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CLARK v. SEARS

July 26, 1993

THEODORE CLARK
v.
SEARS, ROEBUCK AND CO.



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 July 26, 1993

 This action is once more before the Court upon motion of the defendant, Sears, Roebuck and Company for the entry of summary judgment in its favor. For the reasons which follow, the motion shall be granted and judgment in no amount entered in favor of the defendant.

 I. HISTORY OF THE CASE.

 According to the parties' pleadings, stipulation of uncontested facts and the evidence now produced of record, this case arose in or about December, 1989, when the plaintiff, Theodore Clark, a black individual, was informed by Sears Store Manager Al Dubeck that he was being reassigned from his position as Receiving Supervisor at the defendant's South Philadelphia store and would thereafter be responsible only for overseeing the maintenance functions at the store. Since September, 1987, Mr. Clark had been responsible for the supervision of both the maintenance and the receiving operations at that store and, at the time of the reassignment, had been at a job grade 11 earning $ 10.65 per hour. As a result of the reassignment, Plaintiff received a wage increase to $ 11.32 per hour and the responsibility for overseeing the receiving function was reassigned to the former Auto Shop Supervisor, Anthony Barile, a white employee. Prior to the January, 1990 realignment, Mr. Barile had been earning $ 13.42 per hour; upon the assumption of his new duties, his wage rate was increased to $ 14.15 per hour. In April, 1990, Mr. Clark was injured while performing a maintenance function at the South Philadelphia store and has been unable to work since that time. In accordance with Sears' disability policies, plaintiff's ongoing inability to return to work resulted in his official termination on September 3, 1991. Anthony Barile remained with Sears until he was laid off in March, 1991. He was never recalled to work and in March, 1993, the Oregon Avenue store closed permanently.

 I. DISCUSSION.

 1. Standards Governing Disposition of Summary Judgment Motions under the Federal Rules of Civil Procedure.

 Under Fed.R.Civ.P. 56(c), summary judgment is appropriately entered in favor of a moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pursuant to this rule, the district courts must look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their consideration at trial. Liberty Lobby, Inc. v. Dow Jones & Co., 267 U.S. App. D.C. 337, 838 F.2d 1287 (D.C.Cir. 1988), cert. denied, 488 U.S. 825, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988).

 Generally, the party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and of identifying those portions of the pleadings, depositions, interrogatory answers, admissions and any affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In ruling upon a summary judgment motion, the court must assume the truth of the nonmovant's evidence, and draw all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Lockley v. Chao, 812 F. Supp. 246, 248-249 (D.D.C. 1993).

 This is not to say, however, that a non-moving party may rest upon the allegations contained in his or her pleadings in defense of a summary judgment motion. To be sure, Fed.R.Civ.P. 56(e) provides, in pertinent part:

 
"When a motion for summary judgment is made and supported as provided for in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."

 Thus, while the burden of demonstrating the absence of genuine issues of material fact is initially on the moving party, once such a showing has been made the non-movant must present evidence through affidavits, depositions or admissions on file which comprise of a showing sufficient to establish the existence of every element essential to that party's case. See: Celotex v. Catrett, supra, 106 S. Ct. at 2552-2553 ; Keyes v. National Railroad Passenger Corp., 756 F. ...


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