Morrison v. Dr Pepper Snapple Group
Filing
26
-CLERK TO FOLLOW UP- ORDER granting defendant's 23 Motion for Summary Judgment and dismissing the complaint. Signed by Hon. David G. Larimer on 1/9/13. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
ROY L. MORRISON,
Plaintiff,
DECISION AND ORDER
11-CV-6148L
v.
DR. PEPPER SNAPPLE GROUP,
Defendant.
________________________________________________
Plaintiff Roy L. Morrison, appearing pro se, alleges claims under Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, and the New York State Human Rights Law, N.Y.
Exec. L. § 296. The gist of plaintiff’s claims is that he was terminated from his employment with
defendant Dr. Pepper Snapple Group “because a white female contract worker said that [he] sexual
harass [sic] her.” Dkt. #1 at 5. On his form complaint, plaintiff indicates that he is alleging
discrimination based on his race, color and sex. Id. at 4.
Defendant moves for summary judgment, on several grounds. Plaintiff has not responded
to the motion.
DISCUSSION
Rule 56(e) of the Federal Rules of Civil Procedure provides that if the non-movant fails to
respond to a summary judgment motion by setting forth “specific facts showing that there is a
genuine issue for trial,” then “summary judgment, if appropriate, shall be entered against the adverse
party.” Local Rule 56 provides that all material facts set forth in the movant’s statement of material
facts “will be deemed admitted unless controverted by the statement required to be served by the
opposing party.” Local Rule 7.1(e) also mandates that the party opposing a summary judgment
motion file an answering memorandum and supporting affidavit, and further provides that “[f]ailure
to comply ... may constitute grounds for resolving the motion against the non-complying party.”
In the case at bar, both defendant and the Court gave ample notice to the plaintiff of the
consequences of failing to respond to defendant’s motion. See Def. Notice to Pro Se Litigant (Dkt.
#23-6) and Order & Notice to Pro Se Plaintiff (Dkt. #24). Therefore, the Court may assume the truth
of defendant’s factual assertions, and proceed to determine whether, based upon those facts,
summary judgment for defendant is warranted. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.
1996).
Defendant’s Local Rule 56 Statement states that based on a complaint by a female contractor
that plaintiff had made unwanted physical contact with her on October 22, 2009, defendant
undertook an investigation of the alleged incident. As a result of that investigation, plaintiff, who
had admitted engaging in the conduct at issue, was terminated on November 5, 2009. Dkt. #23-5
¶¶ 2-7. Defendant states that plaintiff’s race, color and sex played no role in his termination. Id. ¶
8.
Once the moving party satisfies his initial burden under Rule 56(c) of demonstrating the
absence of a genuine issue of material fact, the burden shifts to the non-moving party to “come
forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). In other words,
the “party opposing a properly supported motion for summary judgment may not rest upon the mere
allegations or denials of his pleading, but ... must set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). To do so, the
nonmoving party must offer “concrete evidence from which a reasonable juror could return a verdict
in his favor.” Id. at 256.
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Thus, “[a] defendant moving for summary judgment must prevail if the plaintiff fails to come
forward with enough evidence to create a genuine factual issue to be tried with respect to an element
essential to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S.
at 247-48). And while the submissions of pro se litigants are to be liberally construed, see, e.g.,
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the fact that a party is “proceeding pro se does
not otherwise relieve [him] from the usual requirements of summary judgment.” Fitzpatrick v. New
York Cornell Hosp., No. 00 Civ. 8594, 2003 WL 102853, at *5 (S.D.N.Y. Jan. 9, 2003).
Here, defendant has alleged, and presented evidence of, facts that, if true, would defeat
plaintiff’s claim, by showing that plaintiff was terminated for a legitimate, nondiscriminatory reason:
his violation of defendant’s sexual harassment policy. The mere fact that his accuser was a white
woman is not enough to give rise to a genuine issue of material fact in that regard. Cf. Rivas Rosado
v. Radio Shack, Inc., 312 F.3d 532, 534 (1st Cir. 2002) (“The mere fact that the decision makers were
male does not alone, absent other evidence, create an inference that they engaged in gender
discrimination”); Williams v. Calderoni, No. 11 CIV. 3020, 2012 WL 691832, at *7 (S.D.N.Y. Mar.
1, 2012) (“it is hornbook law that the mere fact that something bad happens to a member of a
particular racial group does not, without more, establish that it happened because the person is a
member of that racial group”).
Plaintiff has failed to controvert the defendant’s evidence in any way, and as stated above,
the Court may assume the truth of the facts set forth by defendants. Defendant is therefore entitled
to summary judgment.
In addition, it appears that plaintiff has failed to comply with two orders from this Court: a
scheduling order issued on August 10, 2011 (Dkt. #8), and a decision and order issued on September
11, 2012 (Dkt. #21), granting defendant’s motion to compel discovery. Specifically, as set forth by
defendant, plaintiff has failed to provide his initial disclosures as required by the Court, and in fact
has refused to engage in any discovery at all. See Decl. of Ryan G. Smith (Dkt. #23-1) ¶¶ 10-13;
Reply Decl. of Ryan G. Smith (Dkt. #25) ¶¶ 3-5.
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“Federal Rule 37 grants district courts ‘broad power’ to impose sanctions, including
dismissal, on parties who fail to comply with court ordered discovery.” Earley v. Murray, No.
03-CV-6338, 2008 WL 123939, at *2 n.1 (W.D.N.Y. Jan. 10, 2008) (quoting Friends of Animals Inc.
v. United States Surgical Corp., 131 F.3d 332, 334 (2d Cir. 1997) (per curiam)). Given plaintiff’s
complete failure to comply with this Court’s discovery orders, I find that dismissal is warranted
under Rule 37 as well.
CONCLUSION
Defendant’s motion for summary judgment (Dkt. #23) is granted, and the complaint is
dismissed.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
January 9, 2013.
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