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NICHOLAS v. NYNEX

August 1, 1997

LYNN NICHOLAS, LESTER JOHNSON and JULIAN GITTENS, Plaintiffs, against NYNEX, INC., Defendant.


The opinion of the court was delivered by: CONNER

 CONNER, Senior D.J.:

 On July 15, 1994, Lynn Nicholas and Lester Johnson filed this action against their employer NYNEX, Inc. alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New York Human Rights Law, N.Y. Executive Law § 296 et seq. *fn1" Defendant moves for partial summary judgment, pursuant to Fed. R. Civ. P. 56, on the ground that certain of plaintiffs' claims are time barred. Plaintiffs cross-move seeking to have the issues that defendant raises in its motion reserved for trial because, plaintiffs believe, further discovery is required.

 BACKGROUND

 The following undisputed facts are taken from the parties' Rule 3(g) statements, from affidavits submitted by the parties, and from plaintiffs' deposition testimony. Both Nicholas and Johnson are African-Americans currently employed by NYNEX. Plaintiff Nicholas began working for NYNEX in 1964 as a "frame man." He subsequently became a NYNEX systems analyst at a salary grade of ten. In approximately 1982, NYNEX promoted Nicholas to the position of senior systems analyst with a salary grade of twenty-two. Nicholas has not been promoted since that time. Plaintiff Johnson began his employment at NYNEX in 1976. In approximately 1984, Johnson became a systems analyst, salary grade eleven, and has not received a promotion since.

 Nicholas contends that "despite doing work that is equal to or better than the work of similarly situated whites [he] has remained at the same promotion grade since his promotion to senior systems analyst in 1982-83, while whites have been promoted." (Complaint dated June 24, 1994, at P 12.) Specifically, Nicholas alleges that since 1984, he has received adverse performance evaluations that did not fairly reflect the caliber of his work. According to Nicholas, in addition to denying him promotions, NYNEX has failed over the course of his employment to grant him the salary increases to which he was entitled. Last, Nicholas alleges that "on ten or more occasions" NYNEX has unfairly denied him a performance bonus, referred to at NYNEX as an Extra Merit Award. (Comp. at P23.) In addition, Nicholas alleges that he was nominated for a Technical Excellence Award on several occasions, but despite his qualifications, "less qualified white employees" ultimately received the awards. (Comp. at P 24.) According to Nicholas, "there is a pattern at New York Telephone of disparate treatment of Blacks in promotion, salary increases and bonuses." (Comp. at P 26.) Nicholas filed his Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 14, 1993.

 Like Nicholas, Johnson contends that because of his race, NYNEX denied him promotions, salary increases, awards, and bonuses. Johnson asserts that this discriminatory treatment began in 1984, when he was denied the "ready now" status that would have designated him as eligible for promotion. However, he did receive "ready now" status in 1992. *fn2" (Johnson Dep. at 282-83.) Johnson estimates that he was improperly deprived of "somewhere between 40 and 52 promotions." (Johnson Dep. at 320.) Johnson specifically alleges that in 1990, he was not selected to fill a vacant position as a team leader, although he was more qualified and deserving than the white employee who received the promotion. Johnson subsequently submitted written complaints about his treatment and contends that he has suffered retaliation in the form of poor evaluations. Johnson filed his Charge of Discrimination with the EEOC on October 21, 1993.

 DISCUSSION

 1. Plaintiffs' Cross-Motion

 The court first considers plaintiffs' cross-motion urging that resolution of defendant's motion be deferred because additional discovery is allegedly necessary. Plaintiffs' cross-motion also requests that the court order defendant to comply with plaintiffs' discovery demands. *fn3" Although plaintiffs fail to set forth the statutory basis for their cross-motion, the court will treat it as a request under Rule 56(f) of the Federal Rules of Civil Procedure.

 Pursuant to Rule 56(f), if it appears that the party opposing a motion for summary judgment cannot "present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit . . . discovery to be had. . . ." A party seeking such discovery must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what efforts the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts. Hudson River Sloop Clearwater v. Dept. of Navy, 891 F.2d 414, 422 (2d Cir. 1989).

 Plaintiffs have submitted affidavits in which they aver that several depositions are not yet complete and that defendants have refused to produce certain requested documents. Although plaintiffs broadly assert that the data contained in these documents are relevant to their claims of racially discriminatory practices at NYNEX, plaintiffs fail to chronicle the efforts they made to obtain the information they now contend is essential, and they offer no explanation as to why these efforts were unsuccessful. On this point, plaintiffs do not appear to dispute defendant's assertion, submitted in the form of an affidavit, that in response to plaintiffs' discovery demands, many responsive documents were in fact made available for inspection but were not thoroughly examined by plaintiffs before they submitted their cross-motion. (Siberstein Aff. dated Dec. 12, 1996.) Defendant also states that it does not possess any documents that fall within several of the categories that plaintiffs have asserted defendant did not provide. In any event, despite having ample opportunity to do so, plaintiffs failed to request the court's intervention to compel discovery before filing their cross-motion to stay decision of defendant's summary judgment motion. Thus, even if defendant did fail timely to produce documents that plaintiffs requested in discovery, plaintiffs' opposition to summary judgment is unjustified. Last, we note that, notwithstanding their cross-motion, plaintiffs separately responded to defendant's motion without contending therein that they were unable to present facts necessary to press their continuing violation theory. Thus, because plaintiffs' affidavits do not meet the criteria of Rule 56(f) as construed by the Second Circuit, plaintiffs' cross-motion is denied.

 2. Defendant's Motion for Partial Summary Judgment

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The burden falls upon the moving party to demonstrate the absence of a material, factual dispute. Fed. R. Civ. P. 56(e); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). A material fact is one whose resolution would "affect the outcome of the suit under governing law," and a dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the moving party satisfies its burden, the nonmoving party cannot simply rest on allegations contained in its complaint. Fed R. Civ. P. 56(e). The nonmovant "must set forth specific facts showing that there is a genuine ...


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