Civil Action No. 03-12183-DPW.
January 18, 2006
MEMORANDUM AND ORDER
The Plaintiff, Margaret A. Cummings, applied for various Editorial Assistant positions at Pearson Education, Inc. ("Pearson") from April 2002 through August 2002. Throughout the application period, Ms. Cummings interacted with Elizabeth Caron, a Pearson Human Resources Generalist. Pearson did not hire or interview Ms. Cummings.
Ms. Cummings claims that Pearson did not hire or interview her because Ms. Caron and Ms. Caron's supervisor, Judi Grossman, Pearson's Human Resources Director, impermissibly discriminated against her based on her age. Ms. Cummings brings this action under the Age Discrimination in Employment Act (the "ADEA") against Pearson, Ms. Grossman, and Ms. Caron (collectively "the Defendants").
A. The Federal Rules of Civil Procedure and Evidence
On September 16, 2005, Ms. Cummings filed a "Motion 56". Federal Rule of Civil Procedure 56 deals with motions for summary judgment. Consequently, I will treat "Motion 56" as one for summary judgment. The Defendants have also filed a motion, more conventionally denominated, under Fed.R.Civ.P. 56. Thus, I confront cross-motions for summary judgment.
Given certain idiosyncracies in Plaintiff's motion, it will be useful to outline the governing principles.
Rule 56 provides in pertinent part that:
(a) A party seeking to recover upon a claim . . . may, . . ., move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.
. . . .
(e) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Local Rule 56.1 of this court further requires that:
Motions for summary judgment shall include a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried, with page references to affidavits, depositions and other documentation. Failure to include such a statement constitutes grounds for denial of the motion. . . . Copies of all referenced documentation shall be filed as exhibits to the motion or opposition.
Local Rule 56.1 and Rule 56(e) mean that the Court is restricted to certain forms of pleadings and evidence when considering a motion for summary judgment. In particular, the evidence adduced must be shown admissible. The Federal Rules of Evidence provide that "hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Fed.R.Evid. 802. I have examined certain of Plaintiff's evidence in light of the hearsay rules.
"Hearsay" "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). In this case, the Defendants have said that for purposes of these summary judgment motions only, they do not, as a general proposition, object on hearsay grounds to Plaintiff's description of the contents of certain emails that have not been produced, unless they have specifically noted an objection in their submissions.
"A pro se litigant, like any litigant, is guaranteed a meaningful opportunity to be heard." Eagle Eye Fishing Corp. v. U.S. Dept. of Commerce, 20 F.3d 503, 506 (1st Cir. 1994). As a result, I will view Ms. Cummings's submissions "less stringently". However, a party who elects to proceed pro se must nonetheless comply with the governing rules. Lefebvre v. Commission of Internal Revenue Service, 830 F.2d 417, 419 (1st Cir. 1987); Ruiz Riviera v. Riley, 209 F.3d 24, 28 n. 2 (1st Cir. 2000). Consequently, while I deny the Defendants' Motion to Strike Plaintiff's Statement of Undisputed Facts, I will consider the concerns raised in that motion and will disregard "facts" that are not presented according to the governing rules for the purpose of the summary judgment motions.
B. Summary Judgment Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When both parties file a motion for summary judgment, the basic summary judgment standard still applies and the court must determine whether either of the parties deserves judgment as a matter of law based on the facts that are not disputed. Adria Int'l Group, Inc. v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001). Just because both sides move for summary judgment, does not mean that the court must grant judgment to one side or the other. Schwabenbauer v. Board of Education, 667 F.2d 305, 313 (2d Cir. 1981).
When considering a single motion for summary judgment, the court must view all of the admissible facts and draw all reasonable inferences from those facts in the light most favorable to the party who did not file the motion (ie. the non-moving party). Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997). But, on issues where the non-moving party bears the burden of proofA, that party must reliably demonstrate that there are facts sufficient to create an authentic dispute on those issues. Garside v. Osco Drugs, Inc., 895 F.2d 46, 48 (1st Cir. 1990) citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-26 (1986). In deciding a cross-motion for summary judgment, courts must consider each motion separately, drawing inferences against each party in turn. Reich, 126 F.3d at 6.
To oppose a motion for summary judgment successfully, the non-moving party must present evidence with "substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial." LeBlanc v. Great American Insurance Co., 6 F.3d 836, 841-42 (1st Cir. 1993) (internal citations omitted). But, "`the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'" Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (emphasis in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986) (citations omitted)). A fact is "material" if it has the "potential to affect the outcome of the suit under the applicable law",Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000), and a "genuine" issue is one supported by evidence such that "a `reasonable jury, drawing favorable inferences,' could resolve it in favor of the nonmoving party." Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quotingSmith v. F.W. Morse Co., 76 F.3d 413, 428 (1st Cir. 1996)). "Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation."Medina-Munoz, 896 F.2d at 8.
C. The Facts
I now recite the facts, noting the more important factual disputes and keeping in mind the relevant standards and rules discussed above.
Ms. Cummings was born in 1939. She earned a Bachelor of Arts degree from the University of Massachusetts Boston in 1974. From 1980-82, Ms. Cummings took two graduate classes (8 credits) in the Mass Communications Program at Boston University and then several semesters in the Professional Writing and Publishing Program at Emerson University. In total, she completed thirty-six (36) graduate credits out of the forty (40) required for a master's degree at Emerson, but never completed that degree. The resumés sent to Pearson reflect this educational background. In addition, the initial resumé submitted to Pearson includes a reference to the 2002 Certificate she earned for taking a workshop on Microsoft XP Desktop Technology in 2001 from the Veterans' Technical Institute.
Both of the resumés Ms. Cummings submitted to Pearson only reflect employment from 1987 to 1994, where she worked full-time under temporary placements, first through Office Specialist and then through Talent Tree Staffing Services.
From 1995 through 2002, Ms. Cummings looked for full-time regular employment in the proofreading and publishing field. Towards the end of the computer workshop Ms. Cummings completed in 2001, Mary Westropp, the coordinator of the workshop, offered to help Ms. Cummings find a job in publishing. She put Ms. Cummings in contact with Mark Dalton, who had worked at Pearson until October 31, 2001.
In early April 2002, Mr. Dalton sent Ms. Cummings a brief email mentioning a job vacancy posted on Monster.com and Pearson's website. Even though Mr. Dalton had not given her the name of the job title, Ms. Cummings tried searching on Monster.com. After finding nothing, she decided to look up Pearson instead. Sometime between April 6 and 9, 2002, she found the Pearson website and located a link titled "9 Editorial Assistant". On the webpage with the email address email@example.com, she electronically submitted her resumé and a message in the cover letter section stating that she was interested in an Editorial Assistant position and that she was qualified, and requesting acknowledgment of receipt. Ms. Cummings cannot remember whether the webpage included a job description or just a series of entrance requirements or whether the webpage listed in which departments the positions were available. But she does remember that she consciously applied to nine (9) positions, that the first one only required a bachelor's degree, and that the job description shown below, which she printed from the website in the fall of 2002, resembled what she saw on the website in April 2002.
Editorial Assistant: This position is responsible for assisting the Editor with contracting and developing the manuscripts, releasing them to production, and working with sales and marketing to increase overall sales. Also responsible to prepare presentations of new books to sales force and help present the presentations to selected professional associations and conventions. Qualifications: BA/BS preferred. Excellent written and verbal communication skills required.
Ms. Cummings does not know what became of the resumé she sent through the website. A day or two later she sent another electronic copy of her resumé from her personal Yahoo! email account to Ms. Caron's email address, which she had obtained from the Pearson website. The email to Ms. Caron included a message similar to the one accompanying the resumé she sent to firstname.lastname@example.org. In Ms. Cummings's email to Ms. Caron she did not write that she was applying for all nine editorial positions posted on the website because she believed that was understood since they were advertized in a collective fashion. Ms. Caron, a Pearson Human Resources Generalist, acknowledged the receipt of the emailed resumé.
According to Ms. Caron, her initial response was that the resumé was not well-written or well-presented. She observed that it was not accompanied with a cover letter and it did not reflect any relevant employment experience, and that the "Introduction" section showed that the applicant was not motivated and ambitious. Accordingly, Ms. Caron placed Ms. Cummings's resumé in the "B" pile.
Pertinent to Ms. Caron's view was that in the "Introduction" section, Ms. Cummings's resumé stated that she was "a former `Temp' who stayed the longest on the worst of assignments."
According to Ms. Caron, she "typically received fifty to one hundred resumes a day, in aggregate, for the positions for which [she] recruited. Due to the volume of resumés, [she] would initially review resumés by separating them into two groups, "A" and "B." Group A consisted of resumés that appeared highly professional and included a well-written cover letter . . . Group A also included resumés from candidates who were referred by current Pearson employees. In contrast, Group B consisted of resumés that appeared less professional, organized, and well written, and resumés that were not accompanied by a well written cover letter or other information expressing an interest in the particular position and relevant experience." Caron would then "review the resumés in Group A more closely and select the most qualified candidates to be forwarded on to the manager of the department looking for an Editorial Assistant. After reviewing the selected resumés, the manager would return them to [Caron], indicating in which candidates he or she was interested. [Caron] would then interview those candidates over the telephone, select the three to five top candidates, and schedule in-person interviews with the hiring manager, who made the final decision." [Caron Aff., ¶ 10.] "Due to the volume of candidates, [Caron] typically did not respond to applicants who were not ultimately hired, unless the applicant had received an interview or was referred by a Pearson employee." Typically, Caron did not reconsider Group B resumes because Group A was usually large enough to furnish excellent candidates.
About a week to ten days after receiving Ms. Caron's acknowledgment of receipt, Ms. Cummings sent Ms. Caron an email asking for a status report. Ms. Caron replied with a short email requesting another copy of Ms. Cummings's resumé. According to Ms. Caron, she made the request because it was difficult to determine with whom she was corresponding given the large number of emails and resumés she received.
After that, Ms. Cummings sent another email to Ms. Caron asking if the two could meet. Ms. Cummings heard nothing back. About a week or so later, Ms. Cummings sent Ms. Caron another email asking for a status report. Ms. Caron replied with a short email again requesting another copy of Ms. Cummings's resumé. According to Ms. Caron, she made this request again because she was still not yet familiar enough with Ms. Cummings name or email address to realize with whom she was corresponding. According to Ms. Cummings, when asked why she needed the additional copies, Ms. Caron simply emailed the response "Need several copies." Ms. Cummings then emailed Mr. Dalton to express bewilderment. Mr. Dalton did not reply.
At this point, Ms. Caron claims that "[g]iven Ms. Cummmings's persistence in seeking employment; I prepared to interview her by telephone and assess if there were any other jobs that might be appropriate for her, even though she had not made the cut for an Editorial Assistant position. I sent an email to Ms. Cummings, offering to speak with her by phone and asking plaintiff to suggest a convenient time for doing so. I could not call her directly, as Ms. Cummings included no telephone number on her resumé. Ms. Cummings responded by email indicating she could not participate in a telephone call. She offered no alternative." However, Ms. Cummings argues that Ms. Caron "concocted a tale that she had offered Plaintiff a `telephone interview,'" and that this is part of the evidence demonstrating Pearson's attempt to cover up the age discrimination. At the summary judgment stage, I do not resolve the question of whether there was an offer of a telephone interview.
Ms. Cummings again emailed Ms. Caron for a status report after noticing that Pearson had removed the ad from its website. When Ms. Caron failed to reply, Ms. Cummings sent a follow-up email suggesting the jobs must be filled by now and mentioning Mr. Dalton's name. A few days later, Ms. Caron replied that the jobs had been filed. Ms. Cummings replied in an email that she expected an interview "at least". According to Ms. Cummings, Ms. Caron replied in an email that she only passes on papers and that it might have been because she did not have a phone number on her resumé. In response, Ms. Cummings emailed Mr. Dalton the following, which was copied to Ms. Caron:
Mark. It's apparent that EC [Elizabeth Caron] is not fully grown yet. I got one too many "Hi Margarets," accompanied by still another request for a resume.
At the outset, I specifically requested that I be contacted by em-mail [sic]. I could not have been more clear as to why. Perhaps I was simply passed over. But if this had to do with not having a telephone number, that is quite something else. Ms. Caron is employed, I am not.
If it is any comfort to you, neither your name nor Gina's was mentioned until after I heard from Gina last weekend. I somehow sensed all was lost.
I have no regrets about my dealings with Ms. Caron; if she took it the wrong way then she shouldn't be dealing with people. (I used to be a public information officer.)
By a copy of this being sent to Ms. Caron, I hope this absolves you. I have always been appreciative; I don't grovel, however. Thank you. Margaret Cummings.
[Caron Aff., Ex. 3.]
At some point, Ms. Caron contacted Mr. Dalton, since he was named in one of Ms. Cummings's email, in order to obtain more information about Ms. Cummings. Mr. Dalton informed Ms. Caron that he had met Ms. Cummings through the Boston placement firm New Directions. Ms. Caron then called New Directions where she spoke with Ms. Westropp about what Ms. Caron called Ms. Cummings's "unprofessional approach to her efforts to obtain employment with Pearson." Ms. Westropp made Ms. Cummings aware of this conversation in an email.
Sometime around early June 2002, Ms. Cummings saw a posting on the pearsoned.com webpage for "2 Editorial Assistant" vacancies. Ms. Cummings remembers that these postings called for a BA/BS and a writing sample. Ms. Cummings emailed Ms. Caron about these positions and asked whether she needed to send another resumé. Ms. Caron replied that she had her resumé on file and that there was no need to send another. Ms. Cummings never forwarded Ms. Caron a writing sample, and Ms. Caron never requested one. About a week later, having heard nothing, Ms. Cummings emailed Ms. Caron asking for a status report. At the suggestion of Ms. Grossman, Pearson's Human Resources Director, Ms. Caron replied that a "very qualified candidate" had been hired, even though Ms. Caron was uncertain about which Editorial Assistant position(s) Ms. Cummings was inquiring about.
At some point in early June, Ms. Cummings also sent Ms. Caron a revised resumé for "future use". The revised resumé included a few formatting changes and a couple of changes in the introduction and the proven skills and abilities sections.
In July or early August Ms. Cummings emailed Ms. Caron again about a "1 Editorial Assistant" position advertized on pearsoned.com. This time the position required a BA/BS with good organizational skills. Ms. Caron did not respond to this email or Ms. Cummings's subsequent request for a status report. Consequently, Ms. Cummings emailed Ms. Caron requesting that Pearson's affirmative action/equal opportunity officer review the Editorial Assistant hires because Ms. Cummings suspected discrimination. Again, Ms. Cummings received no reply.
Finally, in September 2002, Ms. Cummings emailed Ms. Caron advising her that she intended to file a complaint with the Equal Employment Opportunity Commission (EEOC). Ms. Cummings did in fact file such a complaint on March 14, 2003. In response to the complaint, Pearson submitted a Position Statement on July 28, 2003. The EEOC dismissed the complaint on September 10, 2003 finding that it "is unable to conclude that the information obtained establishes violation of the statutes." But "[t]his does not certify that the respondent is in compliance with the statutes." On November 4, 2003, Ms. Cummings brought this action against Pearson, Ms. Grossman, and Ms. Caron.
Pearson hired six full-time Editorial Assistants between April and August 2002. Pearson hired Marlana M. Voerster on April 8, 2002 as an Editorial Assistant for Allyn Bacon's Psychology texts; Elizabeth E. Lee on April 22, 2002 as an Editorial Assistant for Allyn Bacon's Criminal Justice and Anthropology text; Christine Lyons on May 1, 2002 as an Editorial Assistant for Allyn Bacon's Education texts; Bernard Gaffney on May 8, 2002 as an Editorial Assistant for Addison Wesley Professional's Computing/Information Technology texts; Leah Prebluda on June 17, 2002 as an Editorial Assistant for the Editorial Director for all Allyn Bacon texts; and Keren Blankfeld on June 17, 2002 as an Editorial Assistant for Addison Wesley's Mathematics and Statistics texts. However, during the April through August 2002 time period there were in fact more than nine Editorial Assistant vacancies in a variety of departments, including both Regular Full-Time and Term of Project positions. Since Ms. Cummings does not remember what departments the Editorial Assistant postings referred to and since she did not specify the departments when she emailed Ms. Caron indicating her interest, Pearson cannot determine which positions she applied for. Nonetheless, I proceed on the understanding that Ms. Cummings applied for at least some of the Editorial Positions advertized and filled between April and August 2002, but that she was not interviewed for any.
The persons identified in Pearson's Position Statement to the EEOC are the six individuals hired by Pearson for full-time positions, as opposed to part-time or term of project positions, during the relevant period.
Ms. Cummings believes that there were nine "interviewees-hires" hired during the April-August 2002 period because the original posting on the pearsoned.com website indicated "9 Editorial Assistant". While Pearson may have initially advertized for nine or more Editorial Assistant positions during the relevant period, the evidence indicates that it only filled the six specific full-time positions listed above during the April to August 2002 period. Given the immateriality of such evidence to my disposition of the summary judgment motions, I will not order Pearson to provide the names and resumés of all individuals eventually hired for vacancies posted on pearsoned.com between April and August 2002. Consequently, I deny Ms. Cummings's Motion to Order Defendants to Account for the 3-to-all Editorial Assistant Hired from 18 June to 31 August 2002.
II. DISCUSSION A. Individual Liability
The Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1), prohibits employers from failing or refusing to hire a potential employee because of the candidate's age. "Employers" are defined as a "person engaged in an industry affecting commerce who has twenty or more employees . . ." The term also includes "any agent of such a person." 29 U.S.C. 630(b). The term "person" means "one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons." 29 U.S.C. 630(a).
Ms. Cummings has sued Ms. Grossman and Ms. Caron in addition to Pearson. One could make the argument that Ms. Grossman and Ms. Caron were acting as agents of Pearson when they refused to interview or hire Ms. Cummings. However, although the First Circuit has declined to determine whether individuals can be held liable under the federal anti-discrimination statutes such as the ADEA, most courts that have addressed the issue have determined that these statutes do not create individual liability. Orell v. U. Mass. Mem'l Med. Ctr., Inc., 203 F.Supp.2d 52, 64 (D. Mass. 2002). See also Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 444 (1st Cir. 1997) (declining to answer the question of whether a corporate supervisor can be sued as the "agent of such a person"); cf. Healy v. Henderson, 275 F. Supp.2d 40, 44-45, 45 n. 39 n. 40 (D. Mass. 2004) (collecting cases) ("[E]very circuit court that has interpreted Title VII's definition of `employer' and the majority of District Courts in the First Circuit . . . have concluded that Congress did not intend to impose individual liability upon agents of an employer.") I too conclude that the ADEA does not provide a basis for individual liability for employees. See, e.g., Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 686 (5th Cir. 2001);Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir. 1994), cert. denied, 513 U.S. 1058 (1994) (Imposing "personal liability would place a heavy burden on those who routinely make personnel decisions for enterprises employing twenty or more persons, and we do not read the statute as imposing it. Instead, we read § 630(b) as an unremarkable expression of respondeat superior — that discriminatory personnel actions taken by an employer's agent may create liability for the employer.");Miller v. Maxwell's International Inc., 991 F.2d 583, 587 (9th Cir. 1993), cert. denied, 510 U.S. 1109 (1994) (Although the alternative statutory construction argument is not without merit, the obvious purpose of the agent provision in the definition of "employer" was to incorporate respondeat superior liability into the statute. Furthermore, since "Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees.") I find no reason to depart from the clear weight of authority on this issue. Consequently, I grant the Defendants' motion for summary judgment as to the claims against Ms. Grossman and Ms. Caron and turn now to the claim against Pearson.
B. Employer Liability
Congress enacted the ADEA in 1967 to enable legal recourse by private sector employees subjected to age discrimination in the workplace. Nowd v. Rubin, 76 F.3d 25, 26 (1st Cir. 1996). In a failure to hire discrimination suit under the ADEA, the plaintiff bears the ultimate burden of persuading the factfinder that the employer illegally discriminated against her by refusing to hire the plaintiff on the basis of her age. Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994). Where, as here, the potential employee cannot prove age discrimination through direct evidence, a three-step test drawn from the Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is employed.
Under the McDonnell Douglas test, the plaintiff first has the burden of establishing a prima facie case. To meet this burden in this setting, the plaintiff must show that four things are true:
(1) s/he is a member of a protected class, (2) s/he applied and was qualified for the position in question, (3) that despite his/her qualifications, s/he was rejected, and (4) that, after rejection, the position remained open and the employer continued to seek applicants from persons of the complainant's qualifications.Woods, 30 F.3d at 259 citing McDonnell Douglas, 411 U.S. at 802.
If the plaintiff can establish her prima facie case, the burden shifts to the employer to show that it had a legitimate, non-discriminatory reason for choosing not to hire the candidate. If the employer can do that, then the presumption of discrimination created by the plaintiff's initial showing disappears and the burden returns to the plaintiff. At this stage, the plaintiff must produce sufficient evidence to show that the reasons advanced by the employer constitute a mere pretext for unlawful discrimination. Id. at 260. In the context of a summary judgment proceeding, this means that "once the employer has advanced a legitimate, nondiscriminatory basis for its adverse employment decision, the plaintiff, before becoming entitled to bring the case before the trier of fact, must show evidence sufficient for the factfinder to reasonably conclude that the employer's decision to discharge him or her was wrongfully based on age." Id. citing LeBlanc v. Great American Ins. Co., 6 F.3d 836, 843 (1st Cir. 1993).
1. Prima Facie Case
Pearson concedes that Ms. Cummings can show that she is a member of a protected class (she was over 40 years old when she applied for the positions) and that Pearson did not hire her. However, Pearson argues that no reasonable fact finder could conclude (1) that she was qualified for an Editorial Assistant position at Pearson, and (2) that the position(s) for which she applied remained open while Pearson sought candidates with similar qualifications. I disagree.
Under either of the descriptions of the qualifications required for Pearson Editorial Assistants — namely, the one printed from the pearsoned.com website by Ms. Cummings in the fall of 2002 or the position description for an Editorial Assistant that was used in May 2002 according to Pearson — I find that there is "at least a genuine issue as to [Ms. Cummings's] ability to meet the employer's legitimate expectations." Woods, 30 F.3d at 261.
The only objective criterion set out in both of the descriptions is the requirement of a Bachelor's degree. Ms. Cummings was awarded a Bachelor's degree in 1974 from the University of Massachusetts and this achievement was reflected in her resumés submitted to Pearson. The Editorial Assistant Job Description produced by Pearson also includes the requirement of computer literacy including wordprocessing, spreadsheets, and the internet. The resumé Ms. Cummings initially submitted indicated that she had recently earned a certificate for training in Microsoft Office XP.
While Pearson is certainly entitled to require that candidates possess excellent written and verbal communication skills, I cannot conclude as urged by Pearson, that Ms. Cummings "lacks effective written communications skills." On summary judgment I am to resolves questions of law, not such issues of fact. The degree to which Ms. Caron was unimpressed with the resumé itself does not mean that Ms. Cummings is unqualified. Similarly, neither of the qualification descriptions required particular experience. Thus, the fact that Ms. Cummings might not be hired because she lacks experience in publishing compared to others does not mean that she was not qualified for the entry-level position as advertized by Pearson.
Pearson next argues that since "Cummings cannot identify for which vacancies she applied, . . . it is not possible to know for how long the specific positions for which Cummings applied remained open or whom Pearson interviewed or hired for those jobs. Thus, Cummings cannot satisfy her burden with regard to the fourth prong of a prima facie case." Although there is a dispute as to which Editorial Assistant positions Ms. Cummings applied for, it is clear that Pearson hired at least five and maybe six, full-time Editorial Assistants after Ms. Cummings indicated her interest in early April. Consequently, Ms. Cummings has met her burden at the first stage.
Ms. Voerster submitted her resume on January 16th and was hired on April 8th, while Ms. Cummings appears to have sent an email to Ms. Caron sometime around April 8th. The other five successful candidates applied between March 31st and May 21st and were hired between April 22nd and June 22nd, which is clearly after Ms. Cummings indicated her interest.
2. Pearson's Reasons
Because Ms. Cummings has adequately presented a prima facie case, Pearson must rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its decision not to hire Ms. Cummings. Pearson argues that Ms. Caron initially relegated Ms. Cummings's resumé into Group B because her submission was not of the quality or substance that Pearson expects from successful applicants. Ms. Caron reported in her Affidavit that:
Upon reviewing Ms. Cummings's resumé, I concluded that it [was] [sic] not well written; saw that it was not accompanied by a cover letter; and observed that it did not reflect any relevant employment experience. The "Introduction" alone showed that Ms. Cummings was not a competitive candidate for an Editorial Assistant position, one that is entry-level but highly desired by motivated and ambitious people with a recognizable interest, and some type of work experience, in publishing, education or both.
Given Pearson's recruiting procedures described in footnote 3 above and given the competition for the Editorial Assistant positions, I find that Ms. Caron's impressions are a sufficient non-discriminatory reason for her decision not to pass on the resumé to a department manager, effectively ending Ms. Cummings's quest to be hired at Pearson.
As for the applications in June and July/August, it appears that Ms. Caron decided that, in addition to her view that Ms. Cummings's resumé was unimpressive and lacking an effective cover letter, Ms. Cummings was not a viable candidate because the emails from Ms. Cummings "reflected poorly on her interpersonal skills." I find that this is an additional non-discriminatory reason for Ms. Caron and Ms. Grossman's handling of the later applications from Ms. Cummings. Consequently, the burden of production returns to Ms. Cummings.
At this stage, I must determine whether Ms. Cummings "has produced sufficient evidence to raise a genuine issue of material fact such as would permit a reasonable factfinder to conclude that" Pearson did not really rely on its articulated reasons in deciding not to hire Ms. Cummings and that Pearson unlawfully discriminated against Ms. Cummings because of her age. Woods, 30 F.3d at 262. Ms. Cummings "must do more than cast doubt on the rationale proffered by [Pearson], the evidence must be of such strength and quality as to permit a reasonable finding that the . . . [refusal to hire] was obviously or manifestly unsupported."Ruiz v. Posadas de San Juan Associates, 124 F.3d 243, 248 (1st Cir. 1997) (internal citations and quotations omitted) (emphasis in original). With the evidence before me, I must agree with Pearson; Ms. Cummings cannot show that Pearson's reasons for not interviewing or hiring Ms. Cummings were a pretext for age discrimination.
Ms. Cummings makes several arguments why Ms. Caron's explanation of her impressions were pretext for age bias. I will address them in turn, starting with what I believe is the strongest argument.
Ms. Cummings argues that age bias is evident because the six individuals hired by Pearson between April and August 2002 were all born between 1975 and 1979, whereas Ms. Cummings was born in 1939. Even in a discrimination charge based on a disparate treatment theory, the plaintiff must prove that the employer harbored a discriminatory motive when it decided not to hire the plaintiff. See, e.g., Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1705 (1993) (proof of discriminatory motive is critical); Holt v. Gamewell Corp., 797 F.2d 36, 37 (1st Cir. 1986) (similar). Given the totality of the circumstances, the ages of successful candidates are not enough. While Ms. Cummings may be right that some employers looking to fill entry-level positions might prefer someone who is fresh out of college, there is no evidence here that Ms. Caron's articulated impressions were a pretext for discrimination. While use of words like "relevant" and "viable" by Ms. Caron and Ms. Grossman does not add support to Ms. Cummings's claims, Pearson's counsel's post-litigation statement that Ms. Cummings's education was "stale" was improvident. However, the ADEA does not necessarily prevent employers from seeking out recent college graduates for entry-level positions, providing that the employer does not discriminate based on age.Sack v. Bentsen, 51 F.3d 264, 1995 WL 153645, *4 (1st Cir. 1995) (unreported) citing E.E.O.C. v. Francis W. Parker School, 41 F.3d 1073, 1076 (7th Cir. 1994) ("The ADEA `requires the employer to ignore an employee's age . . . it does not specify further characteristics that an employer must also ignore.'") "To be sure, it may be more likely that most of the applicants eligible for additional [consideration] because they recently completed [undergraduate degrees] will be under forty. But `decisions based on criteria which merely tend to affect workers over the age of forty more adversely than workers under forty are not [necessarily] prohibited.'" Sack, 1995 WL 153645, *5 citing Francis W. Parker School, 41 F.3d at 1077.
I note, however, that as Ms. Cummings herself admits, Pearson had no way of knowing her precise age. In fact, Ms. Cummings suggests that Ms. Caron would have probably deduced that Ms. Cummings was 48 or so years old when she applied, as opposed to over 60, given her graduation date from the University of Massachusetts. Of course, the age discrimination statute places all those over 40 in the protected class. 29 U.S.C. § 631(a).
Ms. Cummings argues that she was the "most credible candidate" and her resumé was "far better" than any of the disclosed resumés of those hired by Pearson in 2002. While "[a]n employer's asserted strong reliance on subjective feelings about candidates may mask discrimination," Koster v. Trans World Airlines, Inc., 181 F.3d 24, 32 (1st Cir. 1999), I disagree that a reasonable factfinder would necessarily find that Ms. Cummings was without a doubt more qualified than those hired and thus that Ms. Caron's impressions had to pretextual. The six individuals hired by Pearson in the relevant period were at least as qualified as Ms. Cummings. They all had bachelor's degrees and some experience in related fields. While they were not all hired for departments corresponding exactly to their educational background, there is nothing irrational about their selection over Ms. Cummings.
For instance, Pearson hired Keren Balkfield for Addison Wesley's Mathematics and Statistics texts, even though she received a Bachelor of Arts in English, whereas Bernard Gaffney was hired for Addison Wesley's Professionals' Computing/Information Technology texts, even though he received a Bachelor of Mathematics.
Ms. Cummings also argues that Pearson added experience and study requirements where there were none. As Ms. Cummings points out, a factfinder might infer that an employer's decision not to hire someone based on lack of experience was pretextual if the experience was not necessary. See, e.g., Hodgson v. First Federal Sav. Loan Ass'n of Broward County, 455 F.2d 818, 824 n. 14 (5th Cir. 1972). However, since Ms. Caron was receiving a significant number of resumés for each advertized position and since hiring managers prefer candidates with experience and a strong interest in certain fields, it was reasonable for Ms. Caron to prefer candidates with one or two years of relevant experience.
In addition, Ms. Cummings argues that Pearson misled her when Ms. Caron asked for her resumé twice and because Ms. Caron never informed her that she would not be considered. While it may be a best practice for a recruiter promptly to inform every declined applicant of his or her rejection, there is no legal requirement that recruiters do so, especially when they receive the volume of applications for each position that Ms. Caron apparently does. Similarly, while it may create difficulties for people trying to get into a new field or a new firm, there is nothing improper about Pearson favoring its own employees, or individuals referred by Pearson employees, for new openings. Today's job market is highly competitive. Even entry-level positions in many fields are hard to come by.
Ms. Cummings also applied for other jobs elsewhere she received no response.
Finally, Ms. Cummings argues that pretext is evident from Ms. Caron's fabrication of the offer of a telephone interview, Pearson's incompetent online recordkeeping, Pearson's refusal to allow its affirmative action/equal employment opportunity officer to examine Ms. Cummings's complaint, and Ms. Caron's decision to call Mr. Dalton and New Directions on her own initiative. I decline to find that any of these actions evidence Pearson's age bias. The first two are the result of the lack of recordkeeping by both parties prior to the escalation of the conflict between Ms. Caron and Ms. Cummings; the last two are the result of Pearson's understandable reaction to the conflict that developed between Ms. Caron and Ms. Cummings. None of these actions evidence age discrimination.
In sum, none of the reasons advanced by Ms. Cummings satisfy her burden of providing evidence of such strength and quality as to permit a reasonable finding that Pearson's refusal to interview or hire Ms. Cummings for any Editorial Assistant position was unsupported and discriminatory. Pearson's reasons were, in fact, judgments an employer can lawfully make, no matter how arbitrary, hypercritical and upsetting they may be to the applicant.
For the reasons set forth more fully above, I DENY Ms. Cummings's motion for summary judgment and her 3-To-All motion, and I GRANT the Defendants' motion for summary judgment.