no longer an accurate description of the continuing violation doctrine in the Second Circuit.
In contrast, the Court finds Duck v. New York City Dep't of Transp., No. 93 Civ. 7388, 1994 U.S. Dist. LEXIS 11226, at *19, (S.D.N.Y. Aug. 10, 1994), instructive to the case at hand. There, this Court rejected a plaintiff's attempt to toll the statute of limitations under the continuing violation exception. The plaintiff alleged that he was harassed, denied promotional opportunities, demoted, suspended and ultimately terminated in a series of related discriminatory acts over a period of several years. Id. at *13. Relying upon the Second Circuit's requirement that a plaintiff demonstrate "specific official policies or mechanisms," the Court determined that the plaintiff had failed to demonstrate the "existence of a genuine issue of fact that his allegations . . . were 'continuing violations.'" Id. at *15.
Based on the legal standard for proving a continuing violation in the Second Circuit, the Court finds that the thirty-day statute of limitations bars Vergara's discrimination claim except to the extent that she has alleged conduct occurring after February 20, 1990. Vergara expressly has disclaimed reliance upon a theory that the Government has engaged in a systematic "discriminatory policy or mechanism," which is precisely the standard for proving a continuing violation. In fact, there is no allegation that the IRS similarly discriminated against other women such that a "discriminatory policy or mechanism" can be inferred. Unlike in Cornwell v. Robinson, 23 F.3d at 704, plaintiff here concedes the absence of a discriminatory policy on the part of her employer. Moreover, in reaching this decision, the Court is mindful that Second Circuit courts "consistently have looked unfavorably on continuing violation arguments." Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989). Accordingly, the Government's motion for summary judgment with respect to Vergara's claims based on conduct occurring prior to February 20, 1990 is granted.
B. March 1990 Transfer Request and Staff Assistant Reassignment
The Government next argues that Magistrate Judge Bernikow erred in finding timely Vergara's discrimination claim based on the March 1990 Transfer Request and the March 1990 Staff Assistant Reassignment. Specifically, the Government contends that, as Vergara was permanently assigned to the Staff Assistant position in 1988, she could not be reassigned to the Staff Assistant position in March 1990. With respect to the March 1990 Transfer Request, the Government argues that this claim is not actionable on the ground that Vergara had been aware of her permanent status as a Staff Assistant for eighteen months before initiating the EEO process. The Court finds this argument unpersuasive.
The record is unclear with respect to the date in which the Staff Assistant position became a permanent assignment. On the one hand, there are indications that Vergara was informed that the Staff Assistant position would be her permanent new assignment as early as 1988. Specifically, Vergara testified that Vaughn "said after ninety days [the Staff Assistant position] would be permanent." Vergara Dep. at 345-46. On the other hand, Vergara was informed that the Staff Assistant position was only a two-year rotation. See id. at 172. Accordingly, it is unclear whether the position was intended to be permanent or to be filled on a rotating basis.
Moreover, Vergara has presented evidence that the Government failed to follow its own regulations in creating the Staff Assistant position. Specifically, some evidence suggests that the Government both failed to acquire the requisite approval of the Regional Supervisor and neglected to file the necessary paperwork for the creation of the position. In fact, Vergara was forced to perform Staff Assistant duties for approximately one year before a position description setting forth her responsibilities was created. The Court finds that these factors create an issue of fact regarding the permanency of the Staff Assistant position. Accordingly, the Government's motion for summary judgment with respect to the 1990 Transfer Request and the March 1990 Staff Assistant Reassignment is denied.
III. The Retaliation Claims
The Government argues that the Magistrate Judge erred in denying its motion for summary judgment dismissing the Drop File and September 1990 Appraisal Retaliation Claims. Specifically, the Government contends that neither the Drop File nor the September 1990 Appraisal Retaliation Claims are actionable on the ground that neither action constitutes an "adverse action" against Vergara. The Court disagrees.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 20003, et seq., prohibits an employer from subjecting an employee to adverse employment action in retaliation for that employee's opposition to allegedly discriminatory employment practices. Specifically, Section 707(a) of Title VII provides, in pertinent part, that:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any 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) (1988). In order to establish a prima facie case of retaliation, a plaintiff must demonstrate that "a retaliatory motive played a part in [an] adverse employment action" taken against her. Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993). To accomplish this, a plaintiff must demonstrate that (1) she was engaged in activity protected under Title VII; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took adverse action against the plaintiff based upon her activity; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer. Id.; Sumner v. United States Postal Serv., 899 F.2d 203, 208-09 (2d Cir. 1990).
In order to establish that the employer's conduct toward the plaintiff constitutes an adverse action, the plaintiff must prove that the conduct "affected the terms, privileges, duration, or conditions of the plaintiff's employment." Rooney v. Witco Corp., 722 F. Supp. 1040, 1046 (S.D.N.Y. 1989). Although in most cases the alleged conduct involves instances of retaliatory discharge, see, e.g., Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1254 (2d Cir. 1987); Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir. 1986), adverse action may take a variety of other forms. For example, this Court has recognized that providing unfair work references and placing false information in the complainant employee's personnel file may form the basis for a retaliation claim. See Mays v. New York City Police Dep't, 701 F. Supp. 80, 83-84 (S.D.N.Y. 1988), aff'd without op., 888 F.2d 1376 (2d Cir. 1989). Moreover, failing to promote an employee, Davis v. State Univ. of New York, 802 F.2d at 641, subjecting an employee to unreasonable working conditions, Dominic v. Consolidated Edison Co., 822 F.2d at 1254-55, or giving an employee unjustifiably negative performance evaluations, Schaff v. Shalala, 1994 U.S. Dist. LEXIS 10556, at *20, No. 93 Civ. 1251, (D. Md. July 14, 1994), may constitute adverse action providing a basis for a plaintiff's retaliation claim.
In the present case, the Court finds that Vergara has raised an issue of fact as to whether the Drop File and September 1990 Retaliation Claims constitute adverse actions, thereby providing a basis for Vergara's claims. With respect to the Drop File Retaliation Claim, Vergara has presented evidence that the Guide Manager Handbook requires IRS supervisors to discuss all written evaluations with the employee before including them in the employee's drop file. Nonetheless, supervisors placed written evaluations in Vergara's drop file without first discussing them with her. In opposition, the Government argues that the Guide Manager Handbook merely sets forth recommendations and does not confer upon IRS employees any right to view their drop files. The Court finds an issue of fact exists as to whether the Guide Manager Handbook conferred upon Vergara the right to view any material placed in her drop file. The Court finds further that, if Vergara possessed such a right, there is a factual issue as to whether the failure to bring any drop file evaluations to her attention "affected the terms, privileges, duration, or conditions of the plaintiff's employment." See Rooney v. Witco Corp., 722 F. Supp. at 1046.
With respect to the September 1990 Appraisal Retaliation Claim, the Court cannot determine as a matter of law that the appraisal was not an adverse action against Vergara. Although there is no dispute that the evaluation did not lead to a pay reduction, the inclusion of alleged "misstatements and exaggerations," see Complaint at P 8, may have affected the decision to deny Vergara's request to resume her managerial duties and to maintain Vergara in the Staff Assistant position. Accordingly, the Government's motion to dismiss the Drop File and September 1990 Appraisal Retaliation Claims is denied.
For the reasons set forth above, the Report is adopted in part. Specifically, the Government's motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting it partial summary judgment is granted in part and denied in part. The Government's motion for summary judgment dismissing (1) Vergara's discrimination claims based on conduct occurring prior to February 20, 1990; and (2) the Annual Leave Retaliation Claim is granted. The Government's motion for summary judgment dismissing (1) Vergara's discrimination claims based on the 1990 Transfer Request the March 1990 Staff Assistant Reassignment; (2) the Drop File Retaliation Claim; and (3) the September 1990 Appraisal Retaliation Claims is denied. The parties are directed to appear at a pre-trial conference on December 14, 1994 at 2:00 P.M.
SHIRLEY WOHL KRAM
United State District Judge
Dated: New York, New York
November 15, 1994