The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff commenced this action pro se asserting claims under the Equal Pay Act of 1963, 29 U.S.C. § 206(d) ("EPA"); the New York Equal Pay Act, N.Y. Lab. L. § 194 ("NYEPA"); the Fair Labor Standards Act, 29 U.S.C. § 219 ("FLSA"); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); and the New York Human Rights Law, N.Y. Exec. L. § 296 ("NYHRL"). Defendant moves pursuant to Federal Rules of Civil Procedure 12(c) and 56 to dismiss the action. Although served with the papers in support of the motion, including a Notification of the Consequences of Failing to Respond to a Summary Judgment Motion, Plaintiff has failed to oppose the motion. For the reasons that follow, the motion is granted and the action is dismissed.
II. STANDARD OF REVIEW*fn1
The Court may grant summary judgment where "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(a). In determining whether to grant summary judgment, the Court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts."Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). A dispute is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party must show, by affidavits or other evidence, admissible in form, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita., 475 U.S. at 586, or by a factual argument based on "conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). Likewise, a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).
When a plaintiff has failed to respond to a defendant's motion for
summary judgment, "[t]he fact that there has been no [such] response .
. . does not . . . [by itself] mean that the motion is to be granted
automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, the Court must (1) determine what material facts, if any, are
undisputed in the record presented on the defendants' motion, and (2)
assure itself that, based on those undisputed material facts, the law
indeed warrants judgment for the defendants. See id. ("Such a motion
may properly be granted only if the facts as to which there is no
genuine dispute show that . . . the moving party is entitled to a
judgment as a matter of law.") (internal quotation marks and citation
omitted). Where a plaintiff has failed to properly respond to a
defendant's Local Rule 7.1 Statement of Material Facts,*fn2
the facts as set forth in that Statement will be accepted as
true*fn3 to the extent that (1) those facts are
supported by the evidence in the record, and (2) the non-moving party,
if she is proceeding pro se, has been specifically advised of the
potential consequences of failing to respond to the movant's motion
for summary judgment. See Champion, 76 F.3d at 486; cf. N.D.N.Y. L.R.
56.2 (imposing on movant duty to provide such notice to pro se
opponent). Here, Defendant has provided Plaintiff with this District's
"Notification of the
Consequences of Failing to Respond to a Summary Judgment Motion."
Where a non-movant fails to 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. See Amnesty Am. v. Town of
W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) ("We agree with those
circuits that have held that Fed. R. Civ. P. 56 does not impose an
obligation on a district court to perform an independent review of the
record to find proof of a factual dispute."). This is because even pro
se plaintiffs must obey the Court's procedural rules. See McNeil v.
United States, 508 U.S. 106, 113 (1993); see also Faretta v.
S. Ct. 2525, 2541 n. 46 (1975)("The right of self-representation is
not a license . . . not to comply with relevant rules of procedural
and substantive law."); Edwards v. INS, 59 F.3d 5, 8 (2d Cir.
1995)("While a pro se litigant's pleadings must be construed
liberally, . . . pro se litigants generally are required to inform
themselves regarding procedural rules and to comply with them.");
Viscusi v. Proctor & Gamble, 2007 WL 2071546, at * 9 (E.D.N.Y. July
16, 2007)("[P]roceeding pro se does not otherwise relieve a litigant
from the usual requirements of summary judgment."). In this case,
because Plaintiff's Complaint is verified, the Court will consider the
allegations contained therein to the extent they provide admissible
Plaintiff was employed with the County of Oswego ("County") as a Building Maintenance Worker from March 7, 1994 to May 2011. Compt. ¶ 11; Def. L.R. 7.1(a)(3) Stat. of Mat. Facts ("Def. SOMF") ¶ 1. In May 2011, Plaintiff applied for and was hired into the position of Building Maintenance Mechanic. Def. SOMF ¶1. Plaintiff asserts that from October 20, 1997 until April 2011 she was paid less wages, compensation and other benefits than paid to male co-workers "for substantially the same services." Compl. ¶15. She contends that her differentiation in pay was "based upon sex" and not "a seniority system, merit system, system which measures earnings by quantity or quality of production, or other legitimate basis." Id. ¶ 17. Plaintiff has not pointed to any specific instances, employees, or positions which would support her contention that she was paid less than a male employee performing the same work.
Moreover, Defendant has demonstrated that at all times during Plaintiff's employment with the County, she was represented by the Civil Service Employees Association, Local 1000 and her pay rate was determined by the terms of the contracts between the County and Union. Def. SOMF ¶ 2. Plaintiff's pay rate was determined by her pay grade as set forth in her Union contract and adjusted for the number of years of service with the County, as also stipulated in her Union Contract. Id. ¶ 3. Her pay rate was not determined by any of her supervisors or the Superintendent of the Buildings and Grounds Department, but was determined by the County Personnel Department after applying the terms of the Union Contract. Id. ¶ 4.
Plaintiff contends that on January 10, 2000, she complained to the "Superintendant" [sic] about receiving less wages, compensation and benefits than her co-workers and that, thereafter, she was "subjected to attempt of termination." Compl. ¶¶ 18-19. Plaintiff also asserts that following her Complaint with the EEOC about receiving less wages, compensation and benefits than her male co-workers, she was "subjected to notice of suit rights, but no advance in pay." Compl. ¶ 20. Plaintiff contends that she has been damaged in that she has received less wages, compensation and benefits than her male co-workers performing similar work and that she "has been forced to endure discriminatory practices in the workplace." Id. ¶ 22-23.
Defendant has no record of a complaint by Plaintiff to her Supervisor or the Personnel Department about receiving less wages, compensation and/or benefits than her male co-workers on January 10, 2000, although she did apply for another position on this date for which she was not hired. Def. SOMF ¶¶ 7, 10-11. On March 29, 2001, the Plaintiff was sent a memorandum from her Union President that identified her adjusted start date as November 30, 1992 and set forth the hourly pay rate for her title for the years 1999 through 2004. Id. ¶ 8. Plaintiff was asked to report any discrepancy in her hourly pay rate, but there are no records showing that Plaintiff made a complaint to her Supervisor or the Personnel Department about receiving less wages, compensation and/or benefits than her male co-workers after March 29, 2001, or any complaint that she had not received a pay rate increase under the collective bargaining agreement. Id. ¶¶ 8-9.
On September 30, 2009, a County Buildings and Grounds employee informed his supervisor that he had helped Plaintiff remove a cabinet from the County's Public Safety Building, and Plaintiff was using the cabinet for personal use. Id. ¶ 13. On October 1, 2009, Plaintiff admitted to the Buildings and Grounds Superintendent that she took the cabinet from the County's Public Safety Building for her own personal use. Id. ¶14. All employees of the Buildings and Grounds Department, including Plaintiff, had previously been informed that taking property for personal use from County buildings was strictly prohibited by County policy and that a possible penalty for violating this policy was termination from employment. Id. ¶ 15.
On October 2, 2009, Plaintiff sent the Buildings and Grounds Supervisor a request for a "Desk Audit" of her job. Id. ¶ 16. The request was forwarded to the County Personnel Department. Id. The request stated, I don't believe I'am [sic] getting the proper pay, for the job I'am [sic] doing [sic]. ...