Plaintiff Desmond A. Walsh (“Walsh”) commenced this action against his former employer the Postmaster General, United States Postal Service, asserting violations of: (1) Title VII of the Civil Rights Act of 1964 (“Title VII”); (2) the Fourteenth Amendment right of equal protection and due process pursuant to 42 U.S.C. § 1983 (“Section 1983”); (3) the Family and Medical Leave Act of 1993 (“FMLA”); (4) the Americans with Disabilities Act of 1990 (“ADA”) and the Rehabilitation Act of 1973; (5) Article 15 of the New York Executive Law; and (6) the New York City Human Rights Law (“NYCHRL”). The plaintiff alleges that the defendant discriminated against him based on sex by reassigning him to a different location and retaliated against him by delaying completion of his injury-related paperwork and by removing him from his employment with the United States Postal Service. Before the Court is the defendant's motion for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, opposed by the plaintiff.

DEFENDANT'S CONTENTIONS

The defendant contends that: (1) the plaintiff failed to establish “a prima facie case of sex discrimination with respect to his reassignment to another station”; (2) the plaintiff failed to establish “a prima facie case of retaliation with respect to his removal or injury-related compensation”; (3) “the undisputed facts establish that Walsh was reassigned and removed for legitimate non-discriminatory reasons”; (4) “Walsh cannot raise a genuine issue of pretext”; (5) “Walsh failed to exhaust his administrative remedies with respect to multiple claims”; and (6) “the Court lacks jurisdiction over Walsh's remaining claims.” The defendant maintains that the plaintiff's “reassignment to a different station while an investigation against him was pending- with no changes to his salary, title, or other terms and conditions of his employment ([Halbert] Clark Decl. ¶ 11)-was not an adverse employment action.” The plaintiff failed to show that his reassignment occurred under circumstances giving rise to an inference of discrimination based on his sex, including that the defendant treated him less favorably than similarly situated employees outside of his protected group. Although the plaintiff asserts that “Clark preferred to transfer males over females” because he reassigned another male, Samuel Swinson (“Swinson”), he failed to show that Swinson was similarly situated because, unlike Swinson, the plaintiff was reassigned due to an investigation into his conduct during which he had been untruthful. Moreover, Clark reassigned three female employees in the normal course of business and one female manager while the investigation was pending. Thus, the plaintiff failed to establish discrimination based on sex.

The defendant asserts that the plaintiff failed to show that the notice of proposed removal signed by Clark on December 20, 2021, constitutes an adverse employment action because “a proposal to remove is a mere ‘procedural device used to provide an employee with notice of the employer's intention to remove her at some later date and give her an opportunity to dissuade the employer from doing so. . . . As such, no objectively tangible harm results from it.'” According to the defendant, “[a]lthough a plaintiff's ultimate removal may flow from a proposal to remove, it is the ultimate removal that a plaintiff must challenge.”

The plaintiff also failed to show the requisite causal connection between the protected activity and the allegedly adverse action, since his

EEO [Equal Employment Opportunity] complaint alleging sex discrimination against Clark was not followed closely in time by either [Elvin] Mercado's decision to remove Walsh or Clark's proposed removal of Walsh. Walsh made initial contact with the EEOC [Equal Employment Opportunity Commission] on March 22, 2012, and on May 19, 2012, he filed a formal complaint of discrimination due to Clark's reassignment of him.

The investigation into the plaintiff's conduct commenced on March 19, 2021, and on May 19, 2021, he filed a complaint of discrimination based on reassignment. Thus, the investigation leading to the plaintiff's removal started before his protected EEO activity. Even assuming that reassignment constitutes adverse action, his “removal proposed by Clark did not occur until December 20, 2012, ” more than three months after the protected activity, and it was issued on February 6, 2013, nearly a year after the plaintiff engaged in an EEO activity. The deciding official, Mercado, was not aware of the plaintiff's EEO complaint and did not know who the Plaintiff was when he became postmaster of the Bronx in August 2021 and learned of the Plaintiff's conduct regarding the March 2012 accident. Mercado determined to remove the Plaintiff based on his independent review of the record evidence, and the plaintiff concedes that he is only alleging retaliation against Clark. The plaintiff failed to exhaust his administrative remedies with respect to his retaliation claim relating to delays in his injury-related paperwork and compensation, and even if he did, his claim is unsubstantiated by the record which lacks evidence of any material adversity resulting from any delay.

The defendant contends that he had a legitimate non-discriminatory reason for the Plaintiff's reassignment and removal. The plaintiff and other managers were reassigned “to minimize taint or confusion as the investigation continued, ” and the plaintiff was removed “because the deciding official, Mercado, determined that Walsh attempted to cover up the March 10, 2012, car accident between the postal van driven by [Elia] Martinez and the civilian vehicle driven by [Johnny] Anglero.” According to the defendant:

Initially, Walsh allowed a non-driving TE [transitional employee] to drive a postal van contrary to postal policy, despite that her badge clearly indicated that she was not [to] drive. Mercado Decl. ¶ 15; [Chiquita] Safford Decl. ¶ 9 & Ex. A at USPS001642. Walsh also instructed his subordinate, letter carrier Martinez, not to speak with others about the accident and sent her incriminating text messages. Mercado Decl. ¶ 15; Clark Decl. ¶ 10 & Ex. B; Safford Decl. ¶ 9 & Ex. A at USPS001624, USPS001639-46. He instructed [Joanne] Gonzalez not to carry out her duties in reporting the accident, despite that postal policy requires that accidents be promptly investigated and reported within 24 hours. Mercado Decl. ¶ 15; Clark Decl. ¶ 9, 16; Gonzalez Decl. ¶¶ 3-13 & Ex. B; Safford Decl. ¶ 6 & Ex. A at USPS001623, 1628-30. Another employee, [Susan] Shaffer, overheard this conversation. Safford Decl. ¶ 7 & Ex. A at USPS001623, 1631. Walsh was also untruthful in telling Clark that he did not know about the accident and was not working that day and telling OIG [Office of Inspector General] similar inaccuracies. Mercado Decl. ¶ 15; Clark Decl. ¶¶ 6, 9; Safford Decl. ¶¶ 11-13 & Ex. A at USPS001625, 1649-50. Walsh attempted to handle repairs with the customer, Anglero, outside of normal postal procedure by buying the parts himself and having a woman posing as Walsh's wife call the customer. Mercado Decl. ¶ 15 & Ex. A; Clark Decl. ¶¶ 5, 7-8, 14 & Ex. A-B; Safford Decl. ¶ 8 & Ex. A at USPS001623, 1632-33. Finally, by frustrating the customer, who contacted the local news, Walsh brought negative publicity to the postal service, which reported that Walsh attempted to “intimidate” and “bully” him. Mercado Decl. ¶¶ 14-15 & Exs. B-C. Simply put, Walsh was removed from USPS because he engaged in egregious conduct that was unbecoming of a postal official (Mercado Decl. ¶¶ 15-16)-a conclusion that was more than supported by the evidence collected by Clark and USPS's OIG, see supra at 2-11.

The defendant maintains that the plaintiff failed to show pretext. Furthermore,

Walsh failed to exhaust his claims pertaining to alleged delays in processing his injury-related compensation. On November 26, 2012, Walsh requested pre-complaint counseling with respect to his allegations that Clark retaliated against him by allegedly not acting on a June 21, 2012 request to process sick leave and a September 11, 2012, request to process a portion of an accidental injury claim form

for submission to his insurance company, which he alleged was retaliation for his prior EEO activity. [Allison M.] Rovner Decl. Exs. K at USPS000638, L-N. This was more than 45 days after the alleged acts. Therefore, Walsh did not present his claim alleging delays in his paperwork to an EEO counselor within 45 days and failed to exhaust these claims. See Id. at Exs. O-Q. Walsh also failed to exhaust before the agency his claim under the Rehabilitation Act (2nd Am. ¶ 1) and any claim based on a hostile work environment (id. at ¶¶ 2, 52, 91, 98). Walsh's only EEO activity is discussed supra at 13-14. Walsh never presented these claims to the agency.

The defendant contends that the Court lacks jurisdiction over the plaintiff's remaining claims “brought pursuant to 42 U.S.C. § 1983 (¶¶ 112-21); the FMLA (¶¶ 122-29); the Americans with Disabilities Act of 1990; (¶¶ 13037); New York Executive Law Article 15 (¶¶ 138-42); and New York City Human Rights Law (¶¶ 143-47), ” because the United States is immune from suit based on the principle of sovereign immunity, “the FMLA does not provide a private right of action to a federal employee who alleges a violation of her FMLA rights, ” and the ADA excludes from its scope the United States as an employer. The plaintiff's claims under New York and New York City law must be dismissed “because they are preempted by federal law.”

In support of his motion, the defendant submitted a statement pursuant to Local Civil Rule 56.1 of this court and declarations by: (1) Clark with Exhibit A (“my email communications with [Tina] Gong and [Charisse] Wynn”), Exhibit B (“my contemporaneous notes from this interview with Anglero”), Exhibit C (examples of other employees' reassignments by Clark), Exhibit D (“the letters notifying Walsh of an administrative interview”), Exhibit E (“the notice of proposed removal, which was drafted by our Labor Relations department”) and Exhibit F (“a letter of warning in lieu of 14-day suspension on or about March 5, 2012, in connection with various infractions found at the Williamsbridge Station he managed during a District Service Improvement Team (“‘SIT') audit”); (2) Mercado with Exhibit A (a “voice message from the woman claiming to be Walsh's wife”), Exhibit B (“the television news story” about the March 10, 2012 accident), Exhibit C (“the printed news story”) and Exhibit D (“the letter of decision regarding Walsh's removal, dated February 6, 2013”); (3) Safford with Exhibit A (“OIG's ROI regarding Walsh's conduct with respect to the March 10, 2012, accident, including the MOIs [ memorandum of interview] and exhibits”); (4) Gonzalez with Exhibit A (“the note that I placed on the civilian's vehicle”) and Exhibit B (“my statement, signed on March 30, 2012”); (5) Don Beete (“Beete”) with Exhibit A (“the accident report regarding Walsh's March 27, 2012, accident”), Exhibit B (“documentation” of certain records), Exhibit C (the May 1, 2012 “letter to Walsh”) and Exhibit D (“pay adjustments” for the period “of June 2012 through December 2012”); and (6) the defendant's attorney Rovner with Exhibit A (“the transcript from the July 24, 2020, deposition of Plaintiff Desmond Walsh”), Exhibit B (“a transcript from the Merit Systems Protection Board (‘MSPB') hearing, which was held on January 22, 2015”), Exhibit C (“a transcript from the MSPB hearing, which was held on March 3, 2015”), Exhibit D (“the Agency File from the MSPB proceedings”), Exhibit E (“the September 11, 2012, affidavit of former postmaster Howard Sample, submitted in connection with the Equal Employment Opportunity (‘EEO') proceedings”), Exhibit F (“the EEO Notice of Right to File with respect to Walsh's claim for discrimination based on sex with respect to his reassignment”), Exhibit G (“Walsh's May 19, 2012, formal EEO complaint for discrimination based on sex with respect to his reassignment”), Exhibit H (“the iComplaints report pertaining to Walsh's EEO claim for discrimination based on sex”), Exhibit I (“the May 22, 2017, Administrative Judge's decision pertaining to Walsh's EEO claim for discrimination based on sex”), Exhibit J (“the September 13, 2019, denial of Walsh's request for reconsideration by the EEOC's Office of Federal Operations (‘OFO')”), Exhibit K (“the PS Form 2570 pertaining to Walsh's EEO claim alleging retaliation relating to the processing of his injury-related paperwork”), Exhibit L (“Walsh's Notice of Right to File with respect to Walsh's EEO claim for retaliation relating to the processing of his injury related paperwork”), Exhibit M (“the iComplaints report pertaining to Walsh's EEO claim for retaliation relating to the processing of his injury-related paperwork”), Exhibit N (“Walsh's formal EEO complaint for retaliation relating to the processing of his injury-related paperwork”), Exhibit O (“the United States Postal Service's dismissal of Walsh's complaint for retaliation relating to the processing of Walsh's injury compensation paperwork as untimely”), Exhibit P (“the December 11, 2013, OFO decision affirming the agency's dismissal of Walsh's complaint for retaliation relating to the processing of Walsh's injury compensation paperwork as untimely”), Exhibit Q (“the OFO's denial of Walsh's request for review”), Exhibit R (“Walsh's appeal to the MSPB challenging his removal”), Exhibit S (“Walsh's EEO complaint alleging retaliation based on his removal”), Exhibit T (“the dismissal of Walsh's EEO complaint alleging retaliation based on his removal”), Exhibit U (“the MSPB Administrative Judge's decision affirming the agency's removal of Walsh”), Exhibit V (“the MSPB's final order affirming the Administrative Judge's decision”), Exhibit W (“a letter of warning in lieu of 14-day suspension issued to Walsh on April 1, 2008”), Exhibit X (“a letter of warning in lieu of 14-day suspension issued to Walsh on September 29, 2008”) and Exhibit Y (“a letter of warning in lieu of 14-day suspension issued to Walsh on September 23, 2010”).

PLAINTIFF'S CONTENTIONS

The plaintiff contends that: (1) “the defendant did not adequately address claims brought under FMLA (Count Three)”; (2) “the defendant did not adequately address Count Four's alternative theory of recovery under 29 USC § 794A”; (3) “the defendant did not adequately address Counts Five or Six”; and (4) “there are material facts in dispute requiring trial.” In a footnote to his memorandum of law, the plaintiff contends:

The Plaintiff, having carefully reviewed the Defendant's arguments as to Counts One and Two, is unable to disagree that the prerequisites of a §1983 action involve state action "...under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia..." Id. Similarly, the ADA aspect of Count Four fails in that 42 USC 12111(5)(B) exempts "the United States, a corporation wholly owned by the government of the United States, ", however, the remainder of the theory of recovery stands for the reasons set forth, infra.

The plaintiff argues:

An FMLA plaintiff may pursue an action under 29 USC §2617(a), which Plaintiff has done here. Specifically, the Plaintiff has clearly pleaded violations of §2615(a) (interference with employment rights) and §2615(b) (interference with pursuing remedies). While the Defendant has submitted an affidavit of counsel merely referencing records without being the custodian or some knowledgeable individual of their compilation and daily reliance upon the same in day-to-day business, that alone does not establish its claim of the absence of bad faith motives in failing to timely pay the Plaintiff sums due him, or of his transfer or subsequent termination from the postal service. It is entirely possible for a good faith motive to coexist with a bad faith purpose for taking an employment action. For example, as the case is here, the Defendant wanted to be rid of the Plaintiff, and actively sought a reason to do it. Letters commending the Plaintiff for his hard work and dedicated service do not comport with the Defendant's inadmissible narratives as a bad faith actor. (See [Tricia S.] Lindsay Exhibit 6). The Defendant has clearly not met its burden, and has indeed contradicted its own institutional knowledge of the Plaintiff's character, pattern and habit. Otherwise, and assuming arguendo that the Defendant had met the initial burden, facts are too easily established demonstrating that the Defendant made an active attempt to violate FMLA. establishes that the Defendant internally knew the Plaintiff was on leave due to an on-the-job injury. (See Lindsay Ex 10). However, the record consists of at least two letters penned by Clark falsely asserting the Plaintiff was continuously absent without excuse. Why he would have made that false assertion is a question of fact for trial, and it is a material fact that this action was taken without need, without cause and without lawful purpose.

The plaintiff contends:

The Plaintiff pleads, in Count Four, two theories of recovery: one under ADA, and one under the Rehabilitation Act of 1973. The former is admittedly foreclosed by 42 USC §12111(b)(5) because the Defendant is an instrumentality of the United States government, and therefore, not an "employer" for the purposes of ADA.

However, the latter invokes 29 USC §794a, which specifically affords a right of action under 42 USC §2000d. That statute states, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The Postal Service could not possibly be more of an activity receiving Federal financial assistance. Congress saw fit to set that policy, and include "any" program or such activity. The Defendants do not dispute that the Postal Service and its functions receive Federal support. Accordingly, the Defendant has not met its burden. Further, even assuming that the burden was met, there exists a material dispute of fact regarding Plaintiff's time off due to his injury and whether the USPS, including Clark, was aware. (See Lindsay Exh. 10 and Exh. 12).

Concerning Counts Five and Six, the defendant “has not clearly elucidated how Counts Five and Six and the record the [sic] proffered (assuming admissibility, that is) require a grant of summary judgment. In this respect, the Court needn't go further, and the burden has not yet shifted to the Plaintiff.”

According to the plaintiff, the record shows that the defendant did not follow “USPS policy regarding temporary assignments.” The defendant “relies exclusively on the testimony and the investigation steered by Clark, who, as he put it, ‘. . . can't recall what Mr. Walsh did in 2012 . . .'” The defendant does “not point to a single, specific policy, but rather, a custom, as to who can drive USPS vehicles.” “The reasons for Clark's actions and substantial deviation from USPS policy demonstrates [sic] that improper motivations exist. The nature of that improper motivation requires trial.” Moreover, “Don Beete's response to a USPS examiner's inquiry still establishes him as somehow having a pay rating as of April 2014, the second year after which the defendant purports to have terminated Walsh”; thus, “there appears to be a real question as to when Walsh's wrongful termination occurred [sic], not if it occurred [sic].” In support of his opposition to the motion, the plaintiff submitted his Rule 56.1 statement and: (i) his declaration with exhibits; (ii) a declaration by his attorney Lindsay, with Exhibit 1 (“USPS letter regarding Involuntary Reassignments”), Exhibit 2 (“USPS Memorandum regarding Tort Claims Processing-Johnny Anglero”), Exhibit 3 (“email from Charisse Wynn to Chirichello, Congetta dated, May 1, 2012”), Exhibit 4 (“USPS Memorandum regarding pre-disciplinary interviews (02/27/12)”), Exhibit 5 (“USPS memorandum (December 23, 2011) regarding Pre-Disciplinary Interviews-EAS Employees”), Exhibit 6 (“Certificates and Letters of Recognition for Plaintiff”), Exhibit 7 (“Deposition of Halbert Clark (July 9, 2013)”), Exhibit 8 (“Halbert Clark EEO Investigative Affidavit”), Exhibit 9 (“Letter from Don Beete April 14, 2014”), Exhibit 10 (“an email from Audrey Chan to Halbert Clark regarding Desmond Walsh's time off from work”), Exhibit 11 (“emails from Halbert Clark to Desmond Walsh-‘Late again!'”), Exhibit 12 (“letter from Halbert Clark to Desmond Walsh regarding Continuous Absence, April 6, 2012”), Exhibit 13 (“deposition of Halbert Clark taken October 20, 2020”), Exhibit 14 (“HBK EL-804 Safe Driver Program September, 2008”), Exhibit 15 (“Deposition of Reghuvaran Nair September 2, 2020”), Exhibit 16 (“Plaintiff's Second Amended Complaint”), Exhibit 17 (“Deposition of Don Beete August 7, 2020”) and Exhibit 18 (“Deposition of Desmond Walsh, July 24, 2020”).

DEFENDANT'S REPLY

The defendant asserts that the plaintiff “does not dispute the Government's contention that his reassignment to another station did not constitute an adverse employment action, and for that reason alone, he has failed to establish a prima facie case of discrimination.” The plaintiff “also offered no evidence to establish that his reassignment occurred under circumstances giving rise to an inference of discrimination based on his sex; he has made no showing that USPS treated him less favorably than similarly situated employees.” Thus, his claim of discrimination based on sex fails at the initial stage. Concerning removal, the plaintiff does not dispute the contentions that: (i) “Clark's proposal to remove Walsh was not an adverse employment action”; and (ii) “there was no causal connection between his removal and protected activity of reporting alleged discrimination to the Equal Employment Opportunity Commission (‘EEOC') in March-May 2012.” Similarly, the plaintiff does not contest that the investigation into his conduct began before he contacted the EEOC, his December 2012 proposed removal occurred more than two to three months after the protected activity, and Mercado was not aware of the plaintiff's EEO complaint. Although the plaintiff's retaliation claim concerning delays in compensation is unexhausted, he cannot establish a prima facie case concerning that claim because he does not offer any rebuttal to the defendant's argument that he failed to demonstrate any material adversity resulting from any delays in compensation since he was fully compensated for the period at issue and he was responsible partly for minor delays in his compensation for the sole six-month period in which he alleges delays.

The defendant maintains that the plaintiff does not even mention pretext in his opposition to the motion, and he failed to establish a genuine issue of pretext to rebut the legitimate non-discriminatory reason for the defendant's actions. The plaintiff contends that “in 2012 USPS failed to adhere to a policy stated in a USPS memorandum from 2007 regarding involuntary reassignments, ” without any evidentiary support, and that contention does not establish that the defendant's legitimate non-discriminatory reason for his reassignment is pretextual. The plaintiff “does not allege any facts to support that the 2007 memorandum was in effect at the time of his reassignment in March 2012 or how USPS departed from this memorandum, which specifically allows involuntary reassignments.” Furthermore, he failed to show that any departure from the memorandum established that his reassignment served as pretext for discrimination based on sex. Similarly, the plaintiff failed to establish pretext with respect to his retaliation claim regarding removal and his self-serving allegations regarding unspecified “schedule disruptions, ” phone calls to his personal phone after working hours and Clark's sending him several emails that he was “late again” are unsupported and occurred before his protected EEO activity. For the same reasons, the plaintiff “cannot show pretext through allegations that Clark did not properly enter his time or sent him letters in April and July 2012 regarding his continuous absence from work, ” and he did not show that it was Clark's responsibility to enter his time properly or that any failure to enter his time correctly deprived the plaintiff of any payment. Regarding the letter Clark signed on April 6, 2012, instructing the plaintiff to return to work or submit “satisfactory evidence substantiating [his] absence, ” the plaintiff provided no proof that he had submitted to Clark satisfactory evidence substantiating his absence, and “an April 12 email sent to Clark only notified Clark at that time that proper medical records had been submitted.” Regarding a similar letter Clark signed in July 2012, Beete suggested that Clark send it pursuant to USPS policy because Walsh's workers' compensation claim had been denied. However, none of these actions establishes pretext. The plaintiff's “selective quotation of deposition testimony from Clark that he ‘can't recall what Mr. Walsh did in 2012' to somehow undermine the Government's legitimate non-discriminatory reason” is misplaced because the plaintiff “neglects to mention that this was a partial answer to an objected-to question that asked ‘When Mr. Walsh had his accident, did he report back to work?'”

Similarly, Walsh cites Clark's EEO affidavit in which Clark indicates that in addition to Walsh's role in covering up the accident, Clark also reassigned Walsh due to complaints by other employees that Walsh had created a hostile work environment. Opp. Br. 15; Lindsay Decl. Ex. 8. Over 50 pages of complaints against Walsh from multiple employees that he supervised, which were produced in discovery in the MSPB case to Walsh and in this litigation, attest to the veracity of this second reason provided by Clark. See [David] Friedman Decl. ¶ 3 Ex. A. In any event, this additional reason for Walsh's reassignment is not inconsistent with the Government's legitimate non-discriminatory explanation, and even if it was, “inconsistencies and implausibilities [that] [a]re minor” are not sufficient to show pre-text.

The defendant asserts that the plaintiff did not counter his argument that the plaintiff failed to exhaust administrative remedies. The plaintiff admits that “he did not request pre-complaint counseling with respect to his allegations about delayed processing of his injury paperwork until November 26, 2012, and that his EEO complaint regarding injury compensation was dismissed for his failure to timely contact an EEO counselor.” The plaintiff did not excuse his failure to exhaust any claim under the Rehabilitation Act of 1973, warranting their dismissal. The plaintiff's attempt to excuse his delays in timely contacting an EEO counselor regarding the injury compensation retaliation claim must fail because his “assertions that he did not contact an EEO counselor timely because of a delay in receiving the full file and his unspecified physical injuries sustained in March 2012 fall short of creating the extraordinary circumstances that would justify equitable tolling.” The plaintiff did not explain what portion of the investigative file he did not have or why he needed the full file to make his claim timely, and he did not show that he was diligent in attempting to obtain the file, since he “alleges that he waited for two months after receiving no pay to contact [Kim] Raber.” The plaintiff admits that “the Court lacks jurisdiction over his claims brought pursuant 42 U.S.C. § 1983 and the Americans with Disabilities Act of 1990 because those claims cannot be brought by a federal employee against the federal government, ” and he failed to address the argument regarding the lack of jurisdiction over the FMLA claim based on the absence of a private right of action and New York state and municipal claims based on preemption. In support of his reply, the defendant submitted a Rule 56.1 statement and declarations by: (a) his attorney Friedman with Exhibit A (“complaints made against Walsh by other employees that was produced to Walsh by the USPS in the MSPB administrative matter”); and (b) Paul Stremel with Exhibit A (“a June 5, 2012, email from Don Beete to Halbert Clark that is within Walsh's injury compensation file.”).

LEGAL STANDARD

SUMMARY JUDGMENT

A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

Fed. R. Civ. P. 56(a).

“[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A “dispute about a material fact is ‘genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. at 255, 106 S.Ct. at 2513. In deciding a summary judgment motion, “[t]here is no requirement that the trial judge make findings of fact. The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. at 2511. Thus, summary judgment is improper “[i]f reasonable minds could differ as to the import of the evidence.” Id. On a summary judgment motion, “[t]he court must ‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Aulicino v. NYC Dep't of Homeless Servs., 580 F.3d 73, 79-80 (2d Cir. 2009) (citation omitted).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony.” Fed.R.Evid. 602.

Local Civil Rule 56.1 of this court provides:

(a) Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion. (b) The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried. (c) Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party. (d) Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed.R.Civ.P. 56(c).

“The district court has broad discretion in choosing whether to admit evidence.” Raskin v. Wyatt Co., 125 F.3d 55, 65 (2d Cir. 1997). “The principles governing admissibility of evidence do not change on a motion for summary judgment” and “only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.” Id., at 66. “The court performs the same role at the summary judgment phase as at trial.” Id. Evidence inadmissible under the evidence rules may be considered by the court on a summary judgment motion if not challenged. See Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir. 2005). “[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony. . . . Thus, factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine' issues for trial.” Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).

UNDISPUTED FACTS

The parties' Rule 56.1 statements contain, improperly, citations to the second amended complaint, which is not evidence, citations to evidence about which the declarant has no personal knowledge and conclusory statements. The defendant's Rule 56.1 statement contains improper hearsay. The plaintiff's Rule 56.1 statement contains, improperly, paragraphs without citation to any evidence and legal arguments.

The following facts are undisputed:

Since July 2011 until his removal, the plaintiff served as manager of customer service for the Williamsbridge Station. In 2012, Clark, the manager of customer service for the Bronx, was the plaintiff's immediate supervisor. Clark is the only person alleged by the plaintiff to have discriminated and retaliated against him. On March 10, 2012, transitional employee letter carrier Martinez was assigned by the plaintiff to deliver mail by using a postal van in the Bronx when she had an accident with a private vehicle owned by Anglero. The plaintiff attempted to settle personally Anglero's damages.

On March 19, 2012, Clark received an email from Gong, manager of delivery and customer service operations, which forwarded an email from tort claim coordinator Wynn concerning a telephone call Wynn had on March 16, 2012, with Anglero about the accident. In the March 19, 2012 email to Clark, Gong asked him to investigate the March 10, 2012 accident. Clark spoke with the plaintiff who denied being aware of an accident, speaking to Anglero and working on the day of the accident. Clark also spoke to Martinez and Wynn, who conveyed additional information. On March 20, 2012, Clark spoke with Anglero. On March 21, 2012, Clark spoke again to the plaintiff and Martinez.

The plaintiff failed to rebut with admissible evidence Clark's statements in his declaration concerning the plaintiff's denials. The plaintiff's citation to his declaration, without specifying any part of his declaration, and his quotation to Clark's answer at his deposition “I can't recall what Mr. Walsh did in 2012” are insufficient to rebut Clark's account of the plaintiff's denials. The plaintiff relies almost exclusively on Clark's answer “I can't recall what Mr. Walsh did in 2012” to the question “When Mr. Walsh had his accident, did he report back to work?” to support his Rule 56.1 statement. However, Clark's answer to a specific question whether he reported back to work when he had his accident is insufficient to rebut the myriad of factual statements by the defendant supported properly by relevant admissible evidence.

On March 21, 2012, Clark reassigned to different stations the plaintiff and other management employees who were being investigated, Gonzalez, who is a female, and Ian Skeete (“Skeete”), who is a male, to minimize taint or confusion while his investigation into the March 10, 2012 accident continued. The plaintiff's reassignment did not change his salary, title or other terms and conditions of his employment. Clark had never dealt with another situation in which an employee tried to cover up an accident and then impede the investigation. In the normal course of business, Clark was involved in reassigning other employees besides the plaintiff, both females and males. On March 27, 2012, Clark met with Anglero who presented a picture of the postal van connected to his vehicle, a voice message from someone named Sandra, a note that was placed on Anglero's vehicle to call the plaintiff, certain witness statements and invoices. Clark interviewed Gonzalez in connection with his investigation of the March 10, 2012 accident. Gonzalez was at the scene of the March 10, 2012 accident with the plaintiff on that day, and she provided a written statement to Clark for his investigation at his request.

On April 11, 2012, Clark contacted the OIG and requested an investigation into the plaintiff's actions in connection with the March 10, 2012 accident. The results of the OIG investigation, including interview memoranda and exhibits, are summarized in a report of investigation (“ROI”), dated July 20, 2012. The OIG interviewed Gonzalez, Shaffer, Anglero, Martinez, Elaine Ellis and the plaintiff.

Based on his investigation and review of the ROI, Clark decided to propose the plaintiff's removal due to his conduct relating to the March 10, 2012 accident. Clark's reasons for proposing removal of the plaintiff included that the plaintiff: (a) engaged in a scheme to cover up the March 10, 2012 accident; (b) tried to involve those he managed in the scheme, including instructing Gonzalez not to complete the accident paperwork and Martinez not to speak to Clark; (c) failed to report the March 10, 2012 accident; (d) instructed employee Martinez, who was not authorized to drive a United States Postal Service vehicle, to drive the van; (e) should not have attempted to settle the customer's damages claim by himself and by ordering the parts on his own; (f) had a woman pose as his wife in an attempt to handle the matter with Anglero; (g) was untruthful with Clark in telling him he knew nothing about the accident and had not spoken to Anglero; and (h) received media coverage and brought bad publicity to the United States Postal Service. On December 20, 2012, Clark signed the notice of proposed removal, which was drafted by the United States Postal Service's Labor Relations department and presented to Clark by his new manager at the time, Francisco Gutierrez.

Mercado started as postmaster for the Bronx in August 2012, taking over from the outgoing Postmaster Howard Sample. At that time, the plaintiff was absent from work due to a personal injury. Mercado reviewed written materials from the investigation into the plaintiff's conduct, including ROI and information from Clark's investigation, as well as the notice of proposed removal. Mercado was the deciding official concerning the plaintiff's removal. Based on his independent review of the evidence, Mercado concluded that the charges contained in the notice of proposed removal were supported by the record and the plaintiff's removal was warranted. Mercado's reasons for the decision to remove the plaintiff included that the plaintiff's conduct was egregious in multiple ways, repeated and involved subordinates and private citizens in a scheme to cover up the March 10, 2012 accident, including wrongfully instructing a supervisor who reported to him, Gonzalez, not to carry out her duties in reporting the accident, instructing Martinez not to speak with anyone about the accident and sending her a series of incriminating text messages, allowing unauthorized driver Martinez to drive a United States Postal Service van, making misrepresentations to the OIG and Clark during their investigations, trying to reach an agreement with the customer to fix his vehicle, involving a person who was not employed by the United States Postal Service in his scheme, attempting to handle the repairs outside of normal United States Postal Service procedures and bringing negative publicity to the United States Postal Service. Mercado concluded that the plaintiff's conduct was unbecoming of a United States Postal Service official. Prior to making his removal decision, Mercado did not receive any communication from the plaintiff or on his behalf regarding the notice of proposed removal and was not aware that the plaintiff had filed an EEO complaint. Clark was not involved in issuing a letter of decision to remove the plaintiff.

On March 27, 2012, the plaintiff sustained an injury while working. On March 28, 2012, Clark submitted the accident report regarding the plaintiff's March 27, 2012 accident. On April 12, 2012, Clark signed the plaintiff's injury claim form known as CA-1. On May 1, 2012, Health and Human Resources Management, New York District, notified the plaintiff that the last day of his 45-day period of continuation of pay would be May 11, 2012, and he had an option to charge his absence resulting from his on-the-job injury to sick leave or leave without pay. The plaintiff received his regular salary from March 27, 2012, to middle of June 2012. No. sick leave requests by the plaintiff exist in the files of Health and Human Resources Management for the period from June until December 2012. Health and Human Resources Management has no record of a follow up by the plaintiff with that office during the six months concerning lack of contemporaneous pay and his claim that he wished to use sick leave for that period. Due to pay adjustments made on December 29, 2012, the plaintiff was compensated for the period June through December 2012, and the adjustment changed retroactively the plaintiff's leave without pay status to sick leave status.

The only administrative claims the plaintiff filed pertain to his claim for gender discrimination, retaliation based on delays in completion of his injury-related paperwork and retaliation based on his removal. On November 26, 2012, the plaintiff requested pre-complaint counseling with respect to his allegations about delayed processing of his injury-related paperwork. On April 5, 2013, the United States Postal Service EEO Investigative Office dismissed the plaintiff's complaint as untimely because he had not contacted an EEO counselor until more than 45 days from the date of the alleged discriminatory action had elapsed. The Office of Federal Operations affirmed the dismissal.

APPLICATION OF LEGAL STANDARD

Exhaustion

The defendant argues that the plaintiff failed to exhaust his claims: (1) pertaining to alleged delays in processing his injury-related compensation; (2) pursuant to the Rehabilitation Act of 1973; and (3) any claim based on a hostile work environment. The plaintiff admits that: (a) the only administrative claims he filed are for gender discrimination, retaliation based on delays in completing his injury-related paperwork and retaliation based on his removal; and (ii) his claim based on delayed processing of his injury-related paperwork was dismissed by the United States Postal Service EEO Investigative Office as untimely because he had not contacted an EEO counselor until more than 45 days from the date of the allegedly discriminatory action had elapsed and the Office of Federal Operations affirmed the dismissal.

“Title VII requires that individuals aggrieved by acts of discrimination file a charge with the EEOC within 180 or, in states like New York that have local administrative mechanisms for pursuing discrimination claims, 300 days ‘after the alleged unlawful employment practice occurred.' 42 U.S.C. § 2000e-5(e)(1).” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78-79 (2d Cir. 2015).

Individual and class complaints of employment discrimination and retaliation prohibited by title VII (discrimination on the basis of race, color, religion, sex and national origin) [or] the Rehabilitation Act (discrimination on the basis of disability) . . . shall be processed in accordance with this part. Complaints alleging retaliation prohibited by these statutes are considered to be complaints of discrimination for purposes of this part.

29 C.F.R. § 1614.103(a).

Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.

(1) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.

(2) The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this section when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.

29 C.F.R. § 1614.105(a).

The Court finds that the only claims the plaintiff exhausted are Title VII claims for: (1) gender discrimination based on reassignment; and (2) retaliation based on removal; thus, any other claims under Title VII and the Rehabilitation Act of 1973 are unexhausted and granting summary judgment in favor of the defendant on the unexhausted claims is warranted.

Title VII Discrimination Based on Reassignment

Title VII provides that it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.” 42 U.S.C. § 2000e-2(a)(1). “[A]n unlawful employment practice is established when the complaining party demonstrates that . . . sex . . . was a motivating factor for any employment practice even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).

Title VII discrimination claims . . . may be proven under a disparate treatment or disparate impact theory of liability. To establish disparate treatment, a plaintiff must show that the defendant's actions were motivated by a discriminatory intent, either through direct evidence of intent or by utilizing the three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Alternatively, a plaintiff may proceed on a disparate impact theory by showing that even if a policy or practice is facially neutral or is not motivated by a discriminatory intent, it has a discriminatory effect.

Legg v. Ulster Cty., 820 F.3d 67, 72 (2d Cir. 2016).

Under the [McDonnell Douglas Corp.] test, a plaintiff must first establish a prima facie case of discrimination by showing that: “(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination.” Once a plaintiff has established a prima facie case, a presumption arises that more likely than not the adverse conduct was based on the consideration of impermissible factors. The burden then shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the disparate treatment. If the employer articulates such a reason for its actions, the burden shifts back to the plaintiff to prove that the employer's reason “was in fact pretext” for discrimination.

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (internal citations omitted).

Employment actions that have been deemed sufficiently disadvantageous to constitute an adverse employment action include “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.” As these examples suggest, “[t]o be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities” Moreover, we have held that an involuntary transfer may constitute an adverse employment action if the plaintiff “show[s] that the transfer created a materially significant disadvantage” with respect to the terms of her employment.

Kessler v. Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 207 (2d Cir. 2006) (internal citations omitted).

To satisfy the “pretext” element of a discrimination claim, “the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.” Stern v. Trustees of Columbia Univ. in the City of New York, 131 F.3d 305, 312 (2d Cir. 1997). Claims of discrimination under the New York Human Rights Law (“NYSHRL”) are analyzed using the same standards that apply to Title VII discrimination claims. See Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (“New York state courts have adopted the [Title VII] analysis for discrimination actions arising under [NYSHRL].”). However, unlike federal and NYSHRL discrimination claims, NYCHRL discrimination claims are construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Mihalik v. Credit Agricole Cheuvreux, 715 F.3d 102, 109 (2d Cir. 2013) (citation omitted).

The plaintiff failed to address the defendant's arguments that he did not establish prima facie that his reassignment to another station: (a) constituted an adverse employment action; and (b) occurred under circumstances giving rise to an inference of discrimination based on his sex because he made no showing that the defendant treated him less favorably than similarly situated employees. The undisputed evidence demonstrates that the plaintiff's reassignment to another station did not change his salary, title or the other terms and conditions of his employment. No. evidence exists in the record, and the plaintiff does not identify any evidence in his opposition to the motion, showing that the reassignment to another station created any materially significant disadvantage with respect to the terms of the plaintiff's employment or was more disruptive than a mere inconvenience. The Court finds that the plaintiff's reassignment to another station did not constitute an adverse employment action. See Kessler, 461 F.3d at 207 (“a transfer” that does not change the conditions of employment is “‘a mere inconvenience or an alteration of job responsibilities,' and hence [is] not ‘materially adverse.'”).

The undisputed evidence shows that: (1) Clark reassigned to different stations the plaintiff and other management employees who were being investigated, Gonzalez, a female, and Skeete, a male, while his investigation into the March 10, 2012 accident continued; and (2) in the normal course of business, Clark was involved in reassigning other employees besides the plaintiff, both females and males. The plaintiff does not make citation to any evidence in the record demonstrating that the defendant treated him differently from similarly situated employees in connection with his reassignment to another station. Thus, the plaintiff did not establish prima facie that his reassignment to another station occurred under circumstances giving rise to an inference of discrimination based on his sex.

The undisputed evidence shows that, on March 21, 2012, Clark reassigned the plaintiff, Gonzalez and Skeete to different stations to minimize taint or confusion while his investigation into the March 10, 2012 accident continued. Thus, the defendant showed a legitimate reason for the plaintiff's reassignment. However, the plaintiff did not address pretext in his opposition to the motion and failed to make citation to any evidence establishing pretext. Accordingly, granting the defendant's motion for summary judgment on the plaintiff's Title VII and, consequently, New York law claims of gender discrimination based on reassignment is warranted.

Title VII Retaliation Based on Removal

Title VII provides that it is “an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To establish a retaliation claim under Title VII, a plaintiff must show that: “(1) defendants discriminated-or took an adverse employment action-against him, (2) ‘because' he has opposed any unlawful employment practice.” Vega., 801 F.3d at 90. Unlike with discrimination claims, it is not sufficient to establish that retaliation was a substantial or motivating factor in the employer's decision; rather, the plaintiff must show “that the adverse action would not have occurred in the absence of the retaliatory motive.” Id. at 91.

The plaintiff in his opposition to the motion does not challenge the defendant's contentions that: (i) Clark's proposal to remove the plaintiff was not an adverse employment action; and (ii) no causal connection exists between the plaintiff's removal and the protected activity of reporting alleged discrimination to the EEO. A “Notice of Right to File” dated May 3, 2012, “EEO Case: 4B-100-0066-12, ” signed by “Carol Clark Dunston ADR Specialist” and directed to the plaintiff's attorney, states that the plaintiff's EEO claim “that he was discriminated against on the basis of sex when he was subjected to harassment in the workplace” was “initiated on March 22, 2012, ” “[t]he case is under inspection service investigation therefore was deemed not appropriate for mediation, ” and the plaintiff has “15 days from the date of receipt of this letter to file a timely formal complaint.” See Docket Entry No. 85-6. On May 18, 2012, the plaintiff signed the “EEOC Complaint of Discrimination in the Postal Service” concerning his reassignment. See Docket Entry No. 85-7. Mercado issued the removal “Letter Decision” on February 6, 2013. See Docket Entry No. 81-4. The plaintiff challenged his removal before MSPB on February 20, 2013, asserting: “There was no form 650 given to me to file for mediation. The proper steps was [sic] not followed. I was never interview [sic] by Mr. Clark pertaining to the accident. How did Mr. Clark come to a determination of me being guilty.” Docket Entry No. 85-18. On April 27, 2015, the MSPB administrative law judge (“ALJ”) rejected the plaintiff's claim that he was removed in retaliation for his previous EEO activity. See Docket Entry No. 85-21. On October 20, 2015, MSPB affirmed the ALJ's April 27, 2015 decision.

It is undisputed that: (1) on April 11, 2012, Clark contacted the OIG and requested an investigation into the plaintiff's actions in connection with the March 10, 2012 accident; (2) the OIG's ROI report was issued on July 20, 2012; and (3) on December 20, 2012, Clark signed the notice of proposed removal, which was drafted by the United States Postal Service's Labor Relations department and presented to Clark by his new manager at the time, Francisco Gutierrez. On December 21, 2012, the plaintiff refused to sign the notice of proposed removal. See Docket Entry No. 95-18. It is also undisputed that: (a) Mercado was the deciding official concerning the plaintiff's removal; (b) based on his independent review of the evidence, Mercado concluded that the charges contained in the notice of proposed removal were supported by the record and the plaintiff's removal was warranted; (c) Mercado did not receive any communication from the plaintiff or on his behalf regarding the notice of proposed removal and was not aware that the plaintiff had filed an EEO complaint; and (d) Clark was not involved in issuing a letter of decision to remove the plaintiff.

The defendant relies on “Hornsby v. Watt, 217 F.Supp.3d 58, 68 (D.D.C. 2016); Niimi-Montalbo v. White, 243 F.Supp.2d 1109, 1128 (D. Haw. 2003); Moore v. Shinseki, 2011 WL 5075164, at *7 (E.D. Pa. Oct. 25, 2011) (citing cases), aff'd, 487 Fed.Appx. 697 (3d Cir. 2012)” for the proposition that “[a] proposal to [r]emove ordinarily does not constitute a materially adverse action, ” and “it is the ultimate removal that a plaintiff must challenge.” The defendant's reliance on Hornsby is misplaced because, unlike here, in that case the plaintiff's challenge to removal was still pending at the time of the decision. The court stated:

To be sure, Plaintiff's ultimate removal caused him significant harm and flowed directly from the Proposal to Remove. But this fact merely serves to highlight the defect in his current claim: Plaintiff's real complaint is not that FHFA proposed to fire him, but that he was, in fact, fired. Yet, Plaintiff's challenge to his ultimate removal is not before this Court, but instead is currently pending before the MSPB. Complaint ¶ 24. See Knight, 134 F.Supp.3d at 357 (a Proposal to Remove is “not separately actionable” from the ultimate removal).

Hornsby, 217 F.Supp.3d at 68-69.

The defendant's reliance on Niimi-Montalbano does not support the defendant's assertion that the notice of proposed removal is not an adverse employment action. Although the court determined that, under the Ninth Circuit's binding authorities, “Niimi-Montalbo cannot make out a prima facie case with respect to the notice of proposed removal issued by Okazaki in February 1999 because that notice was not an adverse employment action, ” Niimi-Montalbo, 243 F.Supp.2d at 1128, it also found the following:

While appealable, Niimi-Montalbo's removal from employment is a classic example of an adverse employment action. However, with respect to this decision, Niimi-Montalbo is not able to establish a causal link between the adverse employment action and her protected activity, as Niimi-Montalbo has also argued

that the only reasons for her removal from employment were “time [and] attendance reasons.” Pl.'s Opp. at 3. Because Niimi-Montalbo herself concedes that her removal was not retaliatory, she fails to make out a prima facie case with respect to her removal.

Id.

The defendant's reliance on Moore is also misplaced because, unlike here, in that case the defendant did not make arguments concerning a notice of proposed removal:

Although the defendant has not made an argument regarding the notice of proposed removal, the Court notes that district courts have held that such notices do not constitute adverse employment actions. See, e.g., Niimi-Montalbo v. White, 2 43 F.Supp.2d 1109, 1128 (D.Haw.2003) (notice of proposed removal not sufficiently final to constitute an adverse employment action); Gonzalez v. Potter, No. 09-0534, 2010 WL 2196287, at *6 (W.D.Pa. June 1, 2010) (notice of proposed termination does not constitute adverse employment action); Gannon v. Potter, No. 05-2299, 2006 WL 3422215, at *4 (N.D.Cal. Nov.28, 2006) (same); cf. Hardy v. Potter, 191 F.Supp.2d 873, 882-83 (E.D.Mich.2002) (notice of proposed removal was not an adverse action under the Rehabilitation Act).

Moore v. Shinseki, Civ. A. No. 10-4463, 2011 WL 5075164, at *7 (E.D. Pa. Oct. 25, 2011), aff'd, 487 Fed.Appx. 697 (3d Cir. 2012)

The defendant failed to make citation to any binding authorities in support of his proposition that a notice of proposed removal is not an adverse action in the circumstance of this action in which the plaintiff was removed after the notice of proposed removal issued and based on the same reasons recited in the notice of proposed removal. Although the plaintiff does not allege that Mercado retaliated against him when he issued his removal decision, no removal decision would have been issued without a notice of proposed removal, which was signed by Clark and alleged to be retaliatory based on the plaintiff's filing of the EEO complaint.

The plaintiff does not contest that the investigation into his conduct began before he: (a) contacted the EEOC initially on March 22, 2012; and (b) signed his EEO complaint about reassignment on May 18, 2012. It is undisputed that Clark started his own investigation before he reassigned the plaintiff on March 21, 2012, and he signed the proposed notice of removal on December 20, 2012, almost nine months after the plaintiff's initial EEO complaint and more than seven months after the plaintiff signed his EEO complaint concerning reassignment. It is also undisputed that Mercado made his February 6, 2013 removal decision independently and without knowledge of the plaintiff's EEO complaints. The plaintiff failed to show that a causal connection exists between his initial March 22, 2012 EEO complaint and his May 18, 2012 complaint concerning reassignment on one hand and Mercado's February 6, 2013 removal decision based on the December 20, 2012 proposed notice of removal on the other hand. The temporal distance between the plaintiff's EEO complaints and the removal decision, as well as the proposed notice of removal, is too attenuated without more to allow for an inference of retaliation under the circumstances of this case. See Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (Courts should exercise their judgments “about the permissible inferences that can be drawn from temporal proximity in the context of particular cases.”). The Court finds that the plaintiff failed to establish that the adverse action would not have occurred in the absence of the retaliatory motive. Vega, 801 F.3d at 91. Accordingly, granting summary judgment on the plaintiff's retaliation claim under Title VII and, consequently, New York law, in favor of the defendant is warranted.

Section 1983

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C.A. § 1983.

This court has long construed the phrase “under color of state law” as used in related civil rights statutes, notably 42 U.S.C. § 1983, to apply only to state actors, not federal officials. See Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.4 (2d Cir.1991) (holding that “[a]n action brought pursuant to 42 U.S.C. § 1983 cannot lie against federal officers”); Yalkut v. Gemignani, 873 F.2d 31, 35 (2d Cir.1989).

Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir. 2005).

The plaintiff appears to concede, albeit in a footnote of his memorandum of law, that a Section 1983 claim cannot be maintained against a federal official in this circuit. The United States Postal Service is part of the United States government, 39 U.S.C.A. § 101(a) (“The United States Postal Service shall be operated as a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by Act of Congress, and supported by the people.”) and “[t]he chief executive officer of the Postal Service is the Postmaster General appointed under section 202(c) of this title.” 39 U.S.C.A. § 203. Since the defendant in this action is the Postmaster General, a federal and not a state official, the plaintiff cannot maintain a Section 1983 claim against the defendant. The plaintiff does not assert any claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Accordingly, granting summary judgment on the Section 1983 claim in the defendant's favor is warranted.

FMLA

The defendant argues that “the FMLA does not provide a private right of action to a federal employee who alleges a violation of her FMLA rights” without citation to any binding authority. The plaintiff asserts that “[a]n FMLA plaintiff may pursue an action under 29 USC §2617(a), which Plaintiff has done here, ” without addressing the defendant's argument.

FMLA's self-care provision at issue in this action provides that “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C.A. § 2612(1)(D). FMLA prohibits the following acts:

(a) Interference with rights

(1) Exercise of rights

It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.

(2) Discrimination

It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.

(b) Interference with proceedings or inquiries

It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual--

(1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this subchapter;

(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this subchapter; or

(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this subchapter.

29 U.S.C.A. § 2615.

Although the Supreme Court held that Congress acted constitutionally when it made states liable under the FMLA's family-care provision, 29 U.S.C. § 2612(a)(1)(C), see Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724-25, 123 S.Ct. 1972, 1976 (2003) (“We hold that employees of the State of Nevada may recover money damages in the event of the State's failure to comply with the family-care provision of the Act.), it found that Congress exceeded its powers in connection with the FMLA's self-care provision providing employee's the right to sue the state entity:

The question in this case is whether a state employee is allowed to recover damages from the state entity that employs him by invoking one of the provisions of a federal statute that, in express terms, seeks to abrogate the States' immunity from suits for damages. The statute in question is the Family and Medical Leave Act of 1993, 107 Stat. 6, 29 U.S.C. § 2601 et seq. The provision at issue requires employers, including state employers, to grant unpaid leave for self care for a serious medical condition, provided other statutory requisites are met, particularly requirements that

the total amount of annual leave taken under all the Act's provisions does not exceed a stated maximum. § 2612(a)(1)(D). In agreement with every Court of Appeals to have addressed this question, this Court now holds that suits against States under this provision are barred by the States' immunity as sovereigns in our federal system.

Coleman v. Ct. of Appeals of Maryland, 566 U.S. 30, 33, 132 S.Ct. 1327, 1332, 182 L.Ed.2d 296 (2012).

However, neither the Supreme Court nor the Second Circuit Court of Appeals has decided whether a federal employee has a private right of action under FMLA against a federal employer, such as the Postmaster General. For the purpose of this motion and in the absence of any binding authority on the issue, the Court will assume, without deciding, that a federal employee may sue a federal employer for interference with and retaliation related to the self-care provision.

The FMLA also “creates a private right of action to seek both equitable relief and money damages against any employer (including a public agency) in any Federal or State court of competent jurisdiction should that employer interfere with, restrain, or deny the exercise of FMLA rights.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir. 2006) (internal quotation marks omitted). FMLA claims come in at least two varieties: interference and retaliation. See Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir. 2004) (per curiam). In a general sense, an employee brings an “interference” claim when her employer has prevented or otherwise impeded the employee's ability to exercise rights under the FMLA. See Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016). “Retaliation” claims, on the other hand, involve an employee actually exercising her rights or opposing perceived unlawful conduct under the FMLA and then being subjected to some adverse employment action by the employer. See Potenza, 365 F.3d at 168. The two types of claims serve as ex ante and ex post protections for employees who seek to avail themselves of rights granted by the FMLA.

Woods v. START Treatment & Recovery Centers, Inc., 864 F.3d 158, 166 (2d Cir. 2017).

[T]o prevail on a claim of interference with her FMLA rights, a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA.

Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016).

To establish a prima facie case of retaliation under FMLA, a plaintiff must show that: “1) he exercised rights protected under the FMLA; 2) he was qualified for his position; 3) he suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.” Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004).

The plaintiff's FMLA claims based on interference with FMLA's self-care provision fails because it is undisputed that the plaintiff was compensated for the period June through December 2012, and the adjustment changed retroactively the plaintiff's leave without pay to sick leave; thus, no evidence exists that the plaintiff was denied any benefits to which he was entitled under the FMLA. The plaintiff failed to: (i) make citation to any binding authority; and (ii) identify any evidence establishing that the delay in processing his injury-related paperwork constitutes an adverse employment action. Accordingly, granting summary judgment on the plaintiff's FMLA claim in favor of the defendant is warranted.

ADA

The defendants argue that the plaintiff's “ADA claim fails because the ADA expressly excludes from its scope the United States as an employer.” The plaintiff asserts that his ADA claim “is admittedly foreclosed by 42 USC §12111(b)(5) because the Defendant is an instrumentality of the United States government, and therefore, not an "employer" for the purposes of ADA.”

Title I of the ADA provides: “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C.A. § 12112. “The term ‘covered entity' means an employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C.A. § 12111(2). “The term ‘employer' does not include--(i) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe.” 42 U.S.C.A. § 12111(5)(B)(i). The Postmaster General is the chief executive of the United States Postal Service, 39 U.S.C.A. § 203, and the United States Postal Service is part of the United States government, explicitly excluded from the definition of employer by ADA's Title I. Accordingly, the plaintiff cannot maintain a Title I ADA claim against the Postmaster General.

Title II of the ADA provides that “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.A. § 12132.

The statute defines “public entity” to mean, in relevant part, “any State or local government” or “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” Id. § 12131(1). Based on this definition, we have held that “Title II of the ADA is not applicable to the federal government.” Cellular Phone Taskforce v. FCC, 217 F.3d 72, 73 (2d Cir.2000) (per curiam).

Sarvis v. United States, 234 F.3d 1262 (2d Cir. 2000).

The plaintiff does not appear to assert a claim under Title II of the ADA. Given that Title II of the ADA does not apply to the federal government, the plaintiff cannot maintain any Title II ADA claim against the Postmaster General.

Title III of the ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C.A. § 12182(a). The plaintiff does not assert discrimination based on disability in public accommodation. Moreover, Title III of the ADA applies to private entities and does not apply to the Postmaster General as the United States Postal Service is not subject to Title III of the ADA.

Accordingly, granting summary judgment on the plaintiffs ADA claim, in favor of the defendant, is warranted.

RECOMMENDATION

For the foregoing reasons, I recommend that the defendant's motion for summary judgment, Docket Entry No. 77, be granted.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).

Walsh v. Dejoy

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Walsh v. Dejoy

Walsh v. Dejoy

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Walsh v. Dejoy

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Walsh v. Dejoy

Walsh v. Dejoy

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