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July 9, 2004.

DiSTEFANO, THOMAS A., Plaintiff,
HSBC BANK, Defendant.

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge


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.*fn2 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.*fn3 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.*fn4 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).*fn5

  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."*fn6 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.

  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."*fn7 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.*fn8 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."*fn9 Summary judgment may be appropriate in discrimination cases.*fn10

  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.*fn11 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."*fn12 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."*fn13

  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,*fn14 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.*fn15 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.*fn16 Consequently, DiStefano has failed to raise a genuine issue of material fact whether he applied for a specific position.*fn17 Accordingly, DiStefano's remaining claims will be dismissed because he failed to satisfy the second prong of McDonnell Douglas.

  Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and that the Clerk of ...

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