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Grant v. Pathmark Stores

July 29, 2009



Plaintiff Sebert Grant ("Grant"), who appears pro se, brings this action against Pathmark Stores, Inc. ("Pathmark"). The plaintiff, who is an African-American of Jamaican national origin, alleges that the defendant discriminated against him on the basis of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Construed liberally, the plaintiff's complaint also alleges discrimination in violation of the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL").*fn1 The defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).

Where, as here, a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest'" (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994))). In particular, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. Local Civil Rule 56.2; see McPherson, 174 F.3d at 281; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); see also Vinson v. City of New York, 04 Civ. 7796, 2007 WL 965338, at *1-2 (S.D.N.Y. March 30, 2007).

In this case, the defendant served a copy of the Notice to Pro Se Litigant Opposing Motion for Summary Judgment dated November 24, 2008, advising the plaintiff of the procedures for responding to a motion of summary judgment, including the requirement that the plaintiff submit a response to the defendant's statement pursuant to this District's Local Rule 56.1 and to submit counter-evidence. The plaintiff was also provided with a copy of Rule 56.

The plaintiff's submissions are plainly deficient. Any allegedly undisputed fact not "specifically controverted" by the opposing party's Rule 56.1 statement "will be deemed to be admitted." Local Rule 56.1(c); see also Dunkin' Donuts Inc. v. Barr Donut, LLC, 242 F. Supp. 2d 296, 298-99 (S.D.N.Y. 2003). Even undisputed facts, however, must be supported by the evidence presented. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

In response to the defendant's Local Rule 56.1 Statement of Undisputed Facts ("Def. 56.1 Stmt."), the plaintiff merely submitted an "Opposition," see Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl. Stmt."), that "ignores a number of defendants' record-based factual assertions and contains conclusory factual allegations with no citations to the record." Sterbenz v. Attina, 205 F. Supp. 2d 65, 68 (E.D.N.Y. 2002). "Where plaintiff has not responded to defendants' factual assertions-all of which are established by documentary evidence and/or the deposition testimony of plaintiff and [the plaintiff's] counsel-this Court has deemed those facts uncontroverted." Id.; Vinson, 2007 WL 965338, at *2.

Therefore, for the purposes of this motion, the defendants' allegedly undisputed facts that are supported by the record and which the plaintiff has not specifically controverted with admissible evidence in accordance with Rule 56 and Local Rule 56.1 will be deemed admitted.


The following facts are undisputed except where noted.

The defendant hired the plaintiff in October 1995 as a part-time clerk in the produce department of its Bay Plaza store. (Def.'s 56.1 St. ¶ 3; Boscarino Aff. ¶ 3.) Grant worked at the Bay Plaza store from October 1995 to March 2005 and November 2007 to July 2008, and in the defendant's Castle Center store from March 2005 to November 2007. (Def.'s 56.1 St. ¶ 6; Bosc. Aff. ¶ 4.) He worked as a produce clerk from October 1995 to June 1997 and August 2001 to January 2004, and worked as a maintenance employee from June 1997 to August 2001 and January 2004 to July 2008. (Def.'s 56.1 St. ¶ 5; Bosc. Aff. ¶ 3.) Pathmark promoted Grant to a full-time maintenance position on September 19, 2004, at which time he began to receive his full-time wage rate. (Def.'s 56.1 St. ¶ 7; Bosc. Aff. ¶ 5.)

Because only 1,265 of the defendant's 6,564 employees have full-time status, promotion to full-time status is coveted by many part-time employees at Pathmark and granted to relatively few. (Def.'s 56.1 St. ¶ 13; Bosc. Aff. ¶ 8.) Some Pathmark full-time employees worked part-time for over 25 years before being promoted to full-time status. (Def.'s 56.1 St. ¶ 13; Bosc. Aff. ¶ 8.)

Because of the defendant's staffing needs, no employees in the maintenance department in the Bay Plaza store were promoted to full-time employment between the time Grant was hired, October 1995, and the time he was promoted, September 2004. (Def.'s 56.1 St. ¶ 14; Bosc. Aff. ¶ 9.)

Robert Hafner, who had had 16 years of prior experience with Pathmark as a Produce Manager, was the only part-time employee promoted to full-time in the Bay Plaza store while the plaintiff worked in the produce department at that location. (Def.'s 56.1 St. ¶ 14; Bosc. Aff. ¶ 9.) Another Bay Plaza produce employee, Jerry McArdle, Jr., was promoted to a full-time position while Grant worked in the Bay Plaza maintenance department. (Def.'s 56.1 St. ¶ 19; Bosc. Aff. ¶ 13.) Pathmark considered McArdle an excellent employee, and he had prior management experience in the produce department of two other supermarkets. (Def's 56.1 St. ¶ 19; Bosc. Aff. ¶ 13.)

In addition to staffing needs, Pathmark believes good performance, including cooperation with management, ability to get along with co-workers, and adherence to company policies is an important criterion in determining whether a part-time employee will be considered for promotion to a full-time position. (Def.'s 56.1 St. ¶ 15; Bosc. Aff. ¶ 11.) The defendant considered Grant's overall performance spotty for much of his tenure with Pathmark. (Def.'s 56.1 St. ¶ 16; Bosc. Aff. ¶ 12.) Grant was disciplined and issued various disciplinary notices for such infractions as failing to come to work when scheduled and not advising his manager, theft of time, insubordination, disputes with co-workers and failure to follow direction. (Def.'s 56.1 St. ¶ 16.; Ex. B.) Pathmark believes Grant's unsatisfactory conduct rendered him ineligible for consideration for promotion to full-time status for much of his tenure with Pathmark. (Def.'s 56.1 St. ¶ 16.; Bosc. Aff. ¶ 12.) Grant's eventual promotion resulted from his improved performance, a change in the staffing needs in the Bay Plaza store and the plaintiff's persistence in his requests for full-time work. (Def.'s 56.1 St. ¶ 16; Bosc. Aff. ¶ 12.)

The plaintiff's full-time wage rate was calculated pursuant to a formula set forth in the collective bargaining agreement between Pathmark and Local 1500 of the United Food and Commercial Workers, which he had joined in November 1995.*fn2

(Def.'s 56.1 St. ¶¶ 4, 8; Ex. A.) Because the formula's result, $12.50, was lower than the wage the plaintiff was already receiving, $13.05, the defendant gave the plaintiff an additional $.20 per hour in recognition of his promotion to full-time, resulting in a promotional rate of $13.25 per hour. (Def.'s 56.1 St. ¶ 9; Bosc. Aff. ¶ 6.)

The plaintiff believed that his full-time wage rate was calculated incorrectly and discussed his belief with Ed Cordero, his Union representative. (Def.'s 56.1 St. ¶ 11; Pl. Dep. at 89-90.) After Cordero discussed Grant's rate with John Padian, then Pathmark's Director of Human Resources, Cordero advised Grant that his rate had been calculated correctly. (Def.'s 56.1 St. ¶ 12; Pl. Dep. at 92-93.)

At the time he was promoted to a full-time position in September 2004, Grant was advised by Pathmark's area supervisor, Ian Loudon, that Pathmark expected him to discontinue his practice of "hustling rides" outside of the Bay Plaza store, in other words, offering to drive Pathmark's customers home with their groceries in exchange for payment. (Def.'s 56.1 St. ¶ 21; Pl. Dep. at 50-51.) Grant agreed to stop hustling rides at that time. (Def.'s 56.1 St. ¶ 21; Pl. Dep. at 370-71.)

On March 24, 2005, Grant was discharged for hustling rides outside of the Bay Plaza store on March 22, 2005. (Def.'s 56.1 St. ¶ 22; Ex. C.) In a March 24th meeting with a Union representative, a Pathmark Human Resources employee, store management and a Pathmark Security Department employee, the plaintiff admitted to having hustled rides. (Def.'s 56.1 St. ¶ 22; Pl. Dep. at 321-22, 366.)

After a discussion among Grant, Pathmark and the Union on March 24, 2005, Grant's discharge was converted to a one-week suspension because it was unclear whether the plaintiff was taxiing customers on company time or on his ...

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