Summary
explaining that where "nonmoving pro se party has failed to submit papers In opposition, summary judgment should not be granted automatically"
Summary of this case from Benavidez v. Plaza Mexico, Inc.Opinion
00 CIV. 731 (DLC)
September 18, 2001
OPINION ORDER
Plaintiff Hacene Layachi ("Layachi") filed this action pro se on February 2, 2000, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17. He claims that defendant Minolta Business Systems, Inc. ("Minolta") discriminated against him based on his race and religion when it terminated his employment.Plaintiff is of Arabic national origin, born in Algeria, and is Muslim. Defendant moves, unopposed, for summary judgment, pursuant to Rule 56, Fed.R.Civ.P. For the reasons discussed below, defendant's motion is granted.
The Complaint was received by the Court's pro se office on December 22, 1999.
PROCEDURAL HISTORY
Because of the many delays in this case and the fact that the present motion is unopposed by a pro se plaintiff, a detailed procedural history of this action is helpful. At the initial conference in this action held on July 7, 2000, the parties consented to participate in mediation of this dispute. On that same day, the Court entered a scheduling order requiring that all discovery in this action be completed by October 27, and any pretrial motion be made by November 17. The Court further ordered that failure to comply with any of the terms of the Order could constitute grounds for the denial of requested relief, dismissal of the action, the entry of judgment by default, or such other action as is just under the circumstances.
On September 21, 2000, Minolta requested a thirty day extension of these deadlines to permit the parties to participate in a mediation session scheduled for October 27. This Court entered a scheduling order requiring that all discovery in this action be completed by November 27, and that all pretrial motions be submitted by December 18. Attached to the Court's Order was a "Notice for Pro Se Litigants Regarding Opposition to a Summary Judgment Motion," informing the plaintiff, among other things, both that he could not rest on his pleadings in opposition to any summary judgment motion brought by the defendant and that failure to oppose such a motion could result in an entry of summary judgment against him.
By letter dated September 28, 2000, the defendant requested a forty-five day extension of the deadlines ordered on July 7, to accommodate the plaintiff's travel schedule and permit him to participate in mediation during the last two weeks of November. This Court entered an Order on October 3, that all discovery be completed by December 11, and that a11 pretrial motions be submitted by January 2. The Court again ordered that failure to comply with any of the terms of this Order could constitute grounds for the denial of requested relief, dismissal of the action, the entry of judgment by default, or such other action as may be just in the circumstances.
By letter dated November 29, 2000, the defendant informed this Court that the plaintiff had failed to appear at the scheduled mediation session on November 21, and that the plaintiff had failed to contact the defendant or the counsel assigned to assist him for mediation. Defendant requested permission to move to dismiss the Complaint for failure to prosecute. The plaintiff had failed to participate in discovery, appear for his deposition or participate in the mediation. The Court ordered that any moving papers be submitted by December 15, with opposition papers due by January 5, 2001, and any reply papers due by January 12.
Defendant filed its motion to dismiss on December 15, 2000. The plaintiff did not oppose the motion or seek an extension of time to do so. Accordingly, on January 16, the Court ordered the plaintiff to appear on February 2, to show cause why the case should not be dismissed for failure to prosecute.
On February 2, the plaintiff appeared for the conference with the Court, explained that he had been out of the country for part of the intervening time, and indicated a desire to continue the lawsuit. The Court extended the discovery deadlines and ordered that any pretrial motion be made by June 22, with opposition papers due by July 26, and reply due by August 10.
Defendant filed this motion for summary judgment on June 22. By letter dated July 18, plaintiff requested an extension of time to submit his opposition papers. By Order dated July 19, the Court granted plaintiff an extension until August 15, and again ordered that failure to comply with the Order could constitute grounds for the denial of requested relief, dismissal of the action, the entry of judgment by default, or such other action as may be just in the circumstances. By letter dated August 31, counsel for defendant represented that she had received no papers from the plaintiff. To date the plaintiff has submitted no papers in opposition to defendant's motion nor has he been in communication with the Court for any other reason.
Included in the defendant's papers was a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment, "informing the plaintiff, among other things, that his failure to respond to the motion could result in the dismissal of his complaint.
DISCUSSION
I. Standard for Summary Judgment
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987).The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). The movant's burden is satisfied "if he can point to an absence of evidence to support an essential element of te nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial, "and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). Where the moving party fails to make and support its motion as provided for by Rule 56, the Rule "does not impose on the party opposing summary judgment an obligation to come forward with affidavits or other admissible evidence of his own." St. Pierre, 208 F.3d at 404. In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
Where, as here, the nonmoving pro se party has failed to submit papers in opposition, summary judgment should not be "granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). A defendant's Rule 56.1 statements are deemed admitted by plaintiff, however, when no opposition has been filed. LeSane v. Hall's Security Analyst. Inc., 239 F.3d 206, 211 (2d Cir. 2001). Summary judgment may be granted where the plaintiff has received notice that failure to file an opposition may result in dismissal of his case and where the Court is satisfied that the undisputed facts "show that the moving party is entitled to a judgment as a matter of law." Champion, 76 F.3d at 486 (quoting Rule 56(c), Fed.R.Civ.P.).
II. Defendant's Rule 56.1 Statement
The plaintiff received notice both from this Court and from defendant that failure to oppose a summary judgment motion could result in dismissal and was afforded leniency and time extensions from this Court, as detailed above. Accordingly, the defendant's Rule 56.1 statement is taken as true for the purposes of this motion, and dictates the following.
Minolta is a New Jersey corporation engaged in the retail sale and distribution of Minolta office equipment. Layachi was hired on March 9, 1998, as a Technician and assigned to the team managed by Howard Frost ("Frost"), a Service Manager at Minolta's branch office on Lexington Avenue in New York City. Layachi was one of six or seven Technicians on the team, each of whom was responsible for the service, maintenance, and repair of Minolta office equipment as well as for obtaining meter readings in order to enable Minolta to invoice the end user. At the time Layachi was hired, this team included two Hispanic employees an Indian national, a Jamaican national, an African national and an African-American.
When Layachi was hired, he received a copy of Minolta's Policy Against Harassment.
Technicians are trained by Minolta and are expected to adhere to minimum productivity standards, including primarily that each Technician complete at least five service calls per day. In addition to training he received at a technical school, Layachi represented to Minolta that he had almost two years of experience in repairing and maintaining office equipment similar to that sold by Minolta. He received additional classroom and field training from Minolta.
Layachi claims that he was discriminated against because of his race and religion based on the fact that while he was fasting for Ramadan, Frost told him that his brain does not work well when he is not eating and that he should be careful not to damage the machines. Frost did not, however, tell Layachi to eat, did not prevent him from working during Ramadan, and did not say anything derogatory about his religion. Layachi also complains that a letter he asked Frost to write to assist in renewing his passport was inadequate. When Layachi complained that the letter was inadequate, Frost re-wrote the letter. Layachi admits that he does not know if Frost was prompted by discrimination in writing the initial letter. Further, Layachi complains that he was subject to strict security procedures when assigned to repair a copier at the Israeli Consulate. All Technicians, however, are subject to strict procedures at the Israeli Consulate. Finally, while Layachi complains that another employee erroneously told Frost that the plaintiff had not been working, Frost apologized to the plaintiff upon discovering the error.
The plaintiff additionally complains that Frost did not smile at him or treat him in a friendly manner because the plaintiff is reserved and that Frost treated him differently because he was not doing as good a job as the other Technicians.
Layachi was the only Technician on his team not completing five service calls per day. Frost gave him a verbal warning for deficient performance in August 1998, advising him that he had not met his five call per day average for the previous four months, and a written warning in September 1998, advising him that his August call average was 2.5 and warning him that termination would result if he did not reach an average of five calls per day in September. His September average was 3.71, and he was placed on 90 day probation. Although his call averages in November and December were 3.13 and 3.77, respectively, his probation was extended another 30 days. His employment was terminated on January 29, 1999.
In February 1999, Layachi filed a complaint against Minolta with the New York State Division of Human Rights ("Division") and the Equal Employment Opportunity Commission ("EEOC"), alleging that he was discriminated against on the basis of his national origin and creed when he was terminated from his employment. In October 1999, the Division dismissed the complaint for lack of probable cause. In December 1999, the EEOC notified Layachi that it had adopted the Division's findings and that he could commence an action in federal court within 90 days. Layachi subsequently filed this action.
III. Analysis of Defendant's Summary Judgment Motion
Courts analyzing discrimination claims under Title VII apply the three step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). See Richardson v. New York State Dep't of Correctional Services, 180 F.3d 426, 443 (2d Cir. 1999). "[T]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (citation omitted)
The defendant has articulated a non-discriminatory reason for terminating Layachi's employment, based on Layachi's persistent failure to meet the minimum productivity standard despite being warned of the consequences of that failure. Defendant has supported this articulation by admissible evidence, including, among other things, an affidavit from Frost as well as documentary evidence of three negative performance evaluations and two warnings issued by Frost to Layachi. Because Layachi has failed to come forth with evidence That reasonably supports a finding of prohibited discrimination, Minolta is entitled to summary judgment.
CONCLUSION
Defendant's motion for summary judgment is granted. The Clerk of Court shall enter judgment for the defendant and close this case. Should plaintiff seek to appeal in forma pauperis, I find, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962)
SO ORDERED.