his qualifications, all his applications were denied. He alleges that Xerox's rejection of these applications was the result of age discrimination. Plaintiff's EEOC complaint also alleged that plaintiff was not rehired because of his age. Margaret A. Clemens Aff., sworn to Apr. 21, 1997, Ex. B. At least to the extent that this claim relates to job applications that were denied on or after June 11, 1994, then, this claim is timely.
On the merits, however, this claim must be denied. Virtually the only evidence that plaintiff has presented in support of this claim is the fact that he unsuccessfully applied for certain positions. There is nothing in the record indicating that his age had anything to do with Xerox's failure to rehire plaintiff.
In addition, defendants have submitted affidavits by some of the managers who made the decisions about whom to select for the openings that plaintiff had applied for. One of them, Robert E. Hamilton, Jr., states that in November 1994, he was hiring for the position of Curriculum Document Analyst, and that he selected Judy Waldock over plaintiff because he thought she was better qualified. He states that Waldock was fifty years old at the time, just four years younger than plaintiff.
Another manager, Michael Wilcox, states that he was also hiring for the position of Curriculum Document Analyst in November 1994. He states that after reviewing the applications, including plaintiff's he decided that none of the applicants were sufficiently qualified, so he did not hire anyone for that position.
James Kraus, another manager, states that he was hiring for two positions in the same time period, a Service Education Analyst and a Customer Education Analyst. He selected John Smith and Ellen Fike respectively, who were then thirty-four and forty-six years old.
Plaintiff has not rebutted these statements. In fact, at his deposition plaintiff frequently admitted that he did not know who was hired for most of the jobs that he had applied for, or in some cases whether anyone was hired at all. See Layaou Depo. (Clemens Aff. Ex. D) at 73-74, 76, 78, 99, 105. He was able to identify the successful applicant for one position, but when asked how old that person was, plaintiff replied, "Over 40." Id. at 106.
Aside from the fact that some of the people who were chosen for these positions were younger than plaintiff, plaintiff relies on his belief that he was highly qualified for all the positions he applied for. He testified that he believed his age was the reason he was not offered a position because of the "lack of anything else. ... It was not performance, it was not lack of tenure, it was not because I was new; there was no other reason." Plaintiff's Depo. at 96.
An employee's subjective opinion about his qualifications, however, is insufficient to give rise to a triable issue of fact concerning whether the employer's proffered reason for its actions is a pretext for discrimination. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1039 (10th Cir. 1993) (employee's own assessment of his job performance is inadequate to raise issue of fact for trial); Billet v. Cigna Corp., 940 F.2d 812, 825 (3d Cir. 1991) ("The fact that an employee disagrees with an employer's evaluation of him does not prove pretext"). That is particularly true where the employer's decision whether to rehire plaintiff did not depend simply on whether he was qualified, but on whether he was the best candidate for the job. Since for the most part plaintiff does not even appear to know who was hired for these positions, his belief that he was qualified is of virtually no probative value.
Moreover, even assuming that plaintiff was qualified for some of these positions, and that some of these positions went to younger candidates, those facts are merely part of plaintiff's prima facie case. Without some additional proof of age discrimination, they are not enough to defeat a well-founded motion for summary judgment. See Coleman v. Prudential Relocation, 975 F. Supp. 234, 247 ("losing out to a younger candidate, without more, is insufficient to show pretext") (citing Monaco v. Fuddruckers, Inc., 1 F.3d 658, 661 (7th Cir.1993)); Hambas v. Board of Trustees, State Univ. of New York, 1996 U.S. Dist. LEXIS 21806, No. 93-6467, slip op. at 10 (W.D.N.Y. Nov. 7, 1996) (fact that younger candidates were chosen for position sought by plaintiff, without more, did not show that defendant's proffered reason for choosing them was pretextual), aff'd, 116 F.3d 465 (2d Cir. 1997).
The only other evidence plaintiff has that his age was a factor is his allegation that defendant DeMauro was the decisionmaker with respect to some of the positions for which plaintiff had applied. Plaintiff alleges that DeMauro was plaintiff's manager from March 1993 until plaintiff's termination, and that he treated plaintiff poorly. For example, plaintiff alleges that DeMauro would "snub" plaintiff by not acknowledging him in the hallway, and that at one point plaintiff was moved out of his office into a cubicle, and that his office was given to a younger employee. He also alleges that he was told by a coworker that DeMauro once said that it did not make sense to train older employees, because the money would be better spent training younger employees.
This alleged remark, however, is utter hearsay, and plaintiff has not shown any basis for its admissibility. A party "cannot rely on inadmissible hearsay in opposing a motion for summary judgment, absent a showing that admissible evidence will be available at trial." Burlington Coat Factory Warehouse v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) (citations omitted). No such showing has been made.
In addition, the remark concerning training was not made in connection with any decision about whether to rehire plaintiff. Proof of pretext cannot rest upon "statements by decisionmakers unrelated to the decisional process itself ..." Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (O'Connor, J., concurring). "Unless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of a discriminatory [decision]." McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir. 1991). Therefore, "to be probative of discrimination, isolated comments must be contemporaneous with the [decision in question] or causally related to the ... decision making process." Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996). This single alleged remark, then, is not probative of whether Xerox's failure to rehire plaintiff was discriminatory.
In addition, it is evident from the record that even if DeMauro was involved in deciding whom to hire for some positions, many of these decisions regarding other positions were made by other managers. Plaintiff has proffered no evidence at all that any of those managers took plaintiff's age into account, or that they even knew how old he was when they reviewed his applications. In short, plaintiff has presented little more than a bald allegation that Xerox's refusal to rehire him was the result of age discrimination.
I also note that, even if this claim were not dismissed on the merits, it would have to be dismissed as to DeMauro. Individuals cannot be held liable under the ADEA. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.), cert. denied, 513 U.S. 1058, 130 L. Ed. 2d 600, 115 S. Ct. 666 (1994); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir. 1993), cert. denied, 510 U.S. 1109 (1994); Gregor v. Derwinski, 911 F. Supp. 643, 655 (W.D.N.Y. 1996).
III. Claim Relating to RIGP Benefits
The complaint alleges that at the time of his termination, plaintiff was entitled to a supplement to his retirement benefits under the RIGP. Plaintiff states that Xerox deducted from his RIGP benefits an amount equal to the benefits he had received when he was previously terminated in 1983. Plaintiff alleges that this deduction was contrary to the terms of the RIGP as they had been represented to him, and that as a result, he is being deprived of $ 513 per month.
The complaint does not state the legal theory or basis for this claim. Defendants, however, contend that it is in effect a claim under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., and that plaintiff is barred from bringing it at this time because he has not exhausted his administrative remedies as required in this circuit. See Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 594 (2d Cir. 1993). Defendants also contend that plaintiff has not sued the proper parties on this claim, because he must sue the plan itself.
Plaintiff's response does not take a clear position as to whether this is an ERISA claim or not. Plaintiff does, however, deny that the plan requires any exhaustion of administrative remedies prior to filing a lawsuit. Plaintiff also contends that "the plan is Xerox" itself, and that if the plan must be named as a defendant, plaintiff should be granted leave to amend to do so.
I find that this claim is governed by ERISA. It clearly is a claim for benefits under a retirement plan, and therefore it cannot be brought as a state-law claim for breach of contract, which is what it appears to be from the existing complaint. See 29 U.S.C. § 1144(a) (ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan ..."). Accordingly, this claim is governed by ERISA's procedural requirements, including exhaustion of administrative remedies. From the present record, however, it is unclear whether plaintiff has satisfied those requirements. Because of that fact, I will deny defendants' motion for summary judgment on this claim, but grant plaintiff leave to replead the claim as an ERISA claim.
The Second Circuit "has recognized 'the firmly established federal policy favoring exhaustion of administrative remedies in ERISA cases.'" Kennedy, 989 F.2d at 594 (quoting Alfarone v. Bernie Wolff Constr., 788 F.2d 76, 79 (2d Cir.), cert. denied, 479 U.S. 915, 93 L. Ed. 2d 289, 107 S. Ct. 316 (1986). Exhaustion in an ERISA case requires whatever administrative appeals are provided for in the relevant plan or policy. Id.
In the case at bar, the plan states the following under the heading "Claims Denial and Appeal Procedures":
If an application for benefits under a benefits plan governed by ERISA is denied, in whole or in part, you or your beneficiary will receive written notification. This notification will include the reason for the denial with reference to the specific plan provisions on which the denial was based, a description of any additional information needed to process the claim, and an explanation of the claim review procedure. Within 60 days after receiving the denial, if you wish to request reconsideration of your claim denial, you or your beneficiary must submit a written request for reconsideration of the application to the Plan Administrator at the address below.