United States District Court, S.D. New York
December 8, 2005.
RICHARD ARLINE, Plaintiff,
JOHN E. POTTER, Postmaster General, UNITED STATES POSTAL SERVICE, Defendant.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
OPINION AND ORDER
On December 8, 2003, plaintiff Richard Arline commenced this
action under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq. ("Title VII"), against defendant John E.
Potter, Postmaster General of the United States Postal Service
("USPS"), alleging that the USPS intentionally discriminated
against him on account of his race and sex when it refused to
promote him to several positions at the United States Postal
Inspection Service ("USPIS"). The defendant whom we will refer
to for convenience as the USPS now moves for summary judgment
pursuant to Fed.R.Civ.P. 56. The parties have consented to the
disposition of this matter by a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the
USPS's motion is granted. I. BACKGROUND
A. Evidence Presented on the Summary Judgment Motion*fn1
Arline is a 56-year-old African-American male. Def. 56.1 ¶ 1.
On December 31, 1977, Arline began his employment with the USPIS
as a trainee. Id. ¶ 2. In April 1978, he went to work as a
postal inspector in the Macon, Georgia office of the USPIS until
July 1982. Id. From 1982 until February 29, 2004, he held
various positions in the USPIS, the last of which was as Division
Training Officer in the Newark, New Jersey office beginning in
March 1998. On February 29, 2004, Arline voluntarily retired from
the USPS. Id. (citing Deposition of Richard Arline, dated
September 22, 2004 ("Arline Dep.")) (reproduced as Ex. A to
Declaration of Allison D. Penn, dated February 15, 2005 ("Penn
Decl.") (annexed to Def. Motion)).
On August 30, 1999, the USPIS issued an Inspector Vacancy
Announcement containing a posting for two vacancies for the
position of Assistant Inspector in Charge ("AIC") in the Atlanta
Field Office in the Southeast Division of the USPIS. Def. 56.1 ¶
3. Arline submitted an application for this position called a
Postal Service Form 991 ("Form 991") on September 13, 1999.
Id. ¶¶ 3-4. A review panel convened to narrow the list of
applicants to those the panel believed were best qualified. Id.
¶ 3. The review panel submitted a list of six out of fifteen
applicants to the Selecting Official, Ira Carle, who was then
Inspector in Charge for the Southeast Division of the USPIS.
Id. Arline was among the six referred to Carle. Id. Carle reviewed each of the six applicants' Form 991's and the
written assessment of each applicant submitted by the applicant's
manager. Def. 56.1 ¶ 4. Based on his review, Carle selected two
African-American females, Yeudele Allen and Marsha Freso, for the
positions. Id. Carle did so because he found that Allen and
Freso had done a commendable job in demonstrating on their Form
991's that they were experienced and would bring value to the
Division. Id. ¶ 5. By contrast, Carle found that Arline did not
sufficiently identify his past work experience in his Form 991.
Id. Furthermore, Arline did not adequately identify his past
experiences in critical areas of Inspection Service Programs,
which would be his responsibility if selected as AIC. Id.
Arline's grammatical and typographical errors on his Form 991
weighed against him as well. Id.
On January 10, 2000, the USPIS issued another Inspector Vacancy
Announcement posting a vacancy for the position of AIC, Field
Office Inspector in Charge ("FOINC"), in the Memphis Field Office
of the Southeast Division of the USPIS. Def. 56.1 ¶ 6. On January
24, 2000, Arline applied for the position. Id. Another review
panel convened, and recommended six of the nine applicants,
including Arline, to Carle. Id. Zane Hill, AIC in the
Washington D.C. Office, also requested consideration for a
non-competitive transfer to the position in the Memphis Field
Office, and his request was forwarded to Carle on January 13,
2000. Id. ¶ 7. Non-competitive applications for reassignment
could be considered before, during, or after the competitive
process. Id. Carle reviewed all the applications and selected
Hill, a Caucasian male, because he did a commendable job
identifying his past work experiences and explaining the value he
was going to bring to the Division. Id. ¶ 8. Hill's prior
experience as an AIC, his interview, and his Form 991 were the
deciding factors in Carle's decision to choose him. Id. Carle determined Arline did not do a good job articulating and
identifying in writing his experiences in critical areas that
would have been his responsibility as a FOINC. Id.
On February 4, 2000, Arline applied for another position as a
FOINC in the Kansas City Field Office in the Midwest Division of
the USPIS. Def. 56.1 ¶ 9. Another review panel recommended Arline
along with four other applicants. Id. This time, Ronald J.
Terlep, then Inspector in Charge of the Midwest Division, was the
selecting official. Id. Terlep reviewed the applications and
the written assessments of the applicants submitted by their
manager, and interviewed each applicant for approximately one
hour. Id. He selected Robin Dagleish, a Caucasian female, for
the position because she performed well during the interview, she
was highly recommended by her manager, and she had recently
served as the AIC to the Western Allegheny Division for ninety
days. Id. ¶ 10. Terlep said that he was impressed by Arline's
performance during the interview, and would have selected him had
he not chosen Dagleish, but Dagleish demonstrated a better
ability to manage a large caseload than Arline. Id.
On May 26, 2000, USPIS announced two vacancies for AIC
positions in the New York Metro Division of the USPIS, and Arline
applied. Def. 56.1 ¶ 11. Of the ten applicants, a review panel
recommended five, including Arline, to John J. Skidmore, the
individual in charge of selecting for the AIC positions. Id.
Skidmore interviewed each applicant for approximately one hour.
Id. Skidmore selected Thomas Van de Merlen and Ronald Walker,
two Caucasian males, for the two vacant AIC positions because
they both had acted in the AIC position in the New York Metro
Division on numerous prior occasions, they both had demonstrated
proficiency in their performance of their duties, and Skidmore
believed the job of AIC required individuals who had experience
and familiarity with the New York Office. Id. ¶¶ 12-13. Arline
did not have experience or familiarity with the New York Office, and had less
knowledge of the New York Metro Division's operations. Id. ¶
14. Furthermore, Skidmore was concerned about Arline's
supervisor's reservation about recommending him for the position
and Arline's limited supervisory experience. Id. Skidmore sent
Arline an e-mail informing him that he was not chosen because of
the merit of the selected applicants rather than any deficiency
of Arline's. See id. ¶ 15.
On February 26, 2002, the USPIS announced another AIC vacancy
in the Western Allegheny Division of the USPIS, and Arline bid
for this position. Def. 56.1 ¶ 16. James W. Birch, then Inspector
in Charge of the Western Allegheny Division of the USPIS, was the
selecting official for this position. Id. ¶ 17. A review panel
convened and recommended four applicants, one of whom was Arline.
Id. Birch reviewed the applications and conducted interviews in
which he focused on three topics: (1) the applicant's overall
knowledge of USPIS's mission, goals and objectives; (2) the
applicant's understanding of their home division's goals and how
they relate to national goals; and (3) the applicant's responses
to scenarios involving leadership, inter-personal relations and
work prioritization. Id. ¶¶ 17-18. Birch selected John
Wisniewksi, a Caucasian male, because he demonstrated a
substantive knowledge of the USPIS goals and objectives, and he
demonstrated leadership in task force operations, team
operations, and multi-agency initiatives. Id. ¶ 19. Arline did
not demonstrate an understanding of national goals, much less how
they related to field units such as the Western Allegheny
Division. Id. ¶ 20. Nor was Arline familiar with the goals and
initiatives of his own home unit. Id. B. Procedural History
Arline filed an Equal Employment Opportunity ("EEO") Complaint
dated January 10, 2000, challenging his non-selection for the
Atlanta and Memphis positions on the grounds of race and gender
discrimination. Def. 56.1 ¶ 21 (citing EEO Complaint of
Discrimination in the Postal Service, dated Jan. 10, 2000
(reproduced as Ex. G to Penn Decl.)). Arline filed another EEO
Complaint dated October 17, 2000, challenging his non-selection
for the New York position on the grounds of race and gender
discrimination. Id. (citing EEO Complaint of Discrimination in
the Postal Service, dated Oct. 17, 2000 (reproduced as Ex. I to
Penn Decl.)). Arline filed two more EEO Complaints challenging
his non-selection for the Kansas City and Allegheny positions.
Id. (citing EEO Complaint of Discrimination in the Postal
Service, dated Nov. 1, 2000 (reproduced as Ex. H to Penn Decl.);
EEO Complaint of Discrimination in the Postal Service, dated Dec.
21, 2002 (reproduced as Ex. J to Penn Decl.)). Arline is not
challenging his non-selection for the St. Paul, Minnesota, AIC
position. Def. 56.1 ¶ 22.
The USPS consolidated the Atlanta, Memphis, Kansas City and New
York EEO Complaints and issued a Final Agency Decision denying
relief. Def. 56.1 ¶ 23 (citing Final Agency Decision, dated Jan.
10, 2000 [sic] (reproduced as Ex. K to Penn Decl.)). Arline
appealed the denial to the Equal Employment Opportunity
Commission ("EEOC"), which on September 8, 2003, affirmed the
agency's decision denying relief. Id. (citing Decision, dated
Sept. 8, 2003 (reproduced as Ex. M to Penn Decl.). The USPS
issued another Final Agency Decision relating to the Allegheny
EEO Complaint on December 17, 2003, and the EEOC affirmed the
agency's decision on or about May 4, 2004. Id. (citing Final
Agency Decision, dated Dec. 17, 2003 (reproduced as Ex. L to Penn Decl.);
Decision, dated May 4, 2004 (reproduced as Ex. N to Penn Decl.)).
On December 8, 2003, Arline filed his Complaint in the instant
action. See Complaint for Compensatory Damages, filed Dec. 8,
2003 (Docket #1) ("Complaint"). Arline filed an amended complaint
on July 16, 2004. See Amended Complaint for Compensatory
Damages, filed July 16, 2004 (Docket #9) ("Amended Complaint").
The USPS now moves for summary judgment dismissing the complaint.
See Def. Motion. The USPS attached to its notice of motion
various declarations including declarations of USPS employees
along with a statement pursuant to Local Civil Rule 56.1. See
Def. Motion; see generally Local Civ. R. 56.1(a) (requiring a
party moving for summary judgment pursuant to Fed.R.Civ.P. 56
to submit "a separate, short and concise statement, in numbered
paragraphs, of the material facts as to which the moving party
contends there is no genuine issue to be tried"). It also
submitted a memorandum of law. See Memorandum of Law in Support
of Defendant's Motion for Summary Judgment, filed Feb. 15, 2005
(Docket # 14) ("Def. Mem.").
In response, Arline's attorney submitted a memorandum of law
that attached a copy of the amended complaint but did not attach
any affidavits or other evidence opposing the motion. See
Plaintiff's Brief in Opposition to Defendant's Motion, dated June
15, 2005 ("Pl. Opp. Mem."). The memorandum did not contain a
statement of facts. More significantly, Arline did not submit a
Rule 56.1 statement opposing the facts alleged in the USPS's Rule
56.1 statement as required by Local Civil Rule 56.1(b). On July
15, 2005, the USPS filed a reply brief. See Reply Memorandum of
Law in Further Support of Defendant's Motion for Summary
Judgment, filed July 15, 2005 (Docket #16) ("Def. Reply Mem."). II. LAW GOVERNING MOTIONS FOR SUMMARY JUDGMENT
A. Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure states that
summary judgment is appropriate when "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." Fed.R.Civ.P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting
Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists
"if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
When determining whether a genuine issue of material fact
exists, courts must resolve all ambiguities and draw all factual
inferences in favor of the nonmoving party. Id. at 255
(citation omitted); accord Woodman v. WWOR-TV, Inc.,
411 F.3d 69, 75 (2d Cir. 2005). Nevertheless, once the moving party has
shown that there is no genuine issue as to any material fact and
that it is entitled to a judgment as a matter of law, the
nonmoving party "must come forward with `specific facts showing
there is a genuine issue for trial,'" Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting Fed.R.Civ.P. 56(e)) (emphasis omitted), and "may not
rely on conclusory allegations or unsubstantiated speculation."
Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998); accord
Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 42 (2d Cir.
1986), cert. denied 479 U.S. 1088 (1987). Where "the
nonmoving party bears the burden of proof at trial, summary
judgment is warranted if the nonmovant fails to make a showing
sufficient to establish the existence of an element essential to
its case." Nebraska v. Wyoming, 507 U.S. 584, 590 (1993)
(quoting Celotex, 477 U.S. at 322) (internal quotations omitted). Thus, "[a] defendant moving for summary judgment must
prevail if the plaintiff fails to come forward with enough
evidence to create a genuine factual issue to be tried with
respect to an element essential to its case." Allen v. Cuomo,
100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson,
477 U.S. at 247-48).
"Summary judgment applies no less to Title VII cases than to
commercial cases or other areas of litigation," Distasio v.
Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998), and thus a
Title VII plaintiff must offer "concrete evidence from which a
reasonable juror could return a verdict in his favor,"
Anderson, 477 U.S. at 256.
B. Local Civil Rule 56.1
Local Civil Rule 56.1(a) requires a moving party to submit "a
separate, short and concise statement, in numbered paragraphs, of
the material facts as to which the moving party contends there is
no genuine issue to be tried." Local Rule 56.1(d) requires that
"[e]ach statement of material fact by a movant . . . must be
followed by citation to evidence which would be admissible, set
forth as required by Fed.R.Civ.P. 56(e)." Thus, Rule 56.1 does
not allow the moving party to make factual assertions that are
unsupported by the record. Holtz v. Rockefeller & Co., Inc.,
258 F.3d 62, 74 (2d Cir. 2001). Here, the USPS has submitted an
appropriate Rule 56.1 statement containing citations to
"Fed.R.Civ.P. 56 does not impose an obligation on a district
court to perform an independent review of the record to find
proof of a factual dispute." Amnesty Am. v. Town of W.
Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (citing cases).
Rather, the party opposing the summary judgment motion has the
obligation to point to admissible evidence in the record in
support of any claim that there is a disputed issue of material
fact. Thus, Local Civil Rule 56.1(b) requires a party opposing a motion for summary judgment
to include in its response "a correspondingly numbered paragraph
responding to each numbered paragraph in the statement of the
moving party, and if necessary, additional paragraphs containing
a separate, short and concise statement of additional material
facts as to which it is contended that there exists a genuine
issue to be tried." Here, Arline has failed to satisfy Local
Civil Rule 56.1(b) because he submitted no such counterstatement.
Nor did he submit affidavits or other admissible evidence.
Notably, the one document he did submit in opposition to the
USPS's motion his memorandum of law contains no statement of
facts and merely asserts that the USPS's evidence is "circumspect
and . . . self-serving and should be placed under the scrutiny of
a jury." Pl. Opp. Mem. at 6. Local Civil Rule 56.1(c) provides
that "[t]he facts set forth in" a Rule 56.1 statement "`will be
deemed to be admitted unless controverted' by the opposing
party's [Rule 56.1(b)] statement." Holtz, 258 F.3d at 72
(quoting Local Civil Rule 56.1(c)). Thus, all the facts in the
USPS's Rule 56.1 Statement are deemed admitted by Arline.
C. Title VII Cases on Summary Judgment
Title VII makes it unlawful for an employer to "discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a)(1). The plaintiff carries the initial burden
of establishing a prima facie case of discrimination. St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the
plaintiff establishes a prima facie case, a presumption of
discrimination is created and the burden of production shifts to
the employer "to articulate some legitimate, nondiscriminatory
reason" for the adverse employment action. See McDonnell
Douglas, 411 U.S. at 802; Farias v. Instructional Sys., Inc., 259 F.3d 91,
98 (2d Cir. 2001); accord St. Mary's, 509 U.S. at 506-07. If
the employer articulates a non-discriminatory reason for its
actions, the presumption of discrimination is eliminated and "the
employer will be entitled to summary judgment . . . unless the
plaintiff can point to evidence that reasonably supports a
finding of prohibited discrimination." James v. New York Racing
Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). This is because "the
ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated . . . remains at all times
with the plaintiff." Mary's, 509 U.S. at 507.
D. Prima Facie Case for Failure to Promote Under Title VII
To make out a prima facie case of discriminatory failure to
promote, a plaintiff must show "(1) [he] is a member of a
protected class; (2) [he] applied and was qualified for a job for
which the employer was seeking applicants; (3) [he] suffered an
adverse employment action; and (4) the circumstances surrounding
that action permit an inference of discrimination." Williams v.
R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004) (citing
cases). The fourth element of a prima facie case can be shown in
a number of ways. For example, a plaintiff could point to
"actions or remarks made by decisionmakers" that reflect a
"discriminatory animus." Chertkova v. Conn. Gen. Life Ins. Co.,
92 F.3d 81, 91 (2d Cir. 1996) (citing Ostrowski v. Atl. Mut.
Ins. Companies, 968 F.2d 171, 182 (2d Cir. 1992)). A plaintiff
could also provide evidence of "preferential treatment given to
employees outside the protected class." Id. (citing Washington
v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993)). III. DISCUSSION
The USPS moves for summary judgment dismissing the complaint on
two grounds: (1) that Arline's complaint should be dismissed as
moot; and (2) that his discrimination claims should be dismissed
on the merits. See Def. Mem. at 11, 13. Each of these grounds
is discussed below.
The USPS argues Arline's claims are moot because he seeks no
remedy to which he is entitled. See Def. Mem. at 11; Def. Reply
Mem. at 2. Arline seeks in his Amended Complaint "back pay . . .,
along with reasonable counsel fees . . . as well as Three Hundred
Thousand ($300,000) in pecuniary, non-compensatory damages, and
for such other and further relief as this Court deems just and
proper." Amended Complaint ¶ 18. Had these requests for damages
remained, Arline's claim plainly would not be moot. In response
to an interrogatory seeking the basis of the claim for damages,
however, Arline announced that he was seeking no damages of any
kind in this case, other than attorney's fees and litigation
costs. See Plaintiff's Response to Defendant's Discovery
Demands (reproduced as Ex. P to Penn Decl.) ("Pl.
Interrogatory"), at 13, 21. He does not even seek nominal
What is left then is Arline's request for "such other relief
that this Court deems proper." Amended Complaint ¶ 18. When the
USPS pointed out in its moving brief that the plaintiff was
seeking no remedy in this suit other than attorney's fees and
costs, see Def. Mem. at 12, Arline's only response was that
"this Court can permanently enjoin this Defendant from engaging
in employment practices that discriminate . . ., and require the
Defendant to carry out policies, practices and programs to
provide equal employment opportunities." Pl. Opp. Mem. at 3. Assuming this Court should consider this statement as
supplementing the relief sought in the Amended Complaint, the
only relief being sought in this case is (1) attorney's fees and
costs, and (2) injunctive relief against the USPS, even though
Arline no longer works there.
The record presented to this Court is insufficient to
demonstrate that this case involves a live controversy. The
"federal courts are without power to decide questions that cannot
affect the rights of litigants in the case before them. The
inability of the federal judiciary to review moot cases derives
from the requirement of Art. III of the Constitution under which
the exercise of judicial power depends upon the existence of a
case or controversy." DeFunis v. Odegaard, 416 U.S. 312, 316
(1974) (internal citations omitted). The related doctrine of
standing requires, inter alia, that the plaintiff allege an
injury that is "likely to be redressed by the requested relief."
Allen v. Wright, 468 U.S. 737, 751 (1984); United States v.
Hays, 515 U.S. 737, 743 (1995); see generally Friends of
the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167, 189 (2000) (discussing relationship between
mootness and standing). Thus, a case becomes moot "when it is
impossible for the court to grant any effectual relief whatever
to a prevailing party." In re Kurtzman, 194 F.3d 54, 58 (2d
Cir. 1999) (internal citations, emphasis, and quotation marks
omitted). "When a case becomes moot, the federal courts `lack
subject matter jurisdiction over the action.'" Fox v. Bd. of
Trustees of the State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir.
1994) (quoting New York City Employees' Retirement Sys. v. Dole
Food Co., 969 F.2d 1430, 1433 (2d Cir. 1992)), cert. denied,
515 U.S. 1169 (1995). For a federal court to have subject matter
jurisdiction over a case, "it is not enough that a dispute was
very much alive when suit was filed. . . . The parties must
continue to have a personal stake in the outcome of the lawsuit."
Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998)
(quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990)) (internal
citation and quotations omitted), cert. denied, 526 U.S. 1131
Here, neither of Arline's requests for relief is sufficient to
save this case from a mootness challenge. The request for
attorney's fees and costs by itself cannot support Arline's
standing inasmuch as attorney's fees and costs are available
under Title VII only to a party that has "prevail[ed]" on his or
her Title VII claim. 42 U.S.C. § 2000e-5(k); see also
Fed.R.Civ.P. 54(d)(1). Without a substantive claim on which to
prevail, a party obviously cannot claim any entitlement to these
fees or costs. See Cramer v. Virginia Commonwealth
University, 486 F. Supp. 187, 191-192 (E.D. Va. 1980)
("Dependency upon entitlement to attorney's fees does not avoid
dismissal for mootness . . . [P]laintiff . . . cannot keep his
present claim alive by asserting a claim to attorney's fees.").
Arline's request for injunctive relief cannot serve as the
substantive claim in this suit. Certainly, "Title VII allows the
courts to award a victorious plaintiff reinstatement . . . or
`any other equitable relief as the court deems appropriate.'"
Bundy v. Jackson, 641 F.2d 934, 946 n. 12 (D.C. Cir. 1981)
(awarding injunctive relief under a discrimination claim)
(quoting 42 U.S.C. § 2000e-5(g)). Arline, however, no longer
works for the USPS because he voluntarily retired, Def. 56.1 ¶ 2;
he does not seek reinstatement; and he does not assert that he
would ever work for the USPS again. While he asks that this Court
"permanently enjoin this Defendant from engaging in employment
practices that discriminate . . ., and require the Defendant to
carry out policies, practices and programs to provide equal
employment opportunities," Pl. Opp. Mem. at 3, he gives no
explanation of how the ordering of such relief will "redress"
any injury suffered by Arline himself, Allen, 468 U.S. at 751,
or why he has a "personal stake" in the provision of such relief, Knaust, 157 F.3d at 88; see
Christoforou v. Ryder Truck Rental, Inc., 668 F. Supp. 294, 301
n. 3 (S.D.N.Y. 1987) ("Any claim for injunctive relief on
plaintiff's hostile environment claim would be moot as to
plaintiff since she is no longer employed by [defendant] and she
does not wish to be so employed."). "Emotional involvement [in] a
lawsuit is not enough to meet the case or controversy
requirement." Ashcroft v. Mattis, 431 U.S. 171, 172-73 (1977).
Arline correctly notes that a case is not necessarily mooted
merely because a defendant voluntarily ceases its discriminatory
behavior. See Pl. Opp. Mem. at 4 (citing United States v. W.T.
Grant Co., 345 U.S. 629, 632 (1953)). Here, however, the
mootness does not arise from any change in the USPS's behavior
but rather because Arline seeks no relief that can redress any
injury suffered by him. Arline also argues the case is not moot
because the circumstances here are "capable of repetition." Pl.
Opp. Mem. at 4. However, that exception to the mootness doctrine
applies only where "there is a reasonable expectation that the
same complaining party will be subject to the same action
again." Spencer v. Kemna, 523 U.S. 1, 17 (1998) (citations and
internal quotation marks omitted) (emphasis added). Given that
Arline does not assert that he intends to seek employment with
the USPS, the exception does not save this case from a mootness
In sum, because "[c]ourts have no license to retain
jurisdiction over cases in which one . . . part[y] plainly lacks
a continuing interest," Friends of the Earth, Inc.,
528 U.S. at 170, this case must be dismissed. B. Discrimination Claims
In any event, even if plaintiff's claims were not moot,
judgment would have to be entered against Arline on the merits.
Because Arline bears the burden of proving his discrimination
claims, see McDonnell Douglas, 411 U.S. at 802, the USPS's
assertion in its brief that there is no evidence of
discrimination, see Def. Mem. at 16, 21, required Arline to
furnish admissible evidence showing that in fact the USPS engaged
in discrimination. See, e.g., Feurtado v. City of New York,
337 F. Supp. 2d 593, 599 (S.D.N.Y. 2004) (moving party is
permitted to "use a memorandum or brief to point to the absence
of evidence and thereby shift to the nonmovant the obligation to
come forward with admissible evidence supporting its claim")
(citing cases) (internal quotation marks omitted). Arline,
however, submitted no evidence at all and thus the case would
have to be dismissed for this reason alone.
In addition, all of the facts asserted in the USPS's Rule 56.1
statement are deemed admitted pursuant to Local Civil Rule
56.1(c). None of these facts reflect any act of discrimination by
the USPS. Thus, summary judgment must be entered in favor of the
USPS for this reason as well. Finally, because plaintiff has not
"prevail[ed]" on any of his claims, see 42 U.S.C. § 2000e-5(k),
Fed.R.Civ.P. 54(d)(1), he is not entitled to attorney's fees
For the foregoing reasons, the defendant's motion for summary
judgment (Docket # 13) is granted. The Clerk is requested to
enter judgment dismissing the complaint and to close this case.
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