The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action in which the plaintiff Timothy Gray ("plaintiff"), proceeding pro se, alleges that his former employer, defendant Garlock Sealing Technologies, LLC ("defendant") discriminated against him, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., by failing to promote him. Now before the Court is defendant's motion [#3] to dismiss and for summary judgment. For the reasons that follow, defendant's application to dismiss one of plaintiff's claims pursuant to 29 U.S.C. § 296(d) is granted, the application for summary judgment as to the remaining claims is stayed temporarily, defendant is directed to provide plaintiff with certain discovery, and plaintiff's time in which to submit additional evidence in opposition to defendant's summary judgment application is extended.
Plaintiff commenced this action on January 17, 2006. Defendant waived service of the summons and complaint on March 30, 2006. In lieu of answering the complaint, and prior to any discovery in this action, defendant filed the subject motion, designated as a motion "pursuant to Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure," on May 2, 2006.*fn1 In support of the motion, defendant submitted various materials outside of the complaint, including affidavits and exhibits, and plaintiff responded by submitting his own affidavit and various exhibits. Plaintiff contends, however, that he requires discovery in order to more fully respond to defendant's application.
Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to plaintiff. Defendant, which is headquartered in Palmyra, New York, is a manufacturer of fluid sealing products, including seals and gaskets. Defendant's Equal Employment Opportunity Policy stated, in relevant part, that "[i]t shall be the Company's policy, as warranted, to promote internally those employees whose past work performance demonstrates their qualification for promotion." Defendant contends in this action, however, that it "does not give any preference to current Company employees over external candidates in filling salaried positions. In all circumstances, the Company's goal is to hire the most qualified applicant for the position, regardless of whether the applicant is a current employee or an external applicant." (Def. Stmt. of Facts ¶ 7). Defendant hired plaintiff in 2003 as a Press Operator. Two months later, defendant promoted plaintiff to the position of "Gylon technician/Calendar operator," which plaintiff describes as "an unskilled and lower paying production job." (Pl. Stmt. of Facts ¶ 3). During the ensuing two years that plaintiff was employed with defendant, he applied for four different positions or promotions with defendant.
First, in April 2004, plaintiff applied for the position of Manufacturing Engineer in defendant's Gylon Department. The job posting for this position indicated that defendant was seeking an applicant who possessed a "BS degree in Engineering or equivalent." Plaintiff applied for the position, though he did not hold a bachelor's degree. Instead, he indicated on his application that he held three associate's degrees, consisting of an associate's degree in Industrial Technology, an associate's degree in Computer Science, and an associate's degree in Computer Information Systems. (Pl. Aff. [#13] p. 20). Plaintiff's resume, however, indicated that he held only two associate's degrees, those being in Computer Science and Electrical Engineering Technology. (Id. at p. 21). Plaintiff further stated on his application that he had four years of experience working as a metal fabricator, and had taken courses in electricity, machining, heating and air conditioning, plumbing, and masonry. Plaintiff's resume stated that he had work experience as a "Mechanical Maintenance Technician" and as a "Power Plant Technician." With regard to the Mechanical Maintenance Technician's position, plaintiff's resume stated that, for approximately one year, he performed maintenance on production and material handling machinery, tested and maintained equipment involving "security, safety and environmental responsibility of the plant," and assisted an engineering department in "redesigning and fabricating any of the plant's existing equipment in addition to installing any newly acquired machinery." As for the Power Plant Technician's position, plaintiff's resume stated that, for approximately six years, he had worked for an electric and gas utility company, where he "maintained and calibrated the plant's instrumentation and automated control systems," "performed testing on the turbine/generators and their associated sub-systems," and "assisted the plant (and the company) in meeting both Federal and State mandated environmental requirements for air and water."
Defendant did not interview or hire plaintiff for the Manufacturing Engineer position. Defendant contends that it did not select plaintiff for an interview because he did not possess a BS degree in engineering or the equivalent. Instead, defendant interviewed four individuals, all of whom "possessed at least a BS degree in Engineering and had extensive experience working in an engineering capacity." (Hurley Aff. ¶ 6). The person who was eventually awarded the position, in July 2004, held a BS degree in Mechanical Engineering and "had nearly ten years of experience working for two manufacturing companies in various engineering functions, including Manufacturing Engineer and Quality Control Engineer. (Hurley Aff. ¶ 9, Ex. E). Defendant states that it did not consider plaintiff's age in making this employment decision.
Plaintiff applied for a second position, that of a Network Systems Technician, in August 2004. The job posting for the position indicated that defendant was seeking applicants with the following qualifications: "Degree in computer related field or equivalent expertise. Field certifications for specific technology/vendor tracts, 4 years providing server and network services, experience supporting a regionally diverse IT network in a manufacturing environment, strong analytical and problem solving skills, and excellent communication skills." When he applied for this position, plaintiff submitted essentially the same resume as before, with the exception that he had added two associate's degrees to the resume, namely, an associate's degree in Computer Information Systems and an associate's degree in Computer Technology and Networking. Plaintiff further stated, on his application, that he had "over 5 years of employment as a field service technician with Decision Data Corporation performing computer repair," though this information did not appear on his resume. Defendant's Information Technology Manager, Ed Wallace ("Wallace"), states that he reviewed plaintiff's application and concluded that he did not have the necessary work experience for the position. (Wallace Aff. ¶ 5) (Noting that plaintiff had not indicated "that he had the requisite field certifications or that he had ever worked in the IT field."). According to Wallace, he had decided not to interview plaintiff, until he heard from defendant's Human Resources Specialist, Dawn Wick ("Wick"), that plaintiff "continued to make inquiries about the position and continued to ask why he was not being granted an interview." (Id. at ¶ 7). Wallace states that because of plaintiff's interest in the position, and to "assist [plaintiff] in understanding the type of work experience and qualifications that he would need in order to obtain [such] a position," he interviewed plaintiff. Wallace states, however, that the interview only confirmed his opinion that plaintiff was not qualified. For example, Wallace states that in response to specific hypothetical questions that he posed, plaintiff gave vague answers that did not demonstrate technical knowledge or problem-solving ability (Id. at ¶ 8), though plaintiff denies this. Defendant eventually hired an individual for the position who held a BS degree in Information Technology, was a "Microsoft Certified Professional," and who had "over five years of work experience in the IT field." (Id. at ¶ 9). According to Wallace, this individual had already worked for defendant as a contractor for nine months, during which time Wallace had received several positive comments about the individual's technical expertise and "people skills." (Id.). Plaintiff learned that he was not hired for position on or about October 29, 2004. (Pl. Memo of Law ¶ 7). Defendant states that it did not consider plaintiff's age in making this employment decision.
In December 2004, plaintiff applied for a third position, that of Engineering Technician in defendant's Klozure Dynamic Seals Department. Defendant's job listing for the position indicated that applicants were required to have the following experience: "Associate's Degree or equivalent experience. 5 years or more experience in technical role. Must have a high level of energy, excellent organizational , communication and computer skills. Individuals must have excellent technical problem solving skills. Must be a team player." (Merlau Aff. Ex. A). Plaintiff stated on his application that he held an Associate's degree in Electrical Engineering, had "5 years" of experience in metal fabrication and maintenance, "6 years" of experience as a power plant technician, and "various computer related degrees (computer science/info. systems, etc.) completion of various adult education (B.O.C.E.S. night) courses." Plaintiff did not submit a resume along with the application. (Merlau Aff. ¶ 7; Pl. Aff. pp. 30-31). Tom Merlau ("Merlau"), the Engineering Manager of the Klozure Dynamic Seals Department, states that, based upon plaintiff's application, he did not believe that plaintiff was qualified for the position. Merlau decided, nonetheless, to interview plaintiff, "to find out more information about his work experience and qualifications." (Merlau Aff. ¶ 5). Merlau interviewed plaintiff on December 15, 2004, and states that, "It was clear to me during the interview that Mr. Gray did not have sufficient experience in process development or process improvement to effectively perform the functions of the Engineering Technician position. Furthermore, Mr. Gray's response [sic] to my questions showed a lack of problem solving skills." (Merlau Aff. par 6). Merlau states, though, that he scheduled a second interview with plaintiff, because plaintiff had not provided a resume with his application or at the initial interview, and because he wanted "to ensure that [he] had all of the information [he] needed regarding [plaintiff's] work experience and qualifications." (Id. at ¶ 7). Merlau states that the second interview did not change his opinion that plaintiff was unqualified for the position. Defendant eventually granted the position to an individual with a BS degree in Mechanical Engineering Technology and "nine years of work experience on manufacturing lines, applying lean manufacturing techniques." (Id. at ¶ 8). Notably, this individual was already employed by defendant as a Production Supervisor. Defendant informed plaintiff of its decision on or about January 17, 2005. Defendant contends that it did not consider plaintiff's age in making this employment decision.
Plaintiff applied for a fourth position, as a Senior PC (Personal Computer) Technician, in defendant's IT (Information Technology) Department in March 2005. Defendant's job listing for the position indicated that applicants were required to have the following experience:
Associate's Degree in Computer Science or equivalent expertise. Field certifications for specific technology/vendor tracks required (i.e. MS Certifications[)] Experience supporting IT in a manufacturing environment.
Eight plus years providing PC and network services to a nationally dispersed business operation. Strong analytical and problem solving skills, and excellent communication skills. (Wallace Aff. Ex. F). Defendant's application for the position listed his four associate's degrees, and further stated that he had "over 5 years of employment with Decision Data Corporation as a field service technician performing computer repair." (Wallace Aff. Ex. G). Plaintiff did not submit a resume with his application. (Wallace Aff. ¶ 15; Pl. Aff. p. 34). Wallace, who had previously interviewed plaintiff for the Network Systems Technician position, states that he declined to interview plaintiff for this new position because he determined that plaintiff was not qualified. Defendant eventually awarded the position, in July 2005, to an individual with a BS degree in Information Technology, and who "was Microsoft certified for XP, and had substantial work experience in the IT Departments of three different companies." (Wallace Aff. ¶ 18). This individual was not previously employed by defendant prior to the job posting for ...