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Grande v. Decrescente Distributing Co.

March 28, 2009

QUENTIN LA GRANDE, PLAINTIFF,
v.
DECRESCENTE DISTRIBUTING CO, INC., DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are the following motions: (1) Plaintiff's motion for an extension of time in which to file a reply memorandum in further support of his motion for reconsideration; (2) Plaintiff's motion for reconsideration of this Court's June 9, 2008 Memorandum-Decision and Order dismissing his amended complaint; (3) Plaintiff's motion for appointment of counsel; and (4) Defendant's motion for attorney's fees pursuant to 42 U.S.C. § 2000e-5(k).

II. BACKGROUND

Plaintiff commenced this action on April 14, 2006, asserting claims of unlawful sex discrimination, racial discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended. See Dkt. No. 1.

In a Memorandum-Decision and Order dated June 19, 2006, the Court directed Plaintiff to file an amended complaint within thirty days to remedy various pleading deficiencies. See Dkt. No. 3. In compliance with that Order, Plaintiff filed an amended complaint on July 17, 2006. See Dkt. No. 4. In a Memorandum-Decision and Order dated December 6, 2006, the Court deemed the amended complaint acceptable except for the lack of a statement of relief and directed Plaintiff to file such a statement within thirty days. See Dkt. No. 6. On December 14, 2006, Plaintiff filed a separate statement of relief. See Dkt. No. 7.

In his amended complaint, Plaintiff alleged that, while in Defendant's employ, he "was subjected to sexual harassment, racial harassment; and also retaliated against by the owners [of Defendant]." See Amended Complaint at 1. Plaintiff also claimed that he was "subjected to a hostile working environment" and that Defendant allowed his working environment to become abusive, hostile and filled with discriminatory intimidation. See id.

On February 20, 2007, Defendant filed a motion to dismiss. See Dkt. No. 14. Plaintiff requested an extension of time in which to respond to the motion, see Dkt. No. 15, which this Court granted, see Text Order dated March 9, 2007. Subsequently, Plaintiff submitted a letter to the Court, which the Court rejected, noting that "[a]ny relief requested must be in the form of a motion that complies with Local Rule 7.1 (copy enclosed)." See Dkt. No. 16. The Court also reminded Plaintiff that he had "a deadline of April 13, 2007 to respond to the Defendant's pending motion to dismiss. Failure to respond may result in the dismissal of this action." See id. (emphasis added).

Approximately one month later, Plaintiff submitted another letter to the Court, which the Court also rejected. See Dkt. No. 17. Once again, the Court advised Plaintiff that the Court was returning his letter motion to him because it failed to comply with Local Rule 7.1. See id. The Court also advised Plaintiff that it would not grant him a stay of this action unless he retained an attorney and that attorney requested such a stay. See id. Finally, the Court instructed Plaintiff that he had to "file a response to the defendant's motion to dismiss on or before May 11, 2007. Your failure to file such a response may result in dismissal of this action. No further adjournments of this response deadline will be granted." See id. (emphasis added). Finally, on May 15, 2007, the Court denied Plaintiff's motion for a ninety-day "emergency stay." See Dkt. No. 19.

Despite being granted two extensions of time in which to file a response to Defendant's motion to dismiss and being warned on two occasions that his failure to file such a response could result in the dismissal of this action, Plaintiff never filed any papers in opposition to Defendant's motion.

On June 9, 2008, the Court issued a Memorandum-Decision and Order in which it granted Defendant's motion to dismiss Plaintiff's amended complaint. See Dkt. No. 20. With respect to Plaintiff's sex-based hostile work environment claim, the Court found that Plaintiff had not alleged that Mr. Schrader, Defendant's District Manager, solicited sex from him nor had he alleged that Mr. Schrader displayed a general hostility to males in the workplace. See id. at 7. Furthermore, the Court found that Plaintiff's assertion that a female customer complained about Mr. Schrader looking at her in a sexual manner defeated any claim that Mr. Schrader treated women differently than men. See id. at 8. Therefore, the Court concluded that, "even accepting as true Plaintiff's allegations, and drawing all reasonable inferences from those allegations, it is clear that, as a matter of law, Plaintiff cannot maintain his sex-based hostile work environment claim." See id.

With respect to Plaintiff's race-based hostile work environment claim, the Court found that the two incidents on which Plaintiff relied to support his claim were insufficient because those incidents involved two different people and occurred more than seven months apart. See id. The Court explained that, at best, these were isolated incidents "from which no reasonable trier of fact could conclude that the harassment was pervasive or severe." See id.

With respect to Plaintiff's disparate treatment claim, the Court found that Plaintiff's amended complaint contain[ed] one allegation that could be interpreted as a claim that Defendant treated him differently because of his race; on April 13, 2004, Don Miller and Jim Izzo provided merchandizing training for only the white workers, and Plaintiff was not allowed to attend even though it was part of his job.

See id. at 9 (citing Amended Complaint at ¶ 6).

For purposes of the motion, the Court assumed that Plaintiff was a member of a protected class and that he was qualified to perform the duties of his job. See id. Nonetheless, the Court found that his claim still failed "because there [was] nothing in his amended complaint from which a trier of fact could infer that he suffered an adverse employment action." See id. The Court explained further that, although Plaintiff alleged that Defendant did not allow him to attend one meeting, he did not "assert that his failure to attend that meeting harmed him in any way. In other words he [did] not indicate, nor [could] the Court draw an inference from his allegation, that his inability to attend the meeting had any adverse effect on his job responsibilities or on his ability to continue to pursue his career." See id. at 9-10.

Finally, with respect to Plaintiff's retaliation claim, the Court acknowledged that

[t]o establish that complaints are "protected activity," a plaintiff "is not required to establish that the conduct complained of actually amounted to a violation of Title VII." Drummond v. IPS Int'l, Inc., 400 F. Supp. 2d 521, 534 (E.D.N.Y. 2005). Instead, a plaintiff "'need only demonstrate that []he had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law."'" Id. (quotation omitted). Although "it is possible for an employee reasonably to believe that specified conduct amounts to harassment, even if that conduct would not actually qualify as harassment under ...


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