Opinion
01CV6729 (SLT)(ARL).
January 6, 2005
MEMORANDUM ORDER
Plaintiff Joann Cannizzaro ("Cannizzaro" or "Plaintiff") filed suit in this Court on October 11, 2001 against Anthony Principi, Secretary of the Department of Veterans Affairs ("Defendant"). In her form complaint, she alleged that Defendant violated her rights under the Americans with Disabilities Act ("ADA") by failing to promote her, failing to accommodate her disability, and retaliating against her for filing an Equal Employment Opportunity ("EEO") charge in 1995. (Compl. at 1.) She also alleged that Defendant continued to commit these acts against her. Id. Defendant served an answer on December 18, 2001. The parties appeared for two conferences before Magistrate Judge Lois Bloom on January 24, 2002 and April 25, 2002. After completing discovery, Defendant moved for summary judgment on July 30, 2003, claiming that Plaintiff had not exhausted her disability discrimination claims, and that her reassignment was not retaliation for filing her 1995 EEO charge. Plaintiff filed a response denying Defendant's claims on June 10, 2004. The Court heard oral argument on December 3, 2004.
Plaintiff is a current employee of the Brooklyn Veterans Affairs Medical Center ("Brooklyn VAMC"), a Department of Veterans Affairs' facility. Therefore, she is required to name the head of the agency as the defendant in a civil action. 42 U.S.C. § 2000e-16 (c); see also Gallo v. Herman, 2000 U.S. App. LEXIS 2236, at *2 n. 1 (2d Cir. 2000) ("Under 42 U.S.C. § 2000e-16(c), the head of the employing department is the only appropriate defendant in a Title VII action brought by federal employee.").
Despite the fact that Plaintiff believes and reiterates that she was treated unfairly, she failed to present sufficient evidence to support her claim. Because Plaintiff failed to exhaust her administrative remedies with respect to her disability discrimination claim, and has not raised a genuine issue of material fact as to her claim of retaliation, Defendant's motion for summary judgment dismissing the action is granted.
STATEMENT OF FACTS
Plaintiff has been employed by the Brooklyn VAMC for over 16 years. (Def. 56.1 Stat. ¶¶ 1, 4.) She began as a secretary in the main office. (Def. 56.1 Stat. ¶ 3.) Eleven months thereafter, she was promoted to secretary to Dr. Edmond Bourke, Chief of Medical Services at the Brooklyn VAMC. Id. Shortly after becoming Dr. Bourke's secretary, Cannizzaro became the Program Assistant for the Brooklyn VAMC residency program, of which Dr. Bourke was the director. (6/28/02 Pl. Dep. at 35.) Since approximately 1989, her salary grade level has been GS-6, and her responsibilities have included typing, computer entry, answering phone calls, e-mailing and xeroxing. (Def. 56.1 Stat. ¶ 4.) During her tenure in the Medical Service Center, specifically from 1994 to 1997, she received "successful" or "highly successful" on her performance evaluations. (Def. 56.1 Stat. ¶ 7.)
In March 1995, Cannizzaro filed an employment discrimination complaint against Dr. Bourke claiming harassment with the Equal Employment Opportunity Commission ("EEOC"). (Def. 56.1 Stat. ¶ 6.) This claim was investigated by the EEOC and a finding of no discrimination was issued. (EEO Investigative Summary and Analysis, dated March 36, 1999.) Plaintiff did not pursue the matter further. ( See 1/24/02 Initial Conf. Tr. at 4.) Dr. Bourke was aware of this complaint. (Bourke Dep. Tr. at 3.)
On December 30, 1997, Plaintiff was injured when leaving her workplace. (Def. 56.1 ¶ 8.) The next day, she went to the Emergency Room of the Brooklyn VAMC, and received a "Return to Work" form from the Brooklyn VAMC Employee Health Service indicating that she was injured off duty and should not return to work until January 5, 1998. (Def. 56.1 ¶ 8-9.) As a result of her injuries, she was on leave from her position until March 16, 1998. (Def. 56.1 ¶ 13.) On March 12, 1998, Plaintiff was advised by her physician "to return twice a week to work as of 3/16 (16 hours limited duty)." (Def. 56.1 ¶¶ 12, 15.) Plaintiff kept in contact with the Medical Service Administrative Officer, Gene Bonacchi, and other hospital employees during her absence. (3/25/99 Pl. Dep. at 8-9.) Two weeks later, on March 27, 1998, her physician completed a Worker's Compensation form also stating that Plaintiff could only work 16 hours per week. (Def. 56.1 ¶ 14.) On the day Cannizzaro returned to work, she was reassigned to the Nephrology Section of the hospital. (Def. 56.1 ¶ 16.) Later that morning, Dr. Bourke gave her a memorandum dated March 13, 1998 informing her of this reassignment. (Compl. at 2) Plaintiff began working in the Nephrology Section, at the same salary grade and title she had in the Medical Section, and is still employed there. ( See Def. 56.1 ¶¶ 18, 20.)
"Q. Were you communicating with [co-workers] during your period [sic] of your absence from December 31 through March 16?
A. Well, yes. Not with Dr. Bourke, with the AO, who was there Gene Bonacchi, who was there at the time, I spoke to Barbara. I spoke with the Chief Resident. I even spoke with one of the doctors who ran the program for the third year students, who called me at home, Dr. Aribomy (phonetic), and I was not aware — nobody was aware of what they were doing other than the office itself . . ." (3/25/99 Pl. Dep. at 8-9.)
On or about June 5, 1998, Plaintiff filed a complaint based on this reassignment with the EEOC, in which she claimed, inter alia, that this action was a reprisal for the filing of her 1995 EEOC claim. The EEOC investigator did not find evidence to support this claim. (Def. 56.1 ¶ 23.) Rather, the report found that Plaintiff "had not established a prima facie case of discrimination and that management had established a legitimate, non-discriminatory reason for its decision to reassign plaintiff to the Nephrology Section." Id. She then pursued the administrative appeals process until the EEOC rejected her appeal and affirmed its final order on July 12, 2001 stating "unlawful employment discrimination was not proven by the preponderance of the evidence." (Compl. Attach.)
Plaintiff also claimed that this action amounted to harassment, punishment, and a reprimand. (Def. 56.1 Ex. L.) She later withdrew the reprimand claim. (Def. 56.1 ¶ 22).
DISCUSSION
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure state that summary judgment "shall be rendered forthwith 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). In the process of ruling on a motion for summary judgment, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Childers v. United States Postal Service, 2003 U.S. Dist. LEXIS 9993, at *5 (W.D.N.Y. Apr. 15, 2003). "The burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists." Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). Specifically, "a `genuine' issue is one that could be decided in favor of the non-moving party based on the evidence by a reasonable jury." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). Yet, "conclusory allegations (by the non-moving party) will not suffice to create a genuine issue." Id.
B. Pro Se Litigant Standard
As a preliminary matter, it is important to note that in the case before the court, Cannizzaro represents herself. Thus, the Court must construe her pleadings liberally and interpret them to raise the strongest arguments possible. See Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980)). In addition, the Court "may look to submissions beyond the complaint to determine what claims are presented by an uncounseled party." Boguslavsky v. Kaplan, 159 F.3d 715, 719 (2d Cir. 1998).
C. Disability Discrimination Claim
Plaintiff's form complaint alleged employment discrimination in the form of failure to promote or accommodate her, in violation of the ADA. (Compl. at 1, 3.) However, since her employer, Brooklyn VAMC, is part of a federal agency, the Department of Veterans Affairs, the ADA is inapplicable. See 42 U.S.C. § 12111(5)(B)(I); Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998). Rather, the Court may read her pleadings to raise a claims under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et. seq ("the Act").
Magistrate Judge Bloom advised Plaintiff that as an employee of a federal agency, she cannot sue the Brooklyn VAMC under the ADA, but may do so under the Rehabilitation Act of 1973. (1/24/02 Initial Conf. Tr. at 5, Dkt. No. 7.)
The Court must first determine the proper application of the Act. Section 501 of the Act instructs federal agencies to submit affirmative action plans for handicapped individuals. 29 U.S.C. § 791(b); Spence v. Straw, 54 F.3d 196, 199 (3d. Cir. 1995). Section 504 of the Act prohibits recipients of federal funds from discriminating on the basis of disability. 29 U.S.C. § 794; Spence, 54 F.3d at 199. To receive relief for a violation of Sections 501 and 504, pursuant to Section 794a, the aggrieved employee may pursue remedies under Title VII and Title VI, respectively. 29 U.S.C. § 794a. By the language of the Act, federal agencies may be sued under either section creating "an apparently incongruent enforcement scheme." Spence, 54 F.3d at 199. However, the Second Circuit, joining the Seventh, Ninth, and Tenth circuits, has held that Section 501 is the exclusive remedy for federal employees suing under the Rehabilitation Act. Rivera, 157 F.3d at 104; see also Johnson v. United States Postal Service, 861 F.2d 1475, 1477 (10th Cir. 1988; Boyd v. United States Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985); McGuiness v. United States Postal Service, 744 F.2d 1318 (7th Cir. 1984). Accordingly, as a "federal employe[e] seeking relief for disability discrimination under the Rehabilitation Act," Plaintiff must follow the procedures under Title VII. Colon v. Potter, 51 Fed. Appx. 43, 46 (2d Cir. 2002).
Title VII requires plaintiff to first exhaust her administrative remedies before bringing suit in federal court. The Second Circuit has specifically applied this rule to those alleging employment discrimination under the Act. Bruce v. United States Dept. of Justice, 314 F.3d 71, 74 (2d Cir. 2002) ("An employee suing the federal government under the Rehabilitation Act must exhaust certain administrative remedies before initiating a lawsuit in federal court."); Boss v. Runyon, 201 F.3d 178, 181 (2d. Cir. 2001); see also Torres v. U.S. Dept. Of Veterans Affairs, 2004 U.S. Dist. LEXIS 5363, at *10 (S.D.N.Y. Mar. 30, 2004) (holding plaintiffs must exhaust their administrative remedies or their claims may be time-barred). Complying with the applicable regulation, 29 C.F.R. 1614.105(a), would have required Plaintiff to seek EEOC counseling within forty-five days of her reassignment. Hodgson v. United States Postal Service, 2004 U.S. Dist. LEXIS 5578, at *4-5 (S.D.N.Y. Mar. 31, 2004). However, the complaint Plaintiff presented to the EEOC failed to include her failure to promote or accommodate claims. Instead, it focused on her 1995 complaint as the reason for her reassignment. Thus, she has failed to exhaust her administrative remedies as to these claims.
This Court also lacks jurisdiction to hear plaintiff's disability discrimination claims. In Butts v. New York Dep't of Hous. Preservation Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), the Court stated: "The district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge." More recently, the court explained, "subsequent conduct is reasonably related to conduct in an EEOC charge if: (1) the claim would fall within the reasonably expected scope of an EEOC investigation of the charges of discrimination; (2) it alleges retaliation for filing the EEOC charge; or (3) the plaintiff `alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge.'" Alfano v. Costello, 294 F.3d 365, 381 (2d Cir. 2002) (quoting Butts, 990 F.2d at 1402-3). Plaintiff did not include her disability discrimination claims in her 1998 complaint, thereby failing to give sufficient notice to the EEO Investigator of these claims. Further, she does not allege that her claims of failure to promote and or accommodate occurred subsequent to filing her complaint. Thus, this Court lacks jurisdiction to hear Plaintiff's disability discrimination claims under the ADA or the Rehabilitation Act.
C. Retaliation Claim
Cannizzarro's claim of retaliation is all that remains to be decided by the Court. She alleges that the Brooklyn VAMC reassigned her in retaliation for the employment discrimination claim she filed in 1995. Defendant claims that Cannizzaro fails to carry her burden on this claim, and that her assignment was based on the staffing needs of the hospital at the time combined with the fact that Plaintiff could only work on a part-time basis pursuant to her doctor's orders. Plaintiff contends that this reason is not legitimate due to the timing and manner in which she was informed of her reassignment. However, Plaintiff's own admission that she was in contact with her co-workers defeats this argument, and counsels the Court to rule in the Defendant's favor. Plaintiff also argues that her reassignment was in violation of Department of Veterans Affairs Directive 5810, dated August 5, 1997. (Compl. Attach. 2) This claim also fails.
Under the Act, the court applies the McDonnell-Douglas burden-shifting analysis to retaliation claims. Reg'l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35, 54 (2d Cir. 2002); see McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). This is the same framework applied to analyze Title VII claims. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). It provides that "the plaintiff bears the burden of proving, by a preponderance of the evidence . . . that he engaged in protected activity, that the employer was aware of this activity, that the employer took adverse action against the plaintiff, and that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir. 1994) (quoting Sumner v. United States Postal Service, 899 F.2d 203, 208-209 (2d Cir. 1990)). Once Plaintiff meets this burden, she has established a prima facie case of retaliation. Then, "the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the challenged employment decision. If a defendant meets this burden, `the plaintiff must point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation.'" Treglia, 313 F.3d at 721 (quoting Cifra v. General Electric, 252 F.3d 205, 216). However, "a reason cannot be proved to be a `pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." Sacay v. Research Found. of the City Univ. of N.Y., 193 F. Supp. 2d 611, 631 (S.D.N.Y. 2002) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)).
Plaintiff satisfies two of four requirements necessary to make out her prima facie claims of retaliation. By filing an EEO charge in 1995, she engaged in protected activity. See Thomas v. New York City Health Hosps. Corp., 2004 U.S. Dist. LEXIS 17694, at *61 (S.D.N.Y. Sept. 1, 2004). Dr. Bourke admits he was aware of this at the time of the reassignment. However, Plaintiff fails to establish that she suffered an adverse employment action or, assuming that she did, that there was a casual connection between filing of the 1995 EEOC charge and her reassignment.
1. Adverse Employment Action
Cannizzaro alleges that she suffered an adverse employment action when she was reassigned from Program Assistant in the Medical Service Center to Program Assistant in the Nephrology Section. These positions have the same pay-grade, title and practical responsibilities. They differ in that Plaintiff's former position allowed her to communicate with various people including the Residents and Doctors through her responsibilities for the Residency program. ( See 6/28/02 Pl. Dep. at 36-40.) As a self-described "people-person," Cannizzaro enjoyed and received awards for her work in the Medical Service Section. ( See 3/25/99 Pl. Dep. at 12; Pl. Ans. at 2.)
The legal standard for an adverse employment action requires that Plaintiff "endur[e] a `materially adverse change' in the terms and conditions of employment." Lyman v. City of New York, 2003 U.S. Dist. LEXIS 16471, at *22-23 (S.D.N.Y. Sept. 19, 2003) (quoting Galabya v. N.Y.C. Board of Educ., 202 F.3d 636, 640 (2d Cir. 2001)). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Galabya, 202 F.3d at 640 (2d Cir. 2000) (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). However, "while adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action." Lyman, 2003 U.S. Dist. LEXIS 16471, *23 (quoting Pimentel v. City of New York, 2002 U.S. Dist. LEXIS 8454, at *9 (S.D.N.Y. May 14, 2002)). Thus, the law requires Plaintiff to show a change in employment which is more than upsetting; it must be an objectively significant and profound change in her employment.
Cannizzaro fails to establish that her reassignment meets this standard. Although she lost a position she greatly enjoyed, her salary, benefits, and title remained the same. In addition, she was moved to a department where she was greatly needed, which gave her an opportunity to become indispensable despite her part-time schedule. Thus, unlike someone who is demoted, Plaintiff was able to retain the tangible benefits of her position, while receiving an opportunity to excel despite physical limitations.
Cannizzaro also failed to prove that she was denied a promotion. The Second Circuit has held that the refusal to promote qualifies as an adverse employment action. See Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). At the initial conference for this case, Magistrate Judge Bloom suggested to Cannizzaro that she organize and submit evidence that she was denied promotions. (1/24/02 Initial Conf. Tr. at 7-8; 18-20, Dkt. No. 7.) Pursuant to the Court's direction, Defendant produced to Cannizzaro copies of two job applications she submitted in 1998. (4/25/02 Conf. Tr. at 6-7, Dkt. No. 10.) However, Plaintiff failed to submit copies of these applications or any other evidence that she was wrongly denied a promotion with her moving papers. Thus, Plaintiff has failed to establish that she suffered an adverse employment action as a result of her reassignment or that she was denied a promotion.
2. Casual Connection
To complete her prima facie claim of retaliation, Plaintiff must establish that there is a casual connection between filing her 1995 EEOC charge and her 1998 reassignment. To do so, she "must demonstrate either (1) the retaliatory action occurred close in time to the protected activities; (2) disparate treatment of similarly situated (employees); or (3) direct proof of retaliatory animus directed against the plaintiff." Philippeaux v. Fashion Inst. of Tech., 1996 U.S. App. LEXIS 33507, at *3-4 (2d Cir. Dec. 23, 1996); see also Cifra, 252 F.3d at 217; Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000).
Plaintiff repeatedly alleged that the Brooklyn VAMC failed to follow the Department of Veterans Affairs Directive 8510. ( See Pl. Dep. at 135; Initial Conf. Tr. at 16-17; 4/25/02 Conf. T. At 17; Pl. Answer at 5.) If true, this could raise an inference of retaliatory animus and/or disparate treatment of similarly situated employees. However, the directive she cites and attached to her answer applies to those injured on-the-job. Her injury occurred when she was leaving the workplace, and was considered an off-work injury by the Brooklyn VAMC Employee Health Service. Thus, she has failed to present evidence of similarly situated employees or of direct proof of retaliatory animus to create a casual connection between filing her 1995 EEOC charge and her reassignment.
With respect to the temporal proximity, the Supreme Court noted that the time period between the protected activity and adverse employment action should be "very close" and that a period of twenty months would suggest "by itself, no causality at all." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-274 (2001). Although "[t]he Second Circuit has `not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action,'" Thomas, 2004 U.S. Dist. LEXIS 17694, at *62 (quoting Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001)), courts have routinely determined that time periods in excess of a few months are too long. See e.g., Philippeaux, 1996 U.S. App. LEXIS 33507, at *3-4 ("The ten-month time period between the protected activity and the alleged retaliatory action, without anything more, was not sufficiently close in time to create an inference of retaliation"); see also Thomas, 2004 U.S. Dist. LEXIS 17694, at *64 (holding that 24 months between the protected activity and the adverse employment action not temporally connected); Young v. N.Y. City Bd. of Educ., 2004 U.S. Dist. LEXIS 11619, at *14
(E.D.N.Y. Jun. 25, 2004) (summary judgment granted to defendant where the two events were seventeen months apart); Chandler v. Amr. American Eagle Airline, 251 F. Supp. 2d 1173 (E.D.N.Y. 2003) (finding a year insufficient to create a casual connection). Since almost three years passed between the time Cannizzaro filed her administrative charge of discrimination and her reassignment in March 1998, and no evidence presented suggests a retaliatory animus or that similarly situated employees were treated differently, she has failed establish that there is a casual connection between the two events.
3. Pretext
If Plaintiff had made out her prima facie case of retaliation, the burden would shift to the Defendant to articulate a legitimate, non-discriminatory reason for her reassignment. See Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir. 1997) ("Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case . . . `[T]he defendant need not persuade the court that it was actually motivated by the proffered reasons' in order to nullify the presumption and obligate the plaintiff to satisfy the burden of proof.'" (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (U.S. 1981)). Defendant meets his burden by stating that the reason for his action was the needs of the hospital and the work schedule ordered by Plaintiff's doctor. The burden now reverts to the Plaintiff to prove that the reasons proffered by the Defendant were simply pre-textual. See Bembry v. Darrow, 7 Fed. Appx. 33, 37 (2d Cir. 2001). Cannizzaro attempts this by citing the date of the memo discussing her reassignment. She alleges that this decision was made without knowledge of the date and circumstances of her return, and therefore is proof of a discriminatory motive. Plaintiff admitted that she informed her co-workers of her status while she was on leave, and they failed to inform her of her reassignment. It is reasonable that she would only expect to be informed of these decisions if she had discussed her return to work with those at the Brooklyn VAMC. Moreover, the date of her doctor's order is March 12, 1998, while the transfer memorandum is dated March 13, 1998. Thus, her claim that the Defendant's reasons for her reassignment are pre-textual fails.
SO ORDERED.