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August 22, 2005.

EDDIE L. MILLER Plaintiff,

The opinion of the court was delivered by: P. KEVIN CASTEL, District Judge


In a Memorandum and Order dated August 11, 2004, I granted the defendants' motion for summary judgment dismissing the plaintiff's claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Miller v. New York City Health & Hosp. Corp., 2004 WL 1907310 (S.D.N.Y. Aug. 25, 2004).*fn1 The defendants' motion was fashioned as one seeking dismissal of all claims in this action, but I noted that, generously construed, the complaints filed by the plaintiff, who is proceeding pro se, raised allegations that were not addressed in the defendants' motion papers. These included claims made pursuant to 42 U.S.C. § 1981, and allegations implicating defendants' adherence to their internal policies and procedures. Id. at *15. Because the record was unclear as to whether the pro se plaintiff continued to assert claims brought in complaints that arguably had been superseded, I directed him to submit an affirmation stating whether he wished to pursue these claims, and that if he did, he should submit a narrative explaining the bases of these claims. Id. I further stated that if, after reviewing the plaintiff's submissions, the defendants believed there was a good-faith basis to file a subsequent motion for summary judgment, they could do so. Id.

Plaintiff filed an affirmation shortly thereafter. The defendants then filed this motion for summary judgment, which seeks the dismissal of the plaintiff's remaining claims.

  Familiarity is assumed with the facts and procedural history of this case, as set forth in my prior Memorandum and Order. See Miller, 2004 WL 1907310 at *1-2. Briefly summarized, plaintiff Eddie Miller filed four amended complaints alleging discrimination and retaliation during the course of his employment with the defendants. He asserts that he was discriminated against because he was not white and because he was not foreign born. At his deposition, Mr. Miller testified that his only direct evidence of discrimination was the utterance of a racial epithet by one of his subordinates, who was black and of Guyanese descent. Id. at *1. He asserts that internal complaints of discrimination were inadequately investigated, and that he was erroneously accused of calling a supervisor a "Grand Wizard." Id. In the Memorandum and Order of August 11, 2004, I ruled that some of the plaintiff's claims were time-barred, that he failed to come forth with evidence of an adverse employment action in support of his employment discrimination claim, and that he failed to come forth with evidence in support of his retaliation claims. Id. at *3-13.

  The plaintiff's affidavit of August 21, 2004 reasserted four bases for claims, each of which were implicated in his prior complaints. He asserts that the defendants violated his due process rights by not complying with Operating Procedure 20-10 ("O.P. 20-10") and Operating Procedure 20-40 ("O.P. 20-40"), internal guidelines that govern employee treatment in a disciplinary action. (Miller Aff. at 1-3) He contends that he is owed overtime pay and bereavement pay, and that the defendants' failure to pay him was discriminatory. (Miller Aff. at 3-5) Lastly, he asserts that although he was entitled to overtime pay, a supervisor forged time records to indicate that he was entitled to "comp time" rather than overtime pay.*fn2 (Miller Aff. at 5-6)

  For the reasons explained below, the defendants' motion is granted, and all of the plaintiff's remaining claims are dismissed.

  Summary Judgment Standard

  Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

  When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Rule 56(e), Fed.R.Civ.P. In raising a triable issue of fact, the nonmovant carries only "a limited burden of production," but nevertheless "must `demonstrate more than some metaphysical doubt as to the material facts,' and come forward with `specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Medical Examiners, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).

  An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Caution is particularly warranted when considering a summary judgment motion in a discrimination action, since direct evidence of discriminatory intent is rare, and often must be inferred. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted); accord Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. See Fed.R.Civ.P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id.

  The defendants have served the pro se plaintiff with the notice explaining the manner in which a party may oppose summary judgment, as required by Local Rule 56.2. I am mindful of the latitude afforded to a pro se party opposing a summary judgment motion. See Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) ("special solicitude" owed to pro se litigants opposing summary judgment); Shabtai v. U.S. Dep't of Education, 2003 WL 21983025, at *5 (S.D.N.Y. Aug. 20, 2003) (obligation to construe leniently pro se opposition papers on a summary judgment motion). However, a party's pro se status does not vitiate the requirement that triable issues of fact must be raised in order to defeat a summary judgment motion. Miller, 2004 WL 1907310, at *9.


  1. Plaintiff's Section 1981 Claims Are Dismissed

  "To establish a § 1981 claim, a plaintiff . . . must show: (1) that she is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendants; and (3) that the discrimination concerned one or more of the activities enumerated in § 1981." Lauture v. Int'l Business Machines Corp., 216 F.3d 258, 261 (2d Cir. 2000). Section 1981 provides as follows: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons ...

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