March 31, 1988, the EEOC issued a determination that no violation of the applicable statutes had occurred. Affidavit of Richard Becker in Opposition, Exhibit A. The EEOC's determination was based on the denial of the allegations by Sherwin Williams and the representations of Sherwin Williams that its files showed no record of plaintiff's application, as well as on the fact that plaintiff did not furnish a copy of his application. The log book excerpts submitted with the Declaration of Kathleen Oram indicate that several phone calls were made to plaintiff with respect to his charges, but there is no indication that plaintiff ever returned those calls. Declaration of Kathleen Oram at at 6. The EEOC concluded that it was unable to establish that plaintiff actually filed for employment with Sherwin Williams, and the complaint was dismissed. Affidavit of Richard Becker in Opposition, Exhibit A; Sherwin Williams' Brief in Support at 4-5.
In April of 1988, shortly after the EEOC dismissed plaintiff's complaint, Mr. Becker once again sent Sherwin Williams a letter and application for employment. Certification of A. Donald Katen at at 6. Upon receipt of several phone calls from plaintiff requesting an interview, Mr. Katen agreed to interview plaintiff on April 22, 1988 at 10:00 a.m. Id. Mr. Becker called and cancelled the interview on April 22, and agreed to reschedule it for April 29, 1988 at 10:00 a.m. Id. at at 7. On April 29, Mr. Becker did not show up at the scheduled time of 10:00 a.m., but arrived at the office at 4:00 p.m. without having called to indicate that he would be late. Id. at at 8. Mr. Katen states that during the interview plaintiff provided an employment history which differed from that in his previous applications and that he "spoke in broken sentences, with little or no eye contact." Id. at at 9-10.
As a result of the interview and in response to plaintiff's continued requests that Sherwin Williams hire him, Mr. Katen sent letters to plaintiff on May 11, May 26, and June 8, 1988, explaining his concerns regarding his employment history and qualifications and indicating that he would not be hired. Id. at at 11, Exhibit C. Once more in October of 1988, plaintiff wrote to Sherwin Williams, expressing an interest in employment and requesting an interview, and once more Mr. Katen responded that Sherwin Williams was not interested in hiring him. Id. at at 12, Exhibit D.
Plaintiff brought this action against defendants Sherwin Williams and EEOC in September of 1988, alleging violations of the ADEA and the Age Discrimination Claims Assistance Act of 1988, Public Law No. 100-283, 102 Stat. 78 ("ADCAA"), as well as asserting claims for libel, slander, conspiracy, negligence, defamation, retaliation, and false imprisonment. Complaint at at 4, 5. Defendant Sherwin Williams now moves for summary judgment pursuant to Fed. R. Civ. P. 56, contending that plaintiff has not established any issue of fact which might support his claims of age discrimination. Defendant EEOC now moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), asserting that the court lacks subject matter jurisdiction over plaintiff's claims against the EEOC and that plaintiff has failed to state a claim upon which relief may be granted.
I. Sherwin Williams' Summary Judgment Motion
In order to prevail on its motion for summary judgment, defendant Sherwin Williams must show that there are no genuine issues of material fact and that, viewing the facts in the light most favorable to plaintiff, Sherwin Williams will prevail on its claims as a matter of law. Fed. R. Civ. P. 56. See, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). However, once a party has submitted affidavits or other evidence in support of a motion for summary judgment, the party opposing the motion may not simply rest on the allegations in the pleadings but must present affirmative evidence showing that there are genuine issues of fact for trial. Fed. R. Civ. P. 56(e).
Sherwin Williams first argues that the settlement of plaintiff's earlier claims against Sherwin Williams in state court on January 29, 1986, precludes the present action. Although the settlement agreement entered on the record in that state court proceeding clearly indicates that a general release would be executed and delivered between the parties, covering all claims which plaintiff had against Sherwin Williams as of that date, plaintiff correctly points out that the court has not been provided with a signed general release or stipulation of settlement. The court concludes that plaintiff has demonstrated an issue of fact regarding whether a general release was ever executed by either or both of the parties. In addition, even if such a release had been signed by plaintiff, plaintiff would not be precluded from asserting claims which arose after the execution of the general release.
Defendant Sherwin Williams' next assertion is that plaintiff has failed to establish any issue of fact regarding Sherwin Williams' liability under the ADEA and ADCAA.
Plaintiff's burden under the ADEA is to demonstrate that age was the determinative factor in defendant Sherwin Williams' adverse employment decision. See, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Thus, plaintiff must show that he was qualified for the particular job but that circumstances exist which give rise to an inference that he was not hired due to unlawful discrimination by the defendant. O'Hara v. Board of Education of Vocational School in Camden County, 590 F. Supp. 696, 704 (D.N.J. 1984), aff'd in part, remanded in part, 760 F.2d 259 (3d Cir. 1985). If plaintiff is able to establish a prima facie case of discrimination, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for the adverse employment decision. Texas Department of Community Affairs, 450 U.S. at 253. Plaintiff bears the ultimate burden of proof to establish factual issues which demonstrate that the reasons stated by Sherwin Williams for rejecting his applications were merely a pretext for discrimination. See, O'Hara, 590 F. Supp. at 704; Becker v. Dunkin' Donuts of America, Inc., 665 F. Supp. 211 (S.D.N.Y. 1987).
The court concludes that plaintiff has failed to establish any issue of fact regarding either his qualifications for a managerial position with Sherwin Williams or discrimination on the part of Sherwin Williams based on plaintiff's age. Defendant Sherwin Williams would have been justified in rejecting Mr. Becker's many applications for employment solely on the basis of his cover letters, which were sloppy, unprofessional, and demonstrated deficient communication skills. In addition, his representations regarding his employment record were inconsistent from application to application, and showed a great deal of instability in his history of employment. Finally, plaintiff has submitted nothing to the court which supports an inference that plaintiff's age was a determinative factor in Sherwin Williams' rejection of his applications.
With respect to his claim that Sherwin Williams discriminated against him based on his age, plaintiff merely makes the conclusory allegation in his Affidavit in Opposition that "younger persons, no better qualified than I, were hired for the positions." Affidavit of Richard Becker in Opposition at at 4. He claims that he knows that younger persons were hired by Sherwin Williams between 1985 and 1986 based on personal observations in 1987 that the managers of two of defendant's stores were in their mid-twenties and based on the representation of an acquaintance in his mid-twenties who was hired by Sherwin Williams during the 1985-86 period. Id. at at 8. Even if the above representations regarding the hiring of younger persons were true, plaintiff has presented nothing which would indicate that such persons were less qualified for the position than plaintiff. In light of the court's conclusions above regarding plaintiff's inability to demonstrate his own qualifications for a position with defendant, the court concludes that it is unlikely that plaintiff would be able to prove that he was a more qualified candidate than, or even as qualified as, the younger persons hired by Sherwin Williams.
Plaintiff has also failed to present any competent evidence which counters the assertion by Mr. Katen in his Certification in Support that his decisions not to employ plaintiff were made without any knowledge of plaintiff's prior actions against Sherwin Williams. Although plaintiff's affidavit alleges that Sherwin Williams' failure to hire him was retaliatory in nature, Id. at at 7, plaintiff has submitted nothing which indicates that the personnel manager either knew of plaintiff's prior actions against the company, or if he knew of them, that his decision was in any way influenced by them. The court concludes that, viewing the facts on the record before the court in the light most favorable to plaintiff, plaintiff has failed to make out even a prima facie case of employment discrimination against defendant Sherwin Williams. The court will grant Sherwin Williams' motion for summary judgment and will dismiss plaintiff's complaint with prejudice.
II. EEOC's Motion to Dismiss
Plaintiff alleges that the EEOC did not properly prosecute or investigate his complaint pursuant to the ADEA and the ADCAA. The court concludes that plaintiff has failed to state a claim under the ADEA upon which relief may be granted because plaintiff has not established the existence of any right of action against the EEOC under federal law.
Courts that have considered whether the EEOC may be sued as a result of its handling or disposition of a charge have uniformly held that such suits are precluded. See e.g., McCottrell v. Equal Employment Opportunity Commission, 726 F.2d 350 (7th Cir. 1984); Ward v. Equal Employment Opportunity Commission, 719 F.2d 311 (9th Cir. 1983), cert. denied, 466 U.S. 953, 80 L. Ed. 2d 544, 104 S. Ct. 2159 (1984); Francis-Sobel v. Equal Employment Opportunity Commission, 597 F.2d 15 (1st Cir. 1979), cert. denied, 444 U.S. 949, 62 L. Ed. 2d 319, 100 S. Ct. 421 (1979). In enacting Section 626(c) of the ADEA, Congress created an express remedy for claimants who were not satisfied with the actions of the EEOC in processing the complaint. Sections 626(c) and (d) provide for de novo review in federal district court once a complaint has been pending before the EEOC for more than sixty days. Nowhere in the ADEA does Congress expressly provide claimants with a remedy against the EEOC for dissatisfaction with the EEOC's processing of a complaint, and the plaintiff has not presented the court with any basis for implying such a remedy under the statute.
Because the court will grant defendant EEOC's motion to dismiss plaintiff's claims under the ADEA for failure to state a claim upon which relief may be granted, the court must next address its jurisdiction over plaintiff's state law claims against the EEOC. None of plaintiff's claims other than his claims brought under the ADEA can be said to arise under the Constitution, laws, or treaties of the United States. 28 U.S.C. Sec. 1331. Thus, the sole basis for this court's jurisdiction would be 28 U.S.C. Sec. 1332(a), which provides for original jurisdiction over
all civil actions where the matter in controversy exceeds the sum or value of $ 10,000, exclusive of interest and costs, and is between --
(1) citizens of different States. . . .
Plaintiff's complaint lists his address as being in the State of New York, and defendant EEOC's address is listed as being in the State of New Jersey. Complaint at at 1, 2. Even if the EEOC could be considered to be a "citizen" of any state for the purposes of diversity jurisdiction, however, plaintiff is unable to meet the amount in controversy requirement with respect to defendant EEOC. Plaintiff has already conceded in his Affidavit in Opposition that the doctrine of sovereign immunity precludes him from obtaining a money judgment against the EEOC. However, in Paragraph 21 of the Affidavit of Richard Becker in Opposition, plaintiff requests injunctive relief as an alternative to monetary relief, in the form of an order requiring the EEOC to "cease and desist from ignoring [his] complaints, cease and desist from prejudging [his] complaints and require them to reopen all the claims now in their hands."
The law is clear that when injunctive relief is sought, the amount in controversy requirement may be met if the value of the relief obtained exceeds $ 10, 000. Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 347, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977). As the Supreme Court stated in Smith v. Adams, 130 U.S. 167, 175, 32 L. Ed. 895, 9 S. Ct. 566 (1889),
It is conceded that the pecuniary value of the matter in dispute may be determined, not only by the money judgment prayed, where such is the case, but in some cases by the increased or diminished value of the property directly affected by the relief prayed, or by the pecuniary result to one of the parties immediately from the judgment.