Opinion
01 Civ. 2347 (LAK)
June 18, 2003
ORDER
In a report and recommendation dated May 28, 2003, Magistrate Judge Douglas Eaton recommended that the Court grant the defendant's motion for summary judgment dismissing this employment discrimination and retaliation case after plaintiff failed to submit any response to the motion despite clear warnings of the effect of such a failure. In a response dated June 11, 2003, the plaintiff acknowledged his failure to respond before the Magistrate Judge, asserts that the failure was due to his inability to respond "due in part to . . . lack of legal knowledge, and makes two brief, unsworn factual arguments, neither of which was made before the Magistrate Judge.
Defendant served a Pro Se Notice to Litigant with its motion for summary judgment pursuant to S.D.N.Y. Civ.R. 56.2. Further, the Assistant Attorney General handling the case advised Judge Eaton that she had informed plaintiff's daughter-in-law, to whom plaintiff referred her call, of the risks to plaintiff of failing to respond to the motion. In consequence, there is not the slightest doubt that plaintiff knew full well that a failure to respond to the motion could result in the dismissal of the action without a trial and that the failure to submit affidavits could result in the court accepting as true the factual assertions made by the defendant. Plaintiff nevertheless elected not to respond.
Despite the lack of response, Judge Eaton was fully cognizant of the fact that the motion could not be granted simply because no opposing papers were submitted. Instead, he carefully reviewed the record and determined that summary judgment of dismissal in fact was warranted. The Court writes briefly, however, to make two points.
First, Judge Eaton recommended that summary judgment be granted despite finding that plaintiff had made out a prima facie case on both the discrimination and retaliation claims, concluding in each instance that the plaintiff had failed to overcome the defendant's showing of legitimate non-discriminatory and non-retaliatory reasons for its actions. The Court recognizes that a plaintiff's prima facie case in some instances may be sufficient to raise a genuine issue of material fact for trial even where the defendant articulates a legitimate reason for its employment action. Nevertheless, even after Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), a plaintiff who makes out a prima facie case must, where the defendant articulates a legitimate reason for its action:
"`produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action]. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994)). In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination." Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000) (internal quotation marks omitted), petition for cert. filed, 71 U.S.L.W. 3680 (Apr. 17, 2003) (No. 02-1524).
This Court has examined the record. Assuming arguendo that Judge Eaton was correct in finding that plaintiff made out a prima facie case on both his theories, the defendant's legitimate explanations for its actions were uncontroverted. Given the weakness of the prima facie case, the uncontroverted legitimate explanations offered by the defendant, and the entire record, this Court is satisfied that the no trier of fact rationally could find either discrimination or retaliation.
The second point relates to plaintiff's response to the report and recommendation, in which he offers factual comments, albeit not in the form of an affidavit or declaration, that never were before Judge Eaton. The question is whether the Court ought to consider those comments at this stage, even putting aside the fact that they are not in affidavit or declaration form.
In Morris v. Amalgamated Lithographers of Am., Local One, 994 F. Supp. 161 (S.D.N.Y. 1998), this Court wrote as follows in a very similar context:
"The first issue presented by the objections is whether the Court should consider the extensive affidavits and evidentiary materials the union has submitted in support of its objections. In this connection, it should be noted that the union's application before Judge Peck for leave to submit affidavits in support of a motion for reconsideration was denied on the ground that `any additional evidence is for trial, not a 2d bite at the apple.' [citation omitted]
"Section 636(b)(1)(C) of the Judicial Code, 28 U.S.C. § 636(b)(1)(C), which provides for district court reviews of reports and recommendations by magistrate judges provides in Part that `[t]he judge may also receive further evidence . . .' in the course of such a review. (Emphasis added) But the statute is permissive, not mandatory. While there may be cases in which the receipt of further evidence is appropriate, there are substantial reasons for declining to do so as a general matter. First, permitting such piecemeal presentation of evidence is exceptionally wasteful of the time of both the magistrate and district judges, the former having been compelled to write an arguably useless report based on less than the universe of relevant evidence and the latter being deprived of the benefit of the magistrate judge's considered view of the entire record. Second, opposing parties would be put to the burden of proceedings which, to a considerable degree, would be duplicative. Third, there would be instances in which parties would be encouraged to withhold evidence, particularly evidence which might be embarrassing as well as helpful on the merits, in the expectation of using it before the district judge only if they failed to prevail before the magistrate judge on a more abbreviated showing. Finally, the routine consideration of evidence in support of objections which could have been presented before the magistrate judge would reward careless preparation of the initial papers.
"In this case, the defendant was well aware that its burden under Fed.R.Civ.P. 56 was to demonstrate that there is no genuine issue of fact and that it is entitled to judgment as a matter of law. In view of the plaintiff's claim that the union failed to represent him fairly and adequately in the grievance proceeding, the union was on notice that the details of exactly what it did and when — which is the focus of the evidentiary materials it now seeks to submit — necessarily were at the heart of its motion for summary judgment. It has offered no excuse whatever for failing to offer them in its initial papers. The Court therefore declines to consider them. Judge Peck was entirely correct in declining to afford the union a second bite at the apple." 994 F. Supp. at 163. Accord, Virgin Enterprises, Ltd. v. Virgin Cuts, Inc., 149 F. Supp.2d 220, 223 (E.D.Va. 2000); Fils-Aime v. Chase Manhattan Bank, N.A., 71 F. Supp.2d 257, 258 (S.D.N.Y. 1999); U.S. Fidelity Guar. Co. v. J. United Elec. Contracting Corp., 62 F. Supp.2d 915, 917 (E.D.N.Y. 1999); see Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir.), cert. denied, 525 U.S. 907 (1998) (noting district court's discretion to decline to consider additional evidence on review of report and recommendation).
In this case, the Court would decline to consider plaintiff's material even if it were in appropriate form. Plaintiff had every opportunity to submit this material to Judge Eaton but made a deliberate decision not to do so. His ostensible reason for declining to respond to the motion — his lack of legal knowledge — is just as applicable now as it was then, so his submission of the material now demonstrates that it just as easily could have been submitted before. There is simply no legitimate reason why plaintiff should be allowed to bypass the Magistrate Judge in this fashion where he so clearly was on notice of what was required of him and of the risks of failing to respond below.
Accordingly, the motion for summary judgment dismissing the complaint is granted, substantially for the reasons stated by Magistrate Judge Eaton, as supplemented by this order.
SO ORDERED.