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finding transfer was not an adverse employment action because "temporary" transfer did not involve a loss of salary, benefits, responsibility or title
Summary of this case from Brady v. Wal-Mart Stores, Inc.Opinion
99 CIV. 3636 (DLC), 99 CIV. 4610 (DLC)
January 17, 2001
Diana M. Leget, Pro Se, Brooklyn, NY, For Plaintiff:
Lisa Zornberg, Assistant U.S. Attorney, New York, NY, For Defendants:
OPINION AND ORDER
Plaintiff Diana Leget ("Leget") brought these employment discrimination actions in May and June of 1999, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Americans with Disabilities Act, 42 U.S.C. § 12112-12117 ("ADA"). Defendants have moved for summary judgment. For the following reasons, defendants' motion is granted.
BACKGROUND
The following material facts are either undisputed or asserted by the plaintiff. Plaintiff Leget is a 29-year-old African-American woman who is currently employed as a full-time letter carrier for the United States Postal Service ("Postal Service"), and is stationed at the Rockefeller Center Unit ("RCU") of the Times Square Station. She has been employed by the Postal Service since March 1994, and has worked at the RCU since January 1997. During the time relevant to plaintiff's claims, William J. Henderson ("Henderson") was Postmaster General of the United States Postal Service, Michael McDermott ("McDermott") was the Station Manager of the Times Square Station, and Vanderbilt Dumas ("Dumas") was the Supervisor of Customer Service at the Times Square Station. Three incidents form the basis of plaintiff's claims.
First Incident
In December of 1997, Leget was working at the Times Square Station on the Tour II shift, which generally runs from 6:00 a.m. to 2:30 p.m. On the Tour II shift, Postal Service employees sort and deliver mail. On December 15, 1997, Leget notified Dumas that she was pregnant and gave him a form, filled out by a physician on November 25, 1997, indicating that Leget's pregnancy did not prevent her from working, but did prevent her from lifting over ten pounds. On December 16, Leget was placed on light duty status. The Postal Service's doctor specifically ordered that Leget's physical restrictions prevented her from lifting, pushing, or pulling over ten pounds.
On December 17, Leget was notified that she and the only other RCU employee on light duty status, Patrick Fratella ("Fratella"), a white man, were to be transferred from Tour II to Tour I, the 2:00 a.m. to 10:30 a.m. shift. On December 22, Leget and Pratella began working on the Tour I shift. On Tour I, Postal Service employees sort but do not deliver the mail. Dumas asserts, in his declaration, that Fratella and Leget were moved to the Tour I shift because the Tour I shift responsibilities are better suited than the Tour II shift responsibilities to employees on light duty status, and because there was a shortage of workers on Tour I.
On December 29, 1997, Leget submitted a letter from her doctor, requesting that she be returned to the Tour II shift because the earlier shift disrupted her schedule and caused "sleep deprivation and tension-type headaches." On January 13, 1998, Leget was transferred back to the Tour II shift. Fratello was transferred back to the Tour II shift on the same day to "avoid any appearance of unfairness or disparity" in the treatment of the two employees.
Second Incident
On Friday, January 9, 1998, Leget suffered severe abdominal pains while lifting a container of mail at the RCU. Leget went to the emergency room at St. Luke's-Roosevelt hospital at 9:00 a.m. and was released at 3:00 p.m. that same day. On Monday, January 12, 1998, Leget returned to work and requested copies of forms used to file accident reports. Leget was given a "CA-2" form. When she requested a "CA-1" form from Dumas, Leget alleges that she and Dumas went to McDermott's office, and McDermott "rais[ed] his voice and point[ed] his fingers [and] kept repeating, I want to know why you need this form." Because Leget "felt threatened," she left McDermott's office without the CA-1 form. The next day, January 13, Leget received a CA-1 form from another employee. Leget filed the CA-1 form on January 15, 1998.
The CA-2 form is described by Dumas as a "form used for reporting a recurrence of an injury on the job," and Leget describes it in her opposition to summary judgment as an "Occupational" form.
The CA-1 form is described by Dumas as "a different Postal Service injury form," and Leget describes it in her opposition as a "Traumatic Injury" form.
Leget also asserts that Dumas treated her differently from other workers by "[c]onstantly scrutinizing [her] work performance," "following or paging [her] over the intercom if [she] leave[s] . . . to use the restroom or payphone," and "interfering with [her] work performance by removing [a] chair used for [sortingi mail." Third Incident
In her complaint, plaintiff asserts that this harassment occurred since January 12, 1998, when McDermott denied plaintiff's request for a CA-1 form. In her deposition, plaintiff states that Dumas followed her to the telephone sometime between December 15, 1997 and January 15, 1998, but did not state that this behavior began after she requested the CA-1 form.
Beginning on January 16, 1998, Leget took an extended leave from the Postal Service. While on leave, Leget submitted "Requests for or Notification of Absence" forms ("PS 3971 forms" or "leave slips"), used to request absences from work and requested copies of the signed leave slips. Dumas filled out the forms, making corrections where there were errors in the dates and hours requested by plaintiff. Leget received copies of the leave slips from an EEO Investigator on September 21, 1998. Leget testified, in her deposition, that the delay in receiving the signed leave slips did not cause her to shorten her leave or otherwise alter her schedule. Leget returned to work for the Postal Service on January 31, 1999. When she returned to work, Leget was posted at the RCU in the Times Square Unit, and had the same position, title, shift, job responsibilities, and route that she held before she went on light duty status in December 1997.
Neither Dumas nor anyone in Postal Service management has ever made comments of a racist or sexist nature to plaintiff, nor has anyone made insulting comments to plaintiff regarding her pregnancy or any disability. EEO Complaints
Plaintiff also suffers from "partial hearing loss," which, along with pregnancy and the injury she suffered on January 9, 1998, are disabilities that she alleges, in her ADA claims, were the basis of defendants' discrimination against her.
On February 6, 1998, Leget filed an Equal Employment Opportunity ("EEO") Complaint of Discrimination against McDermott based upon her race, sex, and disabilities, concerning her transfer to Tour I and the circumstances of her request for the CA-1 form. On February 24, 1998, the Equal Employment Opportunity Commission ("EEOC") agreed to investigate the transfer from Tour II to Tour I, but dismissed Leget's allegation concerning the CA-1 form. On March 24, 1998, Leget appealed the EEO's dismissal of her allegation regarding the CA-1 form, and, in her appeal, asserted for the first time that Dumas harassed her after she requested the CA-1 form by scrutinizing her work, paging her over the intercom, following her to the payphone. and removing a chair she was using. On June 24, 1999, the EEOC affirmed their dismissal of the incident regarding the CA-1 form, and informed Leget that it could not consider her additional allegations against Dumas unless she contacted an LEO Counselor within fifteen days to discuss the additional allegations. Leget never contacted an LEO Counselor regarding these allegations regarding Dumas.
On or about October 1, 1998, Leget filed a second EEO Complaint, alleging that McDermott retaliated against her by not returning copies of the leave slips to her. On February 5, 1999, the Postal Service's EEO Office dismissed this second LEO Complaint for failure to state a claim.
Lawsuit Claims
Leget brought these two actions against Henderson, McDermott, and Dumas under Title VII and the ADA. In her first action, Leget asserts that defendants discriminated against her and subjected her to disparate treatment because of her race, sex, and disabilities — partial hearing loss and pregnancy — by transferring her to Tour I and failing to give her a CA-1 form. She also asserts that Dumas discriminated against her by scrutinizing her work, paging her over the intercom, and taking a chair she was using to sort mail. In her second action, Leget asserts that defendants retaliated against her by failing to return the leave slips to her and thereby discriminated against her based on her pregnancy and her "injury on duty." These actions were consolidated on May 31, 2000. Defendants have moved for summary judgment on the grounds that: the Postal Service and its employees are not subject to suit under the ADA; plaintiff's Title VII claims should be dismissed because she has not established any "adverse employment action" taken against her nor has she established a discriminatory motive; claims not raised during the EEO administrative process should be dismissed for her failure to exhaust those claims; and claims against Dumas and McDermott should be dismissed because they are improper parties.
In her second complaint, Leget asserts that she was discriminated against based upon her "IOD." Leget does not describe what an "IOD" is, but Dumas refers to an "IOD" in his declaration as an "injury on duty." "IOD" appears to refer, therefore, to the injury plaintiff suffered on January 9, 1998.
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record and (2) whether the facts in dispute are material based on the substantive law at issue.
Where, as here, a party is proceeding pro se, this Court has an obligation to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nonetheless, a pro se party's "bald assertion," completely unsupported by evidence, is insufficient to overcome a motion for summary judgment.Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
Plaintiff filed these actions pro se. Attorney Gari Powder filed a notice of appearance on June 26, 2000. Plaintiff subsequently filed an application to proceed pro se and on October 20, 2000, plaintiff's application was granted.
The Court provided the plaintiff with a formal notice of the Rule 56 requirements for opposing defendants' summary judgment motion on October 18, 2000.
A. Individual Liability
There is no individual liability under Title VII. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000). There is also no individual liability under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ("Rehabilitation Act"). See, e.g., Hallett v. New York State Dep't of Correctional Servs., 109 F. Supp.2d 190, 199 (S.D.N.Y. 2000) (collecting cases); Menes v. CUNY University, 92 F. Supp.2d 294, 306 (S.D.N.Y. 2000) (collecting cases). When suing a government agency for a violation of Title VII or the Rehabilitation Act by agency employees, the head of the agency is the appropriate defendant rather than the agency itself. See 42 U.S.C. § 2000e-16(c) (Title VII); 29 U.S.C. § 794a(a)(1) (administrative procedures set forth in 42 U.S.C. § 2000e-16 apply to federal employees seeking relief under Rehabilitation Act). See also. e.g., Lynk v. Henderson, No. 98 Civ. 2086, 2000 WL 178859, at *3 (S.D.N.y. Feb. 15, 2000). Accordingly, Leget's Title VII claims and Rehabilitation Act claims are properly brought against Henderson alone.
The Postal Service cannot be sued for employment discrimination under the ADA because the ADA does not apply to federal agencies. See 42 U.S.C. § 12111(5)(b). See also Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998). Federal agencies are prohibited from discriminating against employees on the basis of their disabilities pursuant to the Rehabilitation Act. Plaintiff's claims are, therefore, construed as having been brought under the Rehabilitation Act.
B. Failure to Exhaust Administrative Remedies
Prior to bringing discrimination claims under Title VII or the Rehabilitation Act, a plaintiff must exhaust available administrative remedies by filing a charge of discrimination with the EEOC. See Downey v. Runyon, 160 F.3d 139, 145 (2d Cir. 1998). This exhaustion requirement, "while weighty, is not jurisdictional," Boos v. Runyon, 201 F.3d 178, 182 (2d Cir. 2000), and, like a statute of limitations, "is subject to waiver, estoppel, and equitable tolling," Downey, 160 F.3d at 145. A federal court can also hear claims that are "reasonably related" to a complaint brought before the EEOC. Wilson v. Fairchild Republic Co., Inc., 143 F.3d 733, 739 (2d Cir. 1998) (Title VII); Woods v. Runyon, No. 94 Civ. 6235, 1998 WL 314885. at *8 (S.D.N.Y. June 12, 1998) (Rehabilitation Act). A claim is "reasonably related" to the charge in an LEO complaint if the claim "would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination," it is a claim alleging retaliation subsequent to and based on the filing of the EEOC charge, or it concerns "incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Butts v. City of New York Department of Housing Preservation and Development, 990 F.2d 1397, 1402-03 (2d Cir. 1993) (internal quotation omitted).
Leget's claims that Dumas harassed her by scrutinizing her work, paging her over the intercom, and removing a chair were never administratively exhausted, nor are they "reasonably related" to the two EEO complaints she did file. When Leget raised these claims regarding Dumas in an appeal of her first LEO complaint, she was informed by the EEOC appeals board that she must raise these claims separately. Because Leget did not file an LEO complaint asserting these claims against Dumas, because they are not reasonably related to the ELO complaints she did bring, and because there is no reason to waive the EEOC exhaustion requirement, she is barred from raising these claims here.
C. Discrimination Claims
Courts analyzing discrimination claims under Title VII apply the three step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). See Richardson v. New York State Dep't of Correctional Services, 180 F.3d 426, 443 (2d Cir. 1999). The McDonnell Douglas framework is also applied in cases brought under the Rehabilitation Act. See D'Amico v. City of New York, 132 F.3d 145, 150 (2d Cir. 1998). Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. Upon establishing a prima facie case of discrimination, the burden shifts to the employer to articulate a non-discriminatory reason for the employment action. If the employer has met its burden, the plaintiff must show that the defendant intentionally discriminated against the plaintiff. In the context of a summary judgment motion, a plaintiff must "point to evidence that reasonably supports a finding of prohibited discrimination." James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). See also Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000).
To state a prima facie case under either Title VII or the Rehabilitation Act, a plaintiff must show that she suffered an "adverse employment action." See Weinstock v. Columia University, 224 F.3d 33, 42 (2d Cir. 2000); D'Amico, 132 F.3d at 150. An adverse employment action is a "materially adverse change in the terms and conditions of employment."Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000) (internal quotations omitted). A materially adverse change must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (internal citation omitted). Examples of such a change include "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." Id. (internal quotations omitted).
Although Galabya was brought under the Age Discrimination in Employment Act (ADLA), the Second Circuit relied upon Title VII cases to articulate the "adverse employment action" standard, and noted that the standards applied in ADEA and Title VII cases are the same. Galabya, 202 F.3d at 640.
A transfer is an adverse employment action if it "results in a change in responsibilities so significant as to constitute a setback to the plaintiff's career." Galabva, 202 F.3d at 640. A "purely lateral transfer" that involves no demotion in form or substance is not a materially adverse action. Id. (citing Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)). The "`key inquiry'" with regard to an involuntary transfer is "`whether the transfer constitutes a negative employment action tantamount to a demotion.'" Id. (quoting Patrolmen's Benevolent Ass'n of the City of New York. Inc. v. City of New York, 74 F. Supp.2d 321, 335 (S.D.N.Y. 1999)). In essence, the transfer must create a "materially significant disadvantage," which may be shown by evidence of a transfer to a position that is materially less prestigious, less suited to one's skills, or less conducive to advancement. Id. "Because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of adverse." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (internal quotations omitted).
Plaintiff's temporary transfer to Tour I was not an adverse employment action. Leget's three-week assignment to the Tour I shift resulted in no change in Leget's salary, title, or benefits. Employee's responsibilities on the Tour I shift wereZ in fact, better suited to Leget's limitations while on light duty status. Moreover, any adverse impact on her life was promptly addressed. Leget was transferred back to the Tour II shift ten working days after she provided defendants with a doctor's note requesting that she be placed on the later shift. Thus, even if a transfer of this sort could be classified as an adverse employment action, it was too brief to be actionable.
The incident regarding the CA-1 form was not an adverse employment action either. Even assuming that McDermott acted as plaintiff alleges at the time she requested the CA-1 form, the fact that plaintiff felt "threatened" is insufficient to establish an adverse employment action.Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (feeling "frightened" or "intimidated" does not constitute an adverse employment action) Plaintiff's one day delay in receiving the CA-1 form was no more than an inconvenience and did not materially change the terms or conditions of her employment. See McGuire v. U.S. Postal Service, 749 F. Supp. 1275, 1282-83 (S.D.N.Y. 1990) (nine day delay in receiving CA-1 form does not constitute an adverse employment action).
Finally, in her second complaint Leget asserts that defendants retaliated against her by failing to return her leave slips to her for several months. A plaintiff is required to show an adverse employment action for retaliation claims under Title VII or the Rehabilitation Act as well. Gordon v. New York City Board of Education, 232 F.3d 111, 116 (2d Cir. 2000) (Title VII) Sands v. Runvon, 28 F.3d 1323, 1331 (2d Cir. 1994) (Rehabilitation Act). The fact that plaintiff did not receive copies of her leave slips until September is not an adverse employment action. See Galyaba, 202 F.3d at 640 (delay in reassignment is not an adverse employment action); Badrinauth v. College, No. 97 Civ. 3554, 1999 WL 1288956, at *6 (E.D.N.Y. Nov. 4, 1999) (delay in receiving paycheck is not an adverse employment action). Leget acknowledged in her deposition that she would not have done anything differently had she received copies of the leave slips earlier, and the delay had no effect on her career when she returned from her leave. Because plaintiff has failed to present sufficient evidence to raise an issue of fact that any of these incidents constituted adverse employment actions, it is unnecessary to address defendants' other arguments.
CONCLUSION
Defendants' motion for summary judgment is granted. The Clerk of Court shall close this case. Should Leget seek to appeal in forma pauperis, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962)
SO ORDERED: