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MASSIE v. IKON OFFICE SOLUTIONS

August 11, 2005.

CHARLES W. MASSIE, III, Plaintiff,
v.
IKON OFFICE SOLUTIONS, INC., Defendant.



The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge

MEMORANDUM DECISION AND ORDER

Defendant IKON Office Solutions, Inc. ("IKON"), offers customers total business solutions for production of outsourcing needs, including copier and printer color solutions, facilitiesmanagement, network design and consulting, and e-business development. IKON's Technology Education Unit ("TEU") marketed training services for computer software and hardware to individuals, corporations, governments and organizations. The TEU employed approximately 320 people in 15 facilities located throughout the United States. Plaintiff worked for IKON as an Account Executive, a sales job, in the TEU, in its Syracuse, NY office from November 1, 1999 through September 2000. In December 2001, IKON sold the TEU to Computer Services Corp., an affiliate of Sun Capital Partners of Boca Raton, Florida.

  While at IKON, plaintiff's supervisor was now dismissed co-defendant, John Watkins. Plaintiff alleges that Watkins, subjected him to performance demands that were not required by any other staff member; retaliated against him for not accepting Watkins' religious related materials and was terminated based upon a false charge of insubordination.

  Plaintiff filed a charge with the New York State Division of Human Rights ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC"). The EEOC subsequently adopted the findings of the NYSDHR that investigates plaintiff's charge, and dismissed plaintiff's claim. The EEOC adopted the findings of the state fair employment practices agency that investigated plaintiff's charges, and issued a right-to-sue letter on June 3, 2002. Plaintiff commenced legal proceedings against the defendants with the filing of a complaint on August 8, 2002. At this court's direction, he filed an amended complaint on October 7, 2002, claiming that defendants violated Title VII of the Civil Rights Act of 1964, as amended, codified at 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991. Plaintiff alleged that defendants conduct discriminated against his religion, that they imposed unequal terms and conditions of employment, and retaliated against him by unjustly terminating his employment. The amended complaint seeks reinstatement as an Account Executive, retroactive back pay, punitive damages, attorney fees and costs.

  In May 2003, a motion to dismiss the complaint in this case was brought in this court by defendant IKON and then defendant John Watkins. After reviewing the submissions of the respective parties and hearing oral argument on the motion, the court denied the motion to dismiss the complaint as against defendant IKON, and granted the motion to dismiss the complaint as against defendant John Watkins.

  Currently before the court is IKON's motion for summary judgment dismissing the complaint pursuant to Federal Rule of Civil Procedure 56(c) ("that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."). Plaintiff has entered opposition to defendant's motion.

  DISCUSSION

  The principles applicable to summary judgment are familiar and well-settled. Summary judgment may be granted only when there is "no genuine issue as to any material fact," and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Hermes International v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107 (2d Cir. 2000). A court's role is "to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party," Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986); however, the non-movant may not rely on "mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Id. at 12. Instead, when the moving party has documented particular facts in the record, "the opposing party must `set forth specific facts showing that there is a genuine issue for trial." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (quoting Fed.R.Civ.P. 56(e)). Establishing such facts requires going beyond the allegations of the pleadings. Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000). Accordingly, unsupported allegations in the pleadings cannot create a material issue of fact. Id.

  Plaintiff appears pro se, and the court is sympathetic to the plight of the unrepresented, and is mindful of the clearly announced principle that encourages the federal courts to accord pro se litigants greater leniency with respect to certain procedural requirements more easily fulfilled by members of the bar. Mount v. Book-of-the-Month Club, Inc., 555 F.2d 1108, 1112 (2d Cir. 1977) ("A layman representing himself . . . is entitled to a certain liberality with respect to procedural requirements"); Stewart v. United States Postal Service, 649 F. Supp. 1531, 1535 (S.D.N.Y. 1986) ("the law downplays the strict application of harsh procedural rules when a party is pro se"). Moreover, the Court has given careful consideration to the general rule that where, as here, "pro se papers implicate the vindication of civil rights or civil liberties," they are to receive a particularly liberal construction. Stewart, 649 F. Supp. at 1535. Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991); Williams v. King, 796 F. Supp. 737, 739 (E.D.N.Y. 1992).

  Nevertheless, the net effect of the principles cited above does not require that the courts disregard completely procedural requirements or rules of substantive law whenever a pro se litigant alleges a civil rights violation. Rather, although the courts have "an obligation to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights . . . `[t]he right of self-representation does not exempt a party from compliance with the relevant rules of procedural and substantive law.'" Clarke v. Bank of New York, 687 F. Supp. 863, 871 (S.D.N.Y. 1988) (quoting Birl v. Estelle, 660 F.2d 592, 593 [5th Cir. 1981]). Michelson v. Merrill Lynch Pierce, Fenner & Smith, Inc., 619 F. Supp. 727, 741-42 (S.D.N.Y. 1985) ("pro se litigants . . . like all parties to a litigation, cannot rely upon [their] pro se status as a shield from all mistakes but must at some point bear the consequences of [their] procedural errors").

  In his opposition memorandum to IKON's summary judgment motion, plaintiff sets forth a claim that John Watkins' actions toward him constituted intentional discrimination prompting a reckless disregard for his human rights, and entitling plaintiff to punitive damages. The conduct complained of was not before the court until plaintiff filed a memorandum in opposition to summary judgment. No mention of it appeared in the original Complaint or the Amended Complaint. Discovery by plaintiff did not focus on investigating such conduct thereby providing the defendants with notice that he intended to pursue this claim. Having received no notice of it, the defendant had no opportunity to investigate it when defendant conducted its own discovery. A party may not rely on wholly new allegations of wrongdoing to resist a motion for summary judgment. Wilburn v. Dial Corp., 724 F. Supp. 521, 525 (W.D. Tenn. 1989).

  The Federal Rules of Civil Procedure provide for liberal notice pleading at the outset of the litigation because "[t]he provisions for discovery are so flexible" that, by the time a case is ready for summary judgment, "the gravamen of the dispute [has been] brought frankly into the open for inspection by the court." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13, 122 S.Ct. 992, 152 L. Ed.2d 1 (2002) (noting that the "simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims"). Once a case has progressed to the summary judgment stage, therefore, "the liberal pleading standards under Swierkiewicz and [the Federal Rules] are inapplicable." Gilmour v. Gates McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (holding that a plaintiff could not raise a new claim in response to a summary judgment motion); see also 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2723 (3d ed. Supp. 2005) ("A non-moving party plaintiff may not raise a new legal claim for the first time in response to the opposing party's summary judgment motion. At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Rule 15(a)."). To permit a plaintiff to do otherwise would subject defendants to unfair surprise. Guiffre v. Local Lodge No. 1124, 1991 WL 135576, at *5 (6th Cir. July 24, 1991) (refusing to hear claims raised for the first time in opposition to summary judgment because, "[h]aving received no notice of them, the defendants had no opportunity to investigate them when they conducted their own discovery"); EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir. 2001) (stating that even under the liberal notice-pleading regime, the Federal Rules of Civil Procedure still require "that the complaint give the defendant fair notice of the claim and its supporting facts").

  Even construing the allegations in the Amended Complaint as generously as possible, the only claims that plaintiff asserted were unequal employment, retaliation. and termination of employment. No allegations are made regarding Watkins' alleged intentional discrimination that promoted reckless disregard for human rights. Consequently, this claim will not be considered by this court in ruling on defendant's motion for summary judgment. This court will also not consider plaintiff's surreply to defendant's reply to plaintiff's memorandum. Rule 7.1, 4(b)(1) of the Local Rules of Practice for the United States District Court Northern District of New York does not permit a surreply in dispositive motions practice.

  Plaintiff claims that his superior, John Watkins, subjected him to religious discrimination, disparate treatment and retaliatorydismissal, and that defendant IKON knew, or should have known, about his actions but did nothing to prevent or rectify it. Plaintiff was employed by IKON as an Account Executive from November 1, 1999 through September 14, 2000. An Account Executive's job entailed cold calling on business establishments and try to interest them in the educational training products IKON had available. Likely customers were offered a free coupon for a single session of training in one of several "Computer Application" training classrooms. If the training period proved satisfactory, the likely customer might agree to pay for ...


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