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O'NEAL v. MARINE MIDLAND BANK

March 31, 1994

CAROLYN L. O'NEAL, Plaintiff,
v.
MARINE MIDLAND BANK, N.A., Defendant. CAROLYN L. O'NEAL, Plaintiff, v. ROBERT HALF OF BUFFALO, INC., Defendant.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 Presently before this Court are defendants objections to the Report and Recommendation ("R & R") of Hon. Edmund F. Maxwell, United States Magistrate Judge for the Western District of New York, recommending that this Court deny defendants' motions for summary judgment. For the reasons stated below, this Court will accept the recommendation of the magistrate judge to deny defendants' motions for summary judgment based on the claim that statute of limitations expired, and modify his recommendation with respect to defendants' motions for summary judgment based on the merits. Defendants' motions for summary judgment on the merits shall be denied on separate grounds without prejudice and with leave to reinstate.

 FACTS AND PROCEDURAL BACKGROUND

 Plaintiff Carolyn O'Neal filed both of these actions on December 16, 1991 alleging that the defendants subjected her to unlawful discrimination based on her race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. In both actions, this Court filed Orders on March 8, 1992 referring all dispositive pretrial motions to Magistrate Judge Maxwell. On March 31, 1993, defendant Marine Midland Bank filed a motion for summary judgment. Likewise, on April 1, 1993, defendant Robert Half filed a motion for summary judgment. Magistrate Judge Maxwell filed a Report and Recommendation on September 24, 1993 recommending that defendants' motions for summary judgment be denied. Thereafter, both defendants filed timely objections to the Magistrate's Report and Recommendation.

 The parties raise no specific objections to the factual findings contained in Magistrate Judge Maxwell's Report and recommendation that are material to resolution of the present issues. Therefore, this Court adopts those findings, and will not repeat them here.

 Defendants' objections to the Magistrate Judge's Report and Recommendation are based on identical grounds. First, defendants have objected to Magistrate Judge Maxwell's conclusion that there is an issue of fact as to whether the plaintiff's action was time barred. More specifically, to be timely, plaintiff's causes of action must have been commenced within 90 days of her receipt of the Right to Sue Notice from the Equal Employment Opportunity Commission ("EEOC"). In both cases, the EEOC Notice was sent to plaintiff by certified mail, and the certified mail receipt indicated that the Notices were received on September 3, 1993 with respect to the Robert Half cause of action and on September 4, 1993 with respect to the Marine Midland cause of action. Defendants claim that these receipts establish the date on which the Notices were received, and plaintiff's evidence that she received the Notices on a much later date is insufficient, in light of the defendants compelling proof, to create a triable issue of fact. Defendants second objection relates to the magistrate judge's conclusion that the proof offered by the parties in support and opposition to the defendants' motions for summary judgment has "merely set up a contest of credibility, which is a question only for the factfinder." (R & R at 6.)

 DISCUSSION

 A. Standard of Review under § 636(b)(1)(B)

 Under 28 U.S.C. § 636 (b)(1)(B) a district court judge may designate a magistrate judge to conduct a hearing and submit proposed findings of fact and recommendations for disposition of a party's motion for summary judgment. The district court is not bound by the recommendation of the magistrate judge, rather it may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). However, the parties have an opportunity to object to the magistrate judge's proposed findings, and upon the filing of timely objections, the district judge must conduct a de novo review of the Magistrate Judge's Report and Recommendation "upon the record, or after additional evidence", but only as to those portions of the Report and Recommendation to which the party objects. Id.; Fed R. Civ. P. 72(b); See also Collins v. Foreman, 729 F.2d 108, 112 (2d Cir. 1984), cert. denied, 469 U.S. 870, 105 S. Ct. 218, 83 L. Ed. 2d 148 (1984). The district court is not required to conduct a de novo hearing, but must arrive at its own independent conclusion about those portions of the Magistrate Judge's Report and Recommendation to which the objection is made. East River Sav. Bank v. Secretary of Housing and Urban Dev., 702 F. Supp. 448 (S.D.N.Y. 1988). It is application of these principles that guide this Court in ruling on defendant's objections to Magistrate Judge Maxwell's Report and Recommendation.

 B. Summary Judgment Standard

 Under the plain language of Federal Rule of Civil Procedure 56(c), entry of summary judgment is mandated "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The moving party has the "initial responsibility" to demonstrate the absence of a material factual dispute." Celotex, 477 U.S. at 323, 106 S. Ct. at 2553. This burden does not require the moving party to support its motion with affidavits or other similar materials negating the opponents claim." Id. The moving party's burden has been met if whatever is before the court demonstrates that the standard for the entry of summary judgment has been met. Much like the standard for deciding a motion for judgment as a matter of law under Rule 50(a), "for a plaintiff to avoid summary judgment, there must be sufficient evidence from which a jury could find for the plaintiff." Laidley v. McClain, 914 F.2d 1386, 1390 (10th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)); See Celotex, 477 U.S. at 323, 106 S. Ct. at 2552-53.

 If the moving party satisfies its initial burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). This Court must draw all reasonable inferences in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 1608-09, 26 L. Ed. 2d 142 (1970). Once the non-moving party has come forward with specific facts in support of his claim, "the question of what weight should be assigned to competing permissible inferences remains within the province of the fact-finder at a trial." Apex Oil Co. v. Di Mauro, 822 F.2d 246, 253 (2d Cir. 1987), cert. denied, 484 U.S. 977, 108 S. Ct. 489, 98 L. Ed. 2d 487 (1987). However, courts should not be reluctant to grant summary judgment in appropriate cases since "one of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24, 106 S. Ct. at 2553.

 While discrimination cases typically involve a plaintiff's allegations of defendant's discriminatory intent, that does not immunize the case from summary judgment if the allegations are conclusory and the defendant's motion is supported by an evidentiary record. The Second Circuit Court of Appeals made this plain in Meiri v. Dacon, 759 F.2d 989 (2d Cir.), cert. denied, 474 U.S. 829, 106 S. Ct. 91, 88 L. Ed. 2d 74 (1985), when it stated:

 
The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment --avoiding protracted, expensive and harassing trials-- apply no ...

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