The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Charles D. Brown, ("Plaintiff" or "Brown"), brings this action pro se pursuant to Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000(e), et seq. ("Title VII"), and 42 U.S.C. §1983 ("Section 1983"), against his former employer, the City of Rochester, ("the City") and two individual defendants, Paul Holahan ("Holahan") and Norman Jones ("Jones") in their official capacities, claiming that he was discriminated and retaliated against on the basis of his race/color in violation of Title VII, and deprived of due process and Constitutional rights in contravention of Section 1983.
Plaintiff moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants, the City, Holahan and Jones (collectively "Defendants") cross-move for summary judgment dismissing Plaintiff's claims on grounds that he has failed to state a prima facie case of discrimination or retaliation, and that even if Plaintiff has stated a prima facie case, he has failed to rebut the Defendants' legitimate, non-discriminatory reason for terminating Brown's employment. For the reasons set forth below, both Plaintiff's and Defendants' motions are denied.
As best as can be gleaned from the Plaintiff's motion and his Complaint*fn1, pro se Plaintiff Charles Brown was an employee of the City of Rochester for approximately 10 years. He claims he was demoted and then wrongfully discharged in 2008 because he is black, and because he made complaints about his supervisor, defendant Jones. Plaintiff asserts claims pursuant to Title VII and Section 1983. Defendants oppose Plaintiff's motion and cross-move for summary judgment.
Plaintiff has not submitted a Statement of Material Facts as required by Local Rule of Civil Procedure 56.1. Likewise, Defendants have apparently failed to provide a "Notice to Pro Se Litigants Opposing Summary Judgment" as required by Local Rule of Civil Procedure 56.2*fn2. Accordingly, Plaintiff's motion for summary judgment is denied with prejudice and Defendants' cross-motion for summary judgment is denied without prejudice.
I. Standard of Review on a Motion for Summary Judgment
Rule 56(c)(2) of the Federal Rules of Civil Procedure provides that 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 movant is entitled to judgment as a matter of law." In reaching this determination, "'the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party...'" Catalano v. State Farm Ins. Cas. Co., 2007 WL 295321, *3-4 (W.D.N.Y. 2007)(quoting Thomas v. Irvin, 981 F.Supp. 794, 799 (W.D.N.Y. 1997)). A fact is "material" only if it has some effect on the outcome of the suit. Id. at *4 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).
The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party. See Vezzetti v. Pellegrini, 22 F.3d 483, 485 (2d Cir. 1994). "[P]roceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment." See Viscusi v. Proctor & Gamble, 2007 WL 2071546, * 9 (E.D.N.Y.2007).
It is well settled that Plaintiff's claims of employment discrimination and retaliation are analyzed under the burden-shifting framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and later refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). To establish a prima facie case of discriminatory discharge in violation of Title VII, plaintiff must demonstrate (1) he belongs to a protected class, (2) he was satisfactorily performing his duties, (3) he was discharged, and (4) his discharge occurred in circumstances giving rise to an inference of discrimination. See Id.
Plaintiff has not made the required demonstration of entitlement to judgment as a matter of law. Even when liberally viewing the record because Plaintiff is pro se, as the Court must do, there is no evidence in the record that supports the fourth element of a prima facie case of racial discrimination - i.e., that Plaintiff's discharge occurred in circumstances giving rise to an inference of discrimination based upon his race. See Lee v. ITT Standard, 268 F.Supp.2d 315, 332 (W.D.N.Y. 2002). "When a case turns on the fourth factor of the McDonnell Douglas burden-shifting test,..., such inference [of racial discrimination] may be established by 'showing that the employer subjected him to disparate treatment, that is, treated him less favorably than similarly situated employees outside his protected group." Id. (quoting Graham v. Long Island Rail Road, 230 F.3d 34, 38 (2d Cir. 2000) (emphasis in original).
Here, there is no evidence in the record that the adverse employment actions Plaintiff sustained (demotion and eventual termination of his employment with the City) were motivated by discriminatory animus. Indeed, there is no indication in the record that the City treated black employees differently from similarly situated employees belonging to a different racial group. Plaintiff's conclusory statements that he was being "punished" and "picked on" by defendant Jones are not sufficient to support his motion ...