SANDRA J. FEUERSTEIN, District Judge.
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).
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.
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 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 at-will, 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.
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).
"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 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, 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 [non-movant'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. 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).
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:
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:
(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 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).
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:
(Report at 10-14 (emphasis added).)
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 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.)
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 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.)
Not surprisingly, the Defendants respond that "Plaintiff's Objections fail to show any error by Magistrate Shields." (Response at 2.) Rather, they contend that
(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.").)
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
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).
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.
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).
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.
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.
