The opinion of the court was delivered by: Dearie, Chief Judge.
Before the Court is defendant's motion for summary judgment.
The Court has already construed plaintiff's protean array of allegations as liberally as the law allows in the face of considerable questions of timeliness and exhaustion, but concludes now that no amount of judicial empathy can substitute for the evidence that is simply lacking in this case.*fn1
The principles governing motions for summary judgment are so well-established that it is only for the sake of the litigant on the losing side-here, plaintiff Jesse James-that they warrant recitation. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits 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) (2). As the Supreme Court made unmistakably clear in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), which entirely controls here, the parties' burdens under Rule 56 are crucial and dispositive:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. In such a situation, there can be no "genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex, 477 U.S. at 322-23 (quoting Fed. R. Civ. P. 56) (emphasis added).
The Court in Celotex squarely rejected the notion that a party seeking summary judgment must "support" its motion "with affidavits or other similar materials negating the opponent's claim," id. at 322 (emphasis in original), having reversed the United States Court of Appeals for the District of Columbia on precisely that ground, id., and held, instead, that the moving party's "burden" may be discharged by "the initial responsibility of informing the district court of the basis for its motion" and "identifying" the portions of the record that it believes demonstrate the fatality in plaintiff's proof. Id. Accord Gianullo v. City of New York, 322 F.3d 139, 141 n.2 (2d Cir. 2003) ("under the doctrine of [Celotex], a defendant may move for summary judgment on the ground that the plaintiff has failed to adduce any evidence of an element of plaintiff's claim, and if the plaintiff fails in response to contest this assertion or adduce such evidence, defendant, without more, will prevail"); Parker v. Sony Pictures Etm't Inc., 260 F.3d 100, 111 (2d Cir. 2001) (defendant "need not prove a negative when it moves for summary judgment on an issue that the plaintiff must prove at trial [but] need only point to an absence of proof on plaintiff's part").
The Second Circuit has not diluted the Celotex doctrine. See Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219 (2d Cir. 1994). Indeed, even while apparently admonishing the district courts in this Circuit for granting summary judgment too often, the Court of Appeals in Gallo nevertheless recognizes that, under Celotex, a defendant is entitled to summary judgment "by showing that little or no evidence may be found in support of the nonmoving party's case." Gallo, 22 F.3d at 1224 (emphasis added).*fn2
"One of the principal purposes of the summary judgment rule," according to the Supreme Court, "is to isolate and dispose of factually unsupported claims or defenses." Celotex, 477 U.S. at 324. As the last checkpoint before trial, Rule 56 therefore demands that, to continue on, a plaintiff "designate 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting Fed. R. Civ. P. 56(e)). Thus, "[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224 (emphasis added).
For all its rigor, however, summary judgment is not ruthless: before the Court can reach the conclusion, sans trial, that a party's case is simply unwinnable, it must construe the record before it in the light most favorable to that litigant, draw all reasonable inferences in his favor, and resolve any ambiguities his way. Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (internal citation omitted). In the words of Gallo, "the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any 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. Even such a pro-plaintiff framework, however, has its limits, for if all that results is "some metaphysical doubt as to the material facts," then the rules say that plaintiff loses. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A. Plaintiff's Deposition
Defendant, in discharge of its "initial responsibility of informing the district court of the basis for its motion" by "identifying" what it believes to be the dispositive portions of the record," Celotex, 477 U.S. at 322, focuses on two documents. The first is the transcript of plaintiff's deposition, conducted at Riker's Island on October 19, 2009.*fn3
Critical excerpts include the following:
Q: Now, you claimed that . . . do you know Dan Moran and Bill Hopkins?*fn4
Q: You don't know who they are?
With respect to the basic claims of discrimination, plaintiff testified:
Q: While working at 338 Broadway, did you encounter any discrimination?
Q: While working at 338 Broadway, did you encounter any harassment?
Q: While working at the Manhattan Mall, did you encounter ...