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Langer v. 121 Inflight Catering, LLC

United States District Court, D. Connecticut

March 7, 2016

Alexander S. Langer, Plaintiff,
121 Inflight Catering, LLC, Defendant.


Michael P. Shea, U.S.D.J.

Pro se Plaintiff Alexander S. Langer asserts an age discrimination claim against 121 Inflight Catering, LLC (“Inflight”), arising from his unsuccessful application for employment as a driver. Inflight has moved for summary judgment on the single count set forth in Langer’s complaint, which alleges a violation of the Age Discrimination in Employment Act (“ADEA”). I conclude that there is no genuine dispute that the Inflight employee responsible for hiring decisions chose against hiring Langer because of his improper parking and the smell of alcohol on his breath, and not because of his age. Inflight’s motion for summary judgment is therefore GRANTED because it is entitled to judgment as a matter of law.

I. Background

A. Procedural History

Langer filed this action on June 13, 2014. On May 29, 2015, Inflight filed a motion for summary judgment, along with a D. Conn. L. Civ. R. 56(a)(1) statement. (ECF Nos. 28, 28-11.) Inflight also filed - and mailed to Langer - a “Notice to Pro Se Litigant” as required by D. Conn. L. Civ. R. 56(b). (ECF No. 28, at 3; ECF No. 28-12.) Langer filed a memorandum in opposition on July 22, 2015, but failed to include a Local Rule 56(a)(2) Statement or a “Disputed Issues of Material Fact” section, as required by D. Conn. L. Civ. R. 56(a)(2). (ECF No. 32.)[1] Inflight filed a reply on July 28, 2015 (ECF No. 33), and Langer filed an “objection” to that reply on August 10, 2015 (ECF No. 34). In both of his memoranda, Langer fails to cite or attach any evidentiary material. While he makes several assertions of fact in his memoranda, arguments in memoranda are not evidence. See, e.g., Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) (“An attorney’s unsworn statements in a brief are not evidence.” (citation omitted)); Giannullo v. City of New York, 322 F.3d 139, 142 (2d Cir. 2003) (“[T]he defendants’ memorandum of law . . . is not evidence . . .”); Ortiz v. Regan, 749 F.Supp. 1254, 1263 (S.D.N.Y. 1990) (“[A]ssertions in a brief are not evidence of anything . . .” (citations omitted)). Thus, the summary judgment record consists solely of evidence submitted by Inflight. For the purpose of providing context to Langer’s claims only, I include the allegations made in Langer’s complaint in the following factual summary.

B. Factual Background

On October 7, 2013, Inflight posted a job listing on Craiglist. com, a classified advertisements website. (Def.’s MSJ Ex. C, at 7.) The listing sought experienced drivers for a position consisting of “early morning [and] weekend runs to tri-state area airports.” (Id.) Langer, who was 68 years old at the time (see Compl. ¶ 9), responded to the listing by sending an email indicating his interest in the driver position (Def.’s MSJ Ex. C, at 7). Responding to Langer’s email, an Inflight representative arranged an in-person interview to take place on October 10, 2013, at Inflight’s restaurant in Oxford, Connecticut. (Id. at 8.)

Danielle Kahn conducted Langer’s interview. Kahn was responsible for hiring individuals for the driver position at issue. (Kahn Aff., ECF No. 28-4, at ¶ 1.) When Langer arrived at the restaurant, he “parked sideways in the very first parking space at the facility.” (Id. at ¶ 2(a).) Langer states that he “parked his car in front of the main entrance door” because he thought he had arrived at the incorrect address. The person who answered the door told him to park his car. (Pl.’s Opp. Mem. at 2.) During the interview, Kahn asked Langer about his driving experience, knowledge of the area airports, and whether he had received any driving citations. (Compl. ¶ 19-20.) Kahn “detected the smell of alcohol” on Langer’s breath throughout the conversation. (Kahn Aff. ¶ 2(b).)

Langer did not receive a response from Inflight. (Pl.’s Opp. Mem. at 2.) Langer alleges that a week after the interview, he called Inflight’s phone number and asked the individual who answered if he could speak to Kahn. (Compl. ¶ 22.) After giving his name, the individual who answered the phone informed Langer that the position was no longer open. (Id.) In his “Initial Discovery Disclosure” - which Inflight submitted as evidence - Langer asserted that when he called Inflight several days later without informing them of his identity, the unidentified individual who answered the phone informed Langer that Inflight was “hiring young, energetic guys.” (Def.’s MSJ Ex. C, at ¶ 3(a).) On December 19, 2013, the same job listing was again posted on Craigslist. (Def.’s MSJ Ex. C, at 9.)

II. Legal Standard

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citations and internal quotation marks omitted). In addressing the motion, the Court “must construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Gary Friedrich Enters., LLC v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d Cir. 2013) (citation omitted). “Where the moving party demonstrates the absence of a genuine issue of material fact, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact. More specifically, [the opposing party] . . . may not rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted).

III. Discussion

Langer asserts that, by failing to hire him as a driver, Inflight discriminated against him on the basis of his age in violation of the ADEA. The ADEA makes it “unlawful for an employer . . . to fail or refuse to hire . . . any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1).[2]

It is well established that the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies to claims brought under the ADEA. Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Once this burden is met, the defendant must then articulate some legitimate, nondiscriminatory reason for its action. The defendant need not persuade the court that it was actually motivated by the proffered reason. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. When the employer meets its burden, the plaintiff can no longer rely on the prima facie case, but must prove that the employer’s proffered reason was a pretext for discrimination. Since the Supreme Court’s decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) eliminating the mixed-motive analysis as to ADEA ...

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