The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Charles Yacklon, appearing pro se, brings this action against the East Irondequoit Central School District ("District"), and three individuals, John Abbott, Susan Allen, and Kathleen Callon, all of whom are employees of the District. Yacklon alleges that defendants have discriminated against him on account of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.
Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative for summary judgment under Rule 56 (Dkt. #4).
Plaintiff has filed what is styled as a motion to compel (Dkt. #11) and a motion to set a trial date (Dkt. #15).
Before turning to the parties' motions, it is necessary to address whether to treat defendants' motion as a motion to dismiss, or as a motion for summary judgment. The Second Circuit has held that "[a] district court may not convert a motion under Fed. R. Civ. P. 12(b)(6) into a Rule 56 motion for summary judgment without sufficient notice to an opposing party and an opportunity for that party to respond." Wali v. Chelsea Plastics, 351 Fed.Appx. 547, 548 (2d Cir. 2009) (quoting Groden v. Random House, Inc., 61 F.3d 1045, 1052 (2d Cir. 1995)). "[P]ro se litigants must have unequivocal notice of the meaning and consequences of conversion to summary judgment," because a "pro se litigant may be unaware of the consequences of his failure to offer evidence bearing on triable issues." Wali, 351 Fed.Appx. at 548-49 (internal quotation marks and citations omitted). See also Ruotolo v. Internal Revenue Serv., 28 F.3d 6, 8 (2d Cir. 1994) ("The failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal") (per curiam).
The adequacy of such notice is "governed by principles of substance rather than form." Sahu v. Union Carbide Corp., 548 F.3d 59, 67 (2d. Cir. 2008) (quoting In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985)). Consequently, "[t]here is no requirement that the district court affirmatively advise the pro se litigant of the nature and consequences of a summary judgment motion if the pro se litigant has otherwise been adequately notified or is already aware of such consequences." M.B. v. Reish, 119 F.3d 230, 232 (2d Cir. 1997). A pro se litigant's comprehension of the nature of a summary judgment motion may be demonstrated not only by his receipt of a formal notice, but by his response to the motion. See, e.g., Forsyth v. Federation Employment and Guidance Service, 409 F.3d 565, 571 (2d Cir. 2005) ("Based on plaintiff's submissions to the district court, including his affidavit in opposition to the motion for summary judgment, and his affidavit ..., we think it clear that plaintiff understood his responsibilities under Rule 56"), abrogated on other grounds by Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)).
In the case at bar, defendants' notice of motion was accompanied by a "Notice to Pro Se Litigants Opposing Summary Judgment," which fully detailed the nature of a summary judgment motion, the manner in which plaintiff should respond, and the possible consequences if he failed to do so. Dkt. # 4. In response to the motion, Yacklon submitted three separate responses (Dkt. #10, #13, #14), totaling some 56 pages, including numerous exhibits. He also filed a "motion to compel" (Dkt. #11) which despite that title is akin to a statement of material facts alleged to be in dispute.*fn1
I therefore conclude that plaintiff has been given more than adequate notice the significance of defendants' motion, which I treat as a motion for summary judgment.
Yacklon was hired as a school bus driver in 2004 by Laidlaw, Inc. Laidlaw has contracted with multiple public school districts and private schools in the Rochester, New York area to provide busing services for their students. Plaintiff was seventy years old at the time he was hired.
When he began working for Laidlaw, Yacklon filled in for other drivers, driving a number of different routes for various school districts. Pursuant to the terms of the collective bargaining agreement between Laidlaw and plaintiff's union, however, drivers are eligible to bid on specific routes when those routes become available. When that occurs (e.g. as a result of a driver's retirement), Laidlaw drivers are eligible to bid on the route, and typically the route is awarded to the bidding driver with the most seniority.
That general rule is subject to some qualifications, however. Of particular relevance to this case is ¶ 23 of the contract between the District and Laidlaw, which provides that "[Laidlaw] agrees that the District has the right to require [Laidlaw] to remove from District service any person or driver who, in the District's judgment, will detract ...