Plaintiff left her keys in an unattended cash drawer in December
of 1994 and June of 1995. Plaintiff was also noted to have left
unsecured checks and money orders at her desk in March of 1995.
Plaintiffs various misdeed led the Postal Service to take
disciplinary action in 1994 and 1995. In April of 1994 the
Postal Service informed Plaintiff of its intent to collect
approximately $200 as reimbursement for shortages identified in
Plaintiff's account. Plaintiff grieved this action with her
union. In May of 1994, Plaintiff entered into an agreement which
required her to pay the outstanding debt. Plaintiff did not pay
this amount voluntarily and on June 2, 1995, the Postal Service
commenced garnishment proceedings against Plaintiffs paycheck.
Plaintiff received letters of warning in August and September
of 1994. The August 1994 letter warned Plaintiff with regard to
her failure to be in regular attendance. The September 1994
letter of warning referred to Plaintiff was engaging in conduct
"unbecoming a postal employee."
Plaintiff was suspended from her position on three separate
occasions. First, Plaintiff was suspended in October of 1994 for
failure to follow instructions and failure to be in regular
attendance. Plaintiff was also suspended in December of 1994 for
failure to follow instructions, failure to follow security
procedures and failure to provide a telephone number for
business purposes. Finally, Plaintiff was suspended in March of
1995. This suspension was issued because Plaintiff failed to
properly secure postal funds and to follow directions.
The ultimate disciplinary action was taken against Plaintiff
on June 29, 1995 when the Postal Service issued a Notice of
Removal stating that Plaintiffs employment would be terminated
on August 1, 1995. The Notice of Removal stated that the action
was taken due to Plaintiffs failure to secure postal funds and
her failure to follow instructions.
B. Plaintiff's Allegations of Sexual Harassment
The factual backdrop of Plaintiffs claim of sexual harassment
(and retaliation for complaining thereof) involves Plaintiffs
relationship with a co-worker, Harry Ray. Mr. Ray is a relative
of Plaintiff, whom she refers to as "Uncle Chuck." Plaintiff's
problems with Mr. Ray began when, according to Plaintiff, Mr.
Ray exposed himself to Plaintiff at her home in 1987. Plaintiff
alleges that in 1992 Ray exposed himself to Plaintiff at the
workplace. Plaintiff, however, never reported this incident to
The first time Mr. Ray's activities came to the attention of
the Postal Service was in January of 1994. According to
Plaintiff, on January 3, 1994, Ray leaned against Plaintiff in a
sexual and inappropriate manner. Plaintiff explained that she
did not report Mr. Ray's activities on that date because she did
not want Ray to get into trouble. Two days later, Ray is alleged
to have again acted improperly when he stared at Plaintiffs
breasts. Plaintiff informally reported this incident to her
supervisor, Tony Prisco. Again, however, Plaintiff was reluctant
to pursue the matter because she did not want to make trouble
for Ray. Despite Plaintiffs wishes to keep the matter quiet,
Prisco reported the January 5 incident to Tony Passenant,
On January 6, 1994, Passenant asked Plaintiff for a statement
regarding the incident with Mr. Ray. When Plaintiff refused to
give a formal statement, Passenant told her that he would make a
report of the incident. On January 7, 1994, Plaintiff was told
by Passenant to begin to report to the Ronkonkoma main office
until further notice.
The January 3 and 5 incidents involving Plaintiff and Mr. Ray
are the only acts of sexual harassment that were ever reported
to the Postal Service by Plaintiff.
C. Plaintiff's Administrative Complaints of Sexual
The record before this court contains five separate
proceedings commenced by Plaintiff complaining of
discrimination. As discussed in further detail below, the first
complaint alleged sexual harassment based upon the January 3 and
5, 1994 incidents involving Mr. Ray. The remaining four
complaints alleged that each disciplinary action taken against
Plaintiff was taken in retaliation for her initial complaint of
1. The First Complaint
Plaintiffs first complaint was made on April 13, 1994, when
Plaintiff filed a formal charge of sexual harassment. This
complaint bears case number 4A-117-1035-94 (the "First
Complaint"). In this First Complaint, Plaintiff alleged that Ray
pressed against her body on January 3, 1994 and stared at her
breasts on January 5, 1994. Plaintiff also claimed in the First
Complaint that the Postal Service retaliated against her for
making the complaint of sexual harassment by advising her that
she was not entitled to a period of 160 hours of leave without
A final decision was rendered by the Postal Service on
Plaintiffs First Complaint in September of 1997. That decision
declined to find that Plaintiff was subject to a hostile working
environment and, further, held that there had been no
retaliation. Plaintiff sought to appeal the decision of the
Postal Service on her First Complaint to the United States Equal
Employment Opportunity Commission (the "EEOC"). That appeal,
however, was dismissed as untimely in a decision dated October
2. The Second and Third Complaints
Plaintiffs second administrative complaint was filed on
January 19, 1995. This complaint alleged that Plaintiffs
suspension of October, 1994 was issued in retaliation for the
complaints of sexual harassment made six months prior to the
suspension. On February 28, 1995, one month after filing the
second administrative complaint, Plaintiff filed a third
administrative complaint of retaliation. On this occasion,
Plaintiff alleged that retaliation was the reason behind her
December 1994 suspension. These complaints (numbers
4A-117-1033-95 (the "Second Complaint") and 4A-117-1060-95 (the
"Third Complaint")) were consolidated by the Postal Service for
investigation and decision. Documents detailing the outcome of
the investigation of these complaints are not before the court.
It appears, however, that Plaintiff did not prevail.
3. The Fourth and Fifth Complaints
Plaintiffs fourth and fifth complaints of employment
discrimination were filed on May 17, 1995 (complaint number
4A-117-1098-95 (the "Fourth Complaint")) and August 29, 1995
(complaint number 4A-117-1165-95 (the "Fifth Complaint")) and
were consolidated for investigation by the Postal Service. The
Fourth Complaint alleged retaliation in the form Plaintiff's
March 1995 suspension as well as the changing of Plaintiffs
lunch break to a time inconvenient to her personal schedule.
Plaintiff also alleged that she was unfairly blamed for the act
of a co-worker. The Fifth Complaint alleged retaliation in the
form of the March 1995 suspension, the June 1995 garnishing of
Plaintiff's wages and the June 1995 termination of Plaintiffs
On August 9, 1996, the Postal Service issued its final
decision regarding the Fourth and Fifth Complaints. This
decision held that Plaintiff failed to establish unlawful
retaliation. Plaintiff timely appealed this final decision of
the Postal Service to the EEOC. The EEOC affirmed the decision
of Plaintiffs employer and advised Plaintiff of her right to sue
in a decision dated September 22, 1998.
As the above discussion makes clear, each time disciplinary
action was taken against Plaintiff, that action was followed
by the filing of a complaint that Plaintiff was being retaliated
against for the reporting and complaining of the sexual
harassment of Harry Ray.
II. Plaintiff's Complaint Here
Plaintiff, proceeding pro se, commenced this action on
December 18, 1998. Her complaint alleged that from the "day
[she] made the first allegation on 1/7/94 until [her] employment
was terminated [she] worked in an extremely hostile environment
[where she was] continually harassed by management." Plaintiff
further alleged that she was treated differently from her
After filing her pro se complaint, Plaintiff secured counsel
who filed an amended complaint alleging that Plaintiff was
terminated and retaliated against due to her complaints of
sexual harassment by Harry Ray. The complaint alleged a
violation of Title VII and New York law and referred, as acts of
retaliation, to the garnishing of Plaintiffs wages and her
termination from the Postal Service as well as the changing of
Plaintiffs lunch hour and work station.
At a pre-motion conference held with the court, Plaintiffs
counsel made clear that the only claim being pursued was a claim
for retaliation pursuant to Title VII.
III. The Present Motion
Defendant's motion for summary judgment argues first that
Plaintiff fails to set forth a prima facie case of retaliation
because she can establish no causal connection between the
adverse employment actions alleged and engaging in activities
protected by Title VII. In the alternative, defendant argues
that even if a prima facie case is found, summary judgment is
nonetheless appropriate because defendant has come forward with
several non-discriminatory reasons for the acts of the Postal
Service and Plaintiff cannot show that any such acts were a
pretext for discrimination.
I. Legal Principles
A. Standards For Summary Judgement
A motion for summary judgement is properly granted only if the
court determines that no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law.
FRCP 56(c); Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking
judgment bears the burden of demonstrating that no issue of fact
exists. McLee v. Chrysler Corp. 109 F.3d 130, 134 (2d Cir.
1997). However, when the nonmoving party fails to make a showing
on an essential elements of its case with respect to which it
bears the burden of proof, summary judgment will be granted.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). The party resisting summary judgment must
not only show a disputed issue of fact, but it must also be a
material fact in light of substantive law. Only disputed facts
that "might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment."
Anderson, 477 U.S. at 242, 106 S.Ct. 2505.
Summary judgment is not defeated by vague assertions of
unspecified disputed facts. Western World Ins. Co. v. Stack
Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Moreover, in the
context of a case alleging employment discrimination, conclusory
allegations of discrimination are insufficient to defeat summary
judgment. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
While summary judgment may be inappropriate where intent and
state of mind are implicated, "the mere incantation" of these
issues does not "operate as a talisman to defeat an otherwise
valid motion." Indeed, "the salutary purposes of summary
judgment — avoiding protracted, expensive and harassing trials —
apply no less to discrimination cases than to commercial or
other areas of litigation." Id. see also
Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir.
B. Elements of a Title VII Retaliation Claim
Title VII prohibits an employer from discharging an employee
based upon, inter alia, that employee's sex.
42 U.S.C. § 2000e-2(a)(1). It is further unlawful to retaliate against an
employee because of that employee's participation in activities
protected by Title VII, such as the filing of a claim of
discrimination. See 42 U.S.C. § 2000e-3(a). The claim stated
here falls into this latter category — it is a claim of unlawful
To state a prima facie case of Title VII retaliation a
plaintiff must show: (1) participation in activity protected by
Title VII; (2) that the defendant-employer was aware of
plaintiffs participation in the protected activity; (3) that the
employer took some adverse employment action against the
individual; and (4) a causal connection between plaintiffs
protected activity and the adverse employment action. Gordon v.
New York City Bd. of Education, 232 F.3d 111, 116 (2d Cir.
2000), quoting, Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033,
1039 (2d Cir. 1993); see Chu v. City of New York, 2000 WL
1879851 *3 (S.D.N.Y. December 27, 2000); Gibson v. Brown, 1999
WL 1129052 *4-5 (E.D.N.Y. October 19, 1999), aff'd, 2000 WL
1843914 (2d Cir. December 14, 2000).
C. Burden Shifting Analysis
Claims of employment discrimination brought pursuant to Title
VII are subject to the burden shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973); Weinstock v. Columbia
University, 224 F.3d 33, 42 (2d Cir. 2000).
Under the McDonnell Douglas analysis, the plaintiff bears
the burden of showing a prima facie case of discrimination.
The burden of production then shifts to defendant to offer a
non-discriminatory reason for the employment action. Once this
reason is established, the presumption of discrimination arising
with the establishment of the prima facie case drops from the
matter. See St. Mary's Honor Center v. Hicks, 509 U.S. 502,
510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Richardson,
224 F.3d at 42. Thereafter, it is for the plaintiff to show that
the reason offered by defendant is a pretext for discrimination.
Id. Plaintiffs final burden of showing pretext may be
satisfied either by the introduction of additional evidence or
by reliance on the evidence submitted in support of the prima
facie case of discrimination. See Reeves v. Sanderson
Plumbing, 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105
To avoid summary judgment, Plaintiffs evidence must be
"sufficient to support a rational finding that the legitimate,
non-discriminatory reasons proffered by the [employer] were
false, and that more likely than not [discrimination] was the
real reason" for the action taken. Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 714 (2d Cir. 1996), quoting, Woroski v.
Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994). The
determination of whether summary judgment is appropriate is
case-specific. The court must examine the entire record to
determine whether the plaintiff "could satisfy the ultimate
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff." Schnabel v.
Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000), quoting, Reeves,
120 S.Ct. at 2106.
II. Disposition of the Present Motion
A. Plaintiff Fails to State a Prima Facie Case of
Plaintiff has clearly established the first three elements of
a prima facie case of retaliation. First, the filing of a claims
of employment discrimination are clearly participation in
activities protected by Title VII. Second, it is undisputed that
Plaintiff's employer, the Postal Service knew of the protected
activity. Third, the
garnishing of Plaintiffs wages and her termination clearly
constituted adverse employment action.*fn1
It is with respect to the final element of the prima facie
case of retaliation — establishment of a causal connection
between plaintiffs protected activity and the adverse employment
action — that the parties' differ.
A plaintiff may establish a prima facie causal connection by:
(1) showing that engaging in protected activity was followed
closely in time by the adverse employment action; (2) submitting
evidence that other employees who engaged in conduct similar to
the Plaintiff were treated unfairly or, (3) proffering evidence
of retaliatory animus directed directly toward plaintiff.
DeCintio v. Westchester County Medical Center, 821 F.2d 111,
115 (2d Cir. 1987); Mahoney v. Canada Dry Bottling Co. of New
York, 1998 WL 231082 *3 (E.D.N.Y. May 7, 1998).
In support of the notion that she has established the causal
connection necessary to state a prima facie case of retaliation,
Plaintiff focuses, almost exclusively, on the events that
immediately followed the January 1994 claim of sexual harassment
by Harry Ray. Specifically, she points to her transfer to the
main branch of the Ronkonkoma post office and the allegations
that her duties were changed to those performed by employees of
lesser seniority. To form some connection between these events
and her June 1995 termination, Plaintiff states, in conclusory
fashion, that her termination was a "culmination of a series of
individual acts by the defendant that started" when Plaintiff
began to complain of sexual harassment.
Presumably, the acts Plaintiff refers to are the disciplinary
acts taken between January of 1994 and June of 1995. Plaintiffs
conclusory statement that these acts were somehow linked to the
January 1994 complaint are wholly without support. Plaintiff
comes forward with no evidence, direct or otherwise, to support
her allegations of retaliation. In opposition to this motion,
she has submitted nothing more that her deposition testimony.
Although she has had the opportunity to take full discovery,
Plaintiff has submitted no testimony, in affidavit form or
otherwise, of any discriminatory animus or that others,
similarly situated, were also treated in a discriminatory
This is not a case where a claim of sexual harassment went
ignored. The facts here are quite the opposite. It was Plaintiff
who was reluctant to come forward and advise her employer of the
January 1994 incidents. Plaintiff, not her employer, continually
sought to protect Harry Ray. Had it not been for the coaxing of
her supervisor, the episode of harassment may never have come to
Ultimately, Plaintiffs attempt to show a causal connection
between her January 1994 complaint and her June 1995 termination
rests upon the thin allegation that every act of discipline
imposed by the Postal Service was a fabricated charge intended
to punish Plaintiff for complaining of the sexual harassment by
Harry Ray. Most importantly, however, nowhere does Plaintiff
claim that the shortages in her drawer or the breaches of
security procedures of which Plaintiff was accused did not
occur. To the contrary, Plaintiff admitted at her deposition to
leaving her drawer unlocked (a procedure that she
alleges to have been, to her knowledge, appropriate). Moreover,
Plaintiff agreed to pay the shortages identified in 1993. It was
only when she failed to make payments that her wages were
Even in the allegation that she was subject to discipline only
after January of 1994, Plaintiff is mistaken. Indeed, the first
and most significant shortages in Plaintiffs drawer were
identified in 1993 — months before the Postal Service ever
became aware of the allegations of sexual harassment.
In light of the foregoing, the court holds that Plaintiff has
not come forward with evidence sufficient to establish the
causation element of a prima facie case of retaliation. For this
reason, defendant's summary judgment motion must be granted.
B. Even Assuming Establishment of a Prima Facie Case
Defendant is Entitled to the Entry of Summary Judgment
Even assuming that Plaintiffs attenuated allegations of a
temporal connection between her April 1994 complaint of sexual
harassment and her June 1995 termination are sufficient to state
a prima facie case, summary judgment in favor of defendant would
nonetheless be appropriate.
Had Plaintiff established a prima facie case, the burden
would, as noted above, shift to defendant to establish a
legitimate, nondiscriminatory reason for Plaintiff's discharge.
Once such reason was established, the burden would then shift
back to Plaintiff to show that the reason articulated was a
pretext for discrimination. See Richardson, 224 F.3d at 42.
Defendant has more than met the requirement of showing a
legitimate non-discriminatory reason for terminating Plaintiff.
Indeed, defendant has shown several. On six separate occasions
Plaintiffs cash drawer was significantly short. Additionally,
defendant documents three instances where Plaintiff failed to
follow proper postal service security procedures. These
instances more than establish legitimate reasons for Plaintiffs
In the face of this clear evidence, Plaintiff comes forward
with no evidence to show that the reasons set forth by the
Postal Service were a pretext for discrimination. As described
above, Plaintiff relies solely on the attenuated temporal
connection set forth above. Plainly, this connection is
insufficient to support any notion of pretext. Accordingly, even
assuming that Plaintiff has sufficiently set forth a prima facie
case of retaliation, summary judgment is nonetheless properly
granted to defendant.
For the foregoing reasons, defendant's motion for summary
judgment is granted. The Clerk of the Court is directed to close