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Ndremizara v. Swiss re America Holding Corporation

United States District Court, S.D. New York

March 11, 2014

JASON NDREMIZARA, Plaintiff,
v.
SWISS RE AMERICA HOLDING CORPORATION, Defendant.

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.

I. Background

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.)[1] 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.)[2]

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.)[3] 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], " and that "each year[, ] [Defendant] import[s] and train[s] foreign actuarial candidates to fill its demands unmet by Americans, " claiming that "in 2012[, ] [Defendant] filed 13 green card and H1B visa applications for foreign actuarial candidates." ( Id. ) However, Plaintiff does not allege that these applications were for employees hired instead of Plaintiff.

B. Procedural Background

Plaintiff filed his Complaint on July 23, 2012, in which he alleged that Defendant had discriminated against him, based on both his age and his race, in violation of the ADEA, NYSHRL, and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17. ( See Dkt. No. 1.) On December 7, 2012, the Court held a premotion conference to address Defendant's request to file a Motion to Dismiss Plaintiff's Complaint, after which conference the Court set a briefing schedule. ( See Dkt. No. 9.) In accordance with this schedule, Defendant filed its Motion to Dismiss on January 1, 2013. ( See Dkt. Nos. 10-13.) Defendant argued that Plaintiff had failed to exhaust his administrative remedies as to his race-based discrimination claim, and had failed to state a claim of discrimination on the basis of either age or race. ( See Dkt. No. 10.) In response, Plaintiff filed an Affirmation in Opposition on February 1, 2013, in which he appeared to rescind his race-based discrimination claim under Title VII, but continued to assert his age-based discrimination claims under the ADEA and NYSHRL, while confining those age-based discrimination claims to Defendant's August 1, 2012 confirmation of its earlier rejection of his application, excluding Defendant's December 15, 2011 rejection of his application and the April 10, 2012 rejection confirmation. ( See Dkt. No. 14.) Defendant replied to Plaintiff's Affirmation on February 28, 2013. ( See Dkt. No. 15-16.)

In an Order dated March 18, 2013, the Court wrote that "Plaintiff should be aware that Defendant argues that Plaintiff has failed to exhaust his administrative remedies as to the May 17, 2012 application, " noting that "[a] plaintiff may bring an employment discrimination action under Title VII or the ADEA only after filing a timely charge with the EEOC or with a State or local agency with authority to grant or seek relief from such practice, " and that "a plaintiff typically may raise in a district court complaint only those claims that either were included in or are reasonably related to the allegations contained in his EEOC charge." (Dkt. No. 17 (internal quotation marks omitted).) Citing "Plaintiff's shifting allegations, " the Court then denied Defendant's Motion to Dismiss without prejudice, "in order to allow Plaintiff to amend his complaint and clarify" his claims, and directed Plaintiff to file an Amended Complaint by no later than April 17, 2013. ( Id. )

Plaintiff timely filed his First Amended Complaint on April 16, 2013. ( See Dkt. No. 18.) In the First Amended Complaint, Plaintiff asserts only age-based discrimination claims under the ADEA and NYSHRL, and does not assert the race-based discrimination claim under Title VII that appeared in his original Complaint. ( See First Am. Compl. 1.) However, according to Plaintiff, the age-based discrimination claims that he asserts in his First Amended Complaint relate not only to Defendant's August 1, 2012 confirmation of its earlier rejection of his application, but to its December 15, 2011 rejection of his application and its April 10, 2012 rejection as well. ( See First Am. Compl. 6-7; Pl.'s Mem. 5.) Following a second premotion conference on July 18, 2013, at which Plaintiff did not appear, the Court set a briefing schedule for Defendant's Motion to Dismiss the First Amended Complaint, which Motion the Court had previously granted Defendant permission to file. ( See Dkt. No. 21.) Defendant filed this Motion on August 6, 2013. ( See Dkt. Nos. 23-26.) Plaintiff submitted an Affirmation in Opposition, and a Memorandum in Support of that Affirmation, on September 18, 2013, ( see Dkt. Nos. 27-28), to which Defendant replied on September 27, 2013, ( see Dkt. Nos. 29-30), at which point Defendant's Motion was fully submitted.[4]

II. Discussion

A. Standard of Review

1. Rule 12(b)(6)

Defendant moves to dismiss Plaintiff's First Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, internal quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotation marks and alterations omitted). Instead, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level...." Twombly, 550 U.S. at 555. Although "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint, " id. at 563, and a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face, " id. at 570, if a plaintiff has not "nudged [his or her] claim[] across the line from conceivable to plausible, the[] complaint must be dismissed, " id; see also Iqbal, 556 U.S. at 679 ("Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" (citation omitted) (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2))); id. at 678-79 ("Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").

"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Dixon v. United States, No. 13-CV-2193, 2013 WL 23427, at *1 (S.D.N.Y. Jan. 2, 2013) ("For the purpose of this motion to dismiss, we assume that the facts alleged in [the plaintiff's] complaint are true."). Further, "[f]or the purpose of resolving [a] motion to dismiss, the Court... draw[s] all reasonable inferences in favor of the plaintiff." Daniel v. T&M Prot. Res., Inc., No. 13-CV-4384, 2013 WL 182341, at *1 n.1 (S.D.N.Y. Jan. 16, 2013) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, "[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also Hendrix v. City of New York, No. 12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y. Dec. 20, 2013) (same).

Because Plaintiff proceeds pro se, the Court must "construe[] [his] [complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s]." Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted); see also Farzan v. Wells Fargo Bank, N.A., No. 12-CV-1217, 2013 WL 6231615, at *12 (S.D.N.Y. Dec. 2, 2013) (same). However, "the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law." Bell v. Jendell, No. 12-CV-6666, 2013 WL 5863561, at *2 (S.D.N.Y. Oct. 31, 2013) (internal quotation marks omitted); see also Caidor v. Onondaga Cnty., 517 F.3d 601, 605 (2d Cir. 2008) ("[P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them." (emphasis and internal quotation marks removed)).

2. Age Discrimination in Employment Act of 1967

The ADEA provides in part that "[i]t shall be unlawful for an employer... to fail or refuse to hire... any individual... because of such individual's age." 29 U.S.C. § 623(a). The statute limits the class of persons protected by this prohibition "to individuals who are at least 40 years of age." Id. at § 631(a). "To establish a prima facie case [under the ADEA], a plaintiff with an age discrimination claim must show (1) that [he or] she was within the protected age group, (2) that [he or] she was qualified for the position, (3) that [he or] she experienced adverse employment action, and (4) that such action occurred under circumstances giving rise to an inference of discrimination." Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (internal quotation marks omitted); see also Mingguo Cho v. City of New York, 2013 Fed.Appx. ___, 2013 WL 6570611, at *2 (2d Cir. Dec. 16, 2013) (same); Barker v. Ellington Bd. of Educ., No. 12-CV-313, 2013 WL 6331159, at *10 (D. Conn. Dec. 5, 2013) (same).[5]

As to the third prima facie factor, "[i]n the context of a claim for discrimination under the ADEA, a plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Visco v. Brentwood Union Free Sch. Dist., No. 13-CV-11, 2013 WL 66548, at *7 (E.D.N.Y. Jan. 8, 2013) (internal quotation marks and alterations omitted) (quoting Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007)); see also Hrisinko v. New York City Dep't of Educ., 369 F.Appx. 232, 235 (2d Cir. 2010) ("An adverse employment action occurs when there is a materially adverse change in the terms and conditions of employment." (internal quotation marks omitted)). "To be materially adverse[, ] a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Kassner, 496 F.3d at 238 (internal quotation marks omitted); see also Crowe v. Leroy Cent. Sch. Dist., 949 F.Supp.2d 435, 442-43 (W.D.N.Y. 2013) (same). "A material adverse change is one that has an attendant negative result, a deprivation of a position or an opportunity." Nakis v. Potter, 422 F.Supp.2d 398, 420 (S.D.N.Y. 2006) (internal quotation marks omitted). "The Second Circuit has applied this definition broadly to include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand." Graham v. Watertown City Sch. Dist., No. 10-CV-756, 2011 WL 1344149, at *6 (N.D.N.Y. Apr. 8, 2011) (internal quotation marks omitted) (quoting Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001)).

As to the fourth prima facie factor, "[t]here are a variety of ways in which a plaintiff can demonstrate that the adverse employment action took place under circumstances giving rise to an inference of age discrimination." Del Valle v. City of New York, No. 11-CV-8148, 2013 WL 444763, at *4 (S.D.N.Y. Feb. 6, 2013) (citing Leibowitz v. Cornell Univ., 584 F.3d 487, 503 (2d Cir. 2009)), superseded by statute, Local Civil Rights Restoration Act of 2005, N.Y.C. Local L. No. 85, as recognized in Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)). For example, an inference of age discrimination may be raised where a plaintiff "alleges that she was within the protected class, that she was rejected for a position, and that the position was filled by a person significantly younger than her." Munoz-Nagel v. Guess, Inc., No. 12-CV-1312, 2013 WL 1809772, at *7 (S.D.N.Y. Apr. 30, 2013) (collecting cases). "An age discrimination plaintiff may also seek to rely on... comments or remarks evidencing ageist views, evidence that similarly situated younger employees are treated more favorably than older ones, or statistical evidence demonstrating a pattern of adverse employment actions taken against older employees." Del Valle, 2013 WL 444763, at *4 (citations omitted).

"[I]n an ADEA case... where a plaintiff [seeks to] rel[y] on a substantial age discrepancy between herself and her replacement, she must adduce some evidence indicating [the defendant's] knowledge as to that discrepancy" in order to establish that the adverse employment action that he experienced "occurred under circumstances giving rise to an inference of discrimination." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 82-83 (2d Cir. 2005). In "most ADEA cases, " "where such knowledge is undisputed, " "a court need not specifically address this point; rather it may be assumed in considering whether the circumstances presented indicate intentional discrimination." Id. at 83. However, "where a defendant asserts that the record fails to indicate the requisite awareness, a plaintiff must adduce some evidence, whether direct or indirect, indicating a defendant's knowledge as to the relative ages of the persons compared." Id. "[D]iscriminatory intent cannot be inferred, even at the prima facie stage, from circumstances unknown to the defendant." Id. at 82. See also Bucalo, 691 F.3d at 130 ("As we noted in Woodman v. WWOR-TV, Inc ., ... an ADEA plaintiff who is replaced by a significantly younger worker must offer some evidence of a defendant's knowledge as to the significant age discrepancy to support a prima facie inference of discriminatory intent." (internal quotation marks omitted)); Brunner v. Novartis Pharm. Corp., No. 10-CV-6338, 2013 WL 4647812, at *5 (W.D.N.Y. Aug. 29, 2013) ("[T]o establish a prima facie case of discrimination..., the plaintiff must establish that the defendant had knowledge of the candidates['] ages...."); Andretta v. Napolitano, 922 F.Supp.2d 411, 418 (E.D.N.Y. 2013) ("Plaintiff may satisfy his minimal prima facie burden merely by showing that Defendant knew of the applicants' age difference and treated younger applicants more favorably than Plaintiff."); Antunes v. Putnam/N. Westchester Bd. of Co-op. Educ. Servs., No. 09-CV-3063, 2011 WL 1990872, at *6 n.17 (S.D.N.Y. May 19, 2011) ("Even if the decision makers did not know Plaintiff's exact age, they were surely aware of his approximate age and that he was much older than [the individual whom the defendant promoted instead of Plaintiff]. Therefore, this requirement is satisfied."), aff'd sub nom. Antunes v. Putnam N. Westchester Bd. of Co-op. Educ. Servs., 482 F.Appx. 661 (2d Cir. 2012); Edwards v. William Raveis Real Estate, Inc., No. 08-CV-1907, 2010 WL 3829060, at *5 (D. Conn. Sept. 22, 2010) ("As a threshold matter, [the plaintiff] cannot support her inference of age discrimination without evidence that [the defendant and the defendant's representative] were aware of the age difference between [the plaintiff] and [the individual who was hired to replace the plaintiff] when [the defendant and the defendant's representative] made their decision to fire [the plaintiff].").

Importantly, a "[p]laintiff need not make out a prima facie case at the pleading stage, and may withstand a motion to dismiss by providing a short and plain statement of the claim that shows that []he is entitled to relief and that gives [the defendant] fair notice of the age discrimination claim and the grounds upon which it rests." Munoz-Nagel v. Guess, Inc., No. 12-CV-1312, 2013 WL 6068597, at *1 (S.D.N.Y. Nov. 15, 2013); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002) ("The prima facie case [requirements are] an evidentiary standard, not a pleading requirement.... This Court has never indicated that the requirements for establishing a prima facie case... also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss."); Kurian v. Forest Hills Hosp., No. 12-CV-4539, 2013 WL 3766588, at *6 (E.D.N.Y. July 15, 2013) ("[T]he survival of a complaint in an employment discrimination case does not rest on whether it contains specific facts establishing a prima facie case...." (internal quotation marks omitted)); McManamon v. Shinseki, No. 11-CV-7610, 2013 WL 3466863, at *6 (S.D.N.Y. July 10, 2013) ("[A]t this pleading stage[, the plaintiff] is not required to demonstrate every element of a prima facie case of age discrimination."). However, "[a]lthough a plaintiff need not plead facts to establish a prima facie case of employment discrimination in order to survive a motion to dismiss, " courts nevertheless "consider[] the elements of a prima facie case in determining whether there is sufficient factual matter in the Complaint which, if true, give[s] [the] [d]efendant[] fair notice of [the] [p]laintiff['s] employment discrimination claims and the grounds on which such claims rest." Holmes v. Air Line Pilots Ass'n, Int'l, 745 F.Supp.2d 176, 195 (E.D.N.Y. 2010) (internal quotation marks and alterations omitted); see also Sommersett v. City of New York, No. 09-CV-5916, 2011 WL 2565301, at *5 (S.D.N.Y. June 28, 2011) ("Although Plaintiff need not allege facts sufficient to make out a prima facie case for any of her discrimination claims in her Complaint, the elements thereof provide an outline of what is necessary to render her claims for relief plausible."); Barker v. UBS AG, No. 09-CV-2084, 2011 WL 283993, at *5 (D. Conn. Jan. 26, 2011) ("[E]ven though establishing a prima facie case of age discrimination is not necessary to survive a motion to dismiss, courts do use the standard as a guidepost when determining whether the plaintiff has provided the defendant with fair notice of her claim, as required by the Federal Rules of Civil Procedure."); cf. Wolf v. Time Warner, Inc., No. 09-CV-6549, 2012 WL 4336232, at *10 (S.D.N.Y. Sept. 17, 2012) ("A Plaintiff in an ADEA action must plausibly plead, inter alia, that the circumstances surrounding an adverse employment action give rise to an inference of age discrimination." (first emphasis added) (citing Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010)), aff'd, No. 12-CV-4226, 2013 WL 6670685 (2d Cir. Dec. 19, 2013).

B. Analysis

Defendant argues that "Plaintiff has absolutely no factual support for his claim that [Defendant] somehow knew his age in December 2011...." (Def.'s Mem. 13.) An examination of the documents upon which the Court is entitled to rely in ruling on Defendant's Motion reveals that Defendant is incorrect. It is true that Plaintiff's resume does not state his age or list his date of birth. But, as noted above, the resume that Plaintiff submitted in connection with his December 2011 application listed as the year in which he graduated with a Master of Science from ENSAE as 1993, and described Plaintiff as a "[s]easoned statistical analyst, " "mature, " and a "[m]id-career professional." ( See Def.'s Aff., at Ex. D.) From his graduation date alone, Defendant could reasonably have inferred Plaintiff's approximate age. See Bucalo, 691 F.3d at 130 (relying on the resume of the individual hired instead of the plaintiff, "which [resume] suggested that [the individual] was in her early 30s, " in finding that "there was some evidence in the record that" the defendant was aware of the age discrepancy between the plaintiff and the individual); Stone v. Ballard, 526 F.Appx. 688, 690 (7th Cir. 2013) ("[The defendant] could have inferred [the plaintiff's] age from his resume, which listed work experience dating back to 1973."), cert. denied, 134 S.Ct. 478 (2013); Hall v. Hormel Foods Corp., No. 98-CV-304, 2000 WL 35621752, at *6 (D. Neb. Mar. 14, 2000) ("[The defendant's] personnel manager... denies having been aware of [the plaintiff's] age at the time, but the year [that the plaintiff] graduated from high school was on the resume sent to [the personnel manager], so [the defendant] is deemed to have known that [the plaintiff] was a member of the protected class at the time he applied."), aff'd sub nom. Hall v. Hormel Foods, Corp., 7 F.Appx. 541 (8th Cir. 2001). To fall outside the ADEA's protected class at the time of his application, Plaintiff would have had to have graduated from one of France's premier institutions of higher learning with an advanced degree at the age of 22. While Defendant might reasonably have inferred that Plaintiff was the Doogie Howser of aspiring actuaries, it is the Plaintiff in whose favor the Court is required to draw all reasonable inferences at this stage. See Daniel, 2013 WL 182341, at *1 n.1 ("For the purpose of resolving [a] motion to dismiss, the Court... draw[s] all reasonable inferences in favor of the plaintiff.").

It deserves mentioning that Plaintiff does not argue that Defendant could have inferred his age from his resume. In fact, Plaintiff asks the Court to "reject [his resumes] as evidence because none of the disputed matters in the present case rely on [them]." (Pl.'s Aff. in Opp. to Def.'s Mot. to Dismiss ("Pl.'s Aff.") 2.) In relation to Defendant's "alleged non-knowledge of [Plaintiff's] age, " Plaintiff argues "that [Defendant] got... strong material proof of [his] protected class when it received the notice of age discrimination charges from EEOC but not on the resume. " ( Id. at 2-3 (emphasis added).) However, there is reason to believe that Plaintiff might not have realized that his graduation date was listed on his resume, and that if he had realized that it was, he would not have asked the Court to disregard it. Elsewhere in his Affirmation, Plaintiff writes that Defendant "did check [his] credentials and this checking of [his] credentials did allow [Defendant] to get information about [his] age, " as his "school's online system gives [the viewer] not only the name of [his] diploma, but other information such as [his]... year of graduation. " ( Id. at 4 (emphasis added).) The Court does not consider Plaintiff's argument that Defendant "checked [his] credentials" in analyzing whether Plaintiff has plausibly pleaded that Defendant was aware of his age when it rejected his application on December 15, 2011, as Plaintiff admitted to the Court during the December 7, 2012 premotion conference that this argument was based only on his assumption that Defendant had done so, which assumption is altogether factually unsupported.[6] But the foregoing passage suggests that Plaintiff could assert that Defendant's knowledge of his year of graduation could have put Defendant on notice of his age. Given that the Court is obligated to "construe[] [Plaintiff's] [complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s], " Sykes, 723 F.3d at 403; that the Court is entitled to consider "documents appended to the complaint or incorporated in the complaint by reference, " Leonard F., 199 F.3d at 107, such as Plaintiff's resume; and that the Court's consideration of Plaintiff's resume inures to his benefit, the Court respectfully declines Plaintiff's invitation to disregard it. Accordingly, the Court finds that Defendant could reasonably have inferred Plaintiff's age from his resume before December 15, 2011, when it took action in response to one of his applications for the first time.

However, there is another reason to question the contention that Defendant appears to be advancing-that Plaintiff has failed to plausibly plead that Defendant knew his age when he suffered "adverse employment action, " as that term is used in the description of the third factor that a plaintiff must satisfy to make out a prima facie case of employment discrimination. See Bucalo, 691 F.3d at 129. Plaintiff filed the EEOC charge in which he alleged that Defendant had engaged in age-based discrimination against him on February 16, 2012, ( see First Am. Compl. 6; see also Pl.'s Ex. 13), approximately two months before its first confirmation of its rejection of Plaintiff's application on April 10, 2012, ( see id.; see also Pl.'s Ex. 5), and approximately five-and-a-half months before its second confirmation of that rejection on August 1, 2012, ( see id. at 7; see also Pl.'s Ex. 9). As Plaintiff argues, "it's written in the notice that it was an Age Discrimination charge; therefore, since the reception [sic] of the notice, [Defendant] got... additional material proof/evidence that [Plaintiff] was over 40...." (Pl.'s Mem. 10.) In other words, Plaintiff asserts that, because Defendant received his EEOC charge before it decided not to hire him for the second and third times, it must have been aware of his age when it made those decisions.

Using the EEOC charge in which Plaintiff alleged that Defendant had discriminated against him based on his age to demonstrate Defendant's awareness of his age is suspect, as it is far from clear whether Defendant's April 10, 2012 and August 1, 2012 communications with Plaintiff can be fairly characterized as "adverse employment actions." In its December 15, 2011 communication with Plaintiff, Defendant wrote 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." (Pl.'s Ex. 3 (emphasis added).) But in its April 10, 2012 communication with Plaintiff, Defendant wrote 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. [Defendant's] decision to not pursue [his] candidacy for [the] role ha[d] not changed. " (Pl.'s Ex. 5 (emphasis added).) Defendant used similar language in its August 1, 2012 communication with Plaintiff, in which it wrote that, "[u]nfortunately, [it was] the third time [that he had] applied to [the] position[, ] and [he was] 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 (emphasis added).) An argument could be made that the only time that Defendant actually rejected Plaintiff's application was on December 15, 2011; that the two subsequent emails it sent to Plaintiff on April 10, 2012 and August 1, 2012 were mere confirmations of that rejection; and that the December 15, 2011 rejection was thus the only "adverse employment action"-the "refusal to hire, " Graham, 2011 WL 1344149, at *6, or "deprivation of a position or an opportunity, " Nakis, 422 F.Supp.2d at 420-that Defendant ever took against Plaintiff, and on which Plaintiff's First Amended Complaint could therefore be predicated. Such an argument is hardly specious, as the Court shares the discomfort that another court within this District expressed in connection with its consideration of a retaliation action that a plaintiff filed against his former employer:

Our concern... is with extending the scope of an "adverse employment action" to include a failure to rehire an individual in litigation with his former employer. Such a rule creates a worrisome opportunity for the manufacture of frivolous claims. That is, a plaintiff may bootstrap additional and unmeritorious claims to a discrimination lawsuit merely by reapplying for his former job, and subsequently being rejected from it.

Carr v. Health Ins. Plan of Greater New York, Inc., No. 99-CV-3706, 2001 WL 563722, at *3 (S.D.N.Y. May 24, 2001) (emphasis added). However, Defendant does not make the argument that its April 10, 2012 and August 1, 2012 communications were not "adverse employment actions." In fact, Defendant describes those communications as "hiring decisions, " (Def.'s Mem. 1), and writes that December 15, 2011 was the date on which it " first rejected Plaintiff's application for employment, " ( id. at 1-2), suggesting that it concedes that those subsequent communications were in fact "refusal[s] to hire, " Graham, 2011 WL 1344149, at *6, in which Plaintiff was "depriv[ed] of a position or an opportunity, " Nakis, 422 F.Supp.2d at 420. Rather, Defendant argues that it "made its determination not to pursue Plaintiff's candidacy in December 2011 based on Plaintiff's resume-before ever receiving the February 2012 EEOC Charge-and remained consistent on that issue." ( Id. at 11.) This statement is best interpreted as an argument that Defendant had a "legitimate, nondiscriminatory reason" for its decision not to hire Plaintiff, under the second step of the three-step burden-shifting analysis that the Supreme Court enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for the evaluation of discrimination claims, and that Defendant never departed from that initial reasoning in its subsequent two rejections. See Bucalo, 691 F.3d at 128-29 (describing three-step McDonnell Douglas burden-shifting analysis). But the second McDonnell Douglas step is only implicated once a plaintiff establishes a prima facie case of employment discrimination, and accordingly, the Court does not consider whether Defendant had a legitimate, nondiscriminatory reason for not hiring Plaintiff when analyzing whether Plaintiff's First Amended Complaint survives Defendant's Motion to Dismiss; such an argument is instead properly raised in a motion for summary judgment. See Friel v. Cnty. of Nassau, 947 F.Supp.2d 239, 250-51 (E.D.N.Y. 2013) ("[A]t the pleading stage, the Court does not apply the McDonnell Douglas burden shifting test used to analyze the evidentiary support for discrimination claims."); Hitchins v. NYC Dep't of Educ., No. 11-CV-4180, 2013 WL 1290981, at *3 (E.D.N.Y. Mar. 28, 2013) (same); Garzon v. Jofaz Transp., Inc., No. 11-CV-5599, 2013 WL 783088, at *3 (E.D.N.Y. Mar. 1, 2013) (same); Lax v. 29 Woodmere Blvd. Owners, Inc., 812 F.Supp.2d 228, 236 (E.D.N.Y. 2011) ("Defendants make various arguments under [the McDonnell Douglas ] rubric in support of their motion to dismiss-including... [that] the defendants had a legitimate nondiscriminatory reason in rejecting the plaintiff['s] application. However, ... the McDonnell Douglas burden-shifting analysis is not applied at the motion to dismiss stage.").[7] Regardless, because the Court finds that Defendant could reasonably have inferred Plaintiff's approximate age from his resume alone, which it received on December 5, 2011, ( see First Am. Compl. 6; see also Pl.'s Ex. 2), before it made any decision whatsoever in regard to his application, Defendant's argument that Plaintiff's First Amended Complaint must be dismissed for failure to plausibly plead facts suggesting that Defendant knew Plaintiff's age when Plaintiff suffered "adverse employment action" fails.

However, Plaintiff's First Amended Complaint may be dismissed for a similar but distinct reason, which reason Defendant did not fully develop in its motion papers. Although Defendant could have reasonably inferred Plaintiff's age from his resume (and certainly from the subsequent filing of the EEOC charge), there is a very real question whether Plaintiff has plausibly alleged that Defendant filled the actuarial analyst position with a person significantly younger and/or less qualified than Plaintiff. See Woodman, 411 F.3d at 90 ("[I]n a discriminatory treatment case, an ADEA plaintiff who is replaced by a significantly younger worker must offer some evidence of a defendant's knowledge as to the significant age discrepancy to support a prima facie inference of discriminatory intent." (first and second emphases added)); Munoz-Nagel, 2013 WL 1809772, at *7 ("[C]ourts in this Circuit have found that a plaintiff makes out a prima facie claim for age discrimination where she alleges that she was within the protected class, that she was rejected for a position, and that the position was filled by a person significantly younger than her. " (emphasis added)) (collecting cases); Hampton v. Diageo N. Am., Inc., No. 04-CV-346, 2008 WL 350630, at *6 (D. Conn. Feb. 7, 2008) ("The following evidence raises an inference of age discrimination. All the candidates selected for the... positions for which Plaintiffs applied or were considered... were significantly younger... than Plaintiffs...."). And if Plaintiff has failed to plausibly plead that Defendant hired a significantly younger person instead of him, he also necessarily would have failed to plausibly plead that Defendant was aware of the "relative ages of the persons compared, " as the Second Circuit has noted is required "where a plaintiff [seeks to] rel[y] on a substantial age discrepancy between herself and her replacement" in order to establish that the adverse employment action that he experienced "occurred under circumstances giving rise to an inference of discrimination." Woodman, 411 F.3d at 82-83; see also Bucalo, 691 F.3d at 130 ("[A]n ADEA plaintiff who is replaced by a significantly younger worker must offer some evidence of a defendant's knowledge as to the significant age discrepancy to support a prima facie inference of discriminatory intent." (first emphasis added) (internal quotation marks omitted)); Brunner, 2013 WL 4647812, at *5 ("[T]o establish a prima facie case of discrimination..., the plaintiff must establish that the defendant had knowledge of the candidates['] ages .... Because the plaintiff has failed to present any evidence that [the defendant] knew [the plaintiff's] age or the age of the successful candidate, [the] plaintiff has failed to make a prima facie showing that discrimination can be inferred from the hiring of a younger individual." (emphasis added)); Andretta, 922 F.Supp.2d at 418-19 ("Plaintiff may satisfy his minimal prima facie burden merely by showing that Defendant knew of the applicants' age difference and treated younger applicants more favorably than Plaintiff ...."); Edwards, 2010 WL 3829060, at *5 ("As a threshold matter, [the plaintiff] cannot support her inference of age discrimination without evidence that [the defendant and the defendant's representative] were aware of the age difference between [the plaintiff] and [the individual who was hired to replace the plaintiff] when [the defendant and the defendant's representative] made their decision to fire [the plaintiff]." (second emphasis added)); Getler, 2007 WL 38276, at *9 ("The Second Circuit has explained... that for replacement by a younger worker to support the inference of discrimination necessary to establish a prima facie case, there must be some evidence showing a defendant acted with knowledge as to the plaintiff's age relative to that of his or her replacement. " (emphasis added) (internal quotation marks and alterations omitted)).

Among other claims, Plaintiff merely asserts that he "discovered that many entry level candidates selected or hired by [Defendant] were younger or less qualified than [him], " (First Am. Compl. 7), but this assertion is entirely conclusory, "naked, " and "devoid of further factual enhancement." Iqbal, 556 U.S. at 678.[8] Indeed, Plaintiff provides no details about these supposed employees, including when they were hired, by which office they were hired (Armonk or Dallas), what their experience, age, or qualifications were, or whether Defendant knew of their ages. Given this general and unsubstantiated claim, Defendant may well have a basis to move to dismiss this case. See Payne v. Malemathew, No. 09-CV-1634, 2011 WL 3043920, at *2 n.3 (S.D.N.Y. July 22, 2011) (finding pro se plaintiff failed to plausibly plead ADEA claim where plaintiff merely alleged that he was over 40 and was replaced by two younger employees); Maysonet v. Citi Group, Inc., No. 10-CV-4616, 2011 WL 476610, at *5 (S.D.N.Y. Feb. 9, 2011) (dismissing ADEA claim where plaintiff merely alleged that she was in her mid-40's and that the defendant hired others in their mid-20's, without alleging any facts about the employee who replaced plaintiff); Adams v. New York State Educ. Dep't, 752 F.Supp.2d 420, 465-66 (S.D.N.Y. 2010) (dismissing ADEA claim where plaintiffs "merely allege[d] that [they were] over 40 years of age and were replaced by younger teachers").[9]

The Court is mindful that "[t]he Second Circuit, as a general matter, is solicitous of pro se litigants, enforcing standards of procedural leniency rather than holding them to the rigidities of federal practice." Watson v. Geithner, No. 11-CV-9527, 2013 WL 5441748, at *2 n.1 (S.D.N.Y. Sept. 27, 2013) (internal quotation marks omitted). Pro se litigants are "ordinarily afforded" "special solicitude, " which "takes a variety of forms, " including "relaxation of the limitations on the amendment of pleadings...." Tracy v. Freshwater, 623 F.3d 90, 100-01 (2d Cir. 2010). But "[i]n some circumstances, such as when a particular pro se litigant is familiar with the procedural setting as a result of prior experience, ... it falls well within a district court's discretion to lessen the solicitude that would normally be afforded." Id. at 102. This is one of those circumstances, as this Action is one of nine filed by Plaintiff where he has alleged that a putative employer failed to hire him for discriminatory reasons. See Ndremizara v. Towers Watson, No. 12-CV-1358, 2013 WL 4498977, at *1 (D.D.C. Aug. 21, 2013) (granting motion to dismiss, and noting that "this complaint is one of nine nearly-identical complaints, with only the defendant's name changed, filed by [Plaintiff] against other companies that have failed to hire him") (collecting Plaintiff's filed actions).

Therefore, Plaintiff will be given one last opportunity to amend his Complaint to satisfy the pleading requirements attendant to his causes of action.[10] Plaintiff may wish to rely on the allegations in his First Amended Complaint, the Court's concerns notwithstanding, but if he wishes to add any other allegations, Plaintiff should be as specific as possible to provide Defendant with notice of his claims. Plaintiff is also reminded that he is to have a good-faith basis for any allegations. See Dumont v. United States, No. 13-CV-0873, 2013 WL 6240468, at *12 (N.D.N.Y. Dec. 3, 2013) ("Plaintiff is... warned that he is not protected from Rule 11 sanctions merely because he appears pro se."); Mac Truong v. Hung Thi Nguyen, No. 10-CV-386, 2013 WL 4505190, at *3 (S.D.N.Y. Aug. 22, 2013) ("The fact that a litigant appears pro se does not shield him from Rule 11 sanctions." (internal quotation marks omitted)); Wik v. Kunego, No. 11-CV-6205, 2013 WL 6073633, at *2 (W.D.N.Y. July 15, 2013) ("Plaintiff is a pro se litigant who has brought several actions in this Court over the past several years, and who should therefore be familiar with Rule 11 of the Federal Rules of Civil Procedure. Plaintiff is hereby cautioned... that if he continues to file frivolous applications he may be sanctioned pursuant to Rule 11.... Such sanctions may include monetary penalties and the dismissal of his actions with prejudice, as the Court, in its discretion, may deem necessary to deter such frivolous and vexatious conduct." (quoting previous court order)).

III. Conclusion

For the foregoing reasons, Defendant's Motion to Dismiss is denied without prejudice. Plaintiff may file a Second Amended Complaint within 30 days of the issuance of this Opinion, which Complaint may address the deficiencies that the Court has identified. Alternatively, Plaintiff may notify the Court (and Defendant) that he wishes to proceed with the First Amended Complaint. Defendant will then be given 20 days either to answer the operative complaint or to file a premotion letter. The clerk is respectfully directed to terminate the pending Motion. (See Dkt. No. 23.)

SO ORDERED.


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