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holding that the defendant's employees' evaluations of the plaintiff's marketing abilities, "fit," and communication skills based on an interview were legitimate, nondiscriminatory reasons for the failure to hire
Summary of this case from Dunaway v. MPCC Corp.Opinion
00 Civ. 8362 (RWS)
February 2, 2004
IQBAL A. PASHA, Stamford, CT, Pro Se, for Plaintiff
STEPHEN L. SHEINFELD, ESQ., WILLIAM M. SUNKEL, ESQ., WINSTON STRAWN, New York, NY, Of Counsel for Defendant
OPINION
Defendants William M. Mercer Investment Consulting, Inc and Mercer Consulting Group, Inc. (collectively,"Mercer") have moved for summary judgment, pursuant to Fed.R.Civ.P. 56, to dismiss the complaint of plaintiff Iqbal A. Pasha's ("Pasha"). Additionally, Mercer has moved to strike Pasha's sur-reply. For the reasons set forth below, Mercer's motion to strike is denied, and its motion for summary judgment is granted.
Prior Proceedings
Pasha commenced this action against defendants on October 31, 2000, alleging that defendants refused to hire him as an investment consultant based on his national origin (Pakistani) and age (then fifty-four). Discovery closed on May 27, 2003. The instant motion was marked fully submitted on October 8, 2003. On October 16, 2003, Mercer moved to strike Pasha's sur-reply.
The Facts
The facts are set forth based upon the Local Rule 56.1 statements of the parties and supporting declarations.
William M. Mercer Investment Consulting, Inc. is a large provider of investment consulting services to the fiduciaries of pension funds, foundations, endowments, and other institutional funds. Mercer Consulting Group, Inc., now named Mercer, Inc., is the ultimate parent company within the consulting group.
Pasha is a Fellow of the Institute of Actuaries in London, England and a Chartered Financial Analyst from the Association for Investment Management Research in Virginia. Pasha has also served as a Vice President of Banque Indosuez in Paris.
In or about December 1996, Pasha contacted his professional acquaintance, Peter Coster ("Coster"), the President and CEO of Mercer Consulting Group, Inc., seeking employment opportunities. Coster recommended Pasha to Mercer three times. On the first two occasions, no suitable jobs were available, but on the third occasion, Pasha was interviewed for an investment consultant position and for a research position.
On or about December 17, 1999, Pasha met with Mary Sue Dickinson ("Dickinson"), the northeast regional leader of Mercer's investment consulting practice, and with Ed Heilbron ("Heilbron") in Mercer's Stamford office. On or about December 24, 1999, Pasha met with Ashgar Alam ("Alam"), the national practice leader of Mercer's investment consulting practice. Alam then suggested that Pasha interview with members of Mercer's practice's research group in Chicago. On January 14, 2000, Pasha interviewed with four principals in the firm's Chicago research group: Jim Hiner ("Hiner"), Brad Blalock ("Blalock"), Brian Collins ("Collins"), and Louis Finney ("Finney"). Soon thereafter, Alam left Pasha a voice mail, advising him that Mercer was unable to offer him a position with the firm.
By letter dated January 24, 2000, Pasha attempted to appeal this decision to Coster. Pasha claimed that his more extensive knowledge threatened three of his interviewers in Chicago. Following a discussion between Coster and Alam, Coster sent Pasha a letter on February 9, 2000 supporting Mercer management's decision and wishing him well in his future endeavors.
Pasha is of Pakistani national origin, and, at the time he interviewed with defendants, he was 54 years of age. Alam is also of Pakistani origin. Alam was born in Sargodha, Punjab in Pakistan, while Pahsa was born in Hyderabad, India and grew up in Karachi, Sind in Pakistan.
Mercer hired 50 investment consultants during 1997 through 1999, six of whom were over the age of 40, including one who was over the age of 50. Mercer hired 16 investment consultants in the year 2000, three of whom were at or above the age of 40 — aged 41, 41, and 40.
According to Pasha, during the course of the interview, Alam "talked about `recruiting young people' from the actuarial side of the company's business to become Investment Consultants." (Compl. ¶ 8.) Pasha also alleges that Alam made reference to his own age by talking about a mutual acquaintance in Pakistan, a classmate of his who was 42-years old. At his deposition, Pasha further testified that during his meeting with Hiner in Chicago, "when we were walking out of the room, he said to me something, something, I don't recall, we should be thinking of retiring at our age." (Pasha's Dep. at 220.)
On or about August 4, 2000, Pasha filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). The following month, the EEOC notified Pasha that it concluded its inquiry and that "[t]he evidence . . . does not indicate that a violation has occurred," and further that it does "not appear likely that additional information [would] result in our finding a violation." A follow-up letter, dated August 6, 2003, explained:
Although the file for the above-captioned charge was lost during the destruction of EEOC's office at 7 World Trade Center on September 11, 2001, the September 8, 2000 letter indicates that our determination was made solely upon an evaluation of your charge. It does not reflect an assessment of the facts or evidence from both sides.
The EEOC issued its Notice of Right to Sue on or about September 13, 2000. I. Pasha's Sur-Reply
Pasha's request to submit a sur-reply was received on October 6, 2003. Pasha based his request on new evidence submitted by Mercer, not previously disclosed in discovery. Pasha referred to affidavits submitted by Dickinson and Allan Vernick, the Senior Human Resources Manager Principal, and to new statistical analysis. Pasha claims that the Dickinson affidavit, in particular, should have been submitted during discovery, or at the very least, during Mercer's opening motion for summary judgment. Discovery ended on May 27, 2003, and this affidavit was not submitted till August 19, 2003. In his sur-reply, Pasha argues that Dickinson's testimony should, therefore, be disregarded. Pasha delivered his sur-reply before the summary judgment motion's return date of October 8, 2003.
Pasha further points to an inaccuracy in Dickinson's affidavit. Dickinson states she had no contact with Pasha since December 1999. Pasha claims they spoke on the phone on February 10, 2003. Pasha argues that this omission serves to conceal her continuing "very significant business relationship with Mercer on an ongoing basis," although she is currently employed by Morgan Stanley. (Pasha's Sur-Reply Mem. at 13.) This, however, is irrelevant since the credibility of Dickinson's testimony does not depend on her status as an independent third party. Even if Dickinson were still an employee at Mercer, her testimony would be relevant to this case.
By letter dated October 16, 2003, Mercer moved to strike Pasha's sur-reply on the ground that neither the Local Civil Rules for the Southern District of New York, nor the stipulations and orders set forth a briefing schedule that provide for sur-reply papers.
Mercer's motion to strike is denied as Mercer submitted new information in its reply brief; Pasha timely requested permission to submit a sur-reply, notifying Mercer of his request; Pasha timely delivered his sur-reply before the return date on the summary judgment motion; and the Local Rules and stipulations do not prohibit the filing of a sur-reply. Dickinson's affidavit will also be considered.
II. Applicable Standards A. The Summary Judgment Standard
Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see generally 6 James Wm. Moore, et al., Moore's Federal Practice 1 56.15 (2d ed. 1983). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The moving party has the burden of showing that there are no material facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion.Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y. 1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248;R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).
B. ADEA/Title VII Standard
For refusal to hire claims arising under either Title VII or the ADEA, in order to establish a prima facie case of discrimination, a plaintiff must show: (1) membership in a protected class; (2) qualification for the position sought, (3) an adverse employment action, and (4) circumstances giving rise to an inference of discrimination. Chudnovsky v. Prudential Sec., Inc., No. 98 Civ. 7753, 2000 WL 1576876, at *7 (S.D.N.Y. Oct. 23, 2000)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Carlton v. Mystic Transp., 202 F.3d 129, 134 (2d Cir. 2000)). Where plaintiff makes out a prima facie case, the defendant may rebut that showing by articulating a legitimate, non-discriminatory reason for the employment action in question. Weistock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). Upon defendant's articulation of such a reason, the presumption of discrimination arising with the establishment of the prima facie case "drops from the picture," and for the case to continue, the plaintiff must present evidence that the proffered reason is "a mere pretext for actual discrimination." Id.
In Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000), the Supreme Court further clarified that establishing a prima facie case and presenting sufficient evidence to reject the employer's explanation may permit a finding of liability. The plaintiff need not "always introduce additional, independent evidence of discrimination." Id.
III . Discussion
Mercer does not dispute that Pasha is a member of a protected class; that he applied for, but was not offered, a position within Mercer; or (for purposes of this motion) that he was qualified for the position. (Mercer's Mem. at 10.) Rather, Mercer claims that Pasha has failed to point to any facts or circumstances that could reasonably give rise to an inference of national origin or age discrimination in this case. Mercer further argues that even if Pasha could satisfy his initial burden of establishing a prima facie case, he has not raised a triable issue of pretext as to Mercer's legitimate, non-discriminatory reasons for the decision not to hire Pasha.
A. Pasha Has Not Established a National Origin Discrimination Claim
Pasha claims that Mercer refused to hire him due to his Pakistani national origin. In support of this claim, he points out that Alam, the key decision-maker, is also of Pakistani origin. However, Alam was born in Pakistan in Sargodha, while Pasha was born in India and grew up in Karachi, Sind in Pakistan. According to Pasha, natives of Pakistan tend to look down on those born in India, whom they regard as refugees, and the people of Punjab tend to look down on the people of Sind. Pasha also cites his personal experience that Pakistanis and Indians in the United States tend to discriminate against their own kind.
Even if these biases are true, however, Pasha offers no support that Alam shared them. He describes his interview with Alam as courteous and favorable and even claims that Alam indicated he would become a principal of the firm. At his deposition, Pasha testified that nothing occurred at his meeting with Alam to heighten his concern about them both being Pakistani. (Pasha's Dep. at 210-13.)
Pasha's January 24, 2000 letter to Coster describes his meeting with Alam as a "probing, deep interview" in which "[w]e talked technical pension matters and he [Alam] asked specific personal questions which were quite in order. We even briefly discussed Pakistan since we are both originally from there."
Pasha further argues that as Alam was an actuary and had no professional qualifications in investments, he could conceivably resent Pasha's dual qualifications. This allegation, however, does not state a discrimination claim, based either on national origin or age.
Pasha admitted at his deposition that nothing in his interactions with Alam or with any of the individuals at Mercer caused him to believe that national origin played a role in the decision not to hire him. Pakistan only came up in Pasha's interview with Alam, and Pasha characterized it as "perfectly natural in the circumstances" (Pasha's Dep. at 210.) Statements and questions that "merely acknowledge" an individual's national origin or background "do not support an inference of discriminatory animus." Chudnovsky, 2000 WL 1576876, at *8;accord Pasic v. Eztzi's Texas Holding Corp., No. 01 Civ. 1114, 2002 WL 31938854, at *3 (S.D.N.Y. Jan. 9, 2002) (granting summary judgment for defendant employer on plaintiff's national origin claim).
Pasha next alleges that Mercer refused to provide employee national origin statistics during discovery, and that it does not appear to employ any investment consultants from Pakistan in their United States workforce.
However, Mercer could not provide information on their investment consultants by national origin because it does not keep track of this information. Applicable EEOC regulations require only that Mercer maintain records as to gender, race, and ethnic group, not national origin. 29 C.F.R. § 1607.4(B). Furthermore, even if these statistics existed, it would be necessary to have a sense of the number of candidates of Pakistani origin in the applicant pool in order to evaluate them.
Although Pasha concedes that Alam is of Pakistani origin, he explains that Alam has never been employed by either of the two defendants in this lawsuit and that his salary has always been paid by William M. Mercer, Inc., later renamed Mercer Human Resource Consulting, Inc., a separate legal entity and parent of one of the defendants.
In his affidavit, Alam testified that he was the U.S. national practice leader for defendant William M. Mercer Investment Consulting, Inc. from in or about April 1999 through in or about March 2001. He was employed by the parent corporation, Mercer Human Resource Consulting, Inc., as the leader of its New York office from in or about March 2001 through in or about February 2003.
In any case, all parties agree that Alam held a position of power with regards to the defendants. Pasha himself characterizes Alam as "the main decision-maker" in this case. (Pasha's Opp. Mem. III.A at 3.) See also (Pasha's Opp. Mem. IV at 7 ("The truth of the matter is that . . . only one person actually decided that the plaintiff should not be hired and that was Alam, the head of investment consulting at that time.").)
B. Pasha Has Not Established an Age Discrimination Claim 1. Pasha Has Not Established a Prima Facie Case of Age Discrimination
In support of his age discrimination claim, Pasha points to remarks made by Alam and Hiner. According to Pasha, Alam talked about recruiting young people from the actuarial side of the company's business to become Investment Consultants. Alam also made reference to his own age by talking about a mutual acquaintance in Pakistan, a classmate of his who was 42-years old. At his deposition, Hiner also raised a statement made by Hiner. Pasha testified, Hiner said "to me something, something, I don't recall, we should be thinking of retiring at our age." (Pasha's Dep. at 220-21.)
Pasha does not allege Hiner's remark in his complaint or in his EEOC filing. Pasha further testified that prior to his deposition, he had never communicated that alleged remark to anyone.
These remarks are too "[i]solated and ambiguous" to support a finding of age discrimination. Douglas v. Dist. Council 37 Municipal Employees' Educ. Fund Trust, 207 F. Supp.2d 282, 291 (S.D.N.Y. 2002) (citing Ranieri v. Haighland Falls-Fort Montgomery Sch. Dist., 198 F. Supp.2d 542, 545 (S.D.N.Y. (2002)). Alam's comment concerning recruiting consultants from the actuarial side of Mercer's business to become investment consultants is alleged by Mercer to refer to a potential solution to the firm's concerns about losing its experienced investment consultants to higher-paying investment management firms. The fact that youth was mentioned, since, as Pasha himself explains, such a transition would probably be most feasible in the earlier stages of a career, does not indicate an age bias. (Pasha's Opp. Mem. II.B at 1-2.)
Nor can Alam's casual mention of a mutual acquaintance in Pakistan reasonably be said to give rise to an inference of age discrimination. Upon learning that one of Pasha's prior employees was Eastern Federal Union Insurance Company, Alam mentioned that a member of the family that owned the firm was a former classmate of his. Pasha acknowledges that reference to this classmate was "perfectly natural in the circumstances" — in the course of a "to-get-acquainted type of conversation." (Pasha's Dep. at 211-12.) Pasha, nonetheless, argues that the specific mention of age was unnatural. However, Alam's reference to the classmate's age could serve merely to distinguish him from other family members.
Similarly, Hiner's remark that "we should be thinking of retiring at our age" was "no more than a passing flippancy," and "too immaterial to withstand a properly-supported motion for summary judgment." Bern v. United Mercantile Agencies, 942 F. Supp. 217, 220 (S.D.N.Y. 1996). See also Hatter v. Fulton, No. 92 Civ. 6065, 1997 WL 411623, at *5 (S.D.N.Y. Jul. 21, 1997) (granting summary judgment for employer, finding that supervisor's comment that company "needs young people" was merely a "stray utterance that is insufficient to give rise to an inference of discrimination");Buompane v. Citibank, N.A., No. 00 Civ. 7998, 2002 WL 603036, at *12-13 (S.D.N.Y. Apr. 18, 2002) (granting employer's motion for summary judgment on age discrimination claim, despite decisionmaker's comments that she wanted an "energetic young buck," and sought a "young, energetic, fresh approach"). Moreover, it is undisputed that Hiner was not the person ultimately responsible for deciding whether to hire Pasha.
Pasha also points to a note in Hiner's written evaluation in which he expressed "concern about [Pasha] making a shift to a narrower focus this late in his career." The Second Circuit has found that virtually identical comments "do not reflect discriminatory animus, or show that [plaintiff's] age was in fact a motivating or substantial factor in the employment decision." Raskin v. Wyatt Co., 125 F.3d 55, 62-63 (2d Cir. 1997) (rejecting contention that defendant's president's comment about plaintiff "chang[ing] paths at what he called a `late stage' of [plaintiff's] career" created an inference of age discrimination, and affirming summary judgment for defendant).
In contrast to the comments alleged by Pasha, the cases he cites involved remarks that "directly manifest[ed] a discriminatory attitude, of a sufficient quantum and gravity that would allow the factfinder to conclude that attitude more likely than not was a motivating factor in the employment decision." Erickson v. Farmland Indus., Inc., 271 F.3d 718, 724 (8th Cir. 2001) (cited in Pasha's Opp. Mem. II.B at 7).
Pasha further presents statistical evidence in support of his age discrimination claim. In the year 2000, when Pasha was rejected from employment, Mercer hired 16 investment consultants. Pasha points out that the oldest of the recruits was 41 and the youngest 23 and that candidates chosen for the position were between 13 and 21 years younger than he was. From 1997 through 1999, Mercer hired 50 investment consultants, 6 of whom were over the age of 40, including one who was over the age of 50. Pasha points out that during the four years nearly three-quarters of recruits were under age 35, and 95% were below age 45.
However, this does not necessarily prove discrimination. As explained in the Guider case,
Plaintiff's statistical evidence only accounts for the ages of those individuals hired, while ignoring the ages of those individuals who applied for the position. For example, the ages of the individual . . . applicants could be under 40. . . . Without accounting for these factors, the statistics do no support an inference of age discrimination.Guider v. F.W. Woolworth Corp., No. 96 Civ. 3168, 1998 WL 702275, at *11 (S.D.N.Y. Oct. 7, 1998). See also Diamond v. T. Rowe Price Assocs., Inc., 852 F. Supp. 372, 408 (D.Md. 1994) (rejecting plaintiff's statistics where no attempt was made to determine what percentage of qualified individuals actually pursued employment with pertinent firms or with defendant); Hill v. United States Postal Serv., 522 F. Supp. 1283, 1296-97, 1303 (S.D.N.Y. 1981) (analysis that fails to take into account composition of relevant applicant pool is insufficient to establish prima facie case of discrimination).
Pasha attempts to provide information regarding the applicant pool by citing AIMR age statistics covering the universe of investment consulting professionals in the United States as of January 2000. Pasha then compares these statistics with the ages of the individuals hired by Mercer from 1997 to 1999. However, these statistics do not even purport to be representative of the subgroup of investment professionals seeking employment. Mercer thus suggests it would be more appropriate to compare these figures with all of Mercer's United States investment consultants as of January 1, 2000. Such a comparison demonstrates that 34.7% of investment consultants employed by Mercer at that time were over 40 years of age — a figure that closely matches AIMR statistics that 37% of all investment consultants are in the protected class.
According to Mercer, applicants do not provide their ages in the resumes or application materials.
Mercer complains that the AIMR statistics are not supported by an authenticating affidavit. However, Pasha points out that these statistics have been authenticated in Affidavit # 5, dated October 7, 2003.
Furthermore, it is undisputed that members of the protected class were hired. Three of the 16 candidates hired in 2000 were at or over the age of 40, and 6 of the 50 candidates hired from 1997 through 1999 were over age 40. One of the employees hired was 58 years-old, 4 years older than Pasha when he applied for a job. Thus, Mercer notes that in the three years preceding the decision not to hire Pasha, 12% were in the protected age group, and the following year, nearly 19% were in the protected age group. As the Supreme Court recognized, in determining whether discrimination was a motivating factor for an adverse employment decision, evidence of an employer's non-discrimination should be considered as well. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 513-14 n. 5 (1993); see also Schachner v. Beth Israel Med. Ctr., 14 F. Supp.2d 468, 471 (S.D.N.Y. 1998) (refusing to draw an inference of discrimination where defendant offered a position to a member of the same protected religious group as plaintiff).
Pasha notes that this 58-year old was hired in May 1999, "much before" he was turned down for job in January 2000 and is thus in no way a replacement for him. However, the hiring of a 58-year old a few months before Pasha's interview is probative, and the fact that she did not replace Pasha is irrelevant for the purpose of assessing whether Mercer has an age discriminatory bias in its hiring policies.
2. Mercer Has Articulated Non-Discriminatory Reasons for its Decision Not to Hire Pasha
In any case, even if Pasha could satisfy his initial burden of establishing a prima facie case of age discrimination, Mercer has articulated non-discriminatory reasons for its decision not to hire Pasha, and Pasha has not raised a triable issue of pretext.
Mercer alleges that Pasha was interviewed by no fewer than seven individuals who were all unanimous in concluding that Pasha's skill set, experience, and personality would not make him a good fit within Mercer. In an affidavit, Alam testified:
Although I found Pasha to be intelligent and motivated, I concluded that he lacked relevant experience for an investment consulting position within Mercer. I also felt that Pasha's attitude and personality were not well suited to a client-facing position like investment consultant. My impression was that Pasha believed himself to be smarter and more talented than everyone else; in conversation, he exhibited a condescending tone that, candidly, I found to be a turn-off.
(Alam Aff. ¶ 5.) Alam further stated that Dickinson and Heilborn reported to him that "in their view, Pasha, while technically knowledgeable, did not have the necessary skills or personality to be a field consultant, which, . . . required the ability to develop working relationships with clients." (Alam Aff. ¶ 4.) In her affidavit, Dickinson echoed:
Based on a luncheon interview with Mr. Pasha, I concluded that he lacked the background and skills, including the interpersonal skills, necessary to succeed as an investment consultant. Specifically, I felt that Mr. Pasha's intellectual arrogance would hamper his ability to sell Mercer's services and to work effectively with others on a number of levels, both within the Mercer organization and his interaction with clients . . . Following my interview with Mr. Pasha, I provided Mr. Alam with my feedback, and with my recommendation that Mr. Pasha not be offered employment as an investment consultant.
(Dickinson Aff. ¶¶ 2-3.)
The three Chicago interviewers submitted written evaluations to Alam. These evaluations included the following comments:
— "I don't think Al [Pasha] fits our organization, especially in research — we are too narrowly focused for him to be happy."
— "[H] is lack of background in our business would hurt him. . . ."
— "Al didn't appear to be a real good fit for Mercer. I think he lacks relevant experience on the consulting side."
— "He appears to be a relatively weak marketer. All business he has done with IPI [Investment Perspective International, Inc.] appears to be from his former partner in London. I think things have come to a halt since the split."
— "While technically competent, I don't think he is an earth-shattering thinker."
— "As for a research role, Al would be an OK, but not [a] great fit."
— "He is naturally curious and inquisitive and quite up-to-date on current thinking, but I don't sense that he's a tinkerer and doer."
— He "could have difficulty moving to [a] big organization."
— Marketing "[d]oesn't appear to be [his] strong point."
— "Think he would provide direction — don't know if he would take dir[ections]." "Experience points to [him] not being [a] team-oriented mentor."
— Communication skills are "not stellar."
All of the written evaluations recommended against making Pasha an offer. Alam summarized that "[t]he consensus was that Pasha's `mile wide, inch deep' professional background was simply too broad-based, and did not fit the `inch wide, mile deep' researcher profile." (Alam Aff. ¶ 9.)
Courts should "be able to rely on evaluations of prospective employees to determine whether the individual seeking employment meets the prospective employer's legitimate expectations" and "must not second-guess [the employer's] decision making process" since "[e]mployers, not the courts, have the requisite experience in setting employment qualifications." Jenkins v. Metropolitan Opera Ass'n, Inc., No. 96 Civ. 6665, 1999 WL 147745, at *6 (S.D.N.Y. March. 18, 1999), aff'd , 213 F.3d 626 (2d Cir. 2000). Thus, it is not the Court's role to police the employer's judgment and ensure that the best qualified person is hired. Rather, the law only safeguards against discriminatory purpose. Ranieri, 198 F. Supp.2d at 546 ("[O]ne cannot draw from an unwise decision any inference that it was reached on forbidden grounds. The law does not require an employer to hire the best qualified person, and as long as the evidence does not tend to support an inference of age discrimination, the [employer] does not have to prove that it made the wisest or best choice.").
Where, as here, the employer articulates non-discriminatory reasons for its employment decision, the burden shifts back to the plaintiff to demonstrate "by a preponderance of the evidence, that the employer's presumptively valid explanation was merely a pretext for discrimination."Griffin v. Ambika Corp., 103 F. Supp.2d 297, 307 (S.D.N.Y. 2000).
3. Pasha Has Not Raised a Triable Issue of Pretext
To raise a triable issue of pretext, the "plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [employer] were false, and that more likely than not discrimination was the real reason for the employment action." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (internal quotations omitted).
Pasha concedes that the Chicago interviewers found that he would not be a "good fit" for the job. At his deposition, Pasha acknowledged that nothing in his interviews with Blalock, Collins, and Finney caused him concern about potential age or national origin bias. (Pasha's Dep. at 237-40.) However, Pasha argues that their negative opinions applied only to a research position. He refers to Hiner's and Finney's evaluations that indicate he would be more suitable for a consulting position. Blalock's evaluation, however, specifically cites Pasha's weaknesses in an investment consulting capacity with comments such as "He appears to be a relatively weak marketer."; Marketing "[d]oesn't appear to be [his] strong point."; and Communication skills are "not stellar." Additionally, Finney ranks Pasha's marketing potential as unsatisfactory.
Pasha further questions the universality of negative opinions amongst the interviewers. He notes that Coster did not consider him unfit and that he recommended him for employment with Mercer three times. He further recounts that Dickinson told him he had an "enviable resume" at his interview and that he has not seen a single piece of paper from Heilbron recommending not to hire him. These claims, however, stand in direct contrast to Alam's and Dickinson's affidavits, which relate Dickinson's and Heilbron's conclusion that Pasha lacked the skills and personality necessary for an investment consultant at Mercer.
Finally, Pasha characterizes the reasons given for refusing to hire him as "subjective and conclusory." (Pasha's Opp. Mem. at 2.) He points out that subjective traits, like personality, are more likely to mask discrimination.
Pasha also claims that he was denied the job at Mercer for being overqualified, a "euphemism to mask the real reason for refusal, namely, in the eyes of the employer the applicant is too old." (Pasha's Mem. IV at 10 (citing Taggart v. Time, Inc., 924 F.2d 43 (2d Cir. 1991).) However, the evidence does not reflect Pasha's rejection from employment on the basis of over qualification.
However, Pasha has not established discriminatory intent here. Alam did not just dismiss Pasha for not possessing the skills and personality necessary for an investing consultant, but rather arranged for him to interview for a position with the firm's Chicago research group. If Pasha's age (and/or national origin) were sufficient to turn Alam against him, he would not suggest that Pasha interview with Mercer for another position. Pasha's contention that Alam "orchestrated" the Chicago interviews against him "to back up his decision and . . . preempt any subsequent litigation," and that the Chicago evaluation reports are "a subterfuge for employment discrimination," is without any factual support. (Pasha's Opp. Mem. IV at 7, 4.) Rather, it makes more sense that Alam invited Pasha to interview in Chicago with the research group "as an accommodation to Coster" and in order "to afford him every opportunity for employment within Mercer." (Alam Aff. ¶ 8.) Furthermore, both prior to and following its decision not to offer Pasha employment, Mercer hired other members of the protected age group.
Mercer points to Pasha's lack of success in finding another suitable job to show that its reasons for refusing to hire him were not pretextual. According to Mercer, since 1996, Pasha has interviewed with dozens of prospective employers and has been repeatedly rejected. Pasha acknowledges applying to several organizations for jobs once his business began to falter. However, he responds that money management organizations are essentially closed to unknown parties; that the corporate world is age conscious; and that the market has been particularly tight since the stock market crash in March 2000. Pasha further claims that he received a couple of positive responses, which he could not accept because of attached terms. Pasha also notes his success in securing contract business once from Swiss Re Financial Products, Inc. and twice from Citibank Global Asset Management. In any case, whether or not Pasha was qualified for the job at Mercer, he has not established a claim for discrimination.
If Alam had the ability and purpose to create false reports maligning Pasha, this could have been done more easily and effectively by investment consultants (at the very least by Alam himself), and there would have been no need to send Pasha to Chicago.
Conclusion
For the reasons set forth, Mercer's motion to strike is denied, and summary judgment is granted in Mercer's favor.
Enter judgment on notice.
It is so ordered.