The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
Plaintiff Edward Smooth, Jr., proceeding pro se, filed this action alleging that his former employer Waste Management and several of its employees discriminated against him because of his race, and retaliated against him by terminating his employment when he complained of discrimination all in violation of Title VII. Currently pending before the Court is Waste Management's Motion for Summary Judgment. Plaintiff's response was due on or before September 22, 2006, but Plaintiff filed no response. Plaintiff appeared at oral argument on September 29, 2006 and argued against the Motion.
In or about June 2002, Smooth commenced employment with Waste Management in its West Seneca, N.Y. office. In March 2003, Smooth was assigned to a route in Amherst, N.Y. as a garbage truck driver. Smooth's route was not the most demanding in terms of mileage, tonnage or number of stops. Smooth, however, routinely took the longest to complete his route. Smooth also was deficient in attendance, accumulating four unexcused absences within a twelve month period, which resulted in written warning on January 20, 2006. Several employees also complained to Richard Hartman, Smooth's supervisor, that Smooth would not exit the truck to help haul garbage when Waste Management's policies required that he do so.
In the fall of 2003, Waste Management was advised that it had lost its garbage hauling contract with the Town of Lancaster, N.Y., which contract was serviced by Waste Management's West Seneca and Chaffee offices. As a result, Waste Management concluded that it would have to conduct a layoff. Patrick Hourihan, the District Manager, assembled a list of employees to be laid-off. Included on the list was Smooth and nine other employees. Of the ten employees, Smooth was the only African-American. The other nine employees were Caucasian.*fn3
Hourihan selected Smooth for the lay off based on his attendance deficiencies, his lack of productivity and the complaints regarding his failure to assist other workers on his truck. On January 30, 2004, Smooth was advised that he was being laid-off. His termination became effective on February 6, 2004.*fn4
On May 3, 2004, Smooth filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). After his charge was dismissed on July 23, 2004, Smooth timely commenced this action. Smooth alleges that he was terminated because of his race and in retaliation for his complaints of discrimination.*fn5
FRCvP 56(c) states that summary judgment may be granted only if the record shows "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." The moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (internal citation omitted). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid. In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Not every factual dispute will preclude summary judgment, however. Summary judgment is appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Ibid. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Additionally, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law." Anderson, at 248.
"In assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. See Goenaga, at 18.
As noted supra, Plaintiff has failed to file any written response to Waste Management's Motion. Thus, as a procedural matter, the facts as alleged by Waste Management in its Local Rule 56.1 Statement of Material Facts Not in Dispute are deemed admitted for purposes of this Motion. Substantively, Plaintiff has provided no admissible evidence which can be considered by the Court in opposing Waste Management's Motion. See FRCvP 56(e). The facts set forth by Waste Management, and deemed admitted, are sufficient to demonstrate a legitimate, non-discriminatory reason for Plaintiff's termination. Those same facts are also sufficient to demonstrate the lack of causal connection between Smooth's alleged ...