Belmonte v. Griffiss Utility Services Corp. et al

Filing 49

DECISION AND ORDER: that the Defendants' motion for summary judgment, dkt. # 37 , is hereby Granted. Signed by Senior Judge Thomas J. McAvoy on 02/13/2017. (Copy of this Decision and Order was served via regular and certified mail upon pro se plaintiff at 1176 Webster Avenue, Utica, NY 13501 on 2/13/2017.)(hmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

GAETANO BELMONTE,
PLAINTIFF,

V.

6:15cv136
(TJM/ATB)

GRIFFISS UTILITY SERVICES CORP., and
GUSC Energy, Inc.,
DEFENDANTS.

Thomas J. McAvoy
Senior United States Judge
DECISION AND ORDER
Before 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 oral argument.
I.

BACKGROUND
This 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.
II.

LEGAL STANDARD
Defendants 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).
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). 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

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unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
III.

ANALYSIS
Defendants assert that they had insufficient employees during the time periods

relevant to the Complaint to be covered by the ADEA. Plaintiff denies that claim.
The 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.
Defendants 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.
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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.
Defendants’ 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. Def endant 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.
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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 37-4-37-9.
Plaintiff 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. Id.
The Court finds that Plaintiff has not pointed the Court to any competent
evidence to support his assertions about the num ber 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
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provide to Plaintiff’s unsupported assertions, could conclude that 20 em ployees worked
for the Defendants during any relevant period, even assuming the employees of the two
Defendants could be added together.
Because no evidence supports the conclusion that Defendants employed twenty
persons during the period relevant to this claim, the Court must find that Defendants are
not covered by the ADEA. Defendants’ motion will therefore be granted.
IV.

CONCLUSION
For the reasons stated above, the Defendants’ motion for summary judgment,

dkt. # 37, is hereby GRANTED.

IT IS SO ORDERED

DATED: February 13, 2017

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