United States District Court, N.D. New York
DECISION AND ORDER
J. McAvoy Senior United States Judge
the Court is Defendants' motion for summary judgment.
See dkt. # 37. The parties have briefed the issues
and the Court has determined to decide the matter without
case concerns Plaintiff's claims that Defendants
discriminated against him by firing him because of his age.
After Plaintiff served Defendants with the Complaint, they
filed a motion to dismiss. See dkt. # 10. The Court
granted the motion in part and denied the motion in part.
See dkt. # 18. The Court denied the motion with
respect to Plaintiff's claims under the Age
Discrimination In Employment Act (“ADEA”),
finding that discovery was necessary to determine whether
Defendants had sufficient employees to be covered by the Act.
Id. at 5-6. After a discovery period, Defendants
filed the instant motion and Plaintiff responded.
have moved for summary judgment. It is well settled that on a
motion for summary judgment, the Court must construe the
evidence in the light most favorable to the non-moving party,
see Tennenbaum v. Williams, 193 F.3d 581, 593 (2d
Cir. 1999), and may grant summary judgment only where
‘there is no genuine issue as to any material fact and
. . . the moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). An issue 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).
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). 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), or on conclusory allegations
or unsubstantiated speculation. Scotto v. Almenas,
143 F.3d 105, 114 (2d Cir. 1998).
assert that they had insufficient employees during the time
periods relevant to the Complaint to be covered by the ADEA.
Plaintiff denies that claim.
ADEA makes it “unlawful for an employer . . . to fail
or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions or privileges of employment,
because of such individual's age[.]” 29 U.S.C.
§ 623(a)(1). Under the ADEA, “[t]he term
‘employer' means a person engaged in an industry
affecting commerce who has twenty or more employees for each
working day in each of twentty or more calendar weeks in the
current or preceding calendar year[.]” 29 U.S.C. §
630(b). As such, “[a] business must have at least
twenty ‘employees' to be an
‘employer'” under the ADEA. Morelli v.
Cedel, 141 F.3d 39, 44 (2d Cir. 1998) (quoting 29 U.S.C.
§ 630(b)). The Court has determined that Plaintiff's
claims concern disparate treatment he received in the
workplace after May 21, 2013 and a retaliation claim during
that same period. See dkt. # 18 at 5. The Court will
analyze whether Defendants had the requisite number of
employees during that period.
have addressed this issue through the statement of material
facts with citations to the record required by Local Rule
7.1(a)(3). See dkt. # 37-11. Local Rule 7.1(a)(3)
requires the proponent of a summary judgment motion to file a
“Statement of Material Facts” that contains
“in numbered paragraphs, each material fact about which
the moving party contends there exists no genuine
issue.” L.R. 7.1(a)(3). Each paragraph must contain
citations to the record to support such statements.
Id. Parties opposing the motion must file a response
that “mirror[s] the movant's Statement of Material
Facts by admitting and/or denying each of the movant's
assertions in matching numbered paragraphs.”
Id. Failing to file such a statement, the Rules
warn, will cause the Court to “deem admitted any
properly supported facts” in the movant's
statements. Id. (emphasis in original). While the
rule is important, “[a] non-response does not risk a
default judgment[.]” Jackson v. Fed. Express,
766 F.3d 189, 194 (2d Cir. 2014). “Before summary
judgment may be entered, the district court must ensure that
each statement of material fact is supported by record
evidence sufficient to satisfy the movant's burden of
production even if the statement is unopposed.”
Id. “[T]he court may rely on other evidence in
the record even if uncited.” Id. Moreover,
“the court must determine whether the legal theory of
the motion is sound.” Id. The Court may not
grant summary judgment “simply because the motion, or
relevant part, is unopposed.” Id.
statement of material facts points the Court towards evidence
that indicates that at no time during the relevant period did
the employer in question have 20 or more employees.
See Defendants' Statement of Material Facts,
dkt. # 37-11. Defendant Griffith Utility Service Corporation
has never had twenty or more employees in a calendar week
since the company appeared in 2000. Id. at ¶ 3.
Defendant GUSC Energy, Inc., has likewise never had twenty or
more employees in any calendar week since its creation.
Id. at ¶ 9. At no time during the relevant
years did the payroll of the two defendants, when added
together, reach 20 employees. See id. at
¶¶ 12-19. The Court has examined the payroll
records to which Defendants cite. That evidence makes clear
that, even when the employees of Defendant Grissis Utility
Services Corp. and Defendant GUSC Energy, Inc., are added
together, those companies never had 20 employees during any
one-week period during 2013, 2014 or 2015. See
Corrected Exhibits A and B to Defendants' Motion, dkt. #
48, Exhibits C-H to Defendant's Motion, dkt. #s
has not properly responded to Defendants' statement of
material facts. In responding to Defendants' motion,
Plaintiff responded to each paragraph of Daniel Maneen's
affidavit. See dkt. #s 37-1, 44. Maneen is President
and CEO of Grifiss Utility Services Corp. Dtk. # 37-1 at
¶ 1. As Plaintiff proceeds pro se, the Court
will read this document generously as an attempt to argue
that record evidence exists that supports his claims.
Plaintiff's response, however, contains only assertions,
and not citations to the record, such as “fact of the
matter, is 2012/2013 heating season, there was 20 employees
at GUSC.” Id. Plaintiff provides no evidence
to support this claim. He does supplement his response with a
photograph depicting twelve men, which he contends shows
workers for GUSC Energy, Inc., “taken during the
2012/2013 Heating Season.” See dkt. # 45. That
picture shows twelve people. Id. Plaintiff also
contends that “(3) people are absent from the Photo,
also absent are the employees [of] GUSC, (6)
employees.” Id. The document lists the names
of three persons and the hiring dates for two of them and
asserts that, when added to the six Griffiss Utility Services
Corporation employees, the company employed twenty people.
Court finds that Plaintiff has not pointed the Court to any
competent evidence to support his assertions about the number
of employees, made without citations to the record or
evidence authenticating the claims made about the picture
included in his letter. No reasonable juror, comparing the
payroll records Defendants provide to Plaintiffs unsupported
assertions, could conclude that 20 em ployees worked for ...