The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Joseph J. Bunk ("Bunk"), commenced this action, pro se, against the United States General Services Administration ("GSA"), and Stephen A. Perry ("Perry"), claiming employment discrimination on the basis of age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 ("ADEA"). Bunk, a long-time employee of GSA at Buffalo, New York applied for the position of Building Manager. Although Bunk was one of the five finalists for the position, another candidate was selected, Michael King ("King"). When he was selected, King was 39 years old, 11 years younger than Bunk. Bunk, distressed that he was not selected for the position, commenced this action alleging that his failure to be selected was due to age discrimination.
Pending before the court are defendants GSA and Stephen A. Perry's motion for summary judgment. (Dkt. # 6). Plaintiff opposes summary judgment contending that issues of material fact exist regarding plaintiff's non-promotion.
Based upon the record as a whole, including the affidavits and exhibits presented by the plaintiff, I do not agree that an issue of material fact exists warranting a trial. Defendants' motion for summary judgment is granted, and the complaint dismissed with prejudice.
At the time of the alleged discrimination, plaintiff was 49 years old. Plaintiff had been employed by GSA in the Dulski Federal Building in Buffalo, New York, for over 30 years. In early 2002, the incumbent Building Manager took a position in Texas. This created a vacancy in the Federal Building in Buffalo. In anticipation of the vacancy, Frank H. Santella ("Santella"), the Director of GSA's Upstate New York Service Center, initiated a process to fill the vacancy. He contacted GSA's Human Resources Department in New York City and, as a result of that inquiry, on March 4, 2002, a vacancy announcement for the Building Manager position was issued by Human Resources in New York. The announcement was published nationally which meant that any eligible GSA employee could apply for the position. The date for applying was March 15, 2002, but it was later extended to March 29, 2002.
All applications for the position were sent to the Human Resources office in New York City. Eight candidates, including plaintiff and King, applied for the position. Mary Ellis ("Ellis"), the Lead Human Resources Specialist for the GSA Region 2*fn1 , reviewed the applications and determined that five of the eight applicants were qualified for the position. Those five applications were forwarded to Santella at his Syracuse office for review.
Santella personally interviewed all five applicants and narrowed the selection down to plaintiff and King. At that time, King had been the Assistant Buildings Manager of the Columbus, Ohio office for four years. Santella then invited plaintiff and King to a second interview. Santella selected King for the position. He accepted and joined the Buffalo office on June 30, 2002.
On August 7, 2002, plaintiff filed a formal complaint of discrimination with the EEOC. Specifically, plaintiff alleged that he had been discriminated against on the basis of his age when he was not promoted to the Building Manager position.
The EEOC investigated the matter and found no discrimination. EEOC Administrative Judge, Enechi Modu, granted GSA's motion to dismiss on September 8, 2004, and ruled in favor of GSA, finding that plaintiff had failed to prove that GSA's reasons for not promoting plaintiff were mere pretext for age discrimination.
I. Standard of Review in Summary Judgment Cases
Summary judgment is appropriate only when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247 (1986). "A fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law.'...An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the moving party.'" Lovejoy-Wilson v. NOCO Motor ...