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Wallmar-Rodriguez v. Bakery

May 9, 2007


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



On January 28, 2005, Plaintiff John Wallmar-Rodriguez commenced this action pro se claimingemployment discrimination based upon his race, national origin, and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and Section 296 of the New York Human Rights Law, N.Y. Exec. Law § 296 ("HRL"). See Compl. [dkt. #1], Am. Compl. [dkt # 15].*fn1 Plaintiff, a Hispanic individual born in Puerto Rico, alleges that he experienced differential treatment and eventual termination from his employment with the Felix Roma Bakery as a result of his race and national origin. See generally Am. Compl. He also asserts that he was sexually harassed by a shift supervisor who purportedly "held a pencil between his [own] legs[,] rubbing up and down as though it were a penis," and who asked Plaintiff personal question about his girlfriend. Id. ¶¶ 3-4. It is also arguable that Plaintiff asserts claims of unlawful retaliation under Title VII and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654. See Am. Compl. ¶ 4.*fn2

Presently before the Court is Defendant's unopposed Motion for Summary Judgment pursuant to FED. R. CIV. P. 56. See Def.'s Mot. Sum. J. [dkt. # 23].*fn3 For the reasons that follow, the motion is granted.

II. Standard of Review

It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 592 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to 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 non-moving 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). While the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor, Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002), a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994); Fed. R. Civ. P. 56(e). Even if the motion is unopposed, however, the Court may not grant summary judgment unless it determines that the moving party is entitled to judgment as a matter of law. Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004); see also D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006) ("Even unopposed motions for summary judgment must fail where the undisputed facts fail to show that the moving party is entitled to judgment as a matter of law.") (Internal quotation marks omitted).

The Local Rules of the Northern District provide a procedure for the resolution of summary judgment motions. See N.D.N.Y.L.R. 7.1(a)(3). This procedure places the onus on the parties to present the evidence that either supports or defeats the motion. A movant must first set forth the undisputed facts that, it contends, entitles it to summary judgment. See N.D.N.Y.L.R. 7.1(a)(3). Once a properly supported Local Rule 7.1(a)(3) Statement is submitted, the non-moving party must "file a response to the [movant's] Statement of Material Facts." Id. "Any facts set forth in the [movant's] Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." Id. (emphasis in original).

The responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly even when pro se litigants are involved. See Van Loan v. Hartford Acc. and Indem. Co., 2006 WL 3782709 at *2 (2d Cir. 2006)(deeming movant's properly supported and unopposed allegations admitted by opposing party); 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 Rule7.1(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); Govan v. Campbell, 289 F. Supp.2d 289, 295 (N.D.N.Y. 2003)(holding that the leniency applied in construing a pro se litigant's pleadings does not excuse failure to follow the requirements of Local Rule 7.1(a)(3)).

In short, summary judgment will be granted when it is apparent on the facts presented that no rational trier of fact could find in favor of the nonmoving party because evidence supporting the essential elements of the non-movant's claim is lacking. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 332.


Unless indicated otherwise, the following consist of the properly supported facts from Defendant's Local Rule 7.1(a)(3) Statement of Material Facts. Even though the facts are essentially 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).

On May 18, 2003, Plaintiff was hired by Brian Bertoni, Felix Roma Bakery's Production Manager, to work as a line employee in the bakery. Bertoni attests that he was aware of Plaintiff's race and national origin at the time he hired Plaintiff. At work, Plaintiff's first shift supervisor was Mark Chapman, and his second shift supervisor was John Arnold. Plaintiff contends, in conclusory fashion, that Arnold asked Plaintiff "personal questions" about his girlfriend. See Am. Compl. ¶ 4. He does not provide any details about the questions such as the subject of the questions, the number of questions, or their frequency.

On November 12, 2003, Plaintiff instigated a confrontation with another employee, Pat Welch. Bertoni investigated and counseled both employees that the conduct was unacceptable. Plaintiff had a second confrontation with Welch on January 9, 2004 when Welch made a suggestion to Plaintiff about how to perform his job. Plaintiff told Welch that he wanted to "take [him] out into the parking lot and take care of things." When Bertoni investigated, he asked Plaintiff if he was looking for a fight. Plaintiff responded: "Yes, if that is what I have to do. I'm a man." Bertoni counseled Plaintiff that fighting was unacceptable behavior.

Plaintiff frequently questioned, in a confrontational and argumentative manner, work instructions given by Second Shift Supervisor Arnold. On December 3 and 4, 2004, Bertoni counseled Plaintiff that this behavior was unacceptable. ...

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