Case No. 02-42560(PCB).United States Bankruptcy Court, S.D. New York.
August 26, 2008
MINTZ GOLD LLP, Attorneys for the Debtors, New York, New York, 10016, By: Jefferey D. Pollack, Esq.
REGINA L. DARBY, ESQ., Attorney for Patricia Brown, New York, New York 10013, By: Regina L. Darby, Esq., Stephen D. Perlmutter, Esq.
With copy to: OFFICE OF THE UNITED STATES TRUSTEE, Attorneys for the United States Trustee, New York, New York 10004.
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MEMORANDUM DECISION GRANTING DEBTOR’S MOTION FOR SUMMARY JUDGMENT EXPUNGING CLAIM NO. 987 AND DENYING CLAIMANT’S MOTION FOR ADDITIONAL DISCOVERY
PRUDENCE BEATTY, Bankruptcy Judge
Amboy Bus Co. (the “Debtor”), one of the debtors (collectively the “Debtors”) in these consolidated Chapter 11 cases, objected to the allowance of the claim of Patricia Brown (“Brown”), Claim No. 987 (the “Claim”), and has moved for summary judgment disallowing the Claim. Brown has opposed the motion for summary judgment and has also moved for additional discovery. Based on the findings of fact and conclusions of law which follow, the Court grants the motion of the Debtor and denies Brown’s motion.
Statement of Facts[1]
Discussion
This is a contested matter to which Bankruptcy Rule (“B.R.”) 7056 applies. See B.R. 9014(c). B.R. 7056 incorporates Federal Rule of Civil Procedure (“F.R.C.P.”) 56, the summary judgment rule.
Two intertwined motions involving F.R.C.P. 56 have been made. The Debtor has moved under F.R.C.P. 56(c) for summary judgment in its favor. In addition to opposing the motion for summary judgment, Brown has made a motion under F.R.C.P. 56(f) seeking additional discovery prior to the consideration of the motion for summary judgment.
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F.R.C.P. 56(f) “provides a mechanism to delay [consideration of a motion for summary] judgment and obtain discovery.” Weeks v.N.Y. State Div. of Parole, 78 Fed.Appx. 764, 766 (2d Cir. 2003). F.R.C.P. § 56(f) provides that:
“If a party opposing the [summary judgment] motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order.”
To successfully use a F.R.C.P. 56(f) motion to oppose a motion for summary judgment, a party must “submit an affidavit explaining, among other things, what facts are sought and how they are to be obtained; *** what efforts the affiant has made to obtain those facts; and why those efforts were unsuccessful.”Williams, 199 F.Supp.2d at 179 (quoting National Union Fire Ins.Co. of Pittsburgh v. Stroh Cos., 265 F.3d 97, 117 (2d Cir. 2001)). Notwithstanding the fact that the party has submitted sufficient affidavits, the court may deny additional discovery “if it deems the request to be based on speculation as to what potentially could be discovered.” Williams, 199 F.Supp.2d at 179
(quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994).
Brown’s affidavit which accompanied her F.R.C.P. 56(f) motio, is replete with discovery requests that are speculative, strained and tenuous at best. Brown requests “additional deponents, who are witnesses to the prejudicial events and discriminatory treatment that Plaintiff complains of.” Brown Aff. ¶ 6. However, nowhere does Brown tell the Court who those additional witnesses are even those who were in Brown’s presence or that Brown knew were present. Moreover, Brown asks to depose “employees who are similarly situated in the work place” as Brown. Brown Aff. ¶ 9. Yet Brown, who has personal knowledge of the facts, fails to
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identify any employee who repeatedly came late to work, was absent, left early or was insubordinate who was not subject to disciplinary action. No similarly situated employee has been identified.
Additionally, even if Brown had directed this Court to specific persons from whom she needed discovery, she has not advised the Court on how that discovery would reasonably create a genuine issue of fact. All her affidavit states is that she “anticipates that discovery will lead to facts establishing a hostile work environment*** [that] shows disparate treatment.” Brown Aff. ¶ 13. This statement falls short of the specificity required to fulfill her burden under the statute, especially since her Federal Claim was one for discrimination based on race and sex and not one based on a hostile work environment.
Brown’s affidavit states that she has not “received any responses to our discovery and deposition requests.” Brown Aff. ¶ 4. Although Brown has not taken any depositions, she has acknowledged receipt of substantial documentary discovery. Brown Aff. ¶ 5. Brown has submitted the deposition subpoenas from the Federal Case, but she has never asked this Court to compel the deposition of Butera or anyone else. Brown alleges that she was not allowed to conduct discovery in the Federal Case as a result of the automatic stay following the filing of this chapter 11 case. However. Brown has not shown that she attempted to continue her discovery efforts after the Chapter 11 filings. Even before the objection to her claim was made Brown could have sought to take examinations of the Debtor’s employees or others under Bankruptcy Rule 2004. See, e.g., In re Johns-Manville Corp. etal., 42 B.R. 62 (Bankr. S.D.N.Y. 1984) (pursuant to B.R. 2004 “examinations of witnesses having knowledge of the debtor’s conduct is proper and
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the inquiry may cut a broad swath through the debtor’s affairs, those associated with him and those who might have had business dealings with him”).
Following the Debtor’s objection to her claim, Brown could also have availed herself of the explicit discovery opportunities provided under B.R. 9014(c) but did not do so. For example, under B.R. 7030, which incorporates F.R.C.P. 30, Brown could have noticed and taken depositions of co-workers or others. In the two years following the objection to her Claim she made no effort to take any discovery by deposition, interrogatory or otherwise even though she was well aware from the pre-petition history of discovery in the Federal Case that the Debtor aggressively opposed her Claim. It was not until Brown was faced with the Debtor’s motion for summary judgment that she attempted to stall the adjudication of her Claim by requesting discovery.
Given Brown’s failure to articulate who she seeks to depose, apart from Butera, and how the depositions of the unnamed persons or the documents will assist her in proving her case, she has not justified her need for discovery. See Byerly v. Ithaca College, 113 Fed.Appx. 418, 420 (2004) (F.R.C.P. § 56(f) request denied because plaintiff failed to identify what documents or depositions she wanted if given the opportunity to continue discovery). Additionally, Brown has failed to offer any explanation for her delay in trying to take discovery in the bankruptcy court.[19] Therefore, this Court will proceed to consider the merits of the Debtor’s motion for summary judgment.
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It is appropriate to grant a motion for summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” F.R.C.P. 56(c); see also Celotex Corp. v.Catrett, 477 U.S. 317 (1986). The Court’s function is to review the record taken as a whole to determine whether there exists any genuine issue of a material fact to be tried, and not to resolve any factual disputes.[20] Matsushita Elec. Indus. Co. v. ZenithRadio Corp., 475 U.S. 574, 587 (1986); see also Elliott v.British Tourist Authority, 172 F.Supp.2d 395, 398 (S.D.N.Y. 2001). The Court must view all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The evidence favoring the non-moving party must be more than merely colorable,Anderson, at 249, and a summary judgment motion will not be defeated merely on the basis of conjecture or surmise. Bryant v.Maffucci, 923 F.2d 979, 982 (2d. Cir. 1991), cert. denied, 502 U.S. 849 (1991). If Brown “has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof” then the Debtor is entitled to a judgment as a matter of law. Celotex, at 323; see also Elliott, 172 F.Supp.2d at 398 (plaintiff’s pleading was insufficient to prove her prima facie case because it was filled solely with vague facts).
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Brown’s claim is one for racial[21] and sexual discrimination under the Civil Rights Act of 1964, Title VII (“Title VII”). Title VII states that “it shall be an unlawful employment practice for an employer *** to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color*** [or] sex.”42 U.S.C. § 2000e-2(a)(1). “An unlawful employment practice is established when the complaining party demonstrates that race, color *** [or] sex *** was a motivating factor for any employment practice, even though other factors also motivated the practice.”42 U.S.C. § 2000e-2(m); see also, Holocomb, at 137-138 (“an employment decision then, violates Title VII when it is `based in whole or in part on discrimination'”) (citing Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (quoting Stern v. Trs. of ColumbiaUniv., 131 F.3d 305, 312 (2d Cir. 1997))).
At the summary judgment stage in a Title VII case, the Court’s role is to determine “whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive.” Chambers v. TRMCopy Centers Corp., 43 F.3d 29, 38 (2d Cir. 1994). However, it is not for this Court to resolve questions of fact in its quest to determine whether a fact finder could infer discrimination.Elliott, 172 F.Supp.2d at 399. The inquiry into motive is premised on the fact that there “will seldom be `eyewitness’ testimony as to the employer’s mental processes.” U.S. PostalService Bd. Of Governors v. Aikens, 460 U.S. 711, 716 (1983); see also Holcomb, 521 F.2d at 137 (“Where an employer has acted with discriminatory intent, direct evidence of that intent will
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only rarely be available, so that `affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination”) (citing Gallo, 22 F.3d at 1224).
The Second Circuit has expressed reluctance to grant summary judgment to an employer where there is an issue as to the employer’s intent. Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008) (citing Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)); see also Graham v. Long Island R.R., 230 F.3d 34 (2000). However, the Second Circuit has found summary judgment appropriate when the non-moving party only puts forth conclusory allegations unsubstantiated by fact. See Holocomb, 521 F.2d at 137; see also Schwapp v. Town of Avon, 118 F.3d 106, 110
(2d Cir. 1997).
A court faced with a summary judgment motion in a discrimination case based on circumstantial evidence must analyze the existence, or lack thereof, of a genuine issue of material fact under the McDonnell Douglas Corp. v. Green framework. 411 U.S. 792 (1973).[22] The McDonnell Douglas framework is a three-step burden-shifting analysis. In the first step the claimant must establish a prima facie case of discrimination. Id.
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If the claimant can sustain this burden it creates a presumption of discrimination and the burden of production then shifts to the employer to establish that the employment action was based on a “legitimate, clear, specific and non-discriminatory reason.” Quaratino v. Tiffany Co., 71 F.3d 58, 64 (2d Cir. 1995). The employer’s burden is one of production, not persuasion and cannot involve an assessment of credibility. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000). The Court’s role at this stage is to ask whether the employer “has introduced evidence that, `taken as true, would permit the conclusion that there was a non-discriminatory reason’.” Holcomb, 521 F.3d at 141 (quotingSt. Mary’s, 509 U.S. at 113); see also Rajcoomar and Smith v. TJXCompanies, Inc., 319 F.Supp.2d 430, 437 (S.D.N.Y. 2004) (employer must proffer both a legitimate and non-discriminatory reason). If the employer carries this burden it serves as a rebuttal to the presumption of discrimination. Texas Dep’t of Community Affairsv. Burdine, 450 U.S. 248, 253 (1981).
Once the employer meets this burden, it is entitled to summary judgment unless the claimant can point to evidence that supports a finding of discrimination. Pesok v. Hebrew Union College-JewishInstitute of Religion, 235 F.Supp.2d 281, 286 (S.D.N.Y. 2002). The claimant then has the “full and fair opportunity to demonstrate” by a preponderance of the evidence that the employer’s “legitimate” reason was simply a pretext for discrimination. Id. at 256; see also Williams v. R.H. DonnelleyInc., 199 F.Supp.2d 172, 176 (2002). In establishing pretext, the Court may still consider the evidence that the employee presented in establishing her prima facie case.[23] Reeves, 530 U.S. at 143.
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As the claimant, Brown maintains the burden to establish her prima facie case under the McDonnell Douglas framework. Brown must show that (1) she is a member of a protected class; (2) was qualified for her position and was performing her duties satisfactorily; (3) she suffered an adverse employment action; and (4) the employment action occurred under circumstances giving rise to an inference of discriminatory intent. See McDonnellDouglas, 411 U.S. at 802; see also Holcomb, 521 F.3d at 138
(citing Feingold, 366 F.3d at 152). While this last burden is de minimis, a “plaintiff must proffer some admissible evidence of circumstances that would be sufficient to permit an inference of discriminatory motive.” Bennett v. Watson Wyatt Co., 136 F.Supp.2d 236, 246 (S.D.N.Y. 2001).
It is presumed that Brown fulfilled her burden for the first and third elements of her prima facie case because she is an African-American female and termination is an adverse employment action. Reeves, 530 U.S. at 141. However, in order for Brown to create a presumption of discrimination, she must also fulfill her burden with regard to the second and fourth elements as well.
In this case there can be little question that Brown was facially qualified to be a driver because she already held the job and she had the required licenses. However, the court must take the analysis one step further to see whether she has offered evidence that she was satisfactorily doing her job. Thornley v.Penton Publ’g, Inc., 104 F.3d 26, 30 (2d Cir. 1997) (“plaintiff complaining of discriminatory discharge shows `qualification’ by demonstrating satisfactory job
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performance in accordance with the particular employer’s criteria for satisfactory job performance”).
It is Brown’s burden to produce evidence, read in the light most favorable to her, that shows she was performing her job satisfactorily. Brown’s pleadings and briefs baldly state that she was doing her job satisfactorily. She asserts that because she “had a clean safety record, never abused or injured a child, and passed every written and road test given to her” that she must have had satisfactory job performance. Brown’s Opposition to the Motion for Summary Judgment, p. 5. However, Brown’s understanding of what constitutes satisfactorily doing her job is misguided. She has obviously overlooked that among the basic requirements of her job were that she arrive at her job site at the appointed time and that she treat her superiors with respect. See Elliott, 172 F.Supp.2d at 400 (plaintiff was unable to state a prima facie case where he offered only his own affidavit comprised of mere conclusory statements).
The fact is that Brown admits to most, if not all, of the Debtors’s evidence of her unsatisfactory work in regards to tardiness and insubordination. Brown does not deny receiving all of the written warnings against her or that she was the subject of multiple disciplinary hearings. See C/SMF ¶ 9-22. These admissions show that she was tardy, absent and insubordinate, none of which indicate satisfactory job performance. Bennett v.Watson Wyatt Co., 136 F.Supp.2d 236, 246 (S.D.N.Y. 2001) (quoting Bennett v. Morgan Stanley Co., Inc., 1999 WL 165713, at *4 (S.D.N.Y. 1999) (plaintiff’s continuous lateness rendered him unqualified for the position because he did not satisfy his employer’s job performance expectations)). These disciplinary actions resulted in Brown’s termination. Statement of Facts ¶¶ 16-28.
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In order to prove the fourth element of her prima facie case, an inference of discrimination, Brown must show she was treated differently than others who were similarly situated at the Debtor’s facilities. Elliot, 172 F.Supp.2d at 401 (“Circumstances from which invidious discrimination may be inferred include preferential treatment given to employees outside the protected class”) (quoting Howley v. Town of Stratford, 217 F.3d 141, 150
(2d Cir. 2000). Brown alleges that she was the subject of these disciplinary actions solely because she was an African-American female.
While the question of whether an employee is similarly situated to the claimant is usually a question of fact for the jury,Graham, 230 F.3d at 39 (citing Taylor v. Brentwood Union FreeSch. Dist., 143 F.3d 679, 684 (2d Cir. 1998), the Second Circuit has articulated a similarly situated standard to be used during the summary judgment phase of a Title VII case. Shumway v. UnitedParcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). Under the Second Circuit’s analysis in Shumway, a claimant must show that an employee outside of her protected class was engaged in similar conduct but received a different punishment or result. Shumway, 118 F.3d at 63 (former female employee unable to show an inference of discrimination because she could not establish that “a man similarly situated was treated differently”); Norville v.Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (non-white employee did not establish prima facie case because she failed to show that white nurses were similarly situated).
The claimant must state specifically who was similarly situated and what the different treatment was in order to raise a genuine issue of material fact. Union Ins. Soc’y of Canton, Ltd. v.William Gluckin Co., 353 F.2d 946, 952 (2d Cir. 1965). Conclusory allegations regarding similar situated employees will not suffice. Id. (“numerous male supervisory employees” was
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not specific enough to fulfil claimant’s burden (emphasis added)); see also Bennett v. Watson Wyatt Co., 136 F.Supp.2d 236, 244 (S.D.N.Y. 2001) (quoting Bickerstaff v. Vasser Colll, 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”).
Brown cannot defeat summary judgment because she has failed to show specific facts that would allow a reasonable fact finder to infer racial or gender discrimination led to her termination.Elliott, 172 F.Supp.2d at 403[24] (summary judgment granted for defendant where plaintiff’s affidavit “fails to include a detail so basic as the identity of the alleged younger female replacement worker, and is replete with legal conclusions. In these circumstances, plaintiff’s affidavit provides no more support for his claim than does his pleading.”); but see Danzerv. Norden Sys., 151 F.3d 50, 57 (2d Cir. 1998) (summary judgment denied where plaintiff’s affidavit was “detailed” and “in-depth”). Brown fails to identify by name any drivers who were white females or African-American men that were allegedly treated preferentially to her. Statement of Facts ¶¶ 31, 35. The only employee that Brown does mention by name is Ayad, a white male, who was more senior than Brown, but she fails to identify what privileges he was given. Statement of Facts ¶ 34. Brown opted to assert only a conclusory statement of discriminatory treatment unsubstantiated by any specific facts with respect to all other employees.
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The various incidents she has identified are insufficient proof of sex or race discrimination. For example, a policy that applies to all drivers cannot be discriminatory as it applies to all of them in the same manner. Therefore, not allowing Brown, a driver, to use a restroom reserved for office staff is not prohibited discrimination, but, rather, is an established office policy. Statement of Facts ¶ 35. Likewise requiring her to remain in the waiting area assigned to all drivers when not working is not such discrimination. Statement of Facts ¶ 19; see supra, fn 11.
Other events she describes do not reflect race or sex discrimination, although they may be indicative of bad manners on the part of one or more of the Debtor’s employees. For example, denial of her request to leave early in connection with the death of her uncle, an action she variously describes as a need to plan the funeral or to attend the funeral, may reflect no more than the employer’s view that her manner of or timing in making the request was inappropriate.. See Statement of Facts ¶ 26.[25] The CBA does not grant leave to drivers for family members such as uncles and nephews. CBA § XIX. While the union contract may not account for all familial situations, it applies to all union employees equally, irrespective of their race or sex.
Additionally, Brown has not alleged any facts showing that her fifth written warning stemming from a “no call no show” due to an illness on her way to work was in any way due to racial or gender discrimination. See Statement of Facts ¶ 25. Her supervisor may very well have been unsympathetic in writing up Brown but a trier of fact cannot impute its own business judgment onto the Debtor. The Debtor’s policy was that if you do not show up to work at the
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scheduled time and you have not called in to report that you would be absent, you receive a “no call no show” warning. See supra, fn. 15. Brown does not allege that she called an hour before her scheduled start time as is required by company policy.
Brown appears to believe the her statements about name-calling establish a prima facie case of racial or gender discrimination. However, she is in error for several reasons. There is a total lack of specificity about the time and circumstances of use of the N-Word, something that was within her own personal knowledge. With respect to the use of the word Sunshine, Brown herself failed to identify it as a term of opprobrium when used by Ingoglia and Salerno prior to her deposition. Moreover, she identified the few occasions on which it was used by them as times when she asked about her overtime pay. While one of the meanings of the word is someone who has a happy disposition[26] , in the circumstances described it appears that it was being used ironically to indicate that Brown was being a complainer.[27] Only at her deposition, after being asked by the Debtor’s counsel what she took the word to mean, did Brown decide that the word sunshine must be derogatory by the very fact that counsel posed the question to her. If Brown did not feel the term Sunshine offensive originally, she is unable to backtrack now and state that the use of Sunshine was evidence of discrimination. Cf.Andrews v. Metro North Commuter R. Co., 882 F.2d 705, 707 (2d Cir. 1989) (“A party *** cannot advance one version of the facts in [his] pleadings, conclude that [his] interests would be better served by a different version, and amend [his] pleadings to incorporate that version, safe in the belief that the trier of
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fact will never learn of the change of stories.” (quoting U.S.v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984). In any event, the word on its face is not discriminatory with respect to race or sex, being concerned solely with disposition and the stated circumstances of its use do not evidence racial or sex bias.
In support of her race discrimination case, the only evidence Brown puts forth is her statement that Sylvia used the N-word. She provides no context in which Sylvia used the word. Indeed at her pre-chapter 11 deposition, Brown was equivocal about whether she knew the word or whether it had a negative meaning.[28]
Statement of Facts ¶ 33 (Brown stated “[the N-word] does not relate to black people or people of color”). Brown’s attempt to explain her deposition testimony by stating that she was unrepresented by counsel at that time is unpersuasive, particularly since she was the plaintiff in the action and bore the burden of proof.[29]
Moreover, Brown fails to put forth any evidence showing that Sylvia’s stray use of the N-word amounts to an inference of discrimination in the decision making process, particularly since nowhere is it alleged that Sylvia was a decision maker with respect to Brown’s termination as opposed to someone with personal knowledge of certain of the incidents. Abdu-Brisson v.Delta
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Airlines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (“stray remarks of a decision-maker, without more, cannot prove a claim of employment discrimination”); Adams v. Master Carvers ofJamestown, Ltd., et. al, 91 Fed. Appx. 718, 723 (2d Cir. 2004) (“In order for remarks to be deemed significant the plaintiff must show their nexus to the adverse employment decision”) (quoting Abdu-Brisson, 239 F.3d at 468).
The evidentiary failures described above regard information that is within Brown’s personal knowledge and it was her burden to present the Court with this information. Brown’s burden of establishing a prima facie case of race or sex discrimination is not an unduly onerous one. This Court finds that Brown has not met her burden. Even after a careful scrutiny of Brown’s affidavit and deposition, there is no proof that, if believed, would establish race or sex discrimination.
Moreover, the Debtor has established a legitimate and non-discriminatory reason for terminating Brown as it presented a multitude of facts, including written warnings and hearing documentation establishing insubordination and lateness, that constitute a legitimate and non-discriminatory reason for terminating Brown. Since Brown bears the burden of proving pretext, and she is unable to even establish a prima facie case of discrimination, it would be impossible for her to establish that the legitimate reasons put forth by the Debtor were pretextual. See R.H. Donnelley Inc., 199 F.Supp.2d at 176
(employee bears the burden of proving the employer’s legitimate reason was merely a pretext for discrimination).
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Conclusion
The Court grants the Debtor’s motion for summary judgment. The Court denies Brown’s motion.
Settle Appropriate Order.
Cir. 1991) (“[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury***”)). There is no indication that Brown did not understand the “significant legal consequences” surrounding the questions that were asked at her deposition. Root v. Watkins, 2008 WL 793513, at *2 (D.Colo, Mar. 19, 2008). Furthermore, the Court is unaware of any authority that enables a litigant to withdraw comprehensible sworn testimony simply because she later retains counsel. Id.