Opinion
DOCKET NO. 98-CV-0457E(M)
April 21, 2000
James P. Davis, Esq., Buffalo, NY, ATTORNEYS FOR THE PLAINTIFF.
Michael J. McGorry, Esq., c/o Silverberg, Yood, Sellers, McGorry Siverberg, ATTORNEYS FOR THE DEFENDANT.
MEMORANDUM and ORDER
Plaintiff, an African-American woman, commenced this action July 21, 1998 claiming — inter alia — discrimination on the basis of race, sex and color in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Jurisdiction to hear this claim is conferred by 28 U.S.C. § 1331, 1343. Presently before this Court is defendant White Arrow's motion for summary judgment, made pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). Such motion will be denied.
The standards for summary judgment are well established. FRCVP 56(c) states that summary judgment "shall be rendered forthwith" if the record reveals "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is material of its resolution "might affect the outcome of the suit under the governing law" and is considered genuine if it reasonably could be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986). Evidence submitted by the non-moving party is to be believed and all justifiable inferences are to be drawn in her favor. See Anderson, at 255. Summary judgment shall be entered against the non-movant, however, if the existence of any element essential to her case on which she also bears the burden of proof at trial is not established. See Celotex, at 322.
From August 1988 and until her firing April 1994, plaintiff worked for White Arrow as a cashier. During this tenure, plaintiff maintains that she was often the target of racial and sexual harassment. In particular, plaintiff asserts that Jay Zengurski, also an employee of White Arrow, continually derided her on the basis of race and gender and that White Arrow did little to stop it. Jones Aff. ¶¶ f-l. Moreover, plaintiff alleges that, when she complained about such treatment, she found herself being retaliated against by Zengurski, as well as by Carl and Phil Hasselbach, the owners of White Arrow. This retaliation allegedly consisted of monitoring and scrutinizing the times at which she reported to work. Id. ¶ m. It also allegedly included plaintiff's losing her lunch period. Id. ¶ q. Plaintiff was finally discharged when she was accused of stealing monies that should have been deposited into her cashier's till. Plaintiff's Mem. of Law at 3.
Pursuant to this Court's Local Rules of Civil Procedure ("LRCvP"), upon the filing of any summary judgment motion, "the moving party shall file and serve with the motion papers a memorandum of law and an affidavit in support of the motion." LRCvP 7.1(e). The local rules also unequivocally state that, in any motion for summary judgment, "there shall be annexed to the notice of motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried." LRCvP 56. Failure to comply with either of these rules may constitute grounds for denying the motion. See LRCvP 7.1(e) ("Failure to comply with this subdivision may constitute grounds for resolving the motion against the non-complying party."); LRCvP 56 ("The motion for summary judgment may be denied if the movant fails to annex the statement required by this rule."). Given that the local rules are law — except insofar as inconsistent with the Federal Rules of Civil Procedure — and are promulgated in order to further effectuate the purposes and spirit underlying the federal rules, they are not "precatory meanderings to be adhered to or not as the parties so choose." Reimer v. Heritage Asset Management, No. 97-CV-0565E(SC), 1999 WL 409513, at *1 (W.D.N.Y June 16, 1999). That said, defense counsel has been derelict in has duty to submit both the required memorandum of law and the required statement undisputed material facts in support of the instant motion. For this reason, White Arrow's motion will be denied.
Even if this Court were not to deny the instant motion on purely procedural grounds, defendant's motion would shall be denied on the merits. From what can be gathered from movant's reply papers, it appears to be its position that, even if plaintiff's allegations of sexual harassment are true, there can be no claim inasmuch as there is no evidence that the "principals of White Arrow Service Stations, Inc." had knowledge of the alleged harassment. Attorney's Aff., sworn to March 27, 2000, ¶ 4. Assuming such defendant's implicit statement of the law to be true, its own papers belie this argument. Specifically, plaintiff maintains that she repeatedly complained to Lenette Greean, her immediate supervisor, about Zengurski's alleged harassment and that "[s]he did absolutely nothing about it." Jones Aff. ¶ 1. Movant, on the other hand, has submitted an affidavit from Greean which states that — except for one isolated incident — plaintiff never called her attention to the discriminatory manner in which Zengurski allegedly treated her. Greean Aff. ¶¶ 6-8. Such contradiction in testimony regarding an issue so germane to this action may not be reconciled by the undersigned at this time. This is an issue suited for the trier of fact.
Such consideration in itself is arguably unfair. Plaintiff, as the nonmovant, has but one opportunity to respond to the factual allegations and legal arguments raised in the original motion papers and it is only in White Arrow's reply papers — to which plaintiff normally holds no right of rebuttal — that what may loosely be termed as a legal argument is set forth.
Evidently, White Arrow has chosen not to specifically address plaintiff's other claims of discrimination based on race, color and "employment and contract of employment." Compl. ¶ 4. Nevertheless, such oversight is not necessarily fatal insofar as plaintiff primarily addressed only her hostile environment claims in her answering papers and, for example, "the same standards [generally] apply to both race-based and sex-based hostile environment claims." Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 436 at n. 2 (2d Cir. 1999). It might also be noted that plaintiff appears to have receded from her quid pro quo sexual discrimination claim by stating that "she was subjected only to `hostile working environment sexual harassment.'" Plaintiff's Mem. of Law at 8.
Accordingly, it is hereby ORDERED that defendant White Arrow's motion for summary judgment is denied.