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Petro v. Outback Steakhouse of Florida

January 31, 2006


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiffs Pristal Alexander Petro ("Petro") and Gerald Weathersby ("Weathersby"), both black males, commenced this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the New York State Human Rights Law, N.Y. Exec. Law § 296, et seq. ("NYSHRL"). Both allege hostile work environment discrimination occurring at their place of employment at the Outback Steakhouse in Vestal, New York. Defendants have moved for summary judgment pursuant Fed. R. Civ. P. 56 seeking to dismiss the entire action. For the reasons that follow, that motion is granted and the action is dismissed.


In support of the motion, Defendants have filed a properly supported "Statement of Material Facts Not in Dispute" as required by the Northern District of New York's Local Rule 7.1(a)(3) ("Defs. L.R. 7.1 Stat."). See N.D.N.Y.L.R. 7.1(a)(3). Plaintiffs, who are represented by counsel, have failed to file any responsive Statement of Material Facts as required by the Local Rules. See id..*fn1 The Court declines to sift through the factual materials that Plaintiffs have submitted in an effort to find factual support for their arguments. See Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002)("We agree with those circuits that have held that 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.")(citations omitted); Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000)(The Court's Local Rules require the parties "to clarify the elements of the substantive law which remain at issue because they turn on contested facts" and the Court "is not required to consider what the parties fail to point out.")(internal quotation marks and citations omitted). Rather, the Court deems the properly supported allegations in Defendants' L.R. 7.1 Statement admitted for purposes of this motion. See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005)(upholding grant of summary judgment where "[t]he district court, applying Rule 7.1(a)(3) strictly, reasonably deemed [movant's] statement of facts to be admitted" because the non-movant submitting a responsive Rule 7.1(a)(3) statement that "offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations."); Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998)(per curiam)(accepting as true material facts contained in unopposed local rule statement of material facts); Meaney v. CHS Acquisition Corp., 103 F. Supp.2d 104, 108 (N.D.N.Y. 2000)(deeming movant's Rule 7.1(a)(3) Statement admitted where non-movant's response "set forth no citations -- specific or otherwise -- to the record")(emphasis in original); McKnight v. Dormitory Auth. of State of N.Y., 189 F.R.D. 225, 227 (N.D.N.Y. 1999)(McAvoy, J.)("deem[ing] the portions of Defendants' 7.1(a)(3) statement that are not specifically controverted by Plaintiff to be admitted"); Osier v. Broome County, 47 F. Supp.2d 311, 317 (N.D.N.Y. 1999) (McAvoy, J.)(deeming admitted all facts in defendants' Rule 7.1(a)(3) statement where "plaintiff submitted thirteen pages of purported facts without any indication where those facts can be located in the record"). Inasmuch as all of the allegations in Defendants' L.R. 7.1 Statement are properly supported with record citations, Defendants' L.R. 7.1 Statement is adopted in its entirety. Familiarity with the contents of Defendants' L.R. 7.1 Statement is presumed, and the Court will repeat only those facts that are pertinent to the instant Decision and Order.


The Court will apply the well-settled standard for deciding summary judgment motions in discrimination actions. SeeFED. R. CIV. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Bracci v. N.Y.S. Dept. of Correctional Services, 2005 WL 2437029, at * 1 (N.D.N.Y. Sept. 30, 2005)(McAvoy, S.J.). Even though the facts are uncontested, the Court nonetheless construes them in the light most favorable to Plaintiffs, and resolves all ambiguities and draws all reasonable factual inferences in Plaintiffs' favor. Michalski v. The Home Depot, Inc., 225 F.3d 113, 115 (2d Cir. 2000).


A. Hostile Work Environment Claims

Title VII makes it unlawful for employers to discriminate against individuals based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). This prohibits "requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)("Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult."). In order to state a viable hostile environment claim under Title VII, a plaintiff must establish that (1) the harassment was so severe as to alter the terms and conditions of his employment, and (2) there is a basis for imputing the harassing conduct to the employer. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998).

Assuming, arguendo, that both Plaintiffs present viable hostile work environment claims (based upon their race, their gender, or both), the Defendants contend that they are entitled to summary judgment dismissing these claims based upon the Faragher/Ellerth affirmative defense. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The Court agrees.

Under Title VII, there is a presumption that an employer is vicariously liable for a hostile work environment created by a supervisor of a victimized employee. See Ellerth, 524 U.S. at 765.

There is no dispute that the alleged harasser, Defendant Debra Cleveland, was Plaintiffs' supervisor for purposes of imputing liability to the employer. See Mack v. Otis Elevator Co., 326 F.3d 116, 126 (2d Cir. 2003). Thus, there is a presumption of vicarious liability. In such circumstances, an employer is entitled to raise the Faragher/Ellerth affirmative defense only if no tangible employment action was taken against the victimized employee.

Here, there is no evidence that either plaintiff was subjected to a tangible employment action. Mr. Weathersby resigned his job on July 16, 2003 because Ms. Cleveland told him and the kitchen manger that they were not cooking steaks fast enough. See Defs. 7.1 Stat., ¶¶ 104-107. While a constructive discharge is a tangible employment action, see Pennsylvania State Police v. Suders, 124 S.Ct. 2342, 2351 (2004),*fn2 Mr. Weathersby provides no evidence from which a fair minded jury could conclude that during the three and one-half weeks he worked at the Outback Steakhouse the employer acted intentionally to make his work conditions intolerable, or that the conditions of his employment were objectively intolerable. See Defs. 7.1 Stat., ¶¶. 96-98, 104-107, 120-135. Thus, he has no claim for constructive discharge. See Suders, 124 S.Ct. at 2355 ("A plaintiff who advances [a hostile-environment constructive discharge claim] must show working conditions so intolerable that a reasonable person would have felt compelled to resign."); Petrosino v. Bell Atlantic, 385 F.3d 210, 229-30 (2d Cir. 2004)(A claim for constructive discharge has two parts: "the employer's intentional conduct and the intolerable level of the work conditions." The second part "is assessed objectively by reference to a reasonable person in the employee's position."); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987)("A constructive discharge occurs when the employer, rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation."); Kader v. Paper Software, Inc., 111 F.3d 337, 341 ...

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