United States District Court, S.D. New York
MEMORANDUM AND ORDER
Kevin Castel United States District Judge
Derrick Johnson filed a pro se action against
defendant DCM Erectors, Inc., (“DCM”) alleging
that defendant terminated his employment on the basis of his
race, thereby violating Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e - 2000e-17, the New York
State Human Rights Law (the “NYSHRL”), N.Y. Exec.
Law §§ 290 - 97, and the New York City Human Rights
Law (the “NYCHRL”), N.Y. City Admin. Code
§§ 8-101 - 131.
discovery period in this case is complete, and the defendant
has moved for summary judgment pursuant to Rule 56,
Fed.R.Civ.P. Defendant seeks summary judgment on
plaintiff's Title VII, NYSHRL and NYCHRL claims on the
basis that they are untimely. Alternatively, defendant asks
the court to dismiss the Title VII claim and decline to
exercise supplemental jurisdiction over plaintiff's state
and city law claims. Defendant has also filed a motion to
dismiss pursuant to Rule 37(b)(2)(A)(v), Fed.R.Civ.P. and the
Court's inherent power to sanction litigants based on the
plaintiff's repeated failure to comply with court orders.
The plaintiff has not filed opposition papers and the Court
reviews both motions unopposed. For the reasons set forth
below, the complaint will be dismissed.
to Mr. Johnson 4/21/2017
to the complaint, plaintiff was a welder employed by DCM. He
had been certified as a welder since 1994 and a member of his
union since 1998. He alleges that, on June 29, 2012, DCM
discharged him from employment without warning. According to
plaintiff, DCM's stated reasons for firing plaintiff were
that he “didn't get along well with others”
and he “took too long to finish a project.”
Plaintiff alleges that these reasons were false, that he was
more than qualified to perform his job, and that he was not
late to his job nor missed any days of work. Rather, he
claims that DCM terminated his employment because he was
asserts that he filed a charge with the Equal Employment
Opportunity Commission (the “EEOC”) on August 2,
2012. However, as of the filing of his pro se
complaint with this Court, on July 8, 2015, plaintiff claims
he never received a “notice-of-right-to-sue”
letter from the EEOC. Plaintiff is seeking $300, 000 in
compensatory damages as well as back and front pay.
Summary Judgment Standard.
judgment “shall” be granted “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Rule 56(a), Fed.R.Civ.P. A fact is material if it
“might affect the outcome of the suit under the
governing law . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). On a motion for summary
judgment, the court must “construe the facts in the
light most favorable to the non-moving party and resolve all
ambiguities and draw all reasonable inferences against the
movant.” Delaney v. Bank of Am. Corp., 766
F.3d 163, 167 (2d Cir. 2014) (quotation marks omitted). It is
the initial burden of the movant to come forward with
evidence on each material element of his claim or defense,
demonstrating that he is entitled to relief, and the evidence
on each material element must be sufficient to entitle the
movant to relief in its favor as a matter of law. Vt.
Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244
(2d Cir. 2004).
motion for summary judgment is unopposed, as it is here,
courts “must review the motion . . . and determine from
what it has before it whether the moving party is entitled to
summary judgment as a matter of law, ” because
“the district court may not grant the motion without
first examining the moving party's submission to
determine if it has met its burden of demonstrating that no
material issue of fact remains for trial.” Id.
at 246, 244 (internal quotation marks and citation omitted).
“Moreover, in determining whether the moving party has
met this burden of showing the absence of a genuine issue for
trial, the district court may not rely solely on the
statement of undisputed facts contained in the moving
party's Rule 56.1 statement. It must be satisfied that
the citation to evidence in the record supports the
assertion.” Id. at 244.
afford special solicitude to pro se litigants
confronted with motions for summary judgment. See Graham
v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). However,
a party's pro se status does not alter the
obligation placed on the party opposing summary judgment to
come forward with evidence demonstrating that there is a
genuine dispute regarding material fact. Miller v. New
York City Health & Hospital Corp., No. 00 Civ. 140
(PKC), 2004 WL 1907310, at *9 (S.D.N.Y. Aug. 25, 2004). As a
pro se litigant, the plaintiff was served with the
notice required by Local Rule 56.2, informing him of the
nature of a summary judgment motion and the manner in which
it could be opposed. (Dkt. 70). Although plaintiff has
submitted no opposition papers, the Court draws every
reasonable inference in his favor. Delaney, 766 F.3d
Title VII Claim.
speaking, plaintiffs are required to file a timely charge
with the EEOC before proceeding with a Title VII claim in
court. See Pietras v. Bd. of Fire Comm'rs of
Farmingville Fire Dist., 180 F.3d 468, 473 (2d Cir.
1999); Francis v. City of New York, 235 F.3d 763,
768 (2d Cir. 2000) (“[I]t remains the case that
exhaustion of administrative remedies through the EEOC stands
as an essential element of Title VII's statutory scheme,
and one with which defendants are entitled to insist that
plaintiffs comply.”) (internal citation and quotation
marks omitted). If the EEOC elects not to file a suit on