The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Plaintiff Michael N. Rich, Jr., commenced this action in 2008 seeking damages for, among other things, employment discrimination based on disability. Presently before this Court is Defendants' Motion for Summary Judgment dismissing the complaint. This Court has considered the submissions and finds oral argument unnecessary. For the reasons that follow, Defendants' motion is granted.
Plaintiff filed his employment discrimination complaint pro se in September 2008 against his Medina, New York employer, Defendant Associated Brands, Inc. (Compl. ¶ 2.) This Defendant moved to dismiss the complaint on the ground that suit based on the alleged discriminatory actions, which ended with Plaintiff's termination in July 2004, was time barred. (Docket No. 6.) This Court granted the motion and dismissed the complaint. (Docket Nos. 15, 16.)
Plaintiff appealed the Decision and Order granting the motion to dismiss as well as the denial of his subsequent motion for reconsideration. (Docket Nos. 18-21.) The Second Circuit affirmed this Court's dismissal of those claims based on alleged discriminatory acts occurring between July 1, 2002 and July 9, 2004. (Second Circuit Mandate at 4, 6, Docket No. 26.) The Court further determined, however, that based on a liberal reading of the pro se complaint, a failure to hire claim that was not time barred and a state law breach of contract claim could also be discerned. (Id. at 5-6.) These two claims were remanded to this Court for consideration.
Following remand, Medina Defendant Associated Brands, Inc., answered the complaint. (Docket No. 27.) This Defendant is owned by Ontario-based Defendant Associated Brands Inc. (these two entities are nominally distinguished by the lack of comma in the latter's name). (Defs' Mem of Law in Support of Motion to Intervene, Docket No. 77-1 at 4.) Because Defendants were not sure which entity was the intended defendant, both moved to intervene. (Id.) The Ontario-based parent company was permitted to intervene as of right in September 2011. (Decision and Order of Magistrate Judge Foschio, Docket No. 117 at 8.) Plaintiff also moved to amend his complaint, and that motion was partially granted to the extent that Plaintiff sought "to assert factual allegations regarding the circumstances under which the original separation agreement and the July 7, 2004 separation agreement were drafted." (Id. at 6.) Plaintiff's Motion for the Appointment of Counsel was also granted in September 2011. (Docket Nos. 99, 118.) Despite Judge Foschio's order and the assignment of counsel, however, no amended complaint was filed.*fn1
Defendants now move for summary judgment dismissing the complaint.*fn2
"A motion for summary judgment may properly be granted . . . only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A court's function on a summary judgment motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor, 609
F.3d at 545. "A dispute regarding a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quotingAnderson, 477 U.S. at 248), cert denied 540 U.S. 811 (2003). Further, a court must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003).
Plaintiff's failure to hire claim is subject to the burden-shifting analysis found in McDonnell Douglas Corp. v Green. 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); see McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). Under this analysis, a plaintiff must first establish a prima facie case of discrimination. McBride, 583 F.3d at 96.
Here, Plaintiff failed to establish such a claim. Plaintiff contends that Defendants failed to hire him in August 2007 because he had a disability. (Compl. ¶ 19.23.) By his own admission, however, he never applied for a specific position. (Pl's Mem of Law at 6-9, Docket No. 139 (referencing "any position which opened up," "any available job," and "that he applied for unspecified jobs"); Pl's Dep at 60, 62, 111, Creighton Aff, Ex. A, Docket No. 139-3 ("any future positions that were open," "any position that opened up").) Courts in this Circuit "generally require that the plaintiff establish that he applied for the specific position but did not receive an offer." Gaffney v. Dep't of Info. Tech. and Telecomm., 536 F.Supp.2d 445, 459-60 (S.D.N.Y. 2008); Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998); Bernstein v. The MONY Group, Inc., 228 F.Supp.2d 415, 419 (S.D.N.Y. 2002). "[M]erely asserting that on several occasions she or he generally requested promotion" or a new position is insufficient to establish a prima facie case of a discriminatory failure to hire or promote. Brown, 163 F.3d at 710 (noting that to hold otherwise would unfairly burden employers with the responsibility of keeping track of not only who actually ...