Nicolia v. Gen. Motors

TONI MARIE NICOLIA, Plaintiff, v. GENERAL MOTORS, LLC, Defendant.

16-CV-6368 CJS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

October 3, 2019

DECISION AND ORDER

APPEARANCES

For Plaintiff:

James D. Hartt

70 Linden Oaks, Third Floor

Rochester, New York 14625

For Defendant:

Marlo Johnson Roebuck

Jackson Lewis PC

2000 Town Center, Suite 1650

Southfield, Michigan 48075

INTRODUCTION

This is an action assertion retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Now before the Court is Defendant's motion for summary judgment (Docket No. [#34]). The application is granted.

BACKGROUND

Before setting forth the facts of this action the Court will briefly review the relevant procedural rules concerning summary judgment motions. It is of course well settled that summary judgment may not be granted unless "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." Fed.R.Civ.P. 56(a). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied, 517 U.S. 1190 (1996).

The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).

However, with regard to the well-settled rule that the Court must view the "facts" in the light most-favorable to the non-moving party, not every assertion by the non-moving party is a "fact" that must be accepted as true. For example, the party opposing summaryjudgment (as well as the movant) must properly support his or her factual assertions with citations to the record. In this regard, Fed. R. Civ. P. 56(c) states, in pertinent part:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1)(A)-(B) (emphasis added).¹

Additionally, Rule 56(a) of this District's Local Rules of Civil Procedure states:

(1) Movant's Statement. Upon any motion for summary judgment pursuant to Fed.R.Civ.P. 56, there shall be annexed to the notice of motion a separate, short, and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Each such statement must be followed by citation to admissible evidence or to evidence that can be presented in admissible form at trial as required by Fed.R.Civ.P. 56(c)(1)(A). Citations shall identify with specificity the relevant page and paragraph or line number of the evidence cited. Failure to submit such a statement may constitute grounds for denial of the motion.

(2) Opposing Statement. The papers opposing a motion for summary judgment shall include a response to each numbered paragraph in the moving party's statement, in correspondingly numbered paragraphs and, if necessary, additional paragraphs containing a short and concise statement of additional material facts as to which it is contended there exists a genuine issue to be tried. Each numbered paragraph in the moving party's statement of material facts may be deemedadmitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.

(3) Appendix. All cited evidence, such as affidavits, relevant deposition testimony, responses to discovery requests, or other documents, that has not otherwise been filed in conjunction with the motion shall be filed as an appendix to the statement of facts prescribed by subsections (1) or (2), supra, in conformity with Fed.R.Civ.P. 56(c)(1)(A), and denominated "Plaintiff's/Defendant's Appendix to Local Rule 56 Statement of Material Facts."

Local Rules of Civil Procedure, Rule 56(a) (emphasis added).

The non-movant cannot oppose a properly-supported summary judgment motion with bald assertions that are not supported by the record. See, Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999) ("Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment."), as amended on denial of reh'g (Dec. 22, 1999); In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 980 F. Supp. 2d 425, 459 (S.D.N.Y. 2013) ("[U]nsupported argument is not evidence, and cannot defeat summary judgment."). Rather, as noted previously, the non-movant must "must support the assertion by . . . citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A).²

Of course, the record may include the non-movant's own affidavit, provided that the affidavit is based on personal knowledge and does not contradict the affiant's prior sworn statements.³ More specifically in this regard, affidavits and sworn declarationssubmitted in connection with a summary judgment motion must comply with Rule 56(c)(4), which states: "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."

A court may decline to consider an affidavit or sworn declaration that does not does not comply with Fed. R. Civ. P. 56(c):

Where an affidavit or declaration contains material that does not comply with Rule 56(c)(4), a Court may either disregard or strike it from the record. Where an affidavit is more akin to an adversarial memorandum than a bona fide affidavit, a court may, in considering a motion for summary judgment, simply decline to consider those aspects of the affidavit that do not appear to be based on personal knowledge or are otherwise inadmissible.

Madden v. Town of Hempstead, No. 16-CV-6835(SJF)(AKT), 2019 WL 1439935, at *11 (E.D.N.Y. Mar. 29, 2019) (citations and internal quotation marks omitted). A court may also decline to consider statements in the non-movant's affidavit that either contradict his prior sworn statements, are not based on personal knowledge or are otherwise inadmissible. See, e.g., Smeraldo v. City of Jamestown, 512 F. App'x 32, 34 (2d Cir. 2013) ("[A] court may, in considering a motion for summary judgment, simply decline to consider those aspects of a supporting affidavit that do not appear to be based on personal knowledge or are otherwise inadmissible.").

The Court has reviewed these basic principles because while Defendant's papers comply with Rule 56(c) and Local Rule 56(a)(1), Plaintiff's opposition papers do notcomply with Fed. R. Civ. P. 56(c)(1) or Local Rule 56(a)(2). That is, in response to Defendant's properly-supported Statement of Facts [#34-8], Plaintiff has not submitted "a response to each numbered paragraph in the moving party's statement, in correspondingly numbered paragraphs," supported by citations to the record. Instead, Plaintiff has purported to include a counter-statement of facts within her memorandum of law, consisting of a sentence purporting to incorporate by reference her own affidavit [#44-2].⁴ Plaintiff's affidavit, in turn, offers her response to each of the 65-paragraphs in Defendant's statement of facts, but without any citations to the record.⁵ Consequently, Plaintiff's purported affidavit/counter-statement of facts consists largely of her subjective opinions, beliefs and understandings concerning matters such as the terms of the written collective bargaining agreement ("CBA") between General Motors ("GM") and the United Auto Workers ("UAW"), and General Motor's safety policies and labor rules, unsupported by citations to the actual CBA, policies or rules. Beyond that, Plaintiff has also included within her memorandum of law a purported "Separate Statement of Facts,"⁶ consisting of 46 paragraphs that are, for the most part, conclusory arguments rather than statements of fact.^{7 8} Additionally, in some instances Plaintiff's affidavit contradicts her prior sworndeposition testimony.⁹

Consequently, pursuant to Rule 56(e) and Local Rule 56(a)(2), the Court deems Defendant's statements of fact to be admitted for purposes of this Decision and Order, except insofar as particular assertions may be controverted by a...