Cross v. Potter
| Decision Date | 19 March 2013 |
| Docket Number | 3:09-CV-1293 |
| Parties | SHARON L. CROSS, Plaintiff, v. JOHN E. POTTER, et al., Defendants. |
| Court | U.S. District Court — Northern District of New York |
THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Plaintiff Sharon Cross commenced the instant action against Defendants claiming that she was wrongfully terminated from her employment with the United States Postal Service ("U.S.P.S."). Presently before the Court is Defendants' motion and Plaintiff's cross-motion for summary judgment pursuant to Fed. R. Civ. P. 56.
Plaintiff was employed by the U.S.P.S. from 1999 until 2009. In or about December 2005, Plaintiff's supervisor, George Alsheimer, stated to the Plaintiff that "[t]he Post Office should not hire women, they take FMLA too much and men don't, Ill [sic] fire you if you keep taking FMLA." Jan. 8, 2013 Cross Aff. at ¶4. Plaintiff further alleges that she was "harrased and picked on by the [union] stewards in the workplace for being a non-union member." Id. at ¶6.
On December 14, 2007, the United States Attorneys Office filed a two-count criminal information charging Plaintiff with submitting false medical documentation to theU.S.P.S. in violation of 18 U.S.C. § 1018. On January 14, 2008, based on the same facts as those alleged in the criminal charges, the U.S.P.S. sent Plaintiff a Notice of Removal, informing her that her employment with the U.S.P.S. would be terminated effective February 23, 2008. The Notice of Removal claimed that Plaintiff "submitted seven (7) falsified medical notes to the U.S.P.S. . . ." in support of her claims for leave. Plaintiff was acquitted of the criminal charges, but the U.S.P.S. continued the removal process. Plaintiff filed a grievance through the union. Plaintiff was removed from service effective June 4, 2009.
Plaintiff then commenced the instant action. Defendants move for summary judgment on the grounds that Plaintiff: (1) failed to timely exhaust her administrative remedies; (2) fails to establish claims for age and gender discrimination and retaliation; (3) fails to establish a claim against John Potter in his individual capacity; (4) fails to establish that her privacy rights were violated by the U.S.P.S.; (5) cannot establish a hybrid claim against the U.S.P.S.; and (6) cannot establish independent claims for the intentional infliction of emotional distress and/or defamation. Dkt. 146, at p. 2. Plaintiff filed a cross-motion for summary judgment on the same claims, as well as claims for the intentional infliction of emotion distress, defamation, res ipsa loquitor, disability harassment, retaliation for taking FMLA leave, and a violation of the Privacy Act and constitutional privacy rights.
Both parties move for summary judgment pursuant to Fed. R. Civ. P. 56. 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 Tenenbaum 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 movant 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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).
Prior to discussing the merits of the claims before the Court, it is necessary to address a number of initial matters, namely matters concerning compliance with the Local Rules, a determination of which claims are properly before the Court, and the effect of Plaintiff's acquittal on the present action. The Court will then consider thepending motions for summary judgment pertaining to the remaining claims.
On several occasions, the Court warned Plaintiff that papers that do not comply with Local Rule 10.1 would be rejected. See Dkt. Nos. 151, 143. Plaintiff was specifically warned that papers must be consecutively numbered and double-spaced and that the failure to comply with Rule 10.1 will result in her papers being "STRICKEN AND NOT CONSIDERED BY THE COURT." Dkt. 143 (emphasis in original); see also N.D.N.Y.L.R. 10.1(a)(3); 10.1(a)(7). Plaintiff's papers do not comply with these requirements and, therefore, need not be considered.
Plaintiff moves for leave to file an amended complaint. The motion does not comply with Local Rule 7.1(a)(4), which requires "[a] party moving to amend a pleading . . . [to] attach an unsigned copy of the proposed amended pleading to its motion papers." Local Rule 7.1(a)(4). The motion also does not comply with the Rule's requirement that she "set forth specifically the proposed amendments and identify the amendments in the proposed pleading, either through the submission of a red-lined version of the original pleading or other equivalent means." Id. Plaintiff does not even hint at what amendments she seeks to make. Rather, she states that "[i]n the interest of justice, and for Just Cause shown, due to impaired abilities and as a pro se plaintiff, I request an extension and enlargement of time to research the law, investigate, and respond accordingly with my amended complaint against the defendants which have been recently identified." Dkt. 165, at ¶4.
The basis for any proposed amendment should have been known to Plaintifflong ago and she presents no valid reason for waiting until now to seek leave to amend. Moreover, this case has been pending for several years and discovery is closed. Accordingly, in light of the delay, the failure to follow the Local Rules, and the failure to identify a proper basis for amending the complaint, the motion to file an amended complaint is DENIED.
Plaintiff also seeks "an extension and enlargement of time to research the law, investigate, and respond accordingly with my Summary Judgment Hearing against the defendants or I will be harmed and prejudiced." Dkt. 166, at ¶6. On November 14, 2012, Defendants filed a motion for summary judgment. Upon Plaintiff's request, the Court granted her an extension of time to respond to that motion. On January 8, 2013, Plaintiff filed her opposing papers together with a cross-motion for summary judgment. Subsequent thereto, Defendants filed opposition papers to the cross-motion and reply papers to their initial motion. Plaintiff seeks an extension of time to further reply.
Pursuant to Local Rule 7.1(c), "[t]he cross-moving party may not reply in further support of its cross-motion without the Court's prior permission." Accordingly, Plaintiff does not have the right to file additional papers in connection with the pending motions without the Court's permission. To the extent Plaintiff seeks such permission, the request is denied for failure to articulate a valid reason therefor. Her generic claims that she needs time to research the law, investigate and respond accordingly and that she will be harmed and prejudiced are insufficient grounds to warrant the filing of additional papers. For the foregoing reasons, Plaintiff's motions (Dkt. Nos. 165 and 166) are DENIED.
Id. (underscoring in original).
The responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly. See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (); Gubitosi v. Kapica, 154 F.3d 30,...
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