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McDonald v. Gonzales

March 27, 2007

DAVID P. MCDONALD, PLAINTIFF,
v.
ALBERTO L. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES;*FN1 FEDERAL BUREAU OF PRISONS, DEFENDANTS.



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

DECISION & ORDER

I. Introduction

On January 19, 2005, Plaintiff David P. McDonald, and employee of the Federal Bureau of Prisons, commenced this employment discrimination action pro se asserting that his employer retaliated against him because he previously filed a successful discrimination claim with the Equal Employment Opportunity Commission ("EEOC"). See Compl. [dkt. # 1]. In this regard, Plaintiff asserts that because of his earlier protected conduct he was denied promotions and transfers, and was harassed by the employer purposely issuing incorrect income tax documents. Id.

In accordance with this Court's Decision and Order dated January 24, 2005 [dkt. # 3], Plaintiff filed an Amended Complaint on February 23, 2005 asserting, essentially, the same allegations but with more particularity. See Am. Compl., dkt. # 4.*fn2 It is arguable that Plaintiff also seeks in the Amended Complaint to have this Court review the remedial portion of the EEOC's award. Id.; see also McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)(A pro se litigant's pleadings should be read liberally and interpreted to "raise the strongest arguments they suggest.")(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); 42 U.S.C. § 2000e-16(c)(allowing a federal employee to bring a discrimination claim in federal court to enforce a final agency action or to challenge it).

On June 29, 2006, Defendants moved for summary judgment. See dkt. 25. In so moving, Defendants filed a Notice of Motion; a Memorandum of Law; a Local Rule 7.1(a)(3) Statement of Material Facts Not in Dispute; and documents, deposition transcripts, and affidavits supporting the allegations contained in Defendants' 7.1(a)(3) Statement. Id. Plaintiff initially opposed the motion by moving for appointment of counsel to aid him in responding to the summary judgment motion. See Motion to Appt. Counsel, dkt. # 26. To assist the Court in determining whether Plaintiff's claims were "of substance" so as to warrant the appointment of counsel, the Court appointed a private law firm for the limited purpose of reviewing Plaintiff's case and issuing a confidential report to the Court. See 8/14/06 Order, dkt. # 30; 10/6/06 Amended Order, dkt. # 38; see also 28 U.S.C. § 1915; Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986). After reviewing the confidential report, the Court denied the application for appointment of counsel but released the confidential report to Plaintiff so he could, "if he so chooses, use the report as a guide in responding to Defendant's motion, taking care to fill the gaps that the independent evaluator has pointed out as fatal problems." 10/26/06 Order, dkt. # 42. The Court further warned Plaintiff that he must respond to the motion for summary judgment as he deems appropriate.

The Court is not saying that the legal and/or factual conclusions reached by the independent evaluator are correct or not, but only that the report appears to be representative of the advice Plaintiff would get if he were appointed an attorney. In response to the motion for summary judgment, Plaintiff must present the evidence of crucial facts concerning his claims, and must make legal arguments to withstand the pending summary judgment motion.

Id. pp. 6-7 (emphasis in original). The Court ordered the Clerk of the Court to provide Plaintiff with a copy of this District's "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion," and advised Plaintiff "to review this document, and consult the Northern District of New York's Local Rules and the Pro Se Handbook . . . before responding to the Government's motion for summary judgment." Id. p. 8.

On January 8, 2007, Plaintiff responded to Defendants' motion for summary judgment by submitting a two paragraph, unsigned Declaration;*fn3 a 5 1/4 page type-written document that contains factual arguments in opposition to Defendants' motion (the document contains no legal citations but does reference Plaintiffs' exhibits); and Exhibits A through H which, for the most part, are inadmissible hearsay documents.*fn4 See Plf. Response, dkt. # 46.

II. STANDARD OF REVIEW

The Court may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party must show, by affidavits or other evidence, admissible in form, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

In determining whether to grant summary judgment, the Court must resolve all ambiguities and draw all reasonable inferences from the submitted materials in a light most favorable to the non-moving party. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004). However, the nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita., 475 U.S. at 586, or by a factual argument based on "conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). In this regard, a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in the pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998); see also Govan v. Campbell, 289 F. Supp.2d 289, 295 (N.D.N.Y. 2003)(A plaintiff may not create a question of fact by simply making vague, conclusory allegations or broad denials.). Further, a party "cannot rely on inadmissible hearsay in opposing a motion for summary judgment . . . absent a showing that admissible evidence will be available at trial." Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985)(citations omitted); see also Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999), abrogated on other grounds, Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)("A court may [ ] strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements."). Finally, it is well settled that a non-movant cannot create a question of fact sufficient to defeat summary judgment by submitting an affidavit that contradicts prior sworn testimony. Hayes v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).

The Local Rules of the Northern District provide a mechanism for the efficient resolution of summary judgment motions. See N.D.N.Y.L.R. 7.1(a)(3). This mechanism places the onus on the parties to marshal the evidence that either supports, or defeats, the motion. In this regard, Local Rule 7.1(a)(3) requires a party moving for summary judgment to submit a "Statement of Material Facts" which shall set forth, in numbered paragraphs, each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits.

It does not, however, include attorney's affidavits.

N.D.N.Y.L.R. 7.1(a)(3). Once a properly supported Local Rule 7.1(a)(3) Statement is submitted, the Local Rules require that the party opposing summary judgment file a response to the [movant's] Statement of Material Facts. The nonmovant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises. The non-movant's response may also set forth any additional material facts that the non-movant contends are in dispute in separately numbered paragraphs. Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party.

Id. (underscoring in original).

The responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly. 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 ...


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