United States District Court, S.D. New York
Jason Remi Ndremizara, Urbandale, IA, Pro Se Plaintiff.
Susanne Kantor, Esq., Jennifer Papas, Esq., Jackson Lewis LLP, White Plains, NY, Counsel for Defendant.
OPINION AND ORDER
KENNETH M. KARAS, District Judge.
Plaintiff Jason Ndremizara ("Ndremizara"), proceeding pro se, brings this Action against Defendant Swiss Re America Holding Corporation ("Swiss Re"), alleging that Defendant's decision not to hire him for an actuarial analyst position for which he applied violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-34, and New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290-301. Defendant moves under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff's First Amended Complaint for failure to state a claim upon which relief can be granted. For the following reasons, Defendant's Motion to Dismiss is denied without prejudice.
A. Factual Background
Plaintiff describes himself as a 46-year-old, college-educated African-American with "strong academic backgrounds in Mathematics and Computer Science...." (First Am. Compl. 5.) Plaintiff is "planning to [pursue an] actuarial career, " a field that he characterizes as "a highly skilled applied mathematical profession specialized in the evaluation of financial risk." ( Id. ) Plaintiff "saw online at [Defendant's] career web site a posting for... [an] Actuarial Analyst... position... located in Armonk, " New York, and decided to apply. ( Id. at 6; see also Pl.'s Ex. 1.) Plaintiff states that this position was "entry-level, " and "requir[ed] no actuarial job experience." ( Id. ) While Plaintiff is correct that the job posting did not list any actuarial job experience as an "[e]ssential" requirement, it did list as a "[d]esirable" requirement that an applicant have "[t]wo or more years of relevant actuarial experience within [the] Property & Casualty industry[, ] preferably in a research role." (Pl.'s Ex. 1.) Plaintiff does not allege that he has such experience. ( See Def.'s Mem. of Law in Supp. of Its Mot. to Dismiss ("Def.'s Mem.") 3, 4; Pl.'s Mem. of Law in Supp. of His Affirmation in Opp. to Def.'s Mot. to Dismiss ("Pl.'s Mem.") 7.)
Plaintiff submitted his application on December 5, 2011. (First Am. Compl. 6.) Plaintiff did not list his age or date of birth on the resume that he sent with his application. ( See Def.'s Aff. in Supp. of Its Mot. to Dismiss ("Def.'s Aff."), Ex. D.) However, Plaintiff's resume did list the year in which he graduated with a Master of Science in Statistics and Economics from the École nationale de la statistique et de l'administration economique ("ENSAE") in Paris, France as 1993, and described Plaintiff as a "[s]easoned statistical analyst, " "mature, " and a "[m]id-career professional." ( Id. ) After submitting his application, Plaintiff received what appears to have been an automated reply on the same day, in which Defendant informed him that it was "in the process of reviewing [his] application and evaluating [his] possibilities within Swiss Re, " and that it would "contact [him] as soon as possible." (First Am. Compl. 6; see also Pl.'s Ex. 2.) Defendant subsequently rejected Plaintiff's application on December 15, 2011, and "continued to look for other candidates." ( Id .; see also Pl.'s Ex. 3.) By way of rejection, Swiss Re recruiter Sandra Ferencz ("Ferencz") informed Plaintiff in an email that "[a]fter careful consideration and review of [his] application, " the Swiss Re recruitment team had "determined that [Defendant] would not be pursuing [his] candidacy at [that] time, " but that Defendant wanted to "maintain [Plaintiff's] candidate profile in [its] electronic database, " and "encourage[d] [Plaintiff] to update [his] information as [his] skills or jobs change[d]." (Pl.'s Ex. 3.) Approximately two months later, on or about February 16, 2012, Plaintiff "filed a discrimination charge with the U.S. Equal Employment Opportunity Commission ["EEOC"]... in New York [C]ity, " in which he alleged that Defendant had violated the ADEA in connection with its decision to reject his application. (First Am. Compl. 6; see also Pl.'s Ex. 13.) Defendant appears to have received notice of Plaintiff's EEOC charge at approximately the same time that Plaintiff filed it. ( See Pl.'s Ex. 13; Def.'s Mem. 5.)
Despite Plaintiff's apparent belief that Defendant discriminated against him based on his age, Plaintiff "checked the [Swiss Re] web site" again in March 2012, "saw that [Ferencz] was still continuing to seek... applicants, " and thereafter "decided to [once more] submit... [his] application for the position" for which he had previously applied. (First Am. Compl. 6.) He did so on March 24, 2012, ( id. ), and received the same automated reply that Defendant had sent him following the submission of his first application, ( see Pl.'s Ex. 4). The next month, on April 10, 2012, Defendant confirmed its earlier rejection of Plaintiff's application. (First Am. Compl. 6; see also Pl.'s Ex 5.) Ferencz explained to Plaintiff that "[u]nfortunately, [he had] already applied to [the] position[, ] and [was] notified on December 15, 2011 that [Defendant would] not be pursuing [his] candidacy, " and that Defendant's "decision to not pursue [his] candidacy for [the] role ha[d] not changed." (Pl.'s Ex. 5.)
Plaintiff alleges that, "[a]fter being informed by EEOC of the existence of [his] discrimination charge, [Defendant] then started to send [him]... an email" every two weeks, in which Defendant wrote that it "wanted to reach out and confirm that [his] application [was] still being considered and [that it was] continuing the recruiting process for the position: Actuarial Analyst (Armonk, NY)." (First Am. Compl. 6; see also Pl.'s Exs. 6, 7.) Defendant sent the first of four such emails to Plaintiff on April 13, 2012, which, like the other three, identified itself as "automatically generated mail, " and asked Plaintiff to "[p]lease... not reply." ( Id. ) One week later, on April 20, 2012, the EEOC informed Plaintiff that it was closing its file on the age-based discrimination charge that he had submitted, as "[b]ased on its investigation, [it was] unable to conclude that the information obtained establishe[d] violations of the statutes." (Pl.'s Ex.)
One week after that, on April 27, 2012, Defendant sent a second email confirming that it was still considering Plaintiff's application and that the recruiting process was still ongoing. ( See Pl.'s Ex. 6.) Believing that Defendant had "sent [him] the e-mails in... good faith, " and undeterred by Defendant's prior rejection of his application and subsequent confirmation of that rejection, Plaintiff "decided to submit [his] application for the Actuarial Analyst... position" for a third time on May 17, 2012, by which submission he "aimed to reconfirm [his] interest in the position." (First Am. Compl. 6.) On the same day that he submitted his application, Plaintiff once again received the same automated reply email that he had received in response to his first two applications. ( See Pl.'s Ex. 8.) On June 23, 2012, Defendant sent Plaintiff a third automatically generated email confirming that it was still considering Plaintiff's application and that the recruiting process was still ongoing, followed by a fourth on July 7, 2012, ( see Pl.'s Ex. 7), before reiterating its earlier rejection of Plaintiff's application for a second time on August 1, 2012, (First Am. Compl. 7; see also Pl.'s Ex. 9). Echoing her most recent email, Ferencz wrote that "[u]nfortunately, [it was] the third time [that Plaintiff had] applied to [the] position, " and that he had been "notified on December 15, 2011 and April 10, 2012 that [Defendant would] not be pursuing [his] candidacy. [Defendant's] decision to not pursue [his] candidacy for [the] role ha[d] not changed." (Pl.'s Ex. 9.)
Plaintiff asserts that the language that Defendant used in its emails "implicitly alleged that [he] was not qualified for the position, " which implicit allegation "led [him] to investigate what kind of candidates [Defendant] selected or hired for its entry level actuarial analyst positions in Armonk... or in other locations such as Dallas, [Texas], " the latter being the location of another one of Defendant's offices to which Plaintiff had also applied, and by which he had also been rejected. (First Am. Compl. 7.) Plaintiff claims that he "discovered that many entry level candidates selected or hired by [Defendant] were younger or less qualified than [him]." ( Id. ) However, Plaintiff provides no specific examples as part of this claim in his Complaint or any of the exhibits attached thereto. Indeed, he does not identify whether these supposedly younger or less-qualified people were hired in Armonk (which is the only location relevant to Plaintiff's claims in this Action), or Dallas, or both; how much younger they were; or why he believes them to be less qualified.
Plaintiff also states that "the single most important qualification for an entry level actuarial candidate is... actuarial exam progress, " citing to an article titled "Advice on Obtaining an Actuarial Position" from "http://www.beanactuary.com, " a website that appears to be run by the Society of Actuaries and the Casualty Actuarial Society. (First Am. Compl. 7; Pl.'s Ex. 10.) According to Plaintiff, "applicants with [one] actuarial exam combined with an excellent internship are desirable; applicants with [two] actuarial exams (Master level) with or without internship[s] are serious candidates; applicants with [three] actuarial exams (JD/PhD level) stand up [sic]; and all candidates with [four] exams (above JD/PhD level) like [him] have been given a job." (First Am. Compl. 7.) Plaintiff further claims that "[t]he majority of entry level candidates hired by [Defendant] had only between [zero] and [three] actuarial exams at that time whereas [he had] already succeeded... [in] pass[ing] [four] exams; therefore they were less qualified than [him] and [he] was far better qualified than many of them." ( Id. ) Again, Plaintiff provides no specific examples of any employees hired by Defendant instead of Plaintiff. Lastly, Plaintiff states that the "discrimination against [him] was also particularly malicious because [Defendant] has been unable to find enough actuarial candidates who can pass actuarial exams like [him], " ...