The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Robert S. Gustin, appearing pro se, commenced this action against his employer, the United States Postal Service ("USPS"), alleging that the USPS discriminated against him on account of his age by denying him a promotion, and that the USPS retaliated against him for complaining about age discrimination and harassment. The USPS has moved for summary judgment. Plaintiff has not responded to the motion. For the reasons that follow, the motion is granted.
I. Plaintiff's Failure to Respond to the Summary Judgment Motion
Rule 56(e) of the Federal Rules of Civil Procedure provides that: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
The Court of Appeals for the Second Circuit has held that when a party moves for summary judgment against a pro se litigant, either the movant or the district court must provide the pro se litigant with notice of the consequences of failing to respond to the motion. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999); see also Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir. 2001).
In the instant case, defendants' notice of motion (Dkt. #22) gave plaintiff notice of the requirements of Rule 56 and the consequences of failing to respond properly to a motion for summary judgment. The notice of motion states, in part, that "you must respond, by affidavits or otherwise as provided in that rule, setting forth specific facts showing that there is a genuine issue of material facts for trial. Any factual assertions in defendant's affidavits will be accepted by the Court as being true unless you submit affidavits or other documentary evidence contradicting those assertions. If you do not so respond, summary judgment, if appropriate, may be entered against you. If summary judgment is granted against you, your Complaint may be dismissed and there will be no trial."
This Court's scheduling order (Dkt. #24), which gave plaintiff until July 24, 2006 to respond to defendant's motion, also apprised plaintiff of the necessity of responding to the motion, stating in part, that: "THE CLAIMS PLAINTIFF ASSERTS IN HIS COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF HE DOES NOT RESPOND TO THIS MOTION by filing his own sworn affidavits or other papers as required by Rule 56(e)." It further states: "Rule 56 provides that plaintiff may NOT oppose summary judgment simply by relying upon the allegations in the complaint. Rather, plaintiff must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial"; "Any issue of fact that plaintiff wishes to raise in opposition to the motion for summary judgment must be supported by affidavits or by other documentary evidence contradicting the facts asserted by defendants"; and "If plaintiff does not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant's factual assertions as true. Judgment may then be entered in defendants' favor without a trial."
Still more notice was given by this Court's "Irby" notice issued on July 14, 2006 (Dkt. #73). The notice states in part that "[f]ailure to respond to a motion for summary judgment may result in the grant of judgment in favor of the party seeking summary judgment and the dismissal of all or part of the case. ... Therefore, ... you MUST submit opposing papers in the form of one or more affidavits ...," as well as a "concise statement of the material facts as to which you contend there exists a genuine issue which must be tried." The notice warned plaintiff that "all of the material facts which have been set forth in the statement served on you by the moving party ... will be deemed to have been admitted by you unless you controvert the facts in your statement of material facts presenting a genuine issue regarding a trial."
The mere fact that plaintiff has failed to respond to defendant's motion, however, does not mean that summary judgment should be "granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); see also Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). Rather, summary judgment may be granted as long as plaintiff has received notice that failure to file an opposition may result in dismissal of his case and the Court is satisfied that the undisputed facts "show that the moving party is entitled to a judgment as a matter of law."
Champion, 76 F.3d at 486 (quoting Fed.R.Civ.P. 56(c)). See, e.g., Strine v. Sodus Cent. School Dist., 403 F.Supp.2d 279, 280 (W.D.N.Y. 2005).
Here, plaintiff has been given more than adequate notice of the nature of a summary judgment motion and the consequences of his failure to respond to the motion. In spite of that, he has not responded to defendant's motion. Therefore, the Court will not simply grant defendant's motion automatically, but will accept the truth of defendant's factual allegations, and determine whether defendant is entitled to summary judgment.
After reviewing the record, I conclude that defendant is entitled to summary judgment. First, plaintiff's discrimination claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., is subject to dismissal for failure to exhaust administrative remedies, since plaintiff failed to raise such a claim in his administrative complaint. See Dkt. #23-4 at 37-42; Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001) ("Prior to bringing suit under ... the ADEA, a federal government employee must timely 'exhaust the administrative remedies at his disposal'"); Burke v. Gutierrez, No. 04 Civ. 7593, 2006 WL 89936, at *11 (S.D.N.Y. Jan. ...