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McCaskill v. Shoprite Supermarket

United States District Court, N.D. New York

January 30, 2015


Matthew McCaskill, Franklin Correctional Facility, Malone, NY, Plaintiff Pro Se.

Mark Diana and Jennifer A. Rygiel-Boyd, Ogletree, Deakins Nash, Smoak & Stewart, P.C., Edward Cerasia, II, Cerasia & Del Rey-Cone LLP, New York, NY, for Defendant ShopRite Supermarket.


BRENDA K. SANNES, District Judge.


Plaintiff pro se Matthew McCaskill brings this action against defendant ShopRite Supermarket ("SRS") alleging that SRS wrongfully terminated his employment because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"). (Dkt. No. 1).[2] Before the Court is SRS's motion for summary judgment ("Def. MSJ"). (Dkt. No. 76). For the reasons that follow, the motion is granted.


A. Facts

1. The Record Before the Court

In support of its motion for summary judgment, SRS submitted a statement pursuant to Local Rule 7.1(a)(3) containing nineteen statements of fact, and each fact is properly supported by citations to the record, which includes sworn statements from two of its employees, related exhibits, and excerpts from plaintiff's deposition testimony. See Defendant's Statement of Material Undisputed Facts Submitted In Accordance with Local Rule 7.1(a)(3), Dkt. No. 76-2 ("Def. SMF"). SRS complied with Local Rule 56.2 by providing plaintiff with the requisite notice of the requirements of Local Rule 7.1(a) for a proper response to a summary judgment motion and the consequences of failing to submit a proper response. (Dkt. No. 76-1).

Plaintiff submitted a response to the summary judgment motion in which he disputed, in whole or in part, defendant's statements 1, 2, 4-6, 8-14, and 17-19; asserted a number of facts to the contrary; and annexed an unreferenced assortment of purported "Exhibits." See Plaintiff's Response to Defendant's Statement of Material Facts, Dkt. No. 77 ("Pl. Response"). However, plaintiff neither cited any evidence in the record to support his assertions, as required by L.R. 7.1(a)(3), nor submitted any relevant evidence in admissible form in opposition to SRS's motion. See Fed.R.Civ.P. 56(c)(1)(A); N.D.N.Y. L.R. 7.1(a)(3) (defining the record for purposes of the statement of material facts as including the pleadings, depositions, answers to interrogatories, admissions and affidavits). While the Court is cognizant of the challenges faced when proceeding pro se, plaintiff has entirely failed to dispute defendant's facts based on admissible record evidence.

Under such one-sided circumstances, the Court may accept defendant's statement of facts as true where appropriate and supported by the record.[3] Nonetheless, while a court "is not required to consider what the parties fail to point out, " the court may also in its discretion opt to conduct "an assiduous review of the record" even where a party fails to properly respond to the moving party's statement of material facts. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). Accordingly, the facts set forth below are drawn from defendant's Statement of Facts, [4] and also the following: Certification of Dominic Ausanio, Dkt. No. 76-4 ("Ausanio Cert."); Certification of Shannon DeFreese, Dkt. No. 76-5 ("DeFreese Cert."); Plaintiff's Complaint ("Compl."); and available excerpts of Plaintiff's deposition, Dkt. No. 76-9 ("McCaskill Dep.").[5]

2. Plaintiff's Employment at SRS

On or about February 2, 2012, defendant SRS hired plaintiff to work as a part-time frozen food clerk during the overnight shift at a new ShopRite store in Albany, New York. (Def. SMF, ¶ 1). Plaintiff is an African-American. (McCaskill Dep., p. 28). Dominic Ausanio was the Store Director of the Albany ShopRite and was involved in the hiring of employees. (Ausanio Cert., ¶¶ 2, 4). Since the Albany store was not yet open when plaintiff's employment began, he was trained at the Niskayuna, Hudson, and Kingston stores. (Def. SMF, ¶ 7). In late March or early April of 2012, Mr. Ausanio "received negative feedback about [plaintiff's] job performance from the training teams." (Ausanio Cert., ¶ 7). Specifically, Mr. Ausanio was notified that plaintiff "was having trouble understanding how to tag prices and place items in the correct location on the shelves." ( Id. ). Mr. Ausanio also personally observed that "[de]spite being trained in professional customer relations, [plaintiff] did not greet customers and did not ask customers if they needed help." ( Id., ¶ 8).

On March 23, 2012, Melissa Stiles, a ShopRite cashier, reported that plaintiff was sexually harassing her. (DeFreese Cert., ¶ 4). Ms. Stiles stated that plaintiff "constantly called her phone and touched her" and also "threatened her." ( Id. ). On March 30, 2012, SRS Human Resource Coordinator Shannon DeFreese interviewed Ms. Stiles. ( Id., ¶ 5). Ms. Stiles reported that plaintiff repeatedly "described the sexual things he wanted to do her, " stared at her, and "touched her near her breast while she was working, " despite her rejection of his advances. ( Id., ¶ 5). Ms. Stiles also stated that plaintiff threatened her and that she was scared to go to work because of him. ( Id., ¶¶ 6-8). In early April 2012, Ms. DeFreese informed Mr. Ausanio that plaintiff had violated SRS's policies concerning harassment and threats of violence. (Ausanio Cert., ¶ 9; DeFreese Cert., ¶ 9).[6]

3. Plaintiff's Termination

Based on plaintiff's violation of SRS's policies concerning harassment and threats of violence, and the negative feedback regarding his job performance, plaintiff's employment was terminated on or about April 12, 2012. (Def. SMF, ¶¶ 14, 16). Plaintiff was working at the Albany store at the time. (McCaskill Dep., p. 9). Mr. Ausanio informed plaintiff that ...

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