Genova v. The County Of Nassau et al
Filing
26
ORDER ADOPTING REPORT AND RECOMMENDATIONS: Accordingly, IT IS HEREBY ORDERED that the Defendants Summary Judgment Motion 21 is granted; the Clerk of Court is directed to enter judgment in Defendants favor and then close this case. SEE ATTACHED ORDE R FOR FURTHER DETAILS. IT IS FURTHER ORDERED that the March 19, 2020 Status Conference scheduled for 11:15 a.m. in Courtroom 1010 of the Central Islip Federal Courthouse is marked off the Courts calendar. So Ordered by Judge Sandra J. Feuerstein on 2/19/2020. (Cubano, Jazmin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY J. GENOVA,
Plaintiff,
FILED
CLERK
2/19/2020 12:27 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Case No.: 17-cv-4959 (SJF)(AYS)
ORDER ADOPTING
REPORT &
RECOMMENDATION
v.
THE COUNTY OF NASSAU and
NASSAU COUNTY COMPTROLLER,
GEORGE MARAGOS,
Defendants.
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FEUERSTEIN, Senior District Judge:
I.
Introduction
Plaintiff Genova (“Plaintiff”) commenced this action against Defendants the County of
Nassau (hereafter, the “County”) and former Nassau County Comptroller George Maragos
(“Maragos”; together with the County, the “Defendants”) claiming employment discrimination
pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12112(a) (the “ADA”). (See
Complaint, ECF No. 1.) The Defendants denied Plaintiff’s allegations, raising multiple
affirmative defenses (see Answer (ECF No. 10)). Thereafter, they moved for summary
judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, asserting, inter alia, that
Defendants had a nondiscriminatory reason to terminate Plaintiff (hereafter, the “Summary
Judgment Motion”) (see ECF No. 21), which the Plaintiff opposed (hereafter, “Opposition” or
“Opp’n”) (see ECF No. 21-8). The Summary Judgment Motion were referred to Magistrate
Judge Anne Y. Shields for a Report and Recommendation (see July 9, 2019 electronic Order of
Referral).
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Presently before the Court is the Magistrate Judge’s December 26, 2019 Report and
Recommendation (hereafter, “Report”) recommending that the Summary Judgment Motion be
granted. (See Report (ECF No. 22.) The Plaintiff has filed an objection to the Report (hereafter,
“Objection”) (see ECF No. 23), to which the Defendants have responded (hereafter, “Response”)
(see ECF No. 24). For the reasons that follow, the Court overrules the Plaintiff’s objections and
adopts Magistrate Judge Shields’ Report in its entirety.
II.
Background
Magistrate Judge Shields initially stated that: Defendants “properly filed a statement of
facts in accord with Rule 56.1 of the Local Rules of the United States District Courts for the
Southern and Eastern Districts of New York” (Report at 1); said statement “properly cites to
facts supported by admissible evidence” (id.); and, contrary to the requirements of Local Rule
56.1, Plaintiff did not submit the required Rule 56.1 counterstatement, but instead submitted his
own affidavit and the sworn statements of three non-party individuals. (See id. at 2.) Plaintiff’s
noncompliance with Local Rule 56.1 resulted in the relevant facts being “deemed admitted by
Plaintiff” with Magistrate Judge Shields taking those facts solely from Defendants’ Rule 56.1
Statement. (Id. (citing Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003); Nassar Family
Irrevocable Tr. v. United States, Nos. 13-cv-5680, 13-cv-8174, 2016 WL 5793737, at *1 n.2
(S.D.N.Y. Sept. 30, 2016); Luizzi v. Pro Transp. Inc., No. 02-cv-5388, 2009 WL 252076, at * 2
(E.D.N.Y. Feb. 2, 2009).)
Thereafter, the Magistrate Judge stated the relevant facts and the procedural history
underlying this action. (See Report at Part II.) Plaintiff does not object to Magistrate Judge
Shields’ delineation of the case’s procedural history, but objects to her deeming the relevant facts
as being unopposed. The crux of Plaintiff’s Objection is that Magistrate Judge Shields erred in
deeming the facts unopposed, arguing that there are disputed facts which preclude the granting of
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summary judgment. Plaintiff’s objections are overruled and Part II of Magistrate Judge Shield’s
Report, which is the Facts section of the Report, is adopted in its entirety and incorporated herein
by reference, with the Court assuming the Parties’ familiarity therewith. However, for the
reader’s convenience, the Court provides a brief summary.
Plaintiff suffers from Crohn’s Disease. In 2014, Plaintiff interviewed for a position with
the Office of the Controller; during that process, he represented that he was able to perform the
duties of the position, but never indicated he had Crohn’s Disease or that he required any
accommodations. The County hired Plaintiff in December 2014 as an Inspector, which is an atwill, non-union job. Part of Plaintiff’s duties was preparing two reports for Maragos: one
regarding abandoned homes in the County (the “Abandoned Homes Report”) and the other
regarding surplus properties in the County (the “Surplus Property Report”; together with the
Abandoned Homes Report, the “Reports”). Maragos reviewed the Reports, made comments, and
requested revisions to them several times. In early August 2015, Maragos was still not satisfied
with the Surplus Property Report and, identifying the deficiencies in that Report, he conveyed his
dissatisfaction to Plaintiff via email. Over a week later, Maragos sent Plaintiff a follow-up email
stating, inter alia, that a comprehensive report was needed without delay. On March 14, 2016,
Plaintiff was terminated for poor work performance.
During his employment, in July 2015, Plaintiff took time off for medical treatment for his
Crohn’s Disease. In response, inter alia, Maragos instructed his staff to do all it could for
Plaintiff within the County’s policies. During his tenure with the County, Plaintiff never
requested an accommodation due to his Crohn’s Disease or reporting being subjected to a hostile
work environment.
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III.
Applicable Standards
A. Report and Recommendation Standard of Review
Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct
proceedings of dispositive pretrial matters without the consent of the parties. See Fed. R. Civ. P.
72(b). Any portion of a report and recommendation on dispositive matters to which a timely
objection has been made is reviewed de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
However, “when a party makes only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report strictly for clear error.” Frankel v. City of
N.Y., Nos. 06-cv-5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009); see also
Butto v. Collecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y. 2013) (“In a case where a party makes
only conclusory or general objections, or simply reiterates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” (quotations and citation omitted)).
The Court is not required to review the factual findings or legal conclusions of the magistrate
judge as to which no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.
Ct. 466, 88 L. Ed.2d 435 (1985). Whether or not proper objections have been filed, the district
judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or
recommendations. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
B. Motion for Summary Judgment Standard
“Summary judgment is proper ‘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.’” ING Bank N.V. v.
M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018) (quoting Fed. R. Civ. P.
56(a)); accord Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). In ruling on a summary
judgment motion, the district court must first “determine whether there is a genuine dispute as to
4
a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,
202 (2d Cir. 2007) (internal quotations and citations omitted); see also Ricci v. DeStefano, 557
U.S. 557, 129 S. Ct. 2658, 2677 (2009) (“On a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as
to those facts.” (emphasis added; internal quotations and citation omitted)).
In reviewing the record to determine whether there is a genuine issue for trial, the court
must “construe the evidence in the light most favorable to the non-moving party,” Centro de la
Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017)
(quotations, alterations and citation omitted), and “resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party opposing summary judgment.”
Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 45 (2d Cir. 2019) (quotations and citation
omitted); see also Hancock v. County of Rensselaer, 823 F.3d 58, 64 (2d Cir. 2018) (“In
determining whether there is a genuine dispute as to a material fact, we must resolve all
ambiguities and draw all inferences against the moving party.”). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial.” Ricci, 557 U.S. at 586 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986)); accord Baez v. JetBlue Airways Corp., 793
F.3d 269, 274 (2d Cir. 2015).
“The moving party bears the initial burden of showing that there is no genuine dispute as
to a material fact.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d
Cir. 2013) (quotations, brackets and citation omitted); accord Jaffer, 887 F.3d at 114. “[W]hen
the moving party has carried its burden[,] . . . its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts . . . [,]” Scott v. Harris, 550 U.S. 372,
5
380 (2007) (quoting Matsushita Elec., 475 U.S. at 586-87), and must offer “some hard evidence
showing that its version of the events is not wholly fanciful[.]” Miner v. Clinton County, N.Y.,
541 F.3d 464, 471 (2d Cir. 2008) (quotations and citation omitted). The nonmoving party can
only defeat summary judgment by “adduc[ing] evidence on which the jury could reasonably find
for that party.” Lyons v. Lancer Ins. Co., 681 F.3d 50, 56 (2d Cir. 2012) (quotations, brackets
and citation omitted). “‘The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient’ to defeat a summary judgment motion[,]” Fabrikant v.
French, 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)), and “[a] court cannot credit a plaintiff’s merely speculative or conclusory
assertions.” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012); see also Federal Trade Comm’n
v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) (“[A] party may not rely on mere speculation or
conjecture as to the true nature of the facts to overcome a motion for summary judgment.”
(quoting Fletcher v. Alex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995))); Flores v. United States, 885
F.3d 119, 122 (2d Cir. 2018) (“While we are required to resolve all ambiguities and draw all
permissible factual inferences in favor of the non-moving party, . . . conclusory statements,
conjecture, or speculation by the party resisting the motion will not defeat summary judgment[.]”
(quotations, alterations and citations omitted)). Since “there is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party[,]
. . . [i]f the evidence is merely colorable, . . . or is not significantly probative, . . . summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (quotations and citations omitted).
In employment discrimination cases, “‘an extra measure of caution is merited’ in granting
summary judgment because ‘direct evidence of discriminatory intent is rare and such intent often
must be inferred from circumstantial evidence found in affidavits and depositions.’” Barella v.
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Village of Freeport, 16 F. Supp.3d 144, 155 (E.D.N.Y. 2014) (quoting Schiano v. Quality
Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006); further citation omitted); see also Holtz v.
Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). Yet, even in employment discrimination
cases, to resist a summary judgment motion, “a plaintiff must provide more than conclusory
allegations . . . .” Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008); see also Chioke v.
Dep’t of Educ. of City of N.Y., No. 15-cv-1845, 2018 WL 3118268, at * 7 (E.D.N.Y. June 25,
2018) (quoting Holcomb). Indeed, “the plaintiff’s admissible evidence must show circumstances
that would be sufficient to permit a rational finder of fact to infer that the defendant’s
employment decision was more likely than not based in whole or in part on discrimination.”
Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); see also Daeisadeghi, 2019
WL 331637, at *5 (quoting Stern; collecting cases).
C. Local Rule 56.1 Statements
When moving for summary judgment, in addition to complying with the Federal Rule of
Civil Procedure 56, the parties must comply with Local Rule 56.1 of the United States District
Courts of the Southern and Eastern Districts (“Local Rule 56”). As the Second Circuit has
instructed, the Local Rule 56 “requirement is strict”. T.Y. v. N.Y. City Dep’t of Educ., 584 F.3d
412, 417 (2d Cir. 2009). Among other things, it:
requires that any motion for summary judgment be accompanied
by a list of the “material facts as to which the moving party
contends there is no genuine issue to be tried.” S.D.N.Y. &
E.D.N.Y. R.56.1(a). The nonmoving party must respond to each
numbered allegation in the moving party’s statement and include,
if necessary, a statement of the additional material facts, as to
which a genuine issue exists. S.D.N.Y. & E.D.N.Y. R. 56.1(b). In
the typical case, failure to respond to a Rule 56.1 statement results
in a grant of summary judgment once the court assures itself that
Rule 56’s other requirements have been met. T.Y. v. N.Y. City
Dep’t of Educ., 584 F.3d 412, 417-418 (2d Cir. 2009).
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Parris v. Acme Bus Corp., 956 F. Supp. 2d 384, 392 (E.D.N.Y. 2013)(emphasis added).
Furthermore, Local Rule 56.1(c) requires:
Each numbered paragraph in the statement of material facts set
forth in the statement required to be served by the moving party
will be deemed to be admitted for purposes of the motion unless
specifically controverted by a corresponding numbered
paragraph in the statement required to be served by the opposing
party.
(Italicized and boldface emphases added); see also Giannullo, 322 F.3d at 140 (“If the opposing
party then fails to controvert a fact so set forth in the moving party’s Rule 56.1 statement, that
fact will be deemed admitted.” (citations omitted)); Taylor & Fulton Packing, LLC v. Marco
Intern. Foods, LLC, No. 09-cv-2614, 2011 WL 6329194, at *4 (E.D.N.Y. Dec. 16,
2011)(“Where a nonmovant . . . files a deficient statement, courts frequently deem all supported
assertions in the movant’s statement admitted and find summary judgment appropriate.”
(footnote omitted)). Moreover, to specifically controvert a statement of material fact, a
nonmovant is required to do so with specific citation to admissible evidence. See Local Rule
56(d); see also Ezagui v. City of N.Y., 726 F. Supp.2d 275, 285 n.8 (S.D.N.Y. 2010)(noting
statements which a nonmovant does “not specifically deny–with citations to supporting
evidence–are deemed admitted for purposes of [movant’s] summary judgment motion”)
(collecting cases); Universal Calvary Church v. City of N.Y., No. 96-cv-4606, 2000 WL
1745048, *2 n.5 (S.D.N.Y. Nov. 28, 2000). As the Second Circuit has observed, “‘where there
are no[] citations or where the cited materials do not support the factual assertions in the
Statements, the Court is free to disregard the assertion.’” Holtz v. Rockefeller & Co., Inc., 258
F.3d 62, 73-74 (2d Cir. 2001) (quoting Watt v. N.Y. Botanical Garden, No. 98-cv-1095, 2000
WL 193626, at *1 n.1 (S.D.N.Y. Feb. 16, 2000); further citations omitted), abrogated on other
grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). Indeed, “[w]here . . . the record
8
does not support the assertions in a Local Rule 56.1 statement, those assertions should be
disregarded and the record reviewed independently.” Id. (citing Zanghi v. Inc. Village of Old
Brookville, 752 F.2d 42, 47 (2d Cir. 1985)) (footnote omitted). Relatedly, it is not the role of the
Court to search the summary judgment record for evidence supporting a nonmovant’s
opposition. See N.Y.S. Teamsters Conf. Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d
640, 648-49 (2d Cir. 2005)(recognizing authority of district courts to institute local rules
governing summary judgment submissions, which permits courts “to efficiently decide” such
motions “by relieving them of the onerous task of ‘hunt[ing] through voluminous records
without guidance from the parties’” (further citations omitted)); Ford v. Ballston Spa Cent. Sch.
Dist., Nos. 05-cv-1198, 05-cv-1199, 2008 WL 697362, at *3 (N.D.N.Y. Mar. 13, 2008) (same).
D. Employment Discrimination Pursuant to the ADA
In her Report, Magistrate Judge Shields correctly stated the applicable law regarding
employment discrimination claims pursuant to the ADA. (See Report, Discussion, Part II
(pp.10-14).) Neither party objected to the applicable law as stated; therefore, it is adopted and
restated herein:
A. ADA Discrimination
The ADA makes it unlawful for employers to discriminate
against employees on account of a disability. 42 U.S.C. §
12112(a). In order to establish a prima facie case of ADA
discrimination, a plaintiff must show that: (1) his employer is
subject to the ADA; (2) he was disabled within the meaning of the
ADA; (3) he was otherwise qualified to perform the essential
functions of the job, with or without reasonable accommodation;
and (4) he suffered adverse employment action because of his
disability. McMillan v. City of New York, 711 F.3d 120, 125 (2d
Cir. 2013); Scalercio-Isenberg v. Morgan Stanley Svcs. Grp, Inc.,
No. 19-6034, 2019 WL 6916099, at *5 (S.D.N.Y. Dec. 19, 2019);
Bethea v. JP Morgan Chase & Co., No. 15-3544, 2019 WL
4805141, at * 6 (E.D.N.Y. Sept. 30, 2019).
Defendants’ motion puts in issue the second and fourth
elements of Plaintiff’s prima facie case – whether Plaintiff suffered
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from a disability within the meaning of the ADA, and causation,
i.e., whether his termination occurred because of that disability.
i. Disability
A disability under the ADA is defined as:
(A) a physical or mental impairment that substantially
limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment . . . .
42 U.S.C. § 12102(1).
“Major life activities” include, among other things, caring
for oneself, performing manual tasks, sitting, lifting, bending,
concentrating, working, and thinking. 29 C.F.R. § 1630.2(i).
Whether an impairment “substantially limits” major life activities
is to be “construed broadly,” but “not every impairment will
constitute a disability.” Id. § 1630.2(j). * * * [A]s the statute
makes clear, the definition of disability under the ADA is to be
“construed in favor of broad coverage of individuals . . . to the
maximum extent permitted by the terms of” the statute. 42 U.S.C.
at § 12102(4)(A).
ii. Causation: Adverse Employment Action Because of
Disability
The ADA prohibits discrimination “on the basis of”
disability. 42 U.S.C. § 12112(a). The Second Circuit has
concluded that this language requires an ADA plaintiff to “prove
that discrimination was the but-for cause of any adverse
employment action.” Natofsky v. City of New York, 921 F.3d 337,
349 (2d Cir. 2019). Thus, at the summary judgment stage, a
plaintiff must present evidence from which a reasonable fact-finder
could conclude that, but for the claimed disability, the adverse
action would not have taken place. Id. at 351; Clay v. County of
Suffolk, No. 17-2251, 2019 WL 4346446, at n.5 (E.D.N.Y. Sept.
11, 2019). The “but for” causation standard “is not equivalent to a
requirement that age was the employer’s only consideration,” but,
instead that the adverse employment “would not have occurred
without it.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d
Cir. 2014).
Where a Defendant shows ample non-discriminatory
evidence supporting an employment decision, it is appropriate to
hold that no reasonable juror could find but-for causation. See e.g.,
Natofsky, 921 F.3d at 351. Moreover, where a case presents
nothing more than a mixed motive theory of discrimination,
dismissal is required. Cf. Hooper v. PetSmart, Inc., No. 18-CV1706, 2019 WL 4888651, at *5 (E.D.N.Y. Sept. 30, 2019)
(denying motion to amend ADEA claim requiring but-for
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causation where plaintiff’s pleading show mixed motives for
employment action).
[B]. The McDonnell-Douglas Framework
Courts apply the familiar burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
determine whether claims asserted pursuant to the ADA survive
summary judgment. Clay v. County of Suffolk, No. 17-CV-2251,
2019 WL 4346446, at *10 (E.D.N.Y. Sept. 11, 2019); Patacca v.
CSC Holdings, LLC., No. 16-[cv-]0679, 2019 WL 1676001, at * 7
(E.D.N.Y. Apr. 17, 2019); Hernandez v. Int’l Shoppes, LLC, 100 F.
Supp.3d 232, 255 (E.D.N.Y. April 23, 2015). Pursuant to that
framework, a plaintiff opposing summary judgment must
demonstrate a prima facie case of discrimination as set forth above.
The Court notes that the burden of showing a prima facie case is
“not onerous.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981). Indeed, that burden “has been frequently described
as minimal.” Rodriguez v. Nassau County, No. 16-cv-2648, 2019
WL 4674766, at *10 (E.D.N.Y. Sept. 25, 2019) (quotations
omitted).
Once a plaintiff establishes a prima facie case, the burden
shifts to the defendant to proffer a legitimate, nondiscriminatory
reason for the complained of action. Id. “Upon the defendant’s
articulation of . . . a non-discriminatory reason for the employment
action, the presumption of discrimination arising with the
establishment of the prima facie case drops from the picture,” and
the burden shifts back to the plaintiff to “come forward with
evidence that the defendant’s proffered, non-discriminatory reason
is a mere pretext for actual discrimination.” Id.
As recently set forth by the Second Circuit in a case where
a plaintiff was required to show but-for causation, to establish
pretext “a plaintiff must establish that the employer’s stated reason
would not, alone, constitute a sufficient basis for pursuing an
adverse action. In other words,” it must be shown that “the
employer’s stated non-discriminatory reason is either false or
inadequate to support the adverse employment action.” Naumovski
v. Norris, 934 F.3d 200, 214-15 (2d Cir. 2019); see also id. at 216
(stating that plaintiff’s burden at the third stage of the McDonnell
Douglas analysis is “to establish that discrimination played . . . a
decisive role,” i.e., that “a reasonable jury could find that
Defendants would not have terminated [plaintiff] based on their
stated reasons alone”); Clay, 2019 WL 4346446, at *12.
Ultimately, the burden of persuading the trier of fact as to
intentional discrimination remains with the plaintiff. At the
summary judgment stage, he must show that “the evidence, taken
as a whole, is sufficient to support a reasonable inference that
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prohibited discrimination occurred.” Clay, 2019 WL 4346446, at
*12.
Often, the question of whether plaintiff meets the prima
facie burden of demonstrating an inference of discrimination is
“indistinguishable from the question of whether the employer’s
actions served merely as a pretext for some disguised
discriminatory animus towards the plaintiff.” Chioke v. Dep’t. of
Educ. of the City of New York, No. 15-1845, 2018 WL 3118268, at
*7 (E.D.N.Y. June 25, 2018) (quoting Jimenez v. Donahoe, 968 F.
Supp. 2d 609, 618 (S.D.N.Y. 2013)). Therefore, “[d]espite the
elaborate process set up in McDonnell Douglas, Second Circuit
case law makes clear that a court may simply assume that a
plaintiff has established a prima facie case and skip to the final
step in the McDonnell Douglas analysis, as long as the employer
has articulated a legitimate, nondiscriminatory reason for the
adverse employment action.” Id. (citation omitted). Ultimately, as
noted, the question is whether the evidence relied upon in
opposition to summary judgment allows a reasonable fact-finder to
determine that defendant engaged in discriminatory conduct.
Patacca, 2019 WL 1676001, at *6.
(Report at 10-14 (emphasis added).)
IV.
Discussion
A. Magistrate Judge Shields’ Report & Recommendation
Magistrate Judge Shields quickly eliminated the Defendants’ first basis for an award of
judgment. (See Report at 14.) Finding Plaintiff’s Crohn’s Disease is a disability, the Magistrate
Judge stated that “[t]he mere fact that Plaintiff was able to work without accommodation does
not lead to the automatic conclusion . . . that Plaintiff is not disabled.” (Id.) As to the second
basis, the ‘inference/pretext’ argument, based upon Plaintiff’s failure to submit a Rule 56.1
counterstatement, Magistrate Judge Shields found Plaintiff was deemed to have admitted that he
was terminated for poor work performance as stated in Defendants’ Rule 56.1 Statement, thereby
failing to meet his burden. (See id. (citing Defs.’ Rule 56.1 Stmt., ¶23).) The Magistrate Judge
also examined Plaintiff’s affidavit and the sworn statements of three, non-parties that Plaintiff
submitted in his attempt to meet his burden of showing an inference and/or pretext. (See id. at
12
16-19.) After thoroughly examining each statement, though, she found them wanting, stating
that “[a]t best, the documents submitted to show pretext do nothing more than show
disagreement with Maragos’s conclusion regarding the quality of Plaintiff’s work” which
“difference of opinion [is] regard[ed as] a question of business judgment” that “is insufficient to
show pretext.” (Id. at 19 (citing Greene v. Brentwood Union Free Sch. Dist., 966 F. Supp.2d
131, 156 (E.D.N.Y. 2013) (stating that a court considering preferred evidence of pretext is not a
“roving commission to review business judgments”)).) Thus, even with consideration of
Plaintiff’s proffered evidence, “no reasonable juror could find that Plaintiff would not have been
terminated based upon the stated reason alone,” warranting summary judgment in Defendants’
favor. (Id.)
B. The Plaintiff’s Objection
The essence of Plaintiff’s objection is that, notwithstanding submitting affidavits of both
Plaintiff and his counsel, as well as the statements of three non-parties, because Plaintiff did not
submit the requisite Rule 56.1 counterstatement and, therefore did not specifically state his
objections to Defendants’ Rule 56.1 statements, Magistrate Judge Shields improperly deemed the
Defendants’ statement that Plaintiff was terminated for poor work performance unopposed
warranting the granting of summary judgment in the Defendants’ favor. (See Opp’n at 2 (“While
plaintiff’s opposition did not specifically state that his objections were made pursuant to Rule
56.1, the plaintiff set forth in the affidavits of both counsel for the plaintiff and the plaintiff
himself, the supporting affidavits and Mr. Hernandez’ sworn statement, who are not parties to
the litigation, facts that essentially dispute the defendants’ contentions.”); see also id. at 3
(“Based upon . . . all of the affidavits submitted in opposition to the motion, it is submitted that
those affidavits essentially complied in substance with the requirements of Rule 56.1. There can
13
be no question that all of the plaintiff’s opposing papers were in direct opposition to the
summary judgment motion and specifically noted that disputed issues of fact existed which
required a trial of those issues.”); see also id. at 5 (“[T]he opposing papers clearly demonstrated
that material disputed issues of fact were presented to the Court by the plaintiff in opposition to
the defendants’ motion . . . .”); see also id. at 8 (“While the plaintiff may not have submitted in
his opposition the specific statement required by Rule 5[6.]1, it is submitted that a mere failure to
formally make such a statement is unnecessary since it is the substance of the opposition that
counts and not mere verbiage.”); see also id. at 10-11 (asserting that Magistrate Judge Shields
“totally overlooked” plaintiff’s Opposition memorandum, in which “both disputed and
undisputed facts are set forth, which the plaintiff submits is substantially in compliance with
Rule 56.1”); see also id. at 13 (“[T]he [O]pposition of the summary judgment motion was more
than sufficient to demonstrate that disputed issues of fact remained open and what they consisted
of could only be resolved in a jury trial.”).) Plaintiff further complains that Magistrate Judge
Shields did not consider the affidavits and statements submitted by Plaintiff in support of his
Opposition. (See id. at 7, 10.)
C. The Defendants’ Response
Not surprisingly, the Defendants respond that “Plaintiff’s Objections fail to show any
error by Magistrate Shields.” (Response at 2.) Rather, they contend that
while Magistrate Shields did exercise her discretion to find that
Plaintiff admitted the facts as alleged by Defendants, she also
reviewed and considered the affidavits on which Plaintiff relies to
assert that his failure to comply with Rule 56.1 should be
overlooked. Magistrate Shields properly found those affidavits to
be insufficient to defeat the Defendants’ [Summary Judgment
Motion].
14
(Id.; see also id. at 3, 6.) They further argue that Magistrate Judge Shields “was well within her
authority in deeming the facts as submitted by Defendants to have been admitted by Plaintiff,”
but, in any event, she “reviewed in depth the affidavits submitted by Plaintiff and found them
wanting.” (Id. at 3.) Therefore, even if the Magistrate Judge “found, as Plaintiff contends, that
those affidavits ‘essentially complied in substance with the requirements of Rule 56.1,’ it would
not have changed the outcome” since Plaintiff bore the burden of producing admissible evidence
showing that the reason proffered by Defendants for Plaintiff’s termination was a pretext and
Magistrate Judge Shields found none of Plaintiffs’ submissions sufficient to meet that burden.
(Id. at 4 (“Plaintiff asserts that he met this burden by submitting a notarized letter addressed ‘To
Whom It May Concern’ from a former employee of [the County] who had no involvement with
any of the work performed by Plaintiff . . . , and two affidavits from individuals who were not
employed by [the County]. As Magistrate Shields correctly found, none of these submissions are
sufficient to defeat the [Summary Judgment] Motion.”).)
D. The Court’s Consideration of Plaintiff’s Objections
Plaintiff’s objections are without merit. This District’s relevant Local Rules are clear that
“[e]ach numbered paragraph in the statement of material facts set forth in the statement required
to be served by the moving party will be deemed to be admitted for purposes of the motion unless
specifically controverted by a corresponding numbered paragraph in the statement required to
be served by the opposing party” (Local Rule 56.1(c) (emphases added)) and that each such
statement “must be followed by citation to evidence which would be admissible . . . .” (Local
Rule 56.1(d) (emphases added).) It is well-established that failure to comply with the
requirements of Local Rule 56.1 is a basis for granting summary judgment. See, e.g., T.Y., 584
F.3d at 418 (“A nonmoving party’s failure to respond to a Rule 56.1 statement permits the court
15
to conclude that the facts asserted in the statement are uncontested and admissible. In the typical
case, failure to respond results in a grant of summary judgment once the court assures itself that
Rule 56’s other requirements have been met.” (citations omitted)); see also supra, Part III(C).
(discussing applicable law and collecting cases).
As Magistrate Judge Shields correctly reported, Plaintiff failed to comply with Local
Rule 56.1’s requirement of submitting a counterstatement. Therefore, it was appropriate for her
to deem the Defendants’ Rule 56.1 statements of fact as admitted. In turn, since Plaintiff was
deemed to have admitted that his termination was based upon his poor work performance (see
Rule 56.1 Stmt., ¶23), Magistrate Judge Shields did not err in concluding that Plaintiff failed to
meet his burden of showing the Defendants’ proffered reason for Plaintiff’s termination was a
pretext for ADA-based discrimination.
While Plaintiff concedes his noncompliance with Local Rule 56.1, he argues he has
substantially complied with same by virtue of the arguments and facts presented in his
Opposition memorandum, as well as the submissions of his affidavit and that of his counsel, and
the three sworn statements of the non-parties. His argument is unavailing for several reasons.
First, to the extent the Plaintiff would have the Court overlook his noncompliance with
Local Rule 56.1 by asking it to consider facts into his Opposition memorandum, that attempt
fails. “A memorandum of law is not a proper vehicle through which to present facts to the
Court.” Hooper v. Berryhill, No. 15-cv-6646, 2017 WL 927843, *1 n.3 (S.D.N.Y. Mar. 8,
2017); see also Giannullo, 322 F.3d at 142 (stating that a memorandum of law “is not evidence
at all”); Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009)(“An attorney’s unsworn
statements in a brief are not evidence.”); Griffin v. Sheeran, 767 F. App’x 129, 133 (2d Cir.
2019)(quoting Kulhawik).
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Second, to the extent Plaintiff would have the Court construe his counsel’s affidavit (see
Sweetbaum Aff. (ECF No. 21-6); hereafter, the “Sweetbaum Affidavit”) as a Rule 56.1
counterstatement, the Court declines to do so as it, too, does not comport, substantially or
otherwise, with the requirements of Local Rule 56.1, and, in any event, is deficient in many
respects. For example, Sweetbaum’s paragraphed statements do not correspond to the
Defendants’ paragraphed statements of fact in their Rule 56.1 Statement. See Local Rule 56.1
(b) (“The papers opposing a motion for summary judgment shall include a correspondingly
numbered paragraph responding to each numbered paragraph in the statement of the moving
part . . . .” (emphasis added)); cf. Defs.’ 56.1 Stmt., with Sweetbaum Affidavit. Further, most of
Sweetbaum’s paragraphed statements do not cite to any admissible evidence. 1 See Local Rule
56.1(d) (“Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including
each statement controverting any statement of material fact, must be followed by citation to
evidence which would be admissible . . . .” (emphasis added)); cf. Sweetbaum Affidavit.
Moreover, Sweetbaum’s affidavit is not made on personal knowledge as required by Rule
56(c)(4). See Fed. Rule Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a
motion must be made on person knowledge, set out facts that would be admissible in evidence,
1
In the instances where Sweetbaum cites to entire exhibits, without greater specificity, the Court
need not consider them. See, e.g., Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470-71
(2d Cir. 2002)(“[B]ecause nothing in the federal rules mandates that district courts conduct an
exhaustive search of the entire record before ruling on a motion for summary judgment, district
courts are entitled to order litigants to provide specific record citations.”); EC ex rel. RC v.
County of Suffolk, 882 F. Supp.2d 323, 338 n.5 (E.D.N.Y. 2012)(“Mere reference, for example,
to an entire deposition is not ‘specific’.”); see also Local Rule 56.1(c) (requiring each numbered
paragraph to be “specifically controverted” by the party opposing summary judgment). Indeed,
the requirements of Local Rule 56.1 were instituted, in part, to obviate burdening the courts with
the onerous task of hunting through voluminous records for evidence supporting a nonmovant’s
opposition. See generally, e.g., Patacca, 2019 WL 1676001, at *17 (ruling it is “not role of the
Court to search the summary judgment record for evidence supporting” a party’s
position)(citations omitted).
17
and show that the affiant or declarant is competent to testify on the matters stated.”)(emphasis
added). Similarly, an examination of Plaintiff’s Affidavit (see ECF No. 21-9) reveals it suffers
from the same deficiencies. (See also Report at 18 (discussing that in his Affidavit, Plaintiff
compared his real estate experience with Maragos’s background as an electrical engineer in order
to discount Maragos’s criticism of Plaintiff’s work on the Reports).)
Third, consideration of the sworn statements of Hernandez, Pollack, or Sanchez, the three
non-parties, do not establish a pretext that would defeat the Defendants’ nondiscriminatory
reason for terminating Plaintiff. After carefully considering each of those statements, Magistrate
Judge Shields found that “[a]t best” they showed “nothing more than . . . disagreement with
Maragos’s conclusion regarding the quality of Plaintiff’s work.” (See Report at 19; see also id.
at 16-17 (examining Hernandez Statement and discussing why it fails to infer discrimination);
see also id. at 18-19 (examining Pollack’s and Sanchez’s Statements and discussing why they
fail to infer discrimination)). Upon de novo review of those Statements, the Court concurs with
Magistrate Judge Shields’ reasonings and conclusions as to them. As the Defendants aptly state,
“Defendants’ reason for terminating Plaintiff does not become ‘pretextual’ merely because
Plaintiff, or any third party, disagrees with that reason.” (Response at 6 (citation omitted).)
Furthermore, the statements of Hernandez, Pollack and Sanchez are insufficient to defeat
the Defendants’ Summary Judgment Motion since they were not made upon personal knowledge
as required by Rule 56(c)(4). 2 Rather, in addition to Plaintiff’s deemed admission that he was
terminated because of poor work performance, summary judgment in the Defendants’ favor is
warranted because “Maragos’ dissatisfaction with Plaintiff’s work product on the Reports is
clearly set forth in documents properly before the Court.” (Report at 17.) In sum, viewing all
2
The Hernandez statement may also be subject to hearsay challenges.
18
the evidence in the light most favorable to Plaintiff, the non-movant, and resolving all
ambiguities and drawing all permissible factual inferences in his favor, see De Xiong Pan v. Wei
Plumbing, No. 12-cv-1781, 2013 WL 6053496, at *5 (S.D.N.Y. Nov. 13, 2013) (citing Overton
v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004); Sec. Ins. Co. of
Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004)) (further citations
omitted), upon the record presented, granting summary judgment is appropriate in this instance.
Hence, having considered all of Plaintiff’s objections to the Report and conducted a de
novo review of the record, the Plaintiff’s objections are overruled; Magistrate Judge Shields’
Report is adopted in its entirely.
V.
Conclusion
Accordingly, IT IS HEREBY ORDERED that the Defendants’ Summary Judgment
Motion is granted; the Clerk of Court is directed to enter judgment in Defendant’s favor and then
close this case.
IT IS FURTHER ORDERED that the March 19, 2020 Status Conference scheduled for
11:15 a.m. in Courtroom 1010 of the Central Islip Federal Courthouse is marked off the Court’s
calendar.
Dated this 19th day of February 2020 at Central Islip, New York.
_/s/_Sandra J. Feuerstein__
Sandra J. Feuerstein
United States District Judge
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