The opinion of the court was delivered by: Carter, United States Magistrate Judge
In this action, plaintiff Octavio Anaya ("Plaintiff" or "Anaya") has asserted claims alleging that the United States Postal Service, through its Postmaster General, Patrick R. Donahoe ("Defendant" or the "Postal Service"), discriminated against him in violation of the following federal anti-discrimination statutes: (1) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e etseq., on the basis of his national origin; and (2) the Age Discrimination in Employment Act ("ADEA"), as amended, 29 U.S.C. § 621, et seq., on the basis of his age. Defendant moves for summary judgment dismissing this action pursuant to Federal Rule of Civil Procedure 56(e). Based on the submissions of the parties, and for the reasons set forth below, Defendant's motion is granted.
In any motion for summary judgment brought in this District, the moving party is required, pursuant to Local Rule 56.1(a), to submit a Statement of Material Facts that it contends are in dispute. The non-moving party then must, pursuant to Local Rule 56.1(b), set forth the material facts that it believes are in dispute. In this case, Plaintiff has failed to submit a 56.1 Counter Statement, despite relying on Defendant's Statement in his motion papers. As such, I will treat Defendant's 56.1 Statement as unopposed, to the extent its allegations are supported by the record. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) ("If the opposing party ... fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.").
Plaintiff is a 69 year old Hispanic male who was employed by the Postal Service from 1970 until his retirement in 2010. During his 40 year tenure with the Postal Service, Plaintiff received one temporary promotion and two full promotions, in 1998, 1999 and 2003, respectively. The last of the three promotions resulted in his being named "Manager, Customer Service" in the Kew Gardens Hills Post Office, which was the last position he held at the Postal Service.
Plaintiff claims to have made previous complaints of discrimination over the years, but provides little specificity. His complaint ("Complaint") makes vague reference to his "prior discrimination complaint(s)" but he submitted no evidence to indicate the number or date of such complaints, or even to indicate that they number more than one. From the record, only one prior complaint is apparent, and it is annexed to the Declaration submitted by counsel for the Postal Service. (Eskew Decl. Ex. V.) It indicates that, in July 2006, Plaintiff was denied a promotionto another position and filed an internal complaint of discrimination, selecting race, national origin, sex, age and retaliation as the bases of the claim (the "2006 Complaint").
On January 2, 2007, the Postal Service announced a vacancy for a position for which Plaintiff applied, to wit: "Manager Customer Service" in the Rego Park Post Office (the "Rego Park Position" or the "Position"). The application process required both the submission of a "Form 991" and a written statement of qualifications, specifically ten areas of knowledge, skills and abilities ("KSA") needed for the Position. A committee (the "Committee") was selected to review the applications. Three members comprised the Committee: Phyllis A. Morrissey ("Morrissey"), Jeffrey S. Goldman ("Goldman") and Robert Botman ("Botman").
The Committee reviewed all applications and scored each on a scale of 0 (being the weakest applicant) to 3 (the strongest). The three highest scoring applicants were then selected for an interview with the Selecting Officer, Sunny Wong ("Wong"). Wong, in turn, would ultimately select a candidate to be introduced to William Rogers, Postmaster of the Flushing Post Office. Rogers would then make the official appointment.
Seven Postal Service employees applied for the Rego Park Position, and the Committee ranked Plaintiff's application sixth. Specifically, the committee ranked Plaintiff's KSA answers quite low, awarding him one point apiece in seven categories, and two points apiece in the remaining categories. According to the Postal Service, the activities and information provided by Plaintiff tended to reference events too remote in time to reflect his current abilities. As a result, he was not selected for an interview.
John Zucchi ("Zucchi"), a nine-year employee of the Postal Service, was among the three top-scoring individuals recommended by the Committee.*fn2 According to the Committee, Zucchi's application made reference primarily to recent displays of skills and knowledge, causing his KSA scores to be higher than Anaya's. Wong conducted interviews and ultimately selected Zucchi for the Position. Wong's recommendation was adopted by Rogers.
At a minimum, this was the second position for which Plaintiff was not selected that involved Wong and Rogers, as the 2006 Complaint listed them as the "persons who took the action(s)" alleged to be discriminatory.
In his deposition, Plaintiff testified that he does not believe any of the three Committee members discriminated against him on the basis of age, and that he does not believe that Goldman, Botman or Wong discriminated against him at all. What are left are the allegations that both Morrissey, who chaired the Committee, and Rogers, the Postmaster, discriminated against him on the basis of his national origin and retaliated against him because of a prior complaint of discrimination. When asked to provide the basis on which he makes these accusations, Plaintiff responded, as to Morrissey, that she knew he made "complaints;" that she became upset with him during a conversation after which she allegedly asked him if he intended to file another complaint; and that her "distance" following that comment indicated her animus toward his national origin. When asked what conduct led him to believe that Rogers discriminated against him, he responded, "I can't place it. I don't know. I don't know why." He later testified that, while he did not believe Rogers discriminated against him on the basis of his age, he did believe that Rogers discriminated against him based on his national origin because "Idon't know. That's the only one that I could come up with." (See generally Ex. B to Eskew Decl. ("Pl. Depo.) at 81-115.)
Plaintiff filed the Complaint on September 18, 2008, alleging discrimination on the bases of his age and national origin, and for retaliation. Presently before me ...