United States District Court, E.D. Louisiana
ORDER AND REASONS
SALLY SHUSHAN, Magistrate Judge.
Defendants, Wal-Mart Stores, Inc. ("Wal-Mart") and Mike Nowell ("Nowell"), filed a motion for summary judgment.
Janice Bennett ("Bennett"), plaintiff, was hired by Sam's Club in March 2000. She transferred to Wal-Mart as an assistant Manager at a store in Kenner, Louisiana, in June 2005. She transferred to a store in Metairie in June 2009. In October 2009, she transferred to a store in LaPlace. Prior to her transfer to LaPlace, she accepted a pay reduction because she moved from a "metro" store to a "non-metro" store, which had a lower pay scale."
On September 27, 2010, Bennett completed a charge of discrimination for the EEOC. Rec. doc. 18 (Exhibit P). The letter "x" appears in the retaliation and disability boxes. No other basis for discrimination is indicated. The charge states that discrimination began April 1, 2010 (about six months after the transfer to LaPlace) with the latest act on September 2, 2010.
On November 8, 2010, Bennett began a leave of absence for follow-up surgery to address complications from surgery performed in 2008. On July 10, 2013, the EEOC issued a notice of right to sue. Rec. doc. 18 (Exhibit R). In November 2013, Bennett resigned from Wal-Mart. She was on leave from November 8, 2010 through her resignation three years later.
On October 8, 2013, Bennett filed a petition in state court against Wal-Mart and Nowell. She alleged that: (1) she is black; (2) she was subjected to and witnessed a racially hostile work environment in which (a) she was moved from store to store; and (b) she was not allowed to use vacation days and sick days; (3) Wal-Mart regularly used racial slurs, insults and innuendo toward its mostly black work force; (4) defendants failed to accommodate reasonable work restrictions in violation of the ADA; (5) defendants harassed her because she refused to discipline subordinates for unjust reasons; (6) defendants threatened her job when she asked for vacation and sick leave for medical conditions caused by the hostile work environment; (7) defendants racially harassed and discriminated against her when she complained of unreasonable management practices and failure to follow company procedures; (8) defendants singled out black persons for harassment and abuse more than persons of other ethnic backgrounds; (9) she suffered discrimination on account of her race, sex and national origin; (10) the harassment started at the time of her employment and continued until she took a leave of absence for medical conditions arising from her employment; (11) she suffered intentional infliction of emotional distress; (12) on September 27, 2010, she filed a complaint with the EEOC; and (13) she received a right to sue letter from the EEOC. Rec. doc. 1 (Attachment).
Bennett alleges claims under: (1) Title VII, 42 U.S.C. § 1981 and 42 U.S.C. § 2000e; (2) Americans with Disabilities, 42 U.S.C. 12101 et seq.; (3) La. R.S. 23:302 et seq.; and (4) La. R.S. 23:332(A)(1). She seeks attorneys' fees and punitive damages. She contends that her claims are continuing and relate back to the earliest date of discrimination. Rec. doc. 1 (Attachment).
On November 7, 2013, defendants removed the petition to federal court. Rec. doc. 1. The parties consented to proceed before the assigned Magistrate Judge. Rec. doc. 9. The pretrial conference is set for April 7, 2015. A bench trial is set for April 21, 2015. Rec. doc. 11.
On January 27, 2015, defendants filed their motion for summary judgment and noticed it for February 11, 2015. Rec. doc. 18. Bennett's opposition was due on February 3, 2015. On that day, she filed a motion for extension. Rec. doc. 19. The motion for summary judgment was reset for February 25, 2015. Bennett's opposition was due on February 18, 2015. Rec. doc. 21.
On February 18, 2015, Bennett filed an opposition including a statement of eight undisputed facts. Rec. doc. 22 at 1-2. The Clerk marked the opposition as deficient for failure to comply with L.R. 56.2. On February 20, 2015, Bennett filed a revised opposition and the Court issued an order regarding compliance with L.R. 56.2 Rec. docs. 23 and 24.
Bennett's revised opposition is identical to the February 18, 2015 opposition except that there is a separate "Statement of Undisputed Facts." These are the same undisputed facts found at pages 1 and 2 of her original opposition. Rec. docs. 22 and 23. Pursuant to the February 20, 2015 order, Bennett was given until February 26, 2015 to file a statement that complied fully with Local Rule 56.2.
Any opposition to a motion for summary judgment must include a separate and concise statement of the material facts which the opponent contends present a genuine issue. All material facts in the moving party's statement will be deemed admitted, for purposes of the motion, unless controverted in the opponent's statement.
Id. (emphasis added).
Bennett did not comply with the Court's order of February 20, 2015 and file, in conformity with Local Rule 56.2, a statement of the material facts which she contends present a genuine issue. Defendants' statement of undisputed material facts (Rec. doc. 18 [Attachment]) is deemed admitted.
Defendants filed a reply on February 27, 2015. Rec. doc. 25. The motion for summary judgment was submitted on briefs and without oral argument on March 2, 2015.
FED R. CIV. P. 56(d)
Discovery in this case is not complete. Plaintiff desires to take the deposition of Wal-Mart representatives regarding Michael Nowell's employment and Wal-Mart policies regarding race, sex and ADA discrimination protocols and procedures.
Rec. doc. 22 at 1. Bennett reports that she contacted defendants to depose two representatives of Wal-Mart. She only reports the depositions "have yet to be scheduled." Rec. doc. 22 at 4.
Defendants filed their answer on November 26, 2013. Rec. doc. 8. The May 22, 2014 scheduling order set the discovery deadline for February 6, 2015. Rec. doc. 11. Defendants filed their motion for summary judgment on February 4, 2015 within the deadline for filing such motions. Id . Bennett has not demonstrated any basis for concluding that she was not afforded sufficient opportunity to obtain discovery from Wal-Mart.
Once a motion for summary judgment is filed, the non-moving party (Bennett) must show that a genuine and material factual dispute exists to defeat summary judgment.
If the non-moving party is still conducting valuable discovery or for some other reason is not yet ready or able to make that showing, the party may file an affidavit... explaining why a ruling on summary judgment should be postponed.
Baicker-McKee, Janssen and Corr, Federal Civil Rules Handbook, Rule 56(d) at 1118 (2011). Generally, the non-moving party must present: (1) a description of the discovery sought; (2) an explanation for how the discovery will preclude the entry of summary judgment; and (3) a statement justifying why it was not or could not have been obtained earlier. Id . Even if Bennett is given the benefit of the doubt on the third requirement, she has not provided a description of the discovery sought or an explanation of how it will preclude summary judgment.
Bennett's request for a delay in the resolution of defendants' motion for ...