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granting summary judgment on a breach of settlement claim where plaintiff made no factual allegations regarding defendant's failure to comply.
Summary of this case from Clarke v. PeakeOpinion
02 Civ. 9385 (GWG)
May 26, 2004
OPINION AND ORDER
Plaintiff Richard T. Fletcher, proceeding pro se, brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), 42 U.S.C. § 2000e to 2000e-17, alleging that he was denied overtime and otherwise retaliated against and harassed by his employer, the United States Postal Service, on the basis of his race, color, and national origin. Defendant John E. Potter, Postmaster General, has moved for summary judgment pursuant to Fed.R.Civ.P. 56. Potter asserts that Fletcher and the Postal Service reached a settlement agreement in 2001 which has been complied with, that Fletcher never exhausted his administrative remedies as to certain claims, and that Fletcher's claims fail on the merits. The parties have consented to disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the following reasons, the motion is granted.
Title VII permits a federal employee to bring a claim against only the head of the department or agency that is alleged to have discriminated against him. See 42 U.S.C. § 2000e-16(c) ("the head of the department, agency, or unit, as appropriate, shall be the defendant"). Accordingly, Fletcher's claims against all other defendants, see Amended Complaint, filed January 13, 2003 (Docket #4) ("Am. Compl."), at 6, are dismissed. See, e.g., Randall v. Potter, 2004 WL 439491, at *4 (S.D.N.Y. Mar. 9, 2004) (dismissing claims under Title VII against all named defendants other than Potter). The caption has been amended to so reflect.
I. BACKGROUND
A. Settlement Agreement
Fletcher is an African-American male employed by the Postal Service as a custodian at the Peter Stuyvesant Station. Declaration of Richard T. Fletcher, undated (annexed to Plaintiff's Oppossition [sic] to Defendant's Motion for Summary Judgment, filed April 8, 2004 (Docket #18) ("Pl. Opp.")), ¶ 1; Defendants' Statement Pursuant to Local Civil Rule 56.1, dated March 12, 2004 (annexed to Notice of Motion, filed March 12, 2004 (Docket #16) ("Notice of Motion")), ¶¶ 1-2. In November 2000, Fletcher completed an Equal Opportunity Office ("EEO") "Information for Precomplaint Counseling" form alleging discrimination based on his race and national origin and retaliation for engaging in protected activity in April 1997 and May 1998. See Information for Precomplaint Counseling, dated November 20, 2000 ("Counseling Letter") (reproduced as Ex. A to Declaration of Valerie E. Rooks, dated March 11, 2004 ("Rooks Decl.") (annexed to Notice of Motion)). Specifically, he alleged that he was being deprived of overtime hours that he should have been receiving as a senior custodian but which were instead being assigned to more junior personnel — in particular, William Dudley, Jr. Id. at 1-2. Fletcher agreed to participate in the Postal Service's alternative dispute resolution process with respect to these issues. See Agreement to Participate in Alternative Dispute Resolution Process, dated November 30, 2000 (reproduced as Ex. C to Declaration of Darrell K. Ahmed, dated March 11, 2004 ("Ahmed Decl.") (annexed to Notice of Motion)).
On January 11, 2001, a mediation was held among Fletcher; John Condiles, the Manager of Customer Service at the Stuyvesant Station; Leon Yeserski, a supervisor; Darrell Ahmed, a Dispute Resolution Specialist; and Barbara Swartz, a trained neutral mediator and non-Postal Service employee. Ahmed Decl. ¶¶ 1-2, 8-9. Fletcher chose not to have a representative appear on his behalf. Id. ¶ 8. As a result of this mediation, which lasted approximately two hours, Fletcher and Condiles signed a settlement agreement. Id. ¶¶ 10-11. The agreement provided as follows:
I, Richard Fletcher, do hereby voluntarily withdraw my request for EEO counseling or formal complaint, as applicable, based on the stipulation(s) that:
(1) The parties agree that Richard Fletcher is entitled to overtime pay in the amount of 39 hours and 21 units.
(2) The parties agree to a labor-management meeting to be held as soon as possible to resolve the dispute about Monday overtime at Peter Stuyvesant and Thompkins [sic] Square Stations. Whatever resolution is made will go from April 3, 2000 to the date the dispute is resolved.
EEO Settlement Agreement, dated January 11, 2001 ("Settlement Agreement") (reproduced as Ex. B to Rooks Decl. and as Ex. D to Ahmed Decl.), at 1-2.
By May 4, 2001, the Postal Service had reviewed Fletcher's overtime assignments and awarded him additional overtime pay in the amount of 44 hours and 9 units, thus granting him 4 hours and 48 units more than required under the first stipulation. Rooks Decl. ¶¶ 11.
B. Fletcher's Claim of Breach
On July 19, 2001, before the meeting called for by the second stipulation had taken place, Fletcher sent a letter to the Postal Service's EEO office claiming that the Settlement Agreement had been breached because Condiles "refuse[d] to do the paperwork" pursuant to that agreement and "owe[d] [Fletcher] for the 8-15 Mon[days]." Letter to Victor Olmo from Fletcher, dated July 19, 2001 (reproduced as Ex. C to Rooks Decl.).
Shortly thereafter, on August 28, 2001, a meeting was held pursuant to the second stipulation to explain how Monday overtime opportunities at the two stations were distributed. Rooks Decl. ¶ 13. At that meeting, Valerie Rooks, a Labor Relations Specialist with the Postal Service, explained that Fletcher and Dudley had different "designations" or "bid positions" — which refer to the specific location where an employee is assigned to work. Id. ¶¶ 1, 4-5, 15-17. During the relevant period, Fletcher's bid position required him to work only at the Stuyvesant Station while Dudley's required him to work at both the Stuyvesant Station and the Tompkins Square Station. Id. ¶¶ 4-5, 17. Under the contract between the Postal Service and the New York Metro Area Postal Union of the American Postal Workers, AFL-CIO, overtime assignments are given to an employee who is designated to work at the particular facility where the overtime work is needed. Id. ¶¶ 15-16. Thus, when overtime custodial work is needed on a Monday at both stations, Dudley would be called in to perform the overtime rather than Fletcher because only Dudley is assigned to work at both stations. Id. ¶¶ 17-18.
By letter dated September 25, 2001, the Postal Service denied Fletcher's July 19 complaint, noting that the meeting required by the agreement had been held on August 28, 2001 and that "your allegation of a breach of agreement does not conform to the facts in the record or disclose that the issues in the agreement were not met." Letter to Fletcher from James A. Connolly, dated September 25, 2001 (reproduced as Ex. 13 to Plaintiff Exhibits Opposing Motion (" PL Ex.") (annexed to Pl. Opp.) and as Ex. G to Rooks Decl.).
Fletcher appealed this determination to the Equal Employment Opportunity Commission ("EEOC"). See Notice of Appeal/Petition to the EEOC, dated October 18, 2001 (reproduced as Ex. H to Rooks Decl.). The EEOC determined that Fletcher had received more than the stipulated amount of back overtime pay and that
the settlement agreement does not provide that [Fletcher] will receive overtime for all Mondays during the period April 2000 through August 2001. Thus, the Commission finds that the agency did not breach item 2 of the settlement agreement when [Fletcher] was not paid for his expected Monday overtime during the relevant time period. Accordingly, the agency's decision finding no breach of the settlement agreement is AFFIRMED.
Decision on Appeal No. 01A20359, dated February 20, 2002 (annexed to Am. Compl. and reproduced as Ex. I to Rooks Decl.), at 1-2.
C. The Instant Complaint and Subsequent Filings
On April 15, 2002, Fletcher submitted the initial complaint in the instant action to the Court's Pro Se Office. On November 25, 2002, Chief Judge Michael B. Mukasey directed Fletcher to file an amended complaint detailing all relevant facts and events and describing how his rights were violated. See Order, filed November 25, 2002 (Docket #3). In his Amended Complaint, Fletcher states as follows:
The United States Postal Service is not acting like [an] Equal Opportunity Employer. Custodian David William['s] bid at Peter Stuyvesant Post Office is from 5:00 a.m. to 1:30 p.m. Monday-Friday lay off days Sat. Sun. David William was not on the job from Nov. 1999 or Dec. 1999 until June 2002. This is where my complaint comes from. I should have had all overtime on Mondays at Peter Stuyvesant P.O. I am [the] senior custodian. United States Postal Service willfully mislead[s] U.S.E.E.O.C. and United States District Court N.Y. Southern District.
Am. Compl. at 4. Fletcher further alleges that overtime on his days off — Sunday and Monday — is given to Dudley and Raymond Kemp, who are junior custodians. Id. at 6. In addition, he asserts that between February and June 2002, overtime was given to custodians from the Madison Square Post Office. Id. Fletcher also claims that supervisors Anthony Palazzo and Donald Grant falsify "write-ups" in order to harass and terrorize him, creating a hostile work environment. Id. at 6-7.
On March 12, 2004, Potter moved for summary judgment on the grounds that Fletcher's claims are barred by the Settlement Agreement, are unexhausted, and are without merit. See Memorandum in Support of Defendants' Motion for Summary Judgment, filed March 12, 2004 (Docket #17). The motion contained a notice warning Fletcher that any facts in Potter's statement pursuant to Local Civ. R. 56.1 would be deemed admitted if not controverted. See Notice to Pro Se Litigant Opposing Motion for Summary Judgment, dated March 12, 2004 (annexed to Notice of Motion).
Fletcher opposed Potter's motion, submitting a memorandum of law, see Plaintiff's Memorandum in Oppossition [sic] to Defendant's Motion for Summary Judgment, filed April 8, 2004 (Docket #19) ("Opp. Mem."), and over 30 exhibits accompanied by some limited commentary as to what those exhibits are and what they are offered to prove, see Pl. Ex. Many of Fletcher's submissions contain material irrelevant to Potter's motion. In any event, none of his submissions controvert any of the material factual averments in Potter's Rule 56.1 statement.
II. STANDARD OF REVIEW
Summary judgment may not be granted unless "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c): see Celotex Corp. v. Catrett 477 U.S. 317, 322-23 (1986). A material issue is a "dispute over facts that might affect the outcome of the suit under the governing law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Thus, "`[a] reasonably disputed, legally essential issue is both genuine and material'" and precludes a finding of summary judgment. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying [the evidence] which it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. After the motion is properly made and supported the burden then shifts to the nonmoving party, which "`must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 250 (quoting Fed.R.Civ.P. 56(e)); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When determining whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. See, e.g., Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson, 477 U.S. at 255); McPherson, 174 F.3d at 280. However, "[t]he non-movant cannot `escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,' . . . or defeat the motion through `mere speculation or conjecture.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Borthwick v. First Georgetown Sec., Inc., 892 F.2d 178, 181 (2d Cir. 1989), and Knight v. United States Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987)); accord Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." (citation omitted)). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to [his] case." Alien v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citingAnderson, 477 U.S. at 247-48).
III. DISCUSSION
Title VII was enacted to assure equality in employment by eliminating discriminatory practices. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). "Cooperation and voluntary compliance were selected as the preferred means for achieving this goal." Alexander, 415 U.S. at 44; see also Carson v. Am. Brands, Inc., 450 U.S. 79, 88 n. 14 (1981) ("In enacting Title VII, Congress expressed a strong preference for encouraging voluntary settlement of employment discrimination claims."). To encourage Congress's goal, voluntary compromises of Title VII claims are presumed valid. See, e.g., Kirkland v. N.Y.S. Dep't of Corr. Servs., 711 F.2d 1117, 1-128-29 (2d Cir. 1983), cert. denied, 465 U.S. 1005 (1984). "An aggrieved employee who voluntarily settles a claim waives his right to bring a subsequent employment discrimination suit based on the same fact situation." Johnson v. Frank, 828 F. Supp. 1143, 1151 (S.D.N.Y. 1993); see also Wrenn v. Sec'y, Dep't of Veterans Affairs, 918 F.2d 1073, 1078 (2d Cir. 1990) ("To allow claimants . . . to continue to pursue claims that have been fully remedied during the administrative process would frustrate the congressional policy favoring administrative resolution of complaints for no discernible reason."), cert. denied, 499 U.S. 977 (1991).
To waive the right to assert a claim of discrimination under Title VII, the waiver must be both "knowing" or "willful" and "voluntary."Livingston v. Adirondack Beverage Co., 141 F.3d 434, 438 (2d Cir. 1998);Bormann v. ATT Communications, Inc., 875 F.2d 399, 402 (2d Cir.) (quoting Coventry v. United States Steel Co., 856 F.2d 514, 522 (3d Cir. 1988)), cert. denied, 493 U.S. 924 (1989). The Second Circuit utilizes a "totality of the circumstances test" to determine whether a waiver of claims under Title VII meets this requirement. See Livingston, 141 F.3d at 438; Nicholas v. NYNEX, Inc., 929 F. Supp. 727, 730 n. 1 (S.D.N.Y. 1996); Baba v. Warren Mgmt. Consultants, Inc., 882 F. Supp. 339, 343 (S.D.N.Y.), aff'd, 89 F.3d 826 (2d Cir. 1995), cert. denied, 519 U.S. 840 (1996). The factors to be considered in evaluating a waiver are:
1) the plaintiff's education and business experience, 2) the amount of time the plaintiff had possession of or access to the agreement before signing it, 3) the role of plaintiff in deciding the terms of the agreement, 4) the clarity of the agreement, 5) whether the plaintiff was represented by or consulted with an attorney, and 6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law.Bormann, 875 F.2d at 403 (citing EEOC v. Am. Express Publ'g Corp., 681 F. Supp. 216, 219 (S.D.N.Y. 1988)). The list is not exhaustive nor do all factors need to be satisfied, or examined, for a release to be enforceable. Laniok v. Advisory Comm. of Brainerd Mfg. Co. Pension Plan, 935 F.2d 1360, 1368 (2d Cir. 1991); Prunella v. Carlshire Tenants, Inc., 94 F. Supp.2d 512, 516 (S.D.N.Y. 2000).
In this case, Fletcher signed the Settlement Agreement withdrawing his request for EEO counseling based on the stipulations that the Postal Service would compensate him for 39 hours and 21 units of overtime pay and hold a labor-management meeting regarding Monday overtime. See Settlement Agreement at 1-2. With respect to the "knowing" component of waiver analysis, Fletcher testified at his deposition as follows:
Q: Did you read the [Settlement Agreement] before you signed it?
A: Yes, I did.
Q: Did you agree to everything it said when you signed it?
A: Yes, I did.
Deposition of Richard T. Fletcher, February 24, 2003 ("Fletcher Dep.") (reproduced in part as Ex. A to Declaration of Lawrence H. Fogelman, dated March 12, 2004 (annexed to Notice of Motion)), at 124. With respect to the "voluntary" component, Fletcher gave the following testimony:
Q: . . . It says below the handwritten words "I fully understand that by agreeing to this resolution, I waive my rights to any further appeal of my complaint through the EEO process. I further state that this agreement did not result from harassment, threats, coercion or intimidation." Do you recall reading that at the time?
A: Right.
Q: Did you agree with that at the time you signed it?
A: Right.
Id. at 127.
In addition to these acknowledgments, the undisputed facts in the record point to the conclusion that the settlement was knowing and voluntary. Fletcher's deposition testimony indicates that he attended some college and served in the military. Id at 10-13; see also Honorable Discharge Certificate, dated August 2, 1972 (reproduced as PL Ex. 28). He has more than 20 years of experience working for the Postal Service as a custodian. Fletcher Dep. at 23-25. The Settlement Agreement on its face was clear regarding the terms of Fletcher's waiver, stating as follows:
I, Richard Fletcher, do hereby voluntarily withdraw my request for EEO counseling. . . . I fully understand that by agreeing to this resolution, I waive my rights to any further appeal of my complaint through the EEO process. I further state that this agreement did not result from harassment, threats, coercion or intimidation.
I am fully aware that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process is binding on both parties.
Settlement Agreement at 1. Furthermore, the mediation session was presided over by a neutral third party. See Ahmed Decl. ¶ 9.
Neither party has addressed the applicability of the other factors examined as part of the "totality of the circumstances test." With respect to the amount of time Fletcher had to consider the agreement, Fletcher signed the Settlement Agreement at the mediation session. See id. ¶ 11. However, he had specifically elected to participate in the Postal Service's alternative dispute resolution process more than a month earlier. Id. ¶ 7. Thus, it was reasonable to expect that an agreement might be reached at the conclusion of the mediation, which itself lasted two hours, id.
¶ 10. In addition, that the mediation was held only because of Fletcher's agreement to participate and that it was presided over by a neutral mediator suggest that Fletcher had an opportunity to shape the terms of the agreement. While Fletcher was not represented by counsel in negotiating the Settlement Agreement, neither was the Postal Service. See id. ¶ 8. Thus, Fletcher's lack of an attorney should not counsel against enforcing the Settlement Agreement.
As for the consideration given, the Postal Service awarded Fletcher back overtime pay, see Rooks Decl. ¶ 11, and explained its position at a meeting with regard to the assignment of Monday overtime, offering a race-neutral justification for offering overtime hours to less senior personnel based on bid positions and the union contract, see id. ¶¶ 15-18. It appears that the meeting, at least, was not a benefit to which Fletcher was already entitled.
In sum, the applicable factors weigh in favor of enforcing the Settlement Agreement. Indeed, in opposing this motion, Fletcher does not dispute that his withdrawal of his request for EEO counseling pursuant to the Settlement Agreement was knowing and voluntary. Instead, Fletcher appears to make two arguments: (1) that the Postal Service breached the Settlement Agreement, see Opp. Mem. at 5 ("I challenge the Defendants [i]n accordance with 29 C.F.R. § 1614.504."); and (2) that his Amended Complaint in the instant action "takes over" both his original complaint to the agency and the Settlement Agreement so that he is free to raise any claims that he may have against his employer in this federal court action, see id.
With respect to the Postal Service's alleged breach of the Settlement Agreement, there is no question that Fletcher has exhausted this claim as required by Title VII law and regulations. See 29 C.F.R. § 1614.504. See generally 42 U.S.C. § 2000e-16(c): 29 C.F.R. § 1614.101-.110, .407. As detailed above, Fletcher brought this claim to the Postal Service's EEO office and his complaint was denied by both the agency and the EEOC on the basis that the Postal Service had fully complied with the two provisions of the Settlement Agreement. See Rooks Decl. ¶¶ 12, 19-20. But Fletcher has not provided this Court with any evidence that the Postal Service failed to live up to either of the two stipulations in the agreement: either by not paying him the required amount of back overtime pay or by not arranging for a labor-management meeting to address the issue of Monday overtime. See Settlement Agreement at 1-2. Indeed, he does not even make any factual allegations that the Postal Service failed to comply with the Settlement Agreement.
Rather, Fletcher argues that the first provision of the agreement covered only overtime hours he was denied on Saturdays and not overtime hours he was denied on Mondays. See Fletcher Dep. at 123-29. This contention, however, contradicts the explicit language of the Settlement Agreement, in which Fletcher acknowledged that the discrimination claim — which, it may be noted, pertained to the denial of overtime on all days for the period between April 3, 2000 and August 28, 2001 — was being "withdraw[n]." Settlement Agreement at 1-2. Nowhere does the agreement state or suggest that the complaint was only partially withdrawn or that the Settlement Agreement constituted only a partial settlement of Fletcher's claims. Thus, Fletcher's unsupported assertions that the Settlement Agreement covered only part of his discrimination claim and that the Postal Service breached the agreement are insufficient to defeat Potter's motion for summary judgment.
The result is that Fletcher cannot pursue in this Court any claims that were encompassed within his November 2000 request for counseling given his entry into the Settlement Agreement. See Economou v. Caldera, 2000 WL 1844773, at *16 (S.D.N.Y. Dec. 18, 2000) ("Should the employee voluntarily withdraw his [agency] complaint prior to a final decision on the merits, he will be precluded from raising those claims in a subsequent discrimination action in federal court." (citations omitted)), aff'd, 286 F.3d 144 (2d Cir.), cert. denied, 537 U.S. 975 (2002); Johnson, 828 F. Supp. at 1151-52 (finding a valid settlement agreement to bar subsequent litigation on that claim).
Even if there were evidence that the Postal Service had breached the Settlement Agreement, Fletcher still would not be permitted to revive his underlying claims of discrimination and retaliation, as the only available remedies for a breach would be enforcement of the agreement or reinstatement of the original complaint for further processing, see 29 C.F.R. § 1614.504(a), (c); Settlement Agreement at 1 ("Should I believe the Postal Service has failed to adhere to the stipulations contained in this agreement . . . I may . . . request that the terms of the settlement agreement be specifically implemented or, alternatively, that my complaint be reinstated for further processing from the point processing ceased.").
To the extent Fletcher's Amended Complaint raises claims that fall outside of the November 2000 request for counseling, these claims cannot be heard by this Court based on Fletcher's failure to exhaust them. For example, Fletcher makes allegations regarding two junior custodians not mentioned in the November 2000 complaint. Compare Am. Compl. at 4, 6with Counseling Letter at 2. He also asserts claims relating to overtime being given in 2002 to custodians from the Madison Square Post Office. Am. Compl. at 6. Under Title VII and the applicable EEOC regulations, however, a federal employee must exhaust all available administrative remedies prior to filing suit in federal court. See 42 U.S.C. § 2000e-16(c); Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996); 29 C.F.R. § 1614.101-.110, .407. Because Fletcher has not brought a formal complaint and obtained a final agency determination with regard to any such claims of discrimination and retaliation, those claims are not properly before this Court.
In sum, the Settlement Agreement is enforceable and Potter is entitled to summary judgment dismissing all of Fletcher's claims. Conclusion
Fletcher contends that Leon Yeserski, an Assistant Manager of Customer Service, "wanted to give a written statement" in support of Fletcher's claims but recently informed Fletcher that he could not give such a statement. Opp. Mem. at 3. Fletcher thus requests that the Court order Potter to allow Yeserski to provide a statement. Id. at 3-4. This request is rejected. Nothing prevented Fletcher from noticing Yeserski's deposition for the purpose of obtaining such a statement during the discovery period. Construing Fletcher's request as one for a continuance to obtain discovery under Fed.R.Civ.P. 56(f), it is denied as Fed.R.Civ.P. 56(f) "applies to summary judgment motions made before discovery is concluded." McAllister v. N.Y.C. Police Dep't 49 F. Supp.2d 688, 696 n. 5 (S.D.N.Y. 1999) (emphasis added) (citations omitted); accord Chimarev v. TD Waterhouse Investor Servs., Inc., 280 F. Supp.2d 208, 229 n. 1 (S.D.N.Y. 2003), aff'd, 2004 WL 1013320 (2d Cir. May 6, 2004); McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995) ("Applications to extend the discovery deadline must be made prior to expiration of the deadline. . . . Rule 56(f) is not intended to circumvent discovery orders."). Because Fletcher had ample opportunity to conduct discovery, any request for additional time to conduct discovery would have to be denied.
Moreover, Fletcher does not explain what information Yeserski could provide or how it would controvert any of the material facts bearing on the motion for summary judgment. See, e.g., Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (requiring a party resisting summary judgment on the ground that it needs additional discovery to "submit an affidavit showing (1) what facts are sought to resist the motion and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts" (internal quotation marks and citations omitted)).
For the foregoing reasons, Potter's motion for summary judgment is granted. The Clerk is requested to enter judgment in favor of Potter and to close this case.
SO ORDERED.