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January 5, 2011
BARBARA HAMILTON,PLAINTIFF,v.MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
Plaintiff Barbara Hamilton, proceeding in forma pauperis, by her attorney, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI"), pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following a review of the complete record, this Court concludes that the Commissioner's decision was supported by substantial evidence.
I. Administrative Record
A. Procedural History
On September 5, 2006, Plaintiff applied for SSI benefits, alleging disability beginning October 1, 2001. AR 11. Her claims were initially denied on March 27, 2007, and upon reconsideration, on July 9, 2007. AR 11. On September 4, 2007, Plaintiff filed a timely request for a hearing. AR 11. Plaintiff appeared and testified at the hearing on November 14, 2008. AR 18-36. On March 23, 2009, Administrative Law Judge Christopher Larsen ("ALJ") determined that Plaintiff was not disabled as defined by the Act. AR 11-17. The Appeals Council denied review on June 24, 2009. AR 3-5. On August 12, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).
B. Agency Record
Plaintiff's testimony (AR 21-37). Plaintiff (born October 16, 1955)
lived with her husband in a mobile home in Sanger, California. She had
experienced chronic back pain since a car accident in 1997. The pain
and numbness in her back and legs had increased since an earlier
disability hearing in June 2006. Plaintiff's physician, Dr. Ong
prescribed Darvocet*fn2 and Neurontin*fn3
but Plaintiff took only Darvocet because she could not afford
Because of pains shooting down her legs and numbness in her back, she had begun to limit her driving, traveling out of the mountains ( twenty-mile trip) to shop only twice a month, instead of the once or twice weekly shopping trip that she used to make. Plaintiff could not walk as far as she used to. She was no longer able to do laundry (apparently at a laundromat) because the associated walking, bending, and lifting caused "so much pain I have to sit down." She was able to sit for fifteen to thirty minutes and to stand for ten minutes. She could walk no more than fifty or sixty steps at a time. She rested four or five hours a day.
Plaintiff was able to sweep, to cook, and to do dishes. She shopped for groceries with her husband's assistance. She was able to bathe and dress herself, but needed to sit down to rest after taking a shower.
Plaintiff left school after the tenth grade. She worked briefly at Hancock Fabrics in 1989. She did not work again until she cleaned house and drove for her sister for a month or a month and a half in 2001. Plaintiff quit that job, finding it to be too hard on her back.
Because she could not bend or stand for very long, Plaintiff was certain she could not work eight hours a day, five days a week. Walking was painful and required something for Plaintiff to hold on to. Perhaps as a result of aging or taking pain pills, Plaintiff was unable to concentrate a long time. Plaintiff estimated her constant back pain as four on a one-to-ten scale (one being least amount of pain, and ten requiring a trip to the emergency room). Plaintiff had treated her back with heat, cold, Darvocet, and physical therapy, but nothing relieved her pain more than briefly. She also addressed her pain by changing position: sitting down if she was standing and experienced numbness or pain, and standing up if she became numb while sitting.
Medical records. On March 29, 2006, Plaintiff's physician (unidentified) at Primary Care Consultants, Inc., prescribed physical therapy twice a week for four weeks. AR 165. The agency record includes records of physical therapy at Function & Action Physical Therapy, Inc., from March 7, 2006 through January 24, 2007. AR 166-183. The initial report noted intermittent lower back pain, rated nine of a one-to-ten scale, for the past two and a half months. The therapist observed reduced flexibility of "glutes, hamstrings, poriformis, grads, and hip flexors," reduced range of motion, muscle guarding, and tenderness of the sacroiliac joint upon palpation. Therapy was intended to improve range of movement, flexibility, and pain management. Plaintiff's occupation was noted as "consultant," requiring driving and desk work. AR 173. Her activities included walking and "animals on her ranch." AR 173.
On April 7, 2006, the therapist noted that Plaintiff's left side was sore from working with [her] horse. By May 3, 2006, the therapist noted progress as evidenced by improved flexibility and decreased tenderness, although Plaintiff still guarded her muscles. Plaintiff still reported flare-ups of pain in times of stress. Notes dated November 15, and December 10, 2006, recorded that Plaintiff reported feeling better, with back pain rated two to three on a one-to -ten scale. From December 8, 2006 through January 2007, Plaintiff consistently reported feeling good. Flexibility was improved; tenderness and muscle guarding were reduced.
On October 12, 2006, Plaintiff saw Kevin J. Wingert, M.D., for lower back pain. AR 158-159. Plaintiff's symptoms included radiation of pain into leg, heaviness of legs when walking, and tingling but not numbness. Walking aggravated the pain; sitting improved it. The pain sometimes interfered with sleep. Plaintiff could only sit or stand for five to seven minutes before experiencing pain. Her blood pressure was elevated.
Wingert observed that Plaintiff was alert, oriented, and in no distress. She could walk on her heels and toes and do deep knee bends, as well as flex forward to eleven inches from the floor. Her spine, paralumbar, and pinformis areas were all tender. Straight-leg raise was negative.*fn4
Sensation and deep tendon reflexes were normal.
Wingert diagnosed low back pain, spinal stenosis, and possible developing hypertension. He recommended that Plaintff reduce her consumption of salt and stop smoking. He prescribed Neurontin and Darvocet.
On November 28, 2006, as a new Kaiser patient, Plaintiff saw Melchor Ong, M.D., complaining of lower back pain from which she had suffered for ten years. AR 188-193. Plaintiff told Ong that she had lower spine spondylosis and that she had discontinued various prescriptions because of their expense. She reported that she currently was taking no prescription drugs, and requested a refill of blood pressure medication for her husband, who was also a new patient but was unable to see the doctor.
Ong noted tenderness and pain with motion in Plaintiff's lower back. Ong prescribed refills of gabapentin and Darvocet as well as medications for hypertension and hyperlipidemia. X-rays revealed mild thoracic scoliosis and osteophytosis; lumbar-sacral x-rays showed sclerosis and osteophytosis, mild disc space narrowing at L4-5 with a degenerating disc, grade 1 spondylolisthesis at L5-S1, and spondylosis of L5. /// ///
Plaintiff again saw Ong on April 24, 2008, complaining of chronic low back pain. AR 213. She reported that her hip was stiff and painful after "walking for a while." She claimed to tolerate no opiates other than Darvocet and had discontinued gabapentin because of the expense.
Agency consultant's report. On March 11, 2007, Steven Stoltz, M.D., prepared a report as an agency consultant. AR 195-199. Straight-leg raising test was negative; there was no direct bony tenderness or obvious kyphoscoliosis.*fn5 All ranges of motion were within normal limits. Stoltz offered this opinion of Plaintiff's functional capacity:
The claimant's sole medical issue centers around her ongoing back pain. Her recent radiographic report from Kaiser referred to degenerative disk disease and a Grade 1 spondylolisthesis at L5 on S1.
The claimant could lift and carry 10 pounds occasionally and 5-9 pounds frequently. Sitting would be six hours in an eight hour work day with allowance for change in position every 30 minutes. Standing and/or walking would be at least two hours in an eight hour work day with allowance for a rest break every hour. The claimant does not require the use of an assistive device. She could only occasionally do activities such as stooping and crouching. No other environmental restrictions.
Agency RFC analysis. On March 16, 2007, agency medical consultant E.A. Fonte determined that Plaintiff could occasionally lift twenty pounds and frequently lift ten pounds; could stand or walk for six hours in an eight-hour day; could sit six hours in an eight-hour day; had unlimited ability to push or pull; and could occasionally climb, balance stoop, kneel, crouch, and crawl. AR 200-204.
Vocational expert testimony (AR 37-46). Vocational expert Judith Najarian testified regarding jobs available to hypothetical individuals with various disabilities. For the first hypothetical, the ALJ directed Najarian to assume a worker of Plaintiff's age, education, and work experience, capable of light physical exertion except that she needed to be allowed to sit or stand at will throughout the work day and that she could occasionally climb, balance, stoop, kneel, crouch, and crawl. Najarian noted that finding appropriate positions for such a person would be difficult since, although many light jobs allowed for sitting, few jobs allowed for sitting or standing at will, and many required more than occasional bending or stooping. For example, although a light delivery job allowed for sitting and standing, the sitting and standing was not at will but was dependent on the need to drive and deliver to specific destinations. Certain cashier positions, such as those in a gas station booth, were light positions that allowed the employee to sit or stand. Light positions for which numerous jobs were available included light delivery (20,823 jobs in California), light cashiering (28,486 in California after reduction to eliminate jobs without available seating), vending machine attendant (5,727 jobs in California).
For the second hypothetical worker, the ALJ directed Najarian to remove the need for sitting or standing at will, and consider an individual capable of light physical exertion who could occasionally climb, balance, stoop, kneel, crouch, and crawl. In that case, opined Najarian, 870,348 light unskilled positions were available in California after eliminating those that required frequent climbing, balancing, stooping, kneeling, crouching, and crawling.
The third hypothetical worker posited by the ALJ required at least one hour in unscheduled breaks in addition to the customary two breaks and lunch break. Najarian responded that no such jobs were available.
Plaintiff's attorney then directed Najarian to consider an individual the same age as Plaintiff who could lift and carry ten pounds occasionally, five to nine pounds frequently; could sit for a total of six hours with a change of position every thirty minutes; could stand or walk at least two hours in an eight-hour day with rest breaks every hour; did not require an assistive device; and could occasionally stoop or crouch. The attorney was unable to define the extent of the required hourly rest break. Najarian responded that, if the required hourly break was tantamount to a simple change of position, then the individual could perform positions at the sedentary level. No jobs would be available, however, if the hypothetical individual required longer hourly breaks.
II. Discussion
A. Legal Standards
To qualify for benefits, a claimant must establish that he or she is unable to engage in substantial gainful activity because of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months.
42 U.S.C. § 1382c (a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that he or she is not only unable to do his or her previous work, but cannot, considering age, education, and work experience, engage in any other substantial gainful work existing in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989).
To encourage uniformity in decision making, the Commissioner has promulgated regulations prescribing a five-step sequential process for evaluating an alleged disability. 20 C.F.R. §§ 404.1520 (a)-(f); 416.920 (a)-(f). The process requires consideration of the following questions:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.
Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995).
The ALJ found that Plaintiff had not engaged in substantial gainful activity since September 5, 2006. AR 13. Plaintiff's severe impairments were degenerative disc disease, hypertension, and hyperlipidemia. AR 13. Her impairment did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpt. P. Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). AR 13-14. Plaintiff had no past relevant work. AR 15. Although the ALJ found that Plaintiff's medically determined impairments could reasonably be expected to produce her alleged symptoms, he questioned the credibility of Plaintiff's testimony about their intensity, persistence and limitations. AR 14. Plaintiff had the residual functional capacity ("RFC") to lift and carry twenty pounds occasionally and ten pounds frequently; to sit, or to stand and walk, a total of six hours in an eight-hour workday. AR 14. Plaintiff required a position that would allow her to sit and stand at will, but would not require her to stand for more than half of the day. She could bend and stoop no more than half of the day.
B. Scope of Review
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, a court must determine whether substantial evidence supports the Commissioner's decision. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla" (Richardson v. Perales, 402 U.S. 389, 402 (1971)), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's decision. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. See, e.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the ALJ's determination that the claimant is not disabled if the ALJ applied the proper legal standards, and if the ALJ's findings are supported by substantial evidence. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007); Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987).
In reviewing the Commissioner's decision, the Court may not substitute its judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). The Court "must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal citation and quotation marks omitted).
C. Discussion
Arguing that Najarian consistently testified that, if Plaintiff required a position that permitted her to sit or stand at will, Plaintiff was limited to sedentary positions, Plaintiff contends that the ALJ's finding that she required a position that allowed her to sit and stand at will was inconsistent with his conclusion that she was capable of light work. The focus of her argument is that, if the "grids" (20 C.F.R. Pt. 404, Subpt. P., App. 2, § 201.09) are applied, given her age and limited education, she is presumed disabled if she is limited to sedentary work but not if she is able to perform light work (20 C.F.R. Pt. 404, Subpt. P., App. 2, § 202.10). The Commissioner disagrees with Plaintiff's characterization of the ALJ's decision, contending that the ALJ properly articulated his findings supporting his conclusion that Plaintiff was capable of light work subject to non-exertional limitations, including the option to sit or stand at will. Having reviewed the record as a whole, as well as the ALJ's decision, the Court finds no inconsistency in the ALJ's decision that would require reversal of the Commissioner's decision.
In subpart 4 of his decision, the ALJ determined Plaintiff's residual functional capacity: After careful consideration of the entire record, I find Mrs. Hamilton has the residual functional capacity to lift and carry 20 pounds occasionally, and 10 pounds frequently; and to sit, or stand and walk, a total of 6 hours in an 8 hour work day.
She must be allowed to sit and stand at will, although she will not need to stand more than half the day; and she can bend and stoop no more than half the day (20 C.F.R. 416.967(b)).
In his discussion of subpart 4, the ALJ discussed the evidence on which he relied in reaching his conclusion, but did not mention in any way Plaintiff's need to sit or stand at will. He separately analyzed the availability of jobs that Plaintiff could perform:
9. Ms. Hamilton's age, education, work experience, and residual functional capacity allow her to perform jobs that exist in significant numbers in the national economy (20 CFR 416.969 and 416.969a).
To decide if she can adjust successfully to other work, I must consider Ms. Hamilton's residual functional capacity, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. The Medical-Vocational Guidelines set forth a series of rules that may direct a finding of "disabled" or "not disabled," depending on the claimant's residual functional capacity and vocational profile (SSR 83-11). The Guidelines control when the claimant is capable of the full range of work at one of the regulatory levels of exertion, "sedentary," "light," "medium," and "heavy." Where the claimant is capable of some, but not substantially all, work at one of the regulatory levels of exertion, I must nevertheless refer to the Guidelines and use them as a framework for decision (SSR 85-15).
If Ms. Hamilton could perform the full range of light work, she would be "not disabled," as a matter of administrative law, under Medical-Vocational Rule 202.10. Because she cannot perform the full range of light work, I must decide whether she can nevertheless perform a significant number of jobs. To decide that question, I heard testimony from the vocational expert, Ms. Najarian. She testified a person of Ms. Hamilton's age, education, work experience, and residual functional capacity can perform any of about 20,823 California jobs in the category of light delivery, including, for example, DOT 230.663-010; any of about 28,486 California jobs in the category of cashier, including, for example, DOT 211.462-010; and any of about 28,486 California jobs in the category of cashier, including, for example, DOT 211.462-010; and any of about 5,727 California jobs in the category of vending machine attendant, including, for example, DOT 319.464-014.
In each case, according to Ms. Najarian, there are about 9 times as many jobs nationwide as in California alone.
Pursuant to SSR 00-4p, Ms. Najarian's testimony is consistent with the Dictionary of Occupational Titles.
Relying on Ms. Najarian's testimony, I conclude Ms. Hamilton, given her age, education, work experience, and residual functional capacity, can adjust successfully to other work that exists in significant numbers in the national economy. Under the framework of Medical-Vocational Rule 202.10, she is accordingly "not disabled."
Because Plaintiff's disability had additional non-exertional components, consisting of her need to sit and stand at will, and limitations on the frequency of bending and stooping, the grids could not appropriately be used alone to determine whether Plaintiff was disabled for purposes of the Act. S.S.R. 85-15 at *2 (1985). The ALJ appropriately secured the testimony of a vocational consultant to determine the effect of Plaintiff's non-exertional limitations on her capability to work. Id. at *3.
The ALJ's determination in subpart 9 is factually supported by Najarian's final response to the first hypothetical, which directed Najarian to assume a worker of Plaintiff's age, education, and work experience, capable of light physical exertion except that she needed to be allowed to sit or stand at will throughout the work day and that she could occasionally climb, balance, stoop, kneel, crouch, and crawl. Plaintiff is correct that Najarian repeatedly attempted to resolve the requirement that Plaintiff be allowed to sit and stand at will by reducing the exertion level to sedentary, since an individual performing sedentary jobs would have the ability to sit at any time. See AR 38-41. The ALJ, however, repeatedly, re-directed Najarian to his hypothetical, which addressed a person capable of light exertion. See AR 38-41. Ultimately, Najarian responded that light jobs that permitted sitting and standing at will were available, but that the total numbers of such positions had to be reduced from the numbers available to an individual capable of light work without a sit-stand option. AR 41-42. Thus, Najarian's testimony supported the ALJ's final determination. Contrary to Plaintiff's contention, the ALJ's finding that Plaintiff required positions that permitted her to sit and stand at will is not inconsistent with his finding that she was also capable of performing jobs requiring light exertion.
III. Conclusion and Order
Based on the foregoing, the Court finds that the ALJ applied appropriate legal standards and that substantial credible evidence supported the ALJ's determination that Plaintiff was not disabled. Accordingly, the Court hereby DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. The Clerk of Court is DIRECTED to enter judgment in favor of the Commissioner and against Plaintiff.
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Ancaster's Summer Mortimer grabbed a first place finish Friday night (July 20) at the 2012 Speedo CAN/AM Para-swimming Championships.
Mortimer touched first in the women's 100 free style in the S10 division. The Can Ams are the last racing opportunity for the 24 member-strong Paralympic Games swimming team heading to London to compete from Aug. 29-Sept. 9.
Canadian Paralympic team member Nathan Stein of Surrey, B.C., showed why he is one of Canada's top young stars in Para swimming on as he won all three races in his disability class
The 20-year-old Stein, who races in the S10 category, placed first in the 100 freestyle, 50 butterfly and 100 breaststroke. Other Canadian winners in the 100 freestyle included veteran Donovan Tildesley of Vancouver in S11, Devin Gotell of Antigonish, N.S., in S13 and Zack McAllister of Lethbridge, Alta., in S8.
Stein's closest race was in the 100 breaststroke in which he clocked 1:16.45, about a second ahead of Cody Bureau the U.S.
The Canadian women also had success in the 100 freestyle led by world record holder Valérie Grand'Maison of Montreal who clocked a solid 1:00.92 in the S13 class for visually impaired.
Other Canadian winners in the 100 free were Jana Murphy of Okotoks, Alta., in S14, Amber Thomas of Drayton Valley, Alta., in S11, Morgan Bird of Calgary in S8 and Sarah Mehain of Victoria in S7.
Mehain added a second gold in the 50 butterfly as did Kasko in the 100 breaststroke.


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February 28, 2006
JENNIFER BELLEGAR DE DUSSUAU, PLAINTIFF,v.BLOCKBUSTER, INC., DEFENDANT.
Plaintiff Jennifer Bellegar de Dussuau ("Plaintiff" or "Dussuau") brings this suit against Blockbuster Inc. ("Defendant" or "Blockbuster"), alleging that she was "constructively fired" from and harassed by Blockbuster because of her race, national origin and pregnancy in violation of federal and state civil rights laws. By Order dated March 23, 2005 (the "Order"), this Court denied Blockbuster's motion for summary judgment with respect to her claims of race and national origin discrimination. See Bellegar de Dussuau v. Blockbuster Inc., No. 03 Civ. 6614 (S.D.N.Y. Mar. 23, 2005). Defendant now moves for reconsideration of that Order pursuant to Fed. R. Civ. P. 59 and Local Civil Rule 6.3. For the reasons set forth below, Defendant's motion for reconsideration is denied.
Dussuau, a black woman from Haiti, was hired in August 1997 as a customer service representative for Blockbuster, a national chain of video rental stores. (Defendant's Statement of Facts Pursuant to Local Rule 56.1, dated June 22, 2004 ("Def. 56.1 Stmt.") ¶1; Plaintiff's Statement of Facts Pursuant to Local Rule 56.1, dated July 6, 2005 ("Pl. 56.1 Stmt.") ¶A.1.) She worked at a Blockbuster branch on Dyckman Avenue in the Bronx, New York (the "Dyckman store"), and reported to Miguel Del Villar ("Del Villar"), the store manager. From the time of her hiring to April 2001, Dussuau received six performance evaluations. (Pl. 56.1 Stmt. ¶ B.2.) On each evaluation, Plaintiff received an overall rating of "E", meaning "Exceeds Expectations." (Pl. 56.1 Stmt. ¶ B.2.) Plaintiff was twice promoted to assistant manager positions prior to April 2001. (Pl. 56.1 Stmt. ¶ B.1; Def. 56.1 Stmt. ¶ 3.)
On April 30, 2001, Dussuau replaced Del Villar as store manager of the Dyckman store. (Pl. 56.1 Stmt. ¶ B.5; see also Def. 56.1 Stmt. ¶ 6.) As store manager, Plaintiff's responsibilities included marketing, inventory management, customer service, loss prevention, payroll management and the hiring and training of store employees. (Def. 56.1 Stmt. ¶ 7; Pl. 56.1 Stmt. ¶ A.7.) Dussuau was supervised by district leader Yessenia Romero-Salas ("RomeroSalas"), a woman of Hispanic descent. Plaintiff has offered evidence that Romero-Salas initially opposed Plaintiff's promotion to store manager and proposed other employees for the position.*fn1
(Affidavit of Miguel A. Del Villar, dated June 18, 2004 ("Del Villar Aff.") ¶ 10.)
The Dyckman store failed its first internal audit under Dussuau's management. (Def. 56.1 Stmt. ¶ 9; Pl. 56.1 Stmt. ¶ A.9.) The store received an audit score of 53%, while other stores under Romero-Salas' supervision received scores of 25%, 25%, 29%, 44%, 47%, 61% and 67%. (Pl. 56.1 Stmt. ¶¶ B.24-25.) Following that audit, the Dyckman store's performance improved dramatically, receiving scores above 90% for the next several audit cycles. (Pl. 56.1 Stmt. ¶ B.27.) Plaintiff attributes this improvement to the 100-hour work weeks she logged as store manager. (Pl. 56.1 Stmt. ¶ B.28.)
Dussuau claims that despite these achievements, Romero-Salas routinely harassed her in connection with her job performance. (Pl. 56.1 Stmt. ¶¶ B.8-10, 22, 31, 40.) RomeroSalas called Dussuau on a daily basis and threatened to fire her. (Pl. 56.1 Stmt. ¶ B.10.) Romero-Salas berated Dussuau in front of employees and customers concerning matters such as the supply of gum balls in the gum ball machine. (Pl. 56.1 Stmt. ¶ B.17; see Transcript of Plaintiff's Deposition, dated Apr. 7, 2004 ("Pl. Dep.") at 119-20.) Romero-Salas also falsely suggested that Plaintiff was complicit in a robbery of the Dyckman store. (Pl. Dep. at 33; see Pl. 56.1 Stmt. ¶ B.16.) While she criticized Plaintiff's job performance, Romero-Salas failed to provide Plaintiff with the level of assistance that Romero-Salas had provided to Del Villar, who is Hispanic. (Del Villar Aff. ¶¶ 2, 19-20.)
Romero-Salas allegedly indicated to Plaintiff that because of her Haitian national origin, she was being held to a different standard than other employees under Romero-Salas' supervision. Romero-Salas told Plaintiff she thought Haitians were supposed to be "workaholics," implying that Plaintiff's work ethic was inferior to that of other Haitians. (Def. 56.1 Stmt. ¶ 38; Pl. 56.1 Stmt. ¶ A.38.) At some point, Dussuau reported her difficulties with Romero-Salas to regional district trainer Maria Williams, who took no action against RomeroSalas. (Pl. Dep. at 252-54.) Plaintiff also left three voice messages requesting help from human resource manager Michael Moore. (Pl. Dep. at 255.) None of Dussuau's calls to Moore were acknowledged. (Pl. Dep. at 255.)
In March 2002, Dussuau scheduled her only medical appointment of the year. (Pl. 56.1 Stmt. ¶¶ B.15, 38.) While Plaintiff was at her physician's office, Romero-Salas tracked her down and demanded that she address a bag shortage at the Dyckman store. (Pl. 56.1 Stmt. ¶ B.39.) Bag shortages were common at local Blockbuster stores at the time. (Pl. 56.1 Stmt. ¶¶ B.15, 39.) Dussuau previously warned Romero-Salas about a possible bag shortage, but these warnings allegedly went unheeded. (Pl. Dep. at 269.)
When Plaintiff returned to the Dyckman store from her medical appointment, Romero-Salas confronted her. (Pl. 56.1 Stmt. ¶ B.40.) Dussuau asked Romero-Salas for an explanation of her apparent dissatisfaction with Dussuau's work, in light of the perfect scores Dussuau received on recent performance evaluations. Romero-Salas replied: "Well, a hundred doesn't mean anything, you are not doing your job." (Pl. 56.1 Stmt. ¶ B.40.) Dussuau responded by tendering her resignation to Romero-Salas and stating, "[F]rom the beginning you have been giving me a hard time. Now there is no need for you to battle with me any more. You won the battle, [Romero-Salas], okay. If you think you can do a better job than I do, these are your keys, I am quitting my position." (Pl. 56.1 Stmt. ¶ B.40; Def. 56.1 Stmt. ¶ 31.)
On September 2, 2003, Plaintiff initiated this action alleging discrimination on the basis of race, national origin and pregnancy in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; New York State Human Rights Law (the "HRL"), N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law (the "NYCHRL"), N.Y.C. Admin Code § 8-101 et seq. On June 22, 2004, Blockbuster moved for summary judgment. On March 23, 2005, this Court denied Blockbuster's motion.
Defendant moves for reconsideration of the March 23 Order on several grounds. First, Defendant argues that this Court failed to apply the correct standard for determining whether the alleged constructive discharge constitutes an adverse employment action. Second, Defendant argues that this Court improperly relied on conclusory allegations in analyzing Plaintiff's constructive discharge claim. Third, Defendant contends that this Court improperly applied the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and that Plaintiff has failed to rebut Blockbuster's non-discriminatory reason for the alleged constructive discharge. Fourth, Defendant contends that this Court failed to consider its affirmative defenses. Finally, Defendant seeks dismissal of Plaintiff's pregnancy discrimination claim.
I. Standard for Rule 59(e) Motion for Reconsideration
A motion for reconsideration pursuant to Fed. R. Civ. P. 59(e) "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked--matters in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); accord Durant v. Traditional Inv., Ltd., No. 88 Civ. 9048 (PKL), 1990 WL 269854, at *1 (S.D.N.Y. Apr. 25, 1990). Such a motion "cannot assert new arguments or claims which were not before the court on the original motion." Koehler v. Bank of Berm., Ltd., No. M18-302 (CSH), 2005 WL 1119371, at *1 (S.D.N.Y. May 10, 2005). The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court. McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983); In re Currency Conversion Fee Antitrust Litig., 361 F. Supp. 2d 237, 246 (S.D.N.Y. 2005); Wechsler v. Hunt Health Sys, Ltd., No. 94 Civ. 8294 (PKL), 2004 WL 2210261, at *6 (S.D.N.Y. Sept. 30, 2004). The same standard applies to motions for reconsideration pursuant to Local Civil Rule 6.3. See Naiman v. N.Y. Univ. Hosp. Ctr., No. 95 Civ. 6469 (RPP), 2005 WL 926904, at *1 (S.D.N.Y. Apr 21, 2005); JPMorgan Chase Bank v. Cook, 322 F.Supp.2d 353, 354 (S.D.N.Y. 2004).
II. Summary Judgment Standard
A court may grant summary judgment only if "there is no genuine issue of material fact" and "the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); accord McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). Once the movant satisfies this requirement, the burden shifts to the non-moving party "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. The court is required to resolve any ambiguities and to make all reasonable inferences in favor of the non-moving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001).
Courts should be cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is at issue. Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Nevertheless, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). "[M]ere speculation and conjecture" is likewise insufficient. See W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Rather, a plaintiff "must come forward with evidence that would be sufficient to support a jury verdict in [her] favor." Goenaga v. March of Dimes Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Plaintiff may show the existence of material facts through circumstantial, direct or statistical evidence. Gallo, 22 F.3d at 1225.
III. Analysis
A. Race/National Origin Discrimination
Defendant requests reconsideration of this Court's determination that Plaintiff's claim of discriminatory constructive discharge raises a triable issue of material fact under the McDonnell Douglas burden-shifting framework. Under that analysis, the plaintiff has the initial burden of proving a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802; see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). To establish a prima facie case, the plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); see McDonnell Douglas, 411 U.S. at 802.
Once the plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802-03; Holt v. KMI-Cont'l, Inc ., 95 F.3d 123, 129 (2d Cir. 1996). The burden then shifts back to the plaintiff to show that the employer's reason is mere pretext and that discrimination was the true motivating factor. St. Mary's, 509 U.S. at 507-08; McDonnell Douglas, 411 U.S. at 804-05. Ultimately, the question is whether the evidence supports a rational inference that "more likely than not discrimination was the real reason" for the adverse action of which the plaintiff complains. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (internal quotation omitted).
1. Constructive Discharge Standard
"Adverse employment actions . . . may be either an actual termination of the plaintiff's employment or a 'constructive' discharge." Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir. 2001); accord Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987). Defendant contends that this Court failed to apply controlling precedent in assessing Plaintiff's prima facie case for constructive discharge. In its Order, this Court held that to establish constructive discharge, Plaintiff must demonstrate that "[w]orking conditions . . . [are] so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Dussuau, No. 03 Civ. 6614, slip op. at 6 (quoting Lopez, 831 F.2d at 1188). The standard advanced by Defendant would require a plaintiff to establish "working conditions so intolerable that a reasonable person would have felt compelled to resign." Penn. State Police v. Suders, 542 U.S. 129, 147 (2004). Defendant does not explain how these standards differ, and this Court is aware of no material distinction between them. Plainly, this Court used the correct standard in denying summary judgment.
2. "Conclusory" Allegations
Defendant contends that the Order relied on Plaintiff's conclusory allegations, and therefore improperly denied summary judgment on Plaintiff's hostile work environment and constructive discharge claims.*fn2 According to Defendant, this Court should have disregarded as conclusory Dussuau's testimony that she was threatened with termination on a "daily basis." (Pl. Dep. at 32.) However, it was proper for this Court to consider Plaintiff's testimony as to the frequency of Romero-Salas' conduct. See Holtz, 258 F.3d at 75 (denying summary judgment based on plaintiff's uncorroborated testimony of "daily" and "constant" harassment). "Although plaintiff provides details only with respect to a limited number of incidents [of harassment], plaintiff has testified to continual racial abuse. Whether the allegations of continual abuse could reasonably constitute pervasive harassment is a determination best left for a jury." Wishner v. Continental Airlines, No. 94 Civ. 8239 (LAP), 1997 WL 615401, at *2 (S.D.N.Y. Oct. 6, 1997); see also Hussain v. Long Island R.R. Co., No. 00 Civ. 4207 (THK), 2002 WL 31108195, at *7 (S.D.N.Y. Sept. 20, 2002) (denying summary judgment when plaintiff testified that the offensive behavior occurred "many times" and was "a regular thing" over the course of approximately two years, even though plaintiff could recall only a few specific instances of offensive conduct). Contrary to Defendant's contention, Plaintiff is not required to corroborate her allegations as to the frequency of Romero Salas' harassment. See Holtz, 258 F.3d at 75; cf. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 124 (2d Cir. 2004) (reversing summary judgment where plaintiff "made out her prima facie case by offering evidence of discriminatory comments . . . even [though the evidence was] uncorroborated").
In addition to the daily threats, Romero-Salas suggested that Plaintiff was responsible for robbing her own store, screamed at her in such a way that she would feel like a "child," prevented her from taking time off for medical appointments, and verbally abused her in front of subordinates and customers.*fn3 "[A] reasonable person in [Dussuau's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of immediate termination, that she was compelled to leave." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996); see also Gonzalez v. Bratton, 147 F. Supp. 2d 180, 198 (S.D.N.Y. 2001) (evidence of employer's "unreasonable level of scrutiny, excessive hostility and unmerited disciplinary charges" sufficient to sustain jury's finding of constructive discharge).
3. Defendant's Non-Discriminatory Reason
Defendant claims that Plaintiff failed to rebut its proferred non-discriminatory reason for harassing Plaintiff. According to Defendant, Romero-Salas merely intended to "coach[] and counsel[] Plaintiff in an entirely appropriate effort to improve Plaintiff's performance and that of the Dyckman Store." (Defendant's Memorandum of Law in Support of Summary Judgment, dated June 22, 2004, at 13.) "Summary judgment [would be] appropriate . . . only if [Blockbuster's] nondiscriminatory reason is dispositive and forecloses any issue of material fact." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000). Because an employer rarely leaves direct evidence of its discriminatory intent, this Court must review the entire record in determining whether there is circumstantial proof to undermine the employer's explanations for its actions. Chertkova, 92 F.3d at 87; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991) ("A victim of discrimination . . . is usually constrained to rely on the cumulative weight of circumstantial evidence.")
Based on the evidence, this Court concludes that there is a genuine issue as to whether Defendant's proffered reason is a pre-text for discrimination. A reasonable juror could find Plaintiff to have been an accomplished employee who did not require Romero-Salas' abusive "coaching" and "counseling." Dussuau received stellar performance evaluations prior to her promotion, and Del Villar attested that Plaintiff is a "hard-working, dedicated, talented employee." (Del Villar Aff. ¶ 5.) See, e.g., Carlton, 202 F.3d at 137 (denying summary judgment on race discrimination claim when plaintiff had received positive performance reviews); Zhang v. Barr Labs., Inc., No. 98 Civ. 5717 (DC), 2000 WL 565185, at *4 (S.D.N.Y. May 8, 2000) (same). Although the Dyckman store initially faltered following Plaintiff's promotion to store manager, the store improved substantially thereafter. (Pl. 56.1 Stmt. ¶ B.27.) There is evidence tending to show that Plaintiff's hard work contributed to the turnaround. Yet Romero-Salas continued to harass Plaintiff even after the Dyckman store began to thrive. See Chertkova, 92 F.3d at 89 (reversing grant of summary judgment when harassment continued despite plaintiff's improved job performance). Further, to the extent Plaintiff's performance suffered, Plaintiff contends it was because Romero-Salas failed to provide the Dyckman store with support.
It is also unclear whether Romero Salas' actions actually constituted "coaching" or "counseling." Plaintiff claims, inter alia, that Romero-Salas made daily phone calls threatening Plaintiff with termination, falsely accused Plaintiff of participating in a theft and screamed at Plaintiff in public without just cause. A rational juror could conclude that there was no relationship between these abusive tactics and Defendant's purported desire to improve Plaintiff's job performance.
Defendant contends that Romero-Salas' comment about Haitians being "workaholics" may not be used to rebut its proffered non-discriminatory reason. This Court disagrees. Circumstances that give rise to an inference of discriminatory motive include actions or remarks made by decisionmakers. Back, 365 F.3d at 124; Holtz, 258 F.3d at 77-78. "In determining whether a comment is a probative statement that evidences an intent to discriminate or whether it is a non-probative 'stray remark,' a court should consider the following factors: (1) who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to the decisionmaking process." Schreiber v. Worldco, LLC, 324 F. Supp. 2d 512, 519 (S.D.N.Y. 2004).
The "workaholics" comment was made by Romero-Salas, the supervisor who was responsible for the alleged hostile work environment. Although it is unclear from the record whether the comment was made close in time to Plaintiff's departure from Blockbuster, that consideration is less significant where, as here, Plaintiff alleges continuous harassment over an extended period of time. See Gonzalez, 147 F. Supp. 2d at 198. Clearly the remark embodies a stereotype of Haitians that could be deemed offensive by a reasonable factfinder. Moreover, the remark is directly related to Plaintiff's allegations of discrimination. See Zhang, 2000 WL 565185, at *4 (comments are evidence of discriminatory motivation when there is a nexus between the discriminatory statements and the plaintiff's termination); Campbell v. Daytop Village, Inc., No. 97 Civ. 4362 (JSM), 1999 WL 292576, at *3 (S.D.N.Y. May 7, 1999) (same); Orisek v. Am. Inst. Of Aeronautics & Astronautics, 938 F. Supp. 185, 192 (S.D.N.Y. 1996) (same). According to Plaintiff, Romero-Salas subjected her to draconian discipline, while applying a more lenient standard to non-Haitians. The stereotypical comment about Haitians could support Plaintiff's claim that Romero Salas had disparate expectations for Haitains and non-Haitians. The remark is susceptible to a discriminatory inference, and it creates "a factual issue as to which the non-movant's (plausible) interpretation must, at summary judgment, be accepted." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998); see also Millin v. McClier Corp., No. 02 Civ. 6592 (GEL), 2005 WL 351100, at *6 (S.D.N.Y. Feb. 14, 2005) ("Even a few, relatively mild incidents of biased remarks can permit a factfinder to infer racial . . . motivation for a more serious, even if not explicitly discriminatory, difference in treatment.").
In determining that a reasonable factfinder could infer discriminatory intent from the circumstantial evidence, this Court also considered the claim that Romero-Salas treated Del Villar better than she treated Plaintiff. Del Villar has stated that in his experience as a store manager, "Romero-Salas was supportive and assisted me whenever I sought assistance. She filled in when my absence was necessary and helped to ensure that I had sufficient supplies and personnel." (Del Villar Aff. ¶ 20.) Plaintiff claims that Romero-Salas was unsupportive of her, and refused to provide her with the appropriate personnel and supplies. "If a jury credits plaintiff's allegations, it may reasonably conclude that [Romero-Salas] acted with discriminatory intent towards plaintiff and thus aided in the creation of a hostile work environment." Hill v. Taconic Dev. Disabilities Servs. Office, 283 F. Supp. 2d 955, 960 (S.D.N.Y. 2003) (holding that an employer's "unequal treatment of white and black supervisors" raised an inference of discrimination); see also Dodson v. CBS Broad. Inc., No. 02 Civ. 9270 (AJP), 2004 WL 1336231, at *22-23 (S.D.N.Y. June 15, 2004) (holding that allegations of discriminatory conduct together with a supervisor's comment raised an inference of discrimination); Golia v. Leslie Fay Co., No. 01 Civ. 1111 (GEL), 2003 WL 21878788, at *6 (S.D.N.Y. Aug. 7, 2003) (same).
4. Defendant's Affirmative Defense
Blockbuster again requests summary judgment on its Faragher/Ellerth affirmative defense. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Under Faragher and Ellerth, an employer is vicariously liable for the harassing acts of supervisory employees, but may escape liability if: (1) it "exercised reasonable care to prevent and correct promptly any [racially] harassing behavior," and (2) Plaintiff "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Regarding the second prong, Dussuau claims that she reported "everything she was going through with Romero-Salas" to Maria Williams and left three telephone messages with Michael Moore. None of these pleas for help elicited a response from Defendant. Plaintiff clearly has proffered sufficient evidence to defeat summary judgment on Defendant's Faragher/Ellerth defense. See Cerros v. Steel Techs., Inc., 398 F.3d 944, 952 (7th Cir. 2004) ("The relevant inquiry is . . . whether the employee adequately alerted her employer to the harassment, thereby satisfying her obligation to avoid the harm.").
B. Pregnancy Discrimination
Defendant seeks dismissal of Plaintiff's pregnancy discrimination claim. Because Plaintiff did not oppose Defendant's motion for summary judgment on this claim, summary judgment on the claim is granted. Douglas v. Victor Capital Group, 21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998) (deeming plaintiff's claims to be abandoned after plaintiff failed to oppose a summary judgment motion specifically addressing those claims).
For the foregoing reasons, Defendant's motion for reconsideration is denied. The parties are directed to submit a joint pretrial order in accord with this Court's individual practices by March 24, 2006. A final pretrial conference is scheduled for March 31, 2006 at 11:00 a.m.
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Changes in weather can be correlated with a rise in conflicts, a situation that can only become more frequent as the climate changes, writes John Vidal."[C]limate has always had profound effect on the way we live and will have even more in future as climate change amplifies the risk of conflict," he argues.
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text: Select an international website Zoover.at Zoover.be Zoover.ch Zoover.com Zoover.com.br Zoover.com.tr Zoover.com.ua Zoover.cz Zoover.de Zoover.dk Zoover.es Zoover.fi Zoover.fr Zoover.gr Zoover.hu Zoover.it Zoover.lt Zoover.nl Zoover.no Zoover.pl Zoover.pt Zoover.ro Zoover.ru Zoover.se Home Destinations Accommodations Awards Add review Add review Add photos Add videos Add new accommodation Add attraction Home Add review Senegal Abene Accommodations Abene Reviews (1) Photos & videos (29) Accommodations (4) Weather forecast Map Tips (0) Question and Answer (0) Appreciation 9.8 Nightlife 8.5 Culture 9.3 Surroundings 9.3 Atmosphere 9.8 Care for nature 8.4 Weather 20° / 36° 7 Dec 2016 Weather forecast and climate... 9.8 11 Reviews Are you looking for a well-reviewed accommodation for your holiday in Abene? Below you can find all accommodations in Abene. Sort by Zoover recommends Rating Reviews Distance from centre 4 Accommodations Senegal, Abene Location Radius: Select 2 km 10 km 20 km 50 km Country Senegal Region Senegal Destination Abene Accommodation Accommodation Hotels in Abene Lodges in Abene Pensions in Abene Facilities Towel service Snack bar / cafeteria Restaurant More facilities User Rating Number of reviews 1 5 Review 8.5-10 Very good3 Scores well regarding Appreciation Location Service Value for money Food Rooms Child friendly More criteria Contributions 4 2 Search within results: 9.3 click Add review Pension: Diabatalo Abene Senegal Abene 9.1 click Add review Lodge: Maye Meye Abene, 1.8 km from center Senegal Abene 8.8 click Add review Lodge: Le Kossey Abene Senegal Abene - click Add review Hotel: Atlantic Abéné Abene, 4 km from center Senegal Abene Hotels Hotels in Saly Hotels in Dakar Hotels in Cap Skirring Hotels in M'bour Hotels in Toubacouta Information about Abene Weather Abene Map Abene Photos Abene Videos Abene Question and Answer Abene Destinations nearby Sine-Saloum Delta Toubacouta Ziguichor Kafoutine Cap Skirring Palmarin Fimela Are you looking for a well-reviewed accommodation for your holiday in Abene? Below you can find all accommodations in Abene. Abene scores a 9.8 out of 10, based on 11 reviews read more Are you looking for a good reviewed accommodation for your holiday in Abene? Below you can find all accommodations in Abene. You can find comments regarding 1 Hotel, 2 Lodges and 1 Pension in Abene. Please use the filters on the left to find your ideal accommodation. Furthermore you can find 29 holiday photos regarding Abene on the Zoover website. - - - Less text


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Dave Walsh (Australian footballer)
From Wikipedia, the free encyclopedia
|Dave Walsh
|Personal information
|Full name
|J. David Walsh
|Date of birth
|29 September 1898
|Date of death
|4 August 1975(aged 76)
|Height / weight
|177 cm / 75 kg
|Playing career1
|Games (Goals)
Total -
North Melbourne
|25 (18)
47 (0)
72 (18)
1 Playing statistics correct to the end of 1927.
Dave Walsh (29 September 1898 – 4 August 1975) was an Australian rules footballer who played with Essendon and North Melbourne in the Victorian Football League (VFL).
Walsh was recruited by Essendon from the local Essendon District League.[1] He played as a full-forward for Essendon in the 1919 VFL season and topped their goal-kicking with 15 goals.[2][3] After a stint in the Victorian Football Association at Essendon Association, Walsh joined North Melbourne, where was a full-back.[1] He finished equal fifth in the 1926 Brownlow Medal. He represented Victoria six times, in 1925 and 1926 and was a member of their squad for 1927 Melbourne Carnival, but had to withdraw with a knee injury, which ended his career.[4]
- ^ a b "Walsh, J. David". Essendon Football Club official website. Archived from the original on 25 March 2012.
- ^ Lovett, Michael (2004). AFL 2004 - The Official Statistical History Of The AFL. AFL Publishing. ISBN 0-9580300-5-7.
- ^ AFL Tables: Dave Walsh
- ^ Holmesby, Russell; Main, Jim (2007). The Encyclopedia Of AFL Footballers. BAS Publishing. ISBN 9781920910785.


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United States District Court, Eastern District of Pennsylvania
February 6, 2014
UNITED STATES OF AMERICAv.RONALD MOON
The defendant, Ronald Moon, was tried by a jury on one count of bank robbery in violation of 18 U.S.C. § 2113(a), and was found guilty. In a Motion for New Trial, he makes two contentions. First, that the Court gave the jury an instruction which was erroneous and prevented him from asserting a defense. Second, a remark by the prosecutor during his closing argument violated the defendant's right against self-incrimination.
A. Facts
Initially, the Court finds that the evidence of defendant's guilt was very strong. The bank robbery, in the residential Chestnut Hill section of Philadelphia at 11:00 a.m. on August 20, 2012, was committed by an individual wearing female Muslim garb covering the facial features, who handed a note to a teller demanding money. The bank teller gave the robber several bundles of cash which were stuffed into a striped bag and the robber then exited the bank.
A private citizen testified at trial, that she was driving near the bank and saw someone who appeared to be a man but was dressed in female Muslim garb, exiting the bank, walking quickly and getting into a maroon vehicle. She followed the car for a short time and had the opportunity to take a photograph from her cell phone of the car's license plate which she showed to a police officer who had come to the bank after the robbery. As a result of very prompt police work, the license plate was traced to the defendant with an address in Abington Township. Police promptly found the car, which was being driven by a third party, Naijah Glenn, near defendant's home address. When the police stopped the car, Ms. Glenn got out and was found to have a large amount of cash on her person. Defendant was a passenger in the vehicle.
The amount of money recovered closely corresponded with the amount that was stolen from the bank. After given his Miranda rights, defendant made a confession that he robbed the bank.
At trial, defendant's counsel, by use of bank surveillance photos, suggested by cross-examination of various prosecution witnesses, that another unnamed individual who was partially seen on the bank video surveillance films had committed the robbery, perhaps along with Ms. Glenn.
B. No Error in Court's Charge
At trial, counsel advised the Court Ms. Glenn had been subpoenaed by both the prosecution and defense. When the Court learned that she was present outside the Courtroom, the Court held a hearing out of the presence of the jury at which time the Court advised Ms. Glenn of her rights of self-incrimination and she stated that she would assert her rights and would refuse to testify if called.
After a discussion with counsel prior to closing arguments and the charge, the Court determined that fairness to all sides warranted the following charge to the jury that the jury should not "speculate" about Ms. Glenn – simply because her testimony was not available to either side:
"You may not speculate about [Ms.] Glenn or any other person being or involved or not involved in this robbery. The only issue for you to decide is whether the Government has proved Ronald Moon guilty beyond a reasonable doubt." The Court strongly rejects the defense arguments in its post-trial memorandum that the Court precluded a defense. The Court did not exclude any evidence whatsoever and did not preclude any defense arguments whatsoever. The Court allowed the jury to determine whether Ms. Glenn and the other person were involved – but not to "speculate." The jury could have convicted defendant by concluding defendant and Ms. Glenn or the other person were involved.
The defendant's reliance on Holmes v. South Carolina, 547 U.S. 319 (2006) is not any support for the grant of a new trial in this case, because in Holmes, the Court actually excluded certain evidence from being admitted.
Defense counsel was well within his rights in trying to argue that another individual, partially seen on the bank video, in fact committed the robbery rather than the defendant, and that Ms. Glenn assisted this other individual by driving the car. However, Ms. Glenn had not been charged and was not on trial. The other individual was completely unidentified. Therefore, the Court's charge was simply to instruct the jury not to "speculate, " about Ms. Glenn and that the only issue before the jury was whether the government had proved the defendant guilty beyond a reasonable doubt.
Although counsel and the Court did not find any Third Circuit cases on these facts, there are cases from the Second Circuit that support denial of a motion for new trial.
In United States v. Daniel, 399 F.App'x. 690 (2d Cir. 2010), 2010 WL 4454239, Ivanise Daniel, a former United States Post Office window clerk, was convicted of misappropriating Post Office funds. The defense theory at trial relied in part on the Government's inability to produce any eyewitnesses that actually saw Defendant pocketing Post Office cash. The District Court charged the jury that they were not to speculate as to the reasons why a particular witness was not called, because it may be for a good and sufficient reason. Defendant appealed to the Second Circuit, contending that her convictions should be set aside due to these comments to the jury.
Because defense counsel did not raise any objection at trial, the Second Circuit reviewed the District Court's comments for clear error. The Second Circuit affirmed Defendant's conviction, holding that the District Court's comments did not diminish the Government's burden or undermine Defendant's defense:
You know, I told you that inferences are okay, you may. Guesswork and speculation is not okay. Sometimes it's hard to draw a line between the two, but it's very important. And sometimes jurors speculate, why wasn't this witness called? Maybe the witness is dead, for all you know. You know, you have no idea of that, but you can speculate.
Why didn't the government do this? Why didn't the government do that? That's speculation. And I find that, when people speculate out of curiosity, more often than not, they're wrong and then they feel terrible, you know, when they share with me afterwards. I come talk to you and have a chance to ask me any questions you have on your mind, after you finish with your deliberations.
And then I had one situation where somebody said they considered this. And I said that's pure speculation. And I've got news for you, if you speculate, that is wrong, and they felt terrible. So you can use your good common sense. Inferences to be drawn from the actual facts in the case is one thing. But idle speculation is something which is totally, totally wrong, and resist the temptation.
Ask yourself when you're going through your deliberative process, are you speculating about things that are not in evidence, or is this really an inference that you can draw from the facts in evidence? And I think you understand the point that I'm driving home.
The common situation where people speculate is they say, well, why wasn't this person, whose name is mentioned during the trial, called as a witness? You have no idea. It may be good and sufficient reason. The most obvious reason is the person is dead or not available, or who knows what. So that's an example of idle speculation.
Daniel asserted that these instructions contain two clear errors that unduly prejudiced the jury. First, Daniel claims that the District Court's instruction to the jury not to speculate about the absence of witnesses was improper and undercut her defense. The decision whether to give "missing witness" instructions is "generally a matter left to the discretion of the trial judge." United States v. Caccia, 122 F.3d 136, 139 (2d Cir.1997). Where, as here, a witness is equally available to both sides, but is not called by either side, the district court has the discretion to "instruct the jury that no unfavorable inference may be drawn against either side." Id. Daniel insists that this instruction was inappropriate given the facts of her particular case because her defense was predicated on the fact that the government failed to produce any eyewitness who saw her actually pocketing Postal Service funds. But the District Court's missing witness instruction only told the jury not to speculate as to why certain witnesses were not called; in no way did it diminish the government's burden of proof or undermine Daniel's defense. Indeed, the District Court specifically told the jury that "the burden of proof is always on the government. The defendant's [sic] not required to call any witnesses or offer any evidence because they're presumed to be innocent."
In United States v. Caccia, 122 F.3d 136 (2d Cir. 1997), Mr. Caccia, a former employee of the United States Post Office, was convicted of distributing cocaine. The Government based its case on audio surveillance evidence gathered by a Government informant who engaged in three drug transactions with Defendant. The issue at trial was whether the Defendant was entrapped by the Government through the actions of its informant. The Government informant was subpoenaed by both parties, but refused to be interviewed by defense counsel prior to trial. The Government did not call the informant as a witness, and defense counsel also declined to do so, citing their inability to interview the informant prior to trial. Defense counsel requested a jury charge that would allow the jury to draw an adverse inference against the Government for its failure to call the informant as a witness. The District Court instead instructed the jury that they could "infer that the testimony of the uncalled witness might have been unfavorable to the Government or to the defendant or to both." Defense counsel objected, and subsequently appealed to the Second Circuit, which affirmed the conviction, holding that although it was unwise to give the "equal availability" jury charge in this circumstance, it was not an abuse of discretion, because giving or not giving a missing witness instruction is generally at the discretion of the trial judge.
The Court's charge was not reversible error.
C. No New Trial Required Because of the Prosecutor's Comment in His Rebuttal Statement.
As to the second point, the prosecutor, near the end of his rebuttal argument, asked the jury a number of rhetorical questions that he felt were responsive to the defense closing argument and then commented that "only one person can answer it, and that's Ronald Moon." See n.t. 48. At this point, defense counsel objected. The Court did not want to interrupt the prosecutor at this point, as his time for the rebuttal closing almost over, and therefore overruled the objection.
However, at the opening of the Court's charge, the Court clearly instructed the jury that the prosecutor's remark was improper with the following language:
Now, in the prosecutor's rebuttal statement at the very end he made a statement that I instruct you to ignore when he said that only Ronald Moon can answer that.
I instruct you to ignore that statement and – because that's inconsistent with what I tell you, that the defendant has no burden or obligation of coming forward with any evidence or answering anything. So you will ignore that statement that Mr. Leverett made." n.t. 63.
The controlling law in this Circuit does not require a new trial for an improper comment by a prosecutor, unless there is no correction by the Court and unfair prejudice has resulted. One of the leading cases is United States v. Isaac, 134 F.3d 199 (3rd Cir. 1998) in which the prosecutor asked a number of rhetorical questions such as happened in this case, and then stated: "The only people who would know that [Defendant] and others." The Third Circuit held that, although it was poor judgment to make such a comment, it was not of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. There are also several non-precedential cases which have affirmed the denial of a new trial or refused to grant a new trial because of closing arguments. See, United States v. Sylvester, 365 Fed.Appx. 379, 381-82 (3d Cir. 2010) (the prosecution's remarks during closing argument stating that no evidence or testimony was provided to support defendant's theory was not a reference on the defendant's failure to testify).
In addition, there are two cases in which allegedly improper comments were made but were held not to be reversible error because of curative instructions by the Court as in this case. United States v. Lynn, 515 Fed.Appx. 79, 82-83 (3d Cir. 2013), and U.S. v. Chukwuma, 454 Fed.Appx. 56, 60 (3d Cir. 2011) (in a conspiracy trial, the prosecution commented during closing that the only other person with knowledge of the conspiracy was the defendant. Defense counsel objected, the District Court sustained the objection, and then gave a curative instruction to the jury. On appeal, the Court held that the District Court acted properly and the curative instruction made any error harmless).
In United States v. Mastrangelo, 172 F.3d 288, 297 (3d Cir. 1999), the Court held that if the prosecution has made an improper comment at trial, a harmless error analysis should be performed. The court will look to see whether the error prejudiced the defendant. To determine whether there was prejudice, courts look to three factors: (1) the scope of the improper comments in the overall trial context, (2) the effect of any curative instructions give, and (3) the strength of the evidence against the defendant.
D. Conclusion.
In view of the overwhelming evidence against the defendant, including his confession, the Court DENIES the motion for a new trial because of the charge and/or the prosecutor's remark, which the Court instructed the jury must be ignored.
The Court believes that the defendant received a fair trial and that none of the Court's actions were reversible error under established Third Circuit precedent.
An appropriate Order follows.
AND NOW, this 6th day of February, 2014, for the reasons set forth in the foregoing Memorandum, defendant's Motion for a New Trial is DENIED.
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