1: Defendants have filed a second response to summary judgment. First response was
seeking enlargement of time: failed to claim issues of material fact, second response
relies upon denials and alternative theories not based in any material fact and on
out of context excepts of a deposition that was not presented to the court for ruling
on the numberous objections contained therein, including the presence of Charles Cohn
for a potion of the deposition, from which he filed a sham affidavit.

2: Failure to meet requirements for response to summary judgement, this also
	failed to show issues of material fact, no evidence was presented to support
any claim made, all of which are alterative theory not supported by evidence.
	 detail those requirements
3: use of deposition does not show the conclusions made by defense,

4: this filing is nothing more than a response to the complaint and accomplishes
nothing more than denial and alternative theories without a scintilla of evidence
supporting such

5: refering to the plaintiff by 'air name', ignoring the proper surname is disrespectful and inflamatory

6: list of work history is not accurate, is conclusary, and is not claimed to have been
after the fact information, therefore hiring was consummated with full knowledge, the use thereof
now, cannot be condoned.

7: Cohn claims responsibility in decision: Hallet letter claims Lynn Martin made
the decision, Cohn's own statement in transcript of tape claims it was NOT him that
made the decision to fire.

8: Now a third completely different pretext is provided, which claims specific reasons
for discharge that were required to have been presented in the action's response, making
the 'story' of reasons presented to be a new defense amounting to nothing more than
revised denail.

9: defendants have not presented a Scintilla of Evidence

10: The deposition is filled with numerous specific objections, including the presence
of Charles Cohn, from which came the affidavit of Cohn which is false and totally unsupported
by any scintilla of evidence. Claims made are nothing more than denials and restatements
of the answer to the action originally filed.

11: Defendants have attempted to resurrect the issue of removal of LMC of South Carolina
from this case when in hearing of August 31, 2004 Defense Council refused to continue their
motion to remove LMC of SC from the case citing, attempting that would be "more difficult".
No attempt was made in this filing to extend that claim.

12: participation in investigation does take place under title vii as the eeoc often relies
on company investigations... this case law has already been quoted

13: service of process occured after filling, if it occured at all, plaintiff recieved the filing
from pacer on 2/4/2005 , due to the time required to respond this response is being made from
that posting as plaintiff has not received the 'Fedex' service of process as of mailing on 2/4/05

14: view the evidence in the light most favorable to the non moving party: there is no evidence
entered by the non moving party, any miscontrued, out of context portions of a deposition cannot
be used to dissuade evidence already in the case... 

15: defendants inference of two radio properties licensed to different cities ignores the same
location, same management, same sales department, same consultant, same utlities, same engineer,
same health insurance policy and others that connect the two to become nothing but one entity

16: any response to summary judgment must meet the requirements of rule 56. this is the second
response to summary judgment that has failed to meet those requirements

17: defendants second response to summary judgment failed to address any specific issue of material
fact, failed to provide any evidence in support of any issue of material fact and attempted to support
meer denials with caselaw that does not apply to the in context evidence. attempting to draw an 
alternative theory from plaintiff's evidence, taken out of context cannot result in any 'genuine'
issue of material fact when defendants have simply created a new theory, a third pretextual reason
for discharge, a false affidavit claiming responsibility for the discharge, out of context deposition
sections, and deductions made from conclusions based in theory without supportive evidence. there is
no genuine issue of material fact.

18: defendants have violated plaintiff's 14th amendedment right to due process, as filing a second
response to summary judgment has ignored the first response and violated rule 56.

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Defendant's first response to summary judgment was filed as a motion to enlarge time to respond to summary judgment and in so doing, Defendants failed to indicate that there were any genuine issues of material fact, that the demanded deposition would uncover any genuine issue of material fact or why Defendants' failed to conduct discovery prior to the filing of summary judgment. An interlocutory appeal is pending in that matter to preclude a second response to summary judgment after Defendants' not complying with the protections of Fed R. Civ. P. 56 in the first response which would violate Plaintiff's due process rights under the 14th Amendment to the United States Constitution.

Defendants claim to have completed service of process of their second response to summary judgment to the Plaintiff via 'FEDEX' the day before they claim to have served the Plaintiff. This reply is being made from the document acquired from its first appearance on PACER on February 4, 2004, as Plaintiff has not received service of process as of this date.

Defendants misstate and invent facts to create a "strawman" scenario that exists only in the minds of its attorneys, and seeks to distort and misapply applicable principles of law by mostly ignoring the issues of facts presented in this case and otherwise using selected Plaintiff's issues of fact to present a scenario that is a mere alternative theory, resulting in nothing more than an extension of denials without a scintilla of evidence in support of such theory. See Memorandum in Support of Plaintiff's Motion for Summary Judgment, caselaw reference: 29. Defendants' use of Plaintiff's direct evidence is an attempt to spin and deflect the issues presented by said evidence without relevance to the context within which they are originally presented. 

A third completely different pretext is presented, which claims specific reasons for discharge that were required to have been presented in the response to the complaint, (See Memorandum in Support of Plaintiff's Motion for Summary Judgment, caselaw reference: 17) making the 'story' of reasons presented to be nothing more than a revised denail. See Memorandum in Support of Plaintiff's Motion for Summary Judgment, caselaw references: 24, 25, 26, 27, 28. 

Defendants have not, either in their first response to summary judgment seeking a delay in responding, where no issues of material fact were claimed, nor in this second response to summary judgment, provided a scintilla of evidence in support of their false theories, nor have Defendants' claimed there are any issues of genuine material fact in either response.

Defendants have not met their burden of 'genuine' material fact.

The deposition, which amounted to a fishing expedition, is provided by Defendants, out of context, only in part and without inclusion of the numerous objections contained therein, including the presence of Charles Cohn. The court should disregard the deposition without the ability to rule on the validity of the objections before inclusion in the case.

Defendants' incorrect and misquoted 'employment history' is intended to attack the character of the Pro se Plaintiff without any reference to the instant case. No claim is made that such informaton, even when corrected, was acquired after the fact or is new information.

Defendants rely upon a sole document provided by them, an affidavit of Charles Cohn (the person alledged in the complaint as the central figure of all intimidation, retribution, hostile working environment and harrassment), which makes inflamatory claims without justification, without supportive evidence and amounts to nothing more than a denial and an out right falsehood. Cohn claims in the affidavit to have been the decision maker in discharge of the Plaintiff. Direct evidence, both Consultant Don Hallet's informing Plaintiff he knew that Lynn Martin made the decision () and Cohn's own words claiming to not have made the decision (), show the affidavit to be false and in conflict with previously entered direct evidence. Without a scintilla of evidence to support the false and inflamatory claims made in that affidavit the Court should disregard the affidavit.

Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The non-moving party is to have the credibility of all its evidence presumed. See Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990). 

In the instant case Defendants have provided absolutely no evidence from which to presume.

"Summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion." Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 112 L. Ed. 2d 866, 111 S. Ct. 807 (1991)). 

The facts presented are solely from the Plaintiff and can only result in one conclusion.

If the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party, then there are genuine issues of material fact. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). 

There is absolutely no evidence provided by the Defendants in which to present to a reasonable jury.

The movant has the initial burden of showing absence of evidence in support of the non-movant's case before the non-movant bears the burden of demonstrating the existence of some triable issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). 

The movant has shown an abundance of direct evidence showing an absence of evidence in support of the non-movant's case. The Defendants have shown no evidence at all.

Thus, the non-movant may not rest upon mere allegations and denials of the pleadings, and must assert more than a "mere scintilla" of evidence in support of his case in order to survive an adverse entry of summary judgment. See Anderson, 477 U.S. at 248. 

Defendants have not presented even a mere scintilla of evidence and have made their second response mere allegations and restated denials.

Defendants' second response to summary judgment amounts to nothing more than an alternative response to the initial complaint by ignoring all issues presented by direct evidence and failing to provide any evidence in rebuttal.

There is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law, from the moment Defendants failed to allege any genuine issues of material fact and repeated through the absence of any genuine issues of material fact in their second response to summary judgment.









In order to address the issue of a conflicting affidavit, most federal courts have adopted what is known as the “sham affidavit” rule. Basically, the “sham affidavit” rule precludes a party from creating an issue of fact to prevent summary judgment by submitting an affidavit that directly contradicts previous deposition testimony of the affiant. Previous direct evidence contradicted by an affidavit where no direct evidence is provided in support of that affidavit is the same thing. 



Defendants' use of deposition sections, out of context in a claim that such sections are in conflict with evidence presented by the Plaintiff in the case