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Zuk v. Onondaga County

September 30, 2010

VLADIMIR ZUK, ALSO KNOWN AS WALTER ZUK PLAINTIFF,
v.
ONONDAGA COUNTY; KEVIN E. WALSH, SHERIFF, ONONDAGA COUNTY, IN HIS OFFICIAL CAPACITY; AND ESTEBAN GONZALEZ, CAPTAIN, ONONDAGA COUNTY JUSTICE CENTER, IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court, in this pro se civil rights action, filed by Vladimir Zuk ("Plaintiff") against Onondaga County, Onondaga County Sheriff Kevin E. Walsh, and Onondaga County Undersheriff Esteban Gonzalez ("Defendants"), is Defendants' motion for summary judgment. (Dkt. No. 59) For the reasons set forth below, Defendants' motion is granted, and Plaintiff's Second-Amended Complaint is dismissed with prejudice.

TABLE OF CONTENTS

I. RELEVANT BACKGROUND...............................................................................................3

A. Plaintiff's Claims.........................................................................................................3

B. Defendants' Motion for Summary Judgment..........................................................5

C. Plaintiff's Cross-Motion to File a Third-Amended Complaint..............................7

II. RELEVANT LEGAL STANDARDS.....................................................................................7

A. Motion for Summary Judgment................................................................................7

B. Motion to File an Amended Complaint....................................................................9

III. UNDISPUTED MATERIAL FACTS..................................................................................10

A. Overview of OCSO Policies and Procedures..........................................................10

B. Plaintiff's Employment at OCSO.............................................................................16

C. Plaintiff's Work-Related Concerns..........................................................................19

D. Plaintiff's Lack of Promotion..................................................................................22

E. Plaintiff's Grievances.................................................................................................24

IV. ANALYSIS

A. Plaintiff's Claim of National-Origin Discrimination Under Title VII Due to Issuance of Reprimand and Denial of Promotion.......................................26

B. Plaintiff's Claim of Hostile Work Environment Under Title VII Due to Verbal Harassment................................................................................................35

C. Plaintiff's Claim of Retaliation Under Title VII Due to Issuance of Reprimand and Denial of Promotion.......................................................................38

D. Plaintiff's Claim of Denial of Right to Free Speech Under

42 U.S.C. § 1983 and First Amendment..................................................................44

E. Plaintiff's Cross-Motion to File a Third-Amended Complaint............................46

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Plaintiff's Second-Amended Complaint asserted nine causes of action against Defendants. (Dkt. No. 35.) However, on July 22, 2008, the Honorable David N. Hurd issued a Decision and Order dismissing the following causes of action from that Second-Amended Complaint: (1) Plaintiff's claim pursuant to the Age Discrimination in Employment Act for failure to file a timely complaint with Equal Employment Opportunity Commission ("EEOC"); and (2) Plaintiff's claims under the New York State Executive Law for failure to file a timely Notice of Claim. (Dkt. No. 49.) In addition, Judge Hurd dismissed Plaintiff's claims against Defendant Walsh as Joint Public Employer, as well as Plaintiff's claim for punitive damages. (Id.) As a result, the current Decision and Order address only those portions of Plaintiff's Second-Amended Complaint that survive Judge Hurd's Decision and Order of July 22, 2008.

Construed with the utmost of special leniency, the surviving portions of Plaintiff's Second-Amended Complaint alleges that, between 2003 and 2007, Defendants violated his civil rights under 42 U.S.C. §§ 1981, 1983, and 2000e, while he was working as a deputy in the Onondaga County Sheriff's Office ("OCSO") Custody Department, by disciplining him and denying him promotional opportunities. (Dkt. No. 35.) More specifically, Plaintiff, a naturalized citizen born in Brazil, claims as follows: (1) Defendants discriminated against him based on his national origin, in violation of 42 U.S.C. § 2000e (hereinafter "Title VII"), by issuing him an unjustified written reprimand (for failing to submit his time sheets) and by wrongfully denying him a promotion to Deputy-Sheriff Sergeant on ten separate occasions; (2) Defendants subjected him to a hostile work environment, in violation of Title VII, by verbally harassing him, or permitting him to be verbally harassed, on multiple occasions; (3) Defendants retaliated against him, in violation of Title VII, by issuing him an unjustified written reprimand and by wrongfully denying him a promotion to Deputy-Sheriff Sergeant; and (4) Defendant Gonzalez unjustifiably suppressed his speech, in violation of 42 U.S.C. § 1983 and the First Amendment. (Id.)

The Court notes that it cannot, even with the utmost of special leniency, construe Plaintiff's Second-Amended Complaint as asserting a cause of action under the Due Process Clause of the Fourteenth Amendment, because a civil servant does not have a property interest in being promoted. McMenemy v. City of Rochester, 241 F.3d 279, 286 (2d Cir. 2001). Nor can the Court, even with the utmost of special leniency, construe Plaintiff's Second-Amended Complaint as asserting a cause of action under the Equal Protection Clause of the Fourteenth Amendment, because (1) he has failed to allege facts plausibly suggesting that (1) he was treated differently from other similarly situated individuals, and (2) any such disparate treatment was based on impermissible considerations such as national origin, or intent to inhibit or punish the exercise of constitutional rights.*fn1

B. Defendants' Motion for Summary Judgment

On March 3, 2009, Defendants filed a motion for summary judgment. (Dkt. No. 59, Attach. 95.) Included among their motion papers was a Rule 7.1 Statement of Material Facts that set forth, in 181 numbered paragraphs, each material fact about which Defendants contend there exists no genuine dispute, as required by Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court. (Dkt. No. 59, Attach. 5 [Defs.' Rule 7.1 Stmt.].)

Also included among their motion papers was a memorandum of law advancing the following seven arguments in support of their motion for summary judgment: (1) the claims against Kevin E. Walsh and Esteban Gonzalez, in their official capacity, should be dismissed because a suit against a municipal officer in his official capacity is functionally equivalent to a suit against the entity of which the officer is an agent; (2) Plaintiff failed to exhaust the mandatory administrative remedies before instituting this action in federal court, and therefore his Second-Amended Complaint should be dismissed; (3) Plaintiff's claims pursuant to Title VII are barred by the applicable statute of limitations, and therefore these claims should be dismissed; (4) Plaintiff has failed to adduce admissible record evidence establishing a cause of action for national-origin discrimination, and therefore this claim should be dismissed; (5) Plaintiff has failed to adduce admissible record evidence establishing a cause of action for retaliation under Title VII, and therefore this claim should be dismissed; (6) Plaintiff has failed to adduce admissible record evidence establishing a hostile work environment, and therefore this claim should be dismissed; and (7) Plaintiff has failed to adduce admissible record evidence establishing a cause of action for a violation of his right to free speech under the First Amendment, and therefore this claim should be dismissed. (Dkt. No. 59, Attach 95.)

On June 4, 2009, Plaintiff filed a response to Defendants' motion for summary judgment. (Dkt. No. 60.) Although Plaintiff generally complied with the requirements of Local Rule 7.1(a)(3), he included several qualifying statements in his responses. The Court notes that, although such qualifying statements are common practice in this jurisdiction, in many of Plaintiff's qualifying statements, he asserts additional facts.*fn2 This is improper. See N.D.N.Y. L.R. 7.1(a)(3) (noting that, when the non-movant chooses to allege additional facts that are in dispute, the non-movant must "set forth [these] additional facts . . . in separately numbered paragraphs") (emphasis added).

"[P]roceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment." Viscusi v. Proctor & Gamble, 05-CV-1528, 2007 WL 2071546, at *9 (E.D.N.Y. July 16, 2007). This includes complying with the procedural formalities of Local Rules, including Local Rule 7.1(a)(3). Krug v. County of Rennselaer, 559 F. Supp.2d 223, 235 n.6 (N.D.N.Y. 2008) (McAvoy, J.) (noting that "[t]he responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly").*fn3 As a result, while the Court will not turn a blind eye to material facts asserted by Plaintiff that are clearly not in dispute, the Court also declines to sua sponte comb through the 1,542 pages of exhibits that Plaintiff has attached in an effort to verify the asserted material facts, which Defendants were unable to admit or deny (based on Plaintiff's failure to comply with Local Rule 7.1).

C. Plaintiff's Motion to File a Third-Amended Complaint

In his memorandum of law in opposition to Defendants' motion for summary judgment, Plaintiff states that he "planned to use the Fourteenth Amendment to assert [a] § 1983 policy and practice claim against Onondaga County" (specifically of denying individuals their due process and equal protection rights), but was denied permission to do so by Magistrate Judge Peebles. (Dkt. No. 60, at 32.) As a result, Plaintiff requests that the Court afford him an opportunity to amend his Second-Amended Complaint so as to assert this claim. (Id. at 34.) Out of special solicitude to Plaintiff, the Court will liberally construe this request as a motion to file a Third-Amended Complaint.

II. RELEVANT LEGAL STANDARDS

A. Motion for Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment is warranted 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). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed. R. Civ. P. 56(e)(2).

A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party." Anderson, 477 U.S. at 248. As a result, "[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]; see also Fed. R. Civ. P. 56(e)(2). As the Supreme Court has famously explained, "[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts." [citations omitted]. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. [citation omitted].

Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute.*fn4 For this reason, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has failed to properly respond to that statement*fn5 --even where the nonmoving party was a plaintiffin a civil rights case.*fn6

B. Motion to Amend a Complaint

A motion to amend a complaint is made pursuant to Fed. R. Civ. P. 15, which provides that leave to amend "should [be] freely give[n] . . . when justice so requires." Fed. R. Civ. Proc. 15(a)(2); Foman v. Davis, 371 U.S. 178, 182 (1962); Manson v. Stacescu, 11 F.3rd 1127, 1133 (2d Cir. 1993). Elaborating on this standard, the Supreme Court has explained:

In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should . . . be 'freely given.'

Foman, 371 U.S. at 182, accord, Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) ("[Leave to amend] should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility.").

III. UNDISPUTED MATERIAL FACTS

Before the Court recites the undisputed material facts, one point bears mentioning. In his Amended Statement of Material Facts, Plaintiff admits (by "not disput[ing]") Paragraph 147 of Defendants' Statement of Material Facts. (Dkt. No. 72, at ¶ 147.) However, in so doing, Plaintiff also adds the following statement: "during a Federal Rules of Civil Procedure Rule 16 Conference [he] was informed that the Sheriff did not believe [he] would make a good supervisor and that [he] would not be promoted." (Id.) This statement, which is not part of the record,*fn7 is not something that the Court may consider in reviewing Defendants' motion for summary judgment. As a result, this statement, as well as any other that is ...


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