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CONCEPCION v. NICE PAK PRODUCTS

United States District Court, S.D. New York


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 The posting was thereafter rescinded.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." Champion, 76 F.3d at 486 (internal quotation marks and citation omitted). Accordingly, the Court has reviewed carefully Defendant's Rule 56.1 Statement and supporting evidence.

  The Age Discrimination and Retaliation Standards

  Age discrimination suits brought under the ADEA are analyzed according to a burden shifting framework first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); see also Abdu-Brisson, 239 F.3d at 466. Under the McDonnell Douglas framework, "a plaintiff must first establish a prima facie case of age discrimination. "To establish a prima facie case of age discrimination, a plaintiff must show four things: (1) he is a member of the protected class; (2) he is qualified for his position; (3) he has suffered an adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of age discrimination." Abdu-Brisson, 239 F.3d at 466. "A prima facie case of retaliation under the ADEA requires proof that: (1) the plaintiff was engaged in an activity protected under the ADEA; (2) the employer was aware of the plaintiff's participation in the protected activity; (3) the plaintiff was subject to an adverse employment action; and (4) there is a nexus between the protected activity and the adverse action taken." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997). The ADEA makes it unlawful for an employer to subject an employee to an adverse employment action because the employee previously charged the employer with age discrimination. 29 U.S.C.A. § 623(d). "Once the plaintiff has made out a prima facie case, the employer is required to offer a legitimate, nondiscriminatory business rationale for its actions." Abdu-Brisson, 239 F.3d at 466 (internal citations omitted). If the employer offers such a rationale, "the presumption of age discrimination dissolves, and the burden shifts back to the plaintiff to prove that the employer's stated reasons are merely pretextual and that age discrimination was the true reason for the adverse employment action." (Id.) Claims Time-Barred by the ADEA

  In New York, as a condition precedent to suing an employer for unlawful employment discrimination in federal court under the ADEA, an employee must first seek relief through the EEOC or through a state or local agency. 29 U.S.C.A. § 626(d)(2); 29 U.S.C.A. § 633(b). In New York, "an ADEA plaintiff must file an EEOC charge within the earlier of 300 days after the alleged unlawful practice or, if a complaint was filed with the state agency, 30 days after receiving notice of termination of proceedings under the state law." Hodge v. New York College of Podiatric Medicine, 157 F.3d 164, 166 (2d Cir. 1998); 29 U.S.C. § 626(d)(2) ("[n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed . . . in a case to which section 14(b) applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under state law, whichever is earlier."). In the present case, Plaintiff cross-filed his claims simultaneously with the EEOC and the NYSDHR on May 1, 2001. (Compl. at 4.) Accordingly, the ADEA's 300-day limitations period applies to Plaintiff's claims and any of Plaintiff's claims that fall outside that limitation cannot be reviewed by the Court. See Alston v. N.Y. City Transit Auth., No. 02 Civ. 2400 (JGK), 2003 WL 22871917, at *4 (S.D.N.Y. Dec. 3, 2003) ("The filing requirement acts as a statute of limitations to bar all claims falling outside the 300-day period.") The Court has therefore only considered Plaintiff's claims regarding alleged discriminatory acts that occurred after July 5, 2000 (i.e., 300 days prior to his EEOC filing), and before his EEOC filing. Considering all of the evidence presented by both parties, viewed in the light most favorable to Plaintiff, only four of Plaintiff's age discrimination claims fit within that time frame. First, Plaintiff alleges that he applied for a promotion to the position of Winder Operator on July 12, 2000, and shortly thereafter the posting was rescinded. (D's Memo at 5.) Second, Plaintiff alleges that, on August 31, 2000, he was suspended by Jean Kerbat, whom Plaintiff claims discriminated against him. (Tr. of 03/23/04 Concepcion Dep. at Exh. A to Lebowitz Aff. at 278.) Third, on or about September 13, 2000, Defendant terminated Plaintiff's employment, Plaintiff alleges, in part, because of his age. (Tr. of 03/23/04 Concepcion Dep. at Exh. A to Lebowitz Aff. at 278-80.) Finally, Plaintiff alleges that, partly, in retaliation for complaining about age discrimination, he was denied vacation pay that was owed to him upon the termination of his employment. (D's Mem. at 20, 23.)

  Plaintiff's claims of alleged unlawful practices that occurred before July 5, 2000, including three alleged instances of failure to promote, which are mentioned above, as well as various alleged unequal terms and conditions of employment, which are referenced in Defendant's papers, are time-barred by the ADEA's controlling statute of limitations. Defendant's motion is therefore granted to the extent that it seeks summary judgment as to those claims.

  Plaintiff's Failure to Promote Claim

  Plaintiff alleges that he was denied promotions on more than one occasion. (Compl. at 4.) However, only one such instance falls within the EEOC's 300-day limitation: Plaintiff applied for a promotion to the position of Winder Operator on July 12, 2000, and shortly thereafter that position posting was rescinded. This series of events was addressed in Defendant's papers, but not referred to directly by Plaintiff. (Exh. Y to Lebowitz Aff.; Brody Aff. ¶ 37-38.) Indeed, Plaintiff has proffered no evidence concerning the circumstances surrounding Defendant's failure to promote Plaintiff on this occasion to give rise to an inference of age discrimination. Thus, under the McDonnell Douglas framework, a rational fact finder could not determine that Plaintiff has satisfied his minimal burden of establishing a prima facie case of age discrimination on this claim.

  Further, Defendant has proffered evidence that Matt Marschhauser, Defendant's Vice President of Operations, decided to "scale back the number of Winder Operators" and that Plaintiff's age had nothing to do with rescinding the posting. (Brody Aff. ¶ 37-38.) Thus, even if a rational fact finder could determine that Plaintiff had met his minimal burden of making a prima facie case of age discrimination as to this claim, Defendant has offered a legitimate, nondiscriminatory business rationale for its action and Plaintiff has proffered no evidence showing that Defendant's stated reason is merely pretextual and that age discrimination was a reason for the adverse employment action. As stated above, when a defendant makes and properly supports a summary judgment motion, the plaintiff must respond by setting forth specific facts showing that there is a genuine issue for trial; otherwise, summary judgment, if appropriate, shall be entered against the plaintiff. See Fed.R.Civ.P. 56(e). Plaintiff has not proffered evidence sufficient to show that there is a genuine issue for trial on this claim. Summary judgment is therefore granted as to Plaintiff's failure to promote claim. Plaintiff's Suspension Claim

  Plaintiff was suspended from his employment on August 31, 2000. (Exhs. DD, EE, FF, GG to Lebowitz Aff.) Plaintiff's account of the events leading up to his suspension, as told by Plaintiff in deposition excerpts included in Defendant's papers (Tr. of 03/23/04 Concepcion Dep. at Exh. A to Lebowitz Aff. at 249-252, 265-267), differs somewhat from Defendant's account of the events leading up to the dismissal (Exhs. DD, EE, FF, GG to Lebowitz Aff.). Plaintiff contends that another employee, Gilbert Rodriguez, was making fun of him and that John Robinson, Plaintiff's supervisor, did not adequately respond. According to Plaintiff, when the argument continued, Jean Kerbrat, Defendant's Production Supervisor, intervened and instructed Plaintiff to return to his work area. Plaintiff alleges that he instead insisted that he, Rodriguez and Kerbrat go to Kerbrat's office to settle the disagreement, and admits that he twice refused Kerbrat's directions to return to his work area. It is undisputed that, at the end of their conversation, Kerbrat told Plaintiff that he was suspended and that he should go home and not return to work until the company contacted him.

  On the other hand, Defendant contends that before Plaintiff's disagreement with Rodriguez, at the beginning of the August 31st shift, Plaintiff had another serious disagreement with Production Manager Ruby Cruz, and that Plaintiff was argumentative and insubordinate. Defendant contends that the later "loud altercation" between Plaintiff and Rodriguez escalated to the point that Union Shop Steward Luz Santiago ("Santiago") had to step between the men to "prevent a fistfight." Furthermore, Defendant asserts that Kerbrat told Plaintiff to return to his assigned area three times and three times Plaintiff refused. Thereafter, Plaintiff was suspended for insubordination.

  Under the McDonnell Douglas burden shifting framework, Plaintiff has not shown that the circumstances surrounding Defendant's decision to suspend Plaintiff give rise to an inference of age discrimination. Likewise, Plaintiff has failed to establish that Defendant retaliated against him in violation of the ADEA when Defendant suspended Plaintiff, because Plaintiff has not proffered evidence showing that there was a nexus between an ADEA-protected activity and the adverse action taken. Although the ADEA makes it unlawful for an employer to subject an employee to an adverse employment action because the employee previously charged the employer with age discrimination, Plaintiff has not proffered sufficient evidence of a connection between the claims of age discrimination he made before being suspended and his suspension. Furthermore, even assuming that Plaintiff has met his minimal burden for making out a prima facie case as to his suspension claim, Defendant offers a legitimate, nondiscriminatory business rationale — insubordination — for its decision to suspend Plaintiff and Plaintiff has proffered no evidence showing that Defendant's stated reason is merely pretextual and that age discrimination was a reason for the adverse employment action. Summary judgment is therefore granted against Plaintiff on his suspension claim.

  Plaintiff's Termination Claim

  Plaintiff alleges that he was fired, in part, because of his age, but he offers insufficient factual support for the allegation. It is undisputed that Defendant notified Plaintiff by a letter dated September 13, 2000, that his employment was terminated effective that day. Defendant alleges that during Plaintiff's suspension, Santiago reported that Plaintiff had threatened to hurt her. (D's Mem. at 8; Brody Aff. ¶ 40.) Defendant asserts that Plaintiff's employment was terminated "due to his insubordination, poor performance, and threatening behavior." (Brody Aff. ¶ 41.) In support of these assertions, Defendant alleges that "[Plaintiff] often disappeared during his shift, argued with co-workers, and sometimes failed to comply with the technical requirements of his job." (Kerbrat Aff. ¶ 11.) Defendant also asserts that Plaintiff "tended to wander around during his shift and oftentimes could not be located." (Brody Aff. ¶ 28.) Moreover, Defendant asserts that Plaintiff "became loud and angry with co-workers on several occasions." (Id. ¶ 29.) Defendant asserts that more than once Plaintiff harassed other employees, despite having "been told to refrain from such misbehavior." (Exh. Z, AA to Lebowitz Aff.) Finally, Defendant asserts that, in late April 2000, Plaintiff was warned that he might be suspended or that his employment might be terminated if his performance did not improve. (Exh. CC to Lebowitz Aff.) Affidavits submitted by Dennis Brody and Jean Kerbrat and other documents submitted by Defendant repeat these and other claims asserting legitimate grounds for Plaintiff's termination. (Brody Aff. ¶¶ 28, 29, 40, 41; Kerbrat Aff. ¶ 11; Exhs. Z, AA, BB, CC, DD, EE, FF, GG, HH, II, JJ to Lebowitz Aff.).

  Again, considering all of the evidence submitted in the light most favorable to Plaintiff, the circumstances surrounding Plaintiff's termination do not give rise to an inference of age discrimination. Although, under the ADEA, it would have been unlawful for Defendant to terminate Plaintiff's employment because Plaintiff previously had charged the employer with age discrimination, Plaintiff has not proffered any evidence that there is a connection between his earlier age discrimination charges and his termination. Plaintiff does not offer evidence to show the existence of a nexus between his termination and an ADEA-protected activity. Even if Plaintiff had met his minimal burden of making out a prima facie case of age discrimination or retaliation as to his termination claim, however, Defendant offers legitimate, nondiscriminatory business rationales for its decision to terminate Plaintiff's employment and Plaintiff has proffered no evidence showing that Defendant's stated reason is merely pretextual and that age discrimination was a reason for the adverse employment action. Plaintiff has not set forth specific facts showing that there is a genuine issue for trial on this claim. Summary judgment is therefore entered against Plaintiff on his termination claim.*fn1

  Plaintiff's Vacation Pay Claim

  Plaintiff alleges that, after he was terminated, he was owed compensation for certain unused vacation days. (Tr. of 03/23/04 Concepcion Dep. at Exh. A to Lebowitz Aff. at 270.) Defendant asserts that Plaintiff was not paid for his accrued, but unused vacation time because he had been discharged for misconduct. (D's Mem. at 8; Brody Aff. ¶ 42-44; Tr. of 03/23/04 Concepcion Dep. at Exh. A at 275-277; Exhs. II, JJ to Lebowitz Aff.) Defendant asserts that this rationale for not paying Plaintiff for his accrued vacation time is in accord with its collective bargaining agreement with Plaintiff's union, and offers a copy of the collective bargaining agreement as evidence. (Brody Aff. ¶ 42; Exh. K to Lebowitz Aff. at 19.)

  The circumstances surrounding Defendant's refusal to give Plaintiff his accrued vacation pay do not give rise to an inference of age discrimination, and the minimal evidence requirement to establish a prima facie retaliation claim as to Plaintiff's vacation pay claim have not been met. Even if Plaintiff had met his burden of making out a prima facie case of age discrimination or retaliation with regard to his vacation pay claim, however, Defendant has offered a legitimate, nondiscriminatory business rationale for its decision not pay Plaintiff for his accrued, but unused vacation time and Plaintiff has proffered no evidence showing that Defendant's stated reason is merely pretextual and that age discrimination was a reason for the adverse employment action. Plaintiff has not set forth specific facts showing that there is a genuine issue for trial on this claim. Summary judgment is therefore granted against Plaintiff on his claim related to vacation pay. CONCLUSION

  For the foregoing reasons, Defendant's motion for summary judgment is granted and Plaintiff's Complaint is dismissed in its entirety, with prejudice. The Clerk of Court is directed to enter judgment in Defendant's favor and close the case.

  SO ORDERED.


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