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Fox v. Amtrak

February 16, 2006


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



Plaintiff Terrance D. Fox ("Plaintiff") commenced this action pro se pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), asserting that his employer, Amtrak ("Amtrak" or "Defendant"), unlawfully discriminated against him based upon his race, and unlawfully retaliated against him because he complained of the discrimination. See generally Compl. dkt. # 1. After Defendant answered, Plaintiff retained legal counsel who currently represents him in this action. See Notice of Appearance, dkt. # 12. Defendant has moved for summary judgment pursuant to Fed. R. Civ. P. 56 contending that the action should be dismissed in its entirety. Plaintiff, through counsel, has opposed the motion.


In support of the motion, Defendant has filed a properly supported "Defendant's Statement of Material Facts" 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). Plaintiff has failed to file any responsive Statement of Material Facts as also required by the Local Rules. See id.*fn1 The Court declines to sift through the factual materials that Plaintiff has submitted in an effort to find factual support for his 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 Defendant's 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"). Familiarity with the contents of Defendant's 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 construes them in the light most favorable to Plaintiff, and resolves all ambiguities and draws all reasonable factual inferences in Plaintiff's favor. Michalski v. The Home Depot, Inc., 225 F.3d 113, 115 (2d Cir. 2000).


A. Discrimination Claims

Plaintiff is currently employed by Amtrak as an electrician at its Albany/Rensselaer facility, and has been employed in this capacity since 1982. Def. 7.1 Stat. ¶ 3. Plaintiff contends that in August 1999, Amtrak, through its general foreman, abolished his then-held position causing him to suffer a demotion. See Compl. ¶ 8(a). Plaintiff asserts that Amtrak's action in this regard was based upon considerations of his race. Id. Plaintiff further contends that in August 2003, the same general foreman again abolished his then-held position causing him to suffer another demotion. Id. at ¶ 8(b). Again, Plaintiff asserts that the abolishment of this position was based upon considerations of his race. Id. and ¶ 8(d). Plaintiff filed a charge of discrimination against Amtrak with the Equal Employment Opportunity Commission ("EEOC") on December 1, 2003, contending that the August 1999 and the August 2003 job abolishments were unlawful discriminatory acts by Defendant.

1. August 1999 Job Abolishment

Plaintiff's claims of disparate treatment discrimination*fn2 are subject to dismissal for several reasons. First, the claim arising from the 1999 job abolishment is untimely. To state a timely claim for a violation of Title VII in New York, a complaint must be filed with the EEOC within 300 days of the alleged discriminatory act. See 42 U.S.C. § 2000e-5(e); Petrosino v. Bell Atlantic, 385 F.3d 210, 219 (2d Cir. 2004); Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 133 (2d Cir. 2003)(citing 42 U.S.C. § 2000e-5(e)). The 300-day period effectively acts as a statute of limitations. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). A claim of employment discrimination accrues "on the date the employee learns of the employer's discriminatory conduct." Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d Cir. 2000). Plaintiff must necessarily have learned of the abolishment of his position in August of 1999 because he soon thereafter bid into another position. Def. L.R. 7.1 Stat. ¶¶ 11-12. Thus, the facts indicate that the claim accrued in August of 1999 yet a complaint was not filed with the EEOC within 300 days of August 1999. Unless there is some reason to hold otherwise, the claim must be dismissed as untimely.

Plaintiff's argument that there existed a continuing violation spanning into the limitations period is without merit. Conduct that has been characterized as a continuing violation is "composed of a series of separate acts that collectively constitute one unlawful employment practice." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 (2002)(internal quotation marks omitted); Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134 (2d Cir. 2003). In order to assert a continuing violation, a plaintiff must establish both (1) a policy or practice which caused the alleged discrimination, and (2) that the timely claim is continuous in time with the untimely claims. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998). However, discrete discriminatory acts cannot be part of a continuing violation. Morgan, 536 U.S. at 113. As the Morgan Court stated:

[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory acts starts a ...

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