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FAUSTO v. RENO

February 25, 1997

JOSEPH ANTHONY FAUSTO, Plaintiff, against JANET RENO, Attorney General of the United States of America, Defendant.


The opinion of the court was delivered by: KATZ

REPORT AND RECOMMENDATION

 THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.

 TO: THE HON. PETER K. LEISURE, UNITED STATES DISTRICT JUDGE.

 Plaintiff Joseph Anthony Fausto brought this action pro se, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e, as amended. In his Complaint, plaintiff alleges that he was discriminated against on the basis of gender when officials of the United States Attorney's Office for the Southern District of New York withdrew his selection for the position of Paralegal Specialist without affording him an opportunity to explain derogatory information discovered during a pre-employment background investigation. Specifically, he alleges that officials of the United States Attorney's Office, in violation of Department of Justice Order 2610.2A, denied him an opportunity to explain or refute information that had been secured in the course of his background investigation that caused them to withdraw their offer of employment. He alleges that he was subject to disparate treatment on the basis of his gender because a female applicant who subsequently applied for the same position was notified of questionable information that had been discovered in the course of her background investigation, and was given an opportunity to explain or refute that information. He further contends that her application for employment was given support even though she admitted use of controlled substances. See Complaint, dated April 9, 1996 ("Compl."), at PP 8 & 9.

 The action was referred to me for general pretrial supervision and reports and recommendations on dispositive motions. Presently before the Court is defendant Janet Reno's motion to dismiss the Complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. Plaintiff has submitted no opposition to the motion. For the reasons that follow, I recommend that defendant's motion be granted and that this action be dismissed with prejudice.

 DISCUSSION

 I. Summary Judgment Standard

 In lieu of answering the Complaint, defendant moved to dismiss or, in the alternative, for summary judgment. Because defendant submitted materials outside the pleadings, including an affidavit and various exhibits, plaintiff was specifically advised that the motion would be treated as one for summary judgment and of the requirements for responsive papers pursuant to Fed. R. Civ. P. 56 and Civil Rule 3(g) of this Court. See letter to Joseph Anthony Fausto, dated December 4, 1996. Accordingly, the motion may be decided under the standards set forth in Rule 56 of the Federal Rules of Civil Procedure. See Grabois v. Jones, 89 F.3d 97, 99 n.3 (2d Cir. 1996); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).

 Rule 56 provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986); Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.), cert. denied, 506 U.S. 965, 113 S. Ct. 440, 121 L. Ed. 2d 359 (1992). While the Court must draw all reasonable inferences against the moving party in assessing whether a genuine issue of fact exists, the party opposing the motion may not simply rest on the allegations in its pleadings, but must present "specific facts," based upon personal knowledge or otherwise admissible in evidence, showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138 (2d Cir. 1992). In deciding the motion, the Court may consider only that evidence that would be admissible at trial. Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994); Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir. 1993); International Knitwear Co. v. M/V Zim Canada, No. 92 Civ. 7508 (PKL), 1996 WL 169360, at *1 (S.D.N.Y. Apr. 11, 1996).

 
judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded [trier of fact] could return a verdict for the [non-movant] on the evidence presented. The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the [non-movant].

 The Sports Authority, Inc. v. Prime Hospitality Corp., 89 F.3d 955, 960 (2d Cir. 1996) (citing Anderson, 477 U.S. at 252, 106 S. Ct. at 2512). However, "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial,'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968)), and summary judgment is appropriate.

 The requirements of Rule 56(e) and the principles underlying the shifting of burdens on a motion for summary judgment dovetail with the provisions of Civil Rule 3(g) of this Court. Rule 3(g) requires a party moving for summary judgment to submit a short, concise statement of those facts as to which it contends there is no genuine issue to be tried. Unless the party opposing the motion submits a responsive statement setting forth the facts as to which there is a genuine issue to be tried, all of the facts set forth in the moving party's 3(g) Statement will be deemed admitted. Zahorik v. Cornell Univ., 729 F.2d 85, 91 (2d Cir. 1984); Goldberg v. Colonial Metal Spinning & Stamping Co., No. 92 Civ. 3721 (JFK), 1994 WL 510037, at *1 (S.D.N.Y. Sept. 16, 1994).

 Plaintiff has not responded in any fashion to the instant motion. Thus, he does not contend that material facts are in dispute, and the only question for the Court to determine is whether, on the record before the Court, defendant is entitled to judgment as a matter of law. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, ...


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