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CONCEPCION v. NICE PAK PRODUCTS

August 13, 2004.

JULIO B. CONCEPCION, Plaintiff,
v.
NICE PAK PRODUCTS, INC. Defendants.



The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Julio B. Concepcion ("Plaintiff") filed this action pro se on March 18, 2003, alleging that his former employer, Defendant Nice Pak Products, Inc. ("Defendant"), discriminated against him because of his age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621-634 ("ADEA"). Before the Court is Defendant's motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56. The motion is unopposed. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331. For the following reasons, Defendant's motion is granted.

BACKGROUND

  Because the present motion is unopposed by a pro se plaintiff, a description of both the procedural history and the factual background of this action is appropriate. Plaintiff's Complaint ("Compl."), which was received by this Court's Pro Se Office on March 18, 2003, asserts claims of age discrimination pursuant to the ADEA. Plaintiff, who was born in 1949, was hired by Defendant as a Machine Operator on August 31, 1998. (Compl. at 3; Exh. B to Lebowitz Aff.) Plaintiff was promoted to the position of Material Handler on November 9, 1998. (Exh. C to Lebowitz Aff.) Plaintiff applied for a promotion to the position of Winder Operator on May 27, 1999, but did not get the job. (Brody Aff. ¶ 18.) On October 6, 1999, Plaintiff applied again for a Winder Operator position. (Exh. N to Lebowitz Aff.) Defendant decided that another candidate for the position was more qualified and did not promote Plaintiff. (Kerbrat Aff. ¶ 8.) (Brody Aff. ¶ 32.) Defendant applied for a promotion to Liquid Room Compounder on June 6, 2000, but another candidate was chosen. (Exh. X to Lebowitz Aff.) (Brody Aff. ¶ 36.) Plaintiff applied for another Winder Operator opening on July 12, 2000. (Exh. Y to Lebowitz Aff.) The posting was thereafter rescinded. (Brody Aff. ¶ 37.) On March 2, 2000, Defendant suspended Plaintiff for one-and-a-half days. (Exhs. Z, AA to Lebowitz Aff.) Plaintiff was suspended again on August 31, 2000. (Exh. DD to Lebowitz Aff.) A letter dated September 13, 2000, informed Plaintiff that he was terminated effective that day. (Exh. II to Lebowitz Aff.)

  Plaintiff asserts that Defendant's discriminatory conduct included wrongful termination of his employment, failure to promote him, unequal terms and conditions of his employment, and retaliation. (Compl. at 3.) As support for these claims, Plaintiff alleges in the Complaint that, in 1999, he was refused a "compensation benefit" and "denied promotion" over a younger co-worker, that he was denied promotions on other occasions, and that he was not allowed to offer justifications for complaints made against him. (Id. at 4.) Plaintiff filed separate charges with the New York State Division of Human Rights ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC") regarding Defendant's alleged discriminatory conduct. (Id.)

  On March 26, 2004, Defendant served and filed a Motion for Summary Judgment, Affidavits from Jean Kerbrat, Dennis Brody and Laurence J. Lebowitz in support of the Motion, an Application for Stay of the Pre-Trial Scheduling Order, a Notice to Pro Se Litigant Opposing Motion for Summary Judgment ("Notice to Pro Se Litigant"), a Local Civil Rule 56.1 Statement of Undisputed Material Facts, and a Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("D's Mem."). The Notice to Pro Se Litigant Opposing Motion for Summary Judgment informed Plaintiff, among other things, that Plaintiff "may not oppose summary judgment simply by relying upon the allegations in [Plaintiff's] complaint," but "must submit evidence, such as witness statements or documents, countering the facts asserted by defendant and raising issues of fact for trial." (Notice to Pro Se Litigant at 1.) Plaintiff was cautioned that, if he failed timely to respond to Defendant's Motion for Summary Judgment, the Court might accept Defendant's factual assertions as true and enter judgment for Defendant without trial. (Id.) To date, Plaintiff has submitted no papers in opposition to Defendant's motion, nor has he communicated with the Court in any manner since a June 23, 2003, letter requesting that a pretrial conference be rescheduled.

  DISCUSSION

  Summary Judgment Standard

  Summary judgment may be granted if the submissions of the parties, taken together, "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).

 
[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). "A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir. 2002). When determining whether a genuine issue of material fact exists, the Court views all evidence in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (2d Cir.), cert denied, 534 U.S. 993. "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e).

  Motions for Summary Judgment Unopposed by a Pro Se Plaintiff

  The Second Circuit has held that "summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). However, an easily comprehensible notice to the nonmoving party from the party moving for summary judgment suffices to give adequate notice. Id. In the present case, the Notice to Pro Se Litigant, quoted above, that Defendant sent to Plaintiff, clearly described the requirements of Rule 56 and the consequences if Plaintiff failed to respond, namely that, if Plaintiff did not respond to the motion with his own evidence, summary judgment could be granted against him and that, if summary judgment were granted, there would be no trial. The Court concludes therefore that Plaintiff was given appropriate notice.

  "The facts recited in defendant's Rule 56.1 statement are deemed admitted by a plaintiff when no opposition has been filed." Blackett v. Pathmark Stores, Inc., No. 01 Civ. 6913 (DLC), 2002 WL 31385817 (S.D.N.Y. 2002) (granting summary judgment against pro se plaintiff who did not oppose motion); see LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 (2d Cir. 2001). "The fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically. Such a motion may properly be granted only if the facts as to which there is no genuine dispute show that the moving party is entitled to a judgment as a matter of law." ...


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