The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge
Plaintiff, proceeding pro se, commenced this action on August
28, 2002 against defendant Protection One Alarm Monitoring, Inc.,
alleging violations of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. ("Title VII"), and the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et
seq. Plaintiff claims that defendant's decision to rescind its
contingent offer of her employment was discriminatory. Defendant
moved to dismiss plaintiff's age discrimination claim on December
12, 2002, which the undersigned granted on June 13, 2003 because
plaintiff had failed to exhaust her administrative remedies and
because her age discrimination claim was not "reasonably related"
to any of the allegations of race discrimination in her Equal
Employment Opportunity Commission charge. Before the Court today
are defendant's January 10, 2005 and plaintiff's January 12, 2005
motions for summary judgment. For the reasons set forth below, plaintiff's Motion
will be denied, defendant's Motion will be granted and
plaintiff's claims will be dismissed.
The facts pertinent to defendant's motion and viewed in the
light most favorable to plaintiff the non-moving party , are
found as follows and are undisputed except where otherwise noted.
Defendant is a provider of residential and commercial alarm
services. Defendant sells its services through inside
salespersons called Residential Security Consultants ("RSCs").
RSCs solicit, arrange appointments with and meet with new and
existing customers in an effort to secure sale of defendant's
alarm services. RSCs must meet with new and existing customers at
their homes and businesses and, as such, the position requires
extensive driving. This is stated in the RSC job description and
in defendant's Fleet Safety Manual to wit, to fulfill the
requirement of an RSC position, the applicant must have a valid
driver's license and a good driving record.
In August 2001 plaintiff, an African American female, applied
for an RSC position. Plaintiff was interviewed and, via an August
15, 2001 letter ("August 15 letter"), received a contingent offer
for an RSC position with defendant. Defendant's August 15 letter
explained the conditions of the job offer and explained that the
offer was conditional upon notification that she had fulfilled
the conditions of the offer. Defendant subsequently rescinded
that offer in an August 20, 2001 letter that explained that the
contingent offer was rescinded because plaintiff did not have a
valid driver's license that such was required for the RSC position. Plaintiff admits that she does not have a driver's license, but
claims that she interviewed for and was offered a home sales
position. Defendant, in response, claims that it does not have a
home sales position. Furthermore, the August 15 letter clearly
states that defendant was extending plaintiff "an offer of
employment for the position of Residential Security Consultant",
which "is contingent upon the satisfaction of several items * * *
identified on the enclosed `Conditions of Offer' form." (Aff. of
Theodore McHugh, Jr., Ex. 4.) The Conditions of Offer form
which plaintiff signed on August 14, 2001 stated, inter alia,
that plaintiff had to have an "acceptable driving history" as
indicated on page three of the "Protection One Fleet Safety
Manual"*fn2 and that she accepts defendant's "offer of
employment * * * in the position of Residential Security
Consultant and agree[s] to the conditions cited [in the
Conditions of Offer form] and in the [August 15] offer letter."
Ibid. Plaintiff claims that she was applying for a different
position that did not require a driver's license and that she did
not apply for and was not qualified for a position requiring her
Summary judgment may be granted if the evidence offered 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.
FRCvP 56(c). There is no genuine issue for trial unless the evidence offered favoring the non-moving party would be
sufficient to sustain a jury's verdict for that party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, when
reasonable minds could not differ as to the outcome of an issue,
summary judgment is appropriate on that issue. Id. at 251-252.
The moving party initially bears the burden of showing that no
genuine issue of material fact is present but the opposing party
must then "set forth specific facts showing that there is a
genuine issue for trial." Id. at 250. If the non-moving party
fails to establish, after a reasonable opportunity for discovery,
the existence of an element essential to that party's claim and
on which it will bear the burden of proof at trial, summary
judgment is appropriate because such failure to establish an
essential element of the case renders all other facts immaterial.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
When assessing the record in making a summary judgment
determination, a court must view all ambiguities and factual
inferences in the light most favorable to the non-moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
However, the non-moving party "cannot defeat the motion by
relying on the allegations in [that party's] pleading, or on
conclusory statements, or on mere assertions that affidavits
supporting the motion are not credible." FRCvP 56(e); Gottlieb
v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
Of course, the summary judgment standard applies with equal
force to discrimination cases as it does in other cases. See
Ashton v. Pall Corp., 32 F. Supp. 2d 82, 87 (E.D.N.Y. 1999) ("[T]he salutary purposes of summary
judgment avoiding protracted, expensive and harassing trials
apply no less to discrimination cases than to commercial or other
areas of litigation.") (quoting Meiri v. Dacon, 759 F.2d 989,
998 (2d Cir. 1985)). However, courts must be aware of the fact
that evidence of discrimination is rarely overt. See
Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999)
("[E]mployers are rarely so cooperative as to include a notation
in the personnel file that the [adverse employment action] is for
a reason expressly forbidden by law.") (quoting Ramseur v.
Chase Manhattan Bank, 865 F.2d 460, 464-465 (2d Cir. 1989)). In
addition, courts must "also carefully distinguish between
evidence that allows for a reasonable inference of discrimination
and evidence that gives rise to mere speculation and conjecture."
Ibid. Thus, the issue for the court is "whether the evidence
can reasonably and logically give rise to an inference of
discrimination under all of the circumstances." Ibid.
Plaintiff's Motion is deficient in a number of procedural and
substantive ways to wit, (1) plaintiff did not submit a
separate, short, concise statement of material facts as required
by Rule 56.1(a) of the Local Rules of Civil Procedure ("LRCvP"),
(2) plaintiff failed to comply with FRCvP 56(e) and LRCvP 56.1(d)
by not attaching any documents in support of her Affirmation, (3)
plaintiff's Motion was untimely as all motions had to be filed by
January 10, 2005 pursuant to this Court's April 2, 2004
Scheduling Order and plaintiff's Motion was filed on January 12,
2005 and (4) plaintiff did not make any substantive arguments that, even if uncontested, would entitle
her to summary judgment. Plaintiff claims that she is entitled to
summary judgment because (1) defendant was the perpetrator of
discriminatory action and (2) she has produced all requested
documents while defendant allegedly has not. Plaintiff requests
an award of $123,000, but does not allege a loss of income or
anything else viz., plaintiff does not allege any facts, does
not explain the "discriminatory action" and does not provide any
evidence or argument to warrant an award of summary judgment. As
such, there is no basis for this Court to grant her Motion and,
although plaintiff is proceeding pro se, she has been informed
both by the undersigned*fn3 and the Western District of New
York*fn4 of the requirements of filing a summary judgment
motion. Therefore, plaintiff's Motion will be denied.
The Court will now address defendant's Motion. Plaintiff
asserts that she had not applied for a position requiring her to
have a valid driver's license, but has not put forth any evidence indicating such. Defendant asserts that plaintiff's
contingent offer was rescinded upon discovery that plaintiff did
not have a valid driver's license a clearly stated and known
requirement of the RSC position. In bringing a case under Title
VII, the plaintiff bears the initial burden of making out a
prima facie case of discrimination. St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506 (1993) ; Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). To make out
a prima facie case of discrimination in a failure to hire
context, plaintiff must allege (1) that she is a member of a
protected class, (2) that she applied for and was qualified for a
position that defendant, her employer, was seeking to fill, (3)
that, despite her qualifications, she was rejected and (4) that
the circumstances surrounding the employment decision give rise
to an inference of unlawful discrimination. Schachner v. Beth
Israel Med. Ctr., N. Div., 14 F. Supp. 2d 468, 470 (S.D.N.Y.
1998). Plaintiff cannot meet her burden in establishing the second prong of
her prima facie case and her claims thus will be dismissed.
It is not in dispute that plaintiff was not qualified for the
position that defendant claims she was seeking viz., an RSC
position. Plaintiff claims that she applied for an at home sales
position rather than the RSC position. Besides this conclusory
statement, plaintiff has not provided any evidence suggesting
that defendant has an at home sales position or that plaintiff
had applied for an at home sales position instead of an RSC
position. Defendant, however, has provided the Court with (1) its
August 15 letter stating that the contingent offer was for an RSC position and (2)
plaintiff's signature on the "Conditions of Offer" form accepting
the offer for the RSC position and agreeing to the conditions of
the offer, one of which is having a valid driver's license.
Defendant, moreover, asserts and plaintiff does not provide any
evidence suggesting otherwise that it does not have an at home
sales position and that all of its sales positions require
driving. See, e.g., Breland-Starling v. Disney Publ'g
Worldwide, 166 F Supp. 2d 826, 830 (S.D.N.Y. 2001) (holding that
plaintiff cannot, as a matter of law, establish her prima facie
case where the position for which she claims that she had applied
"never existed and was never occupied by anyone"). Plaintiff's
conclusory statement that she had not applied for the position
for which she had signed a form indicating otherwise and for
which defendant claims that she had applied is not sufficient to
survive summary judgment. See, e.g., Murphy v. Bd. of Educ. of
the Rochester Sch. Dist., 273 F. Supp. 2d 292, 299-300 (W.D.N.Y.
2003) (stating that the plaintiff cannot survive summary judgment
with only "conclusory allegations of discrimination," but must
offer "`concrete particulars' to substantiate his claim")
(citations omitted); Girma v. Skidmore Coll.,
180 F. Supp. 2d 326, 334 (N.D.N.Y. 2001) ("The non-moving party may not rely on
conclusory allegations or unsubstantiated speculation.")
(citation and quotations omitted); Batista v. Union of
Needleworkers, Indus. & Textile Employees AFL-CIO, 2000 U.S.
Dist. LEXIS 17294, at *10 (S.D.N.Y. Nov. 30, 2000) (dismissing
the plaintiff's disparate pay and disparate employment conditions
claims because she "submit[ted] no evidence disputing" the defendant's assertions). Plaintiff's lack
of a valid driver's license disqualifies her from an RSC position
and therefore negates her ability to meet her prima case
burden. See Gadsden v. Jones Lang Lasalle Ams., Inc.,
210 F. Supp. 2d 430, 442 (S.D.N.Y. 2002) (granting summary judgment to
the employer in a discrimination claim where the plaintiff
admitted that he was not qualified for the position sought). As
such, defendant's motion will be granted and plaintiff's claims
will be dismissed.
Accordingly, it is hereby ORDERED that defendant's Motion for
Summary Judgment is granted, that plaintiff's Motion for Summary
Judgment is denied, that all of plaintiff's claims are dismissed,
that the parties shall bear their own ...