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October 10, 2002


The opinion of the court was delivered by: Marrero, District Judge.


Plaintiff, Dean Paul Marinelli ("Marinelli"), commenced this action invoking this Court's federal question jurisdiction to assert claims of disability and age discrimination against his employer, the United States Department of Labor Bureau of Labor Statistics ("BLS" or the "Government"). The Government moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. By Order dated September 30, 2002 the Court granted the Government's motion and indicated that the Court's reasoning would be set forth in a subsequent Order. The September 30, 2002 Order is amended to incorporate the reasons below. On this basis, the Government's motion is granted.


At the outset, the Court notes that the factual assertions appearing in Plaintiffs Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Pl.'s Rule 56.1 Statement") and accompanying exhibits exceed those identified in his amended complaint. A civil complaint delineates the outer boundaries of a civil action, providing notice to defendants and thereby affording them a fair opportunity to respond and prepare for trial. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2nd Cir. 1995); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2nd Cir. 1988). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Its contents must be sufficiently clear and precise so as to meet these ends and must not rely merely on vague and conclusory allegations which disguise their true substance. See Fed.R.Civ.P. 8(e)(1); Simmons, 49 F.3d at 86; Coakley v. Jaffe, 49 F. Supp.2d 615, 625 (S.D.N.Y. 1999). Subsequent filings serve to develop and clarify those issues and assertions, but a party may not assert or develop allegations not contained in the complaint. See Adams v. Monroe County Dep't of Social Services, 21 F. Supp.2d 235, 238 (W.D.N.Y. 1998); See also LaLonde v. Bates, 166 F. Supp.2d 713, 719 (N.D.N.Y. 2001) (noting that it is insufficient when plaintiff fails to state particular claims in complaint, first mentioning them in attorney's affidavit in opposition to motion for summary judgment).

Thus, for present purposes, the Court will not address those portions of Marinelli's Rule 56.1 Statement that exceed the "clear and concise" allegations in the amended complaint. Furthermore, to the extent that the amended complaint itself contains partially or completely vague and conclusory averments, particularly where Marinelli asserts his two causes of action, those averments will be recognized as referring only to events and claims that have been delineated elsewhere in the amended complaint with proper clarity and, if applicable, developed thereafter during discovery. See Salahuddin, 861 F.2d at 42 ("When a complaint does not comply with Rule 8, the district court has the authority to strike any immaterial portions, or to dismiss the complaint.").

Marinelli was hired as a temporary clerk typist with BLS on January 20, 1987 at the age of 37.*fn1 He became a permanent employee on October 20, 1989 and assumed the position of statistical clerk on November 19, 1989. In September of 1992, Marinelli was diagnosed with anxiety, colitis, irritable bowel syndrome, hypoglycemia, chronic fatigue syndrome, and certain allergies. He submitted to his supervisor at the time, Andrew Donahue, documentation from his doctors identifying these diagnoses. In early 1993, Marinelli requested accommodations for his medical ailments, including flexibility in using the restroom in response to his irritable bowel syndrome and colitis and permission to eat small amounts of food during the day at his desk to control his hypoglycemia. This request was made verbally to Jesse Benjamin ("Benjamin"), his supervisor at that time, who did not respond. Marinelli then submitted a written request for these accommodations to Benjamin in February of 1994. Again, the requested accommodations were not provided.

From January through March of 1994, Marinelli was assigned to work as an administrative secretary. Because his primary responsibility was answering his supervisor's telephone calls, his mobility was considerably restricted. In May of 1994, Marinelli was reassigned to the position of office automation clerk. His new responsibilities as office automation clerk restricted his mobility much like his experience as administrative secretary. Marinelli alleges this transfer was in retaliation for his accommodation requests.

On April 30, 1995, the statistical clerk position Marinelli vacated was filled by a younger employee with less seniority. In response to what Marinelli believed was an improper motive for the transfer, namely, retaliation for his requesting the accommodations referenced above, Marinelli filed a union grievance on August 22, 1994. On August 23, 1994 and again in September of 1994, BLS denied Marinelli's request to be advanced sick leave time, leaving Marinelli to use annual leave time instead.

On August 24, 1994, Marinelli and a union representative met with Marinelli's supervisor at the time, Martin Karlin ("Karlin"), in response to his union grievance. At this meeting, Marinelli again requested a disability accommodation, specifically, to be allowed to eat as needed throughout the day. This request went unanswered.

On January 18, 1995, Marinelli returned one and one-half hours late from his lunch break, during which he had scheduled a medical appointment. On his return to work, Karlin told him that he would be marked absent without leave and docked double pay for that period. Two days later Karlin changed his mind. He informed Marinelli that he would not be docked any pay or marked absent without leave and, instead, provided him with a written warning and allowed Marinelli to use annual leave time to account for the time away from work.

On February 2, 1995, Marinelli filed an informal complaint with the Equal Employment Opportunity Commission ("EEOC") in which he reported his job reassignments, his denial of accommodations, and his restricted advance sick leave based on disability and age. On March 8, 1995, Marinelli filed another union grievance challenging his new duties at work and asserting that they aggravated his medical conditions. This grievance was denied on April 14, 1995. On April 24, 1995, Marinelli appealed this outcome to the United States Department of Labor, Office of Civil Rights.

Marinelli submitted to Karlin another request for accommodations on March 10, 1995 in which he asked not to have to answer telephones, to be allowed to eat throughout the day, and to take lavatory breaks as needed. This request was denied on the grounds that Marinelli's medical documentation was outdated in that it was more than six months old. On May 24, 1995, following a inquiry by an Equal Employment Opportunity ("EEO") counselor, Marinelli filed a formal complaint with the EEOC, reasserting his claims of discrimination. In June-July of 1995, Marinelli gave permission for a physician affiliated with the United States Department of Labor ("DOL") to consult with his personal physicians for purposes of investigating Marinelli's discrimination complaint. In a letter submitted to the EEO counselor assigned to Marinelli's complaint, Dr. Ronald Fine reported his conclusion that Marinelli's medical status warranted reasonable accommodation.

On July 12, 1995, the Marinelli received from DOL's Directorate of Civil Rights ("Directorate") a notice, in response to Marinelli's EEOC complaint, explaining that the Directorate accepted for investigation the January 18, 1995 response by Marinelli's employer to Marinelli's tardy return from lunch.*fn2 This incident is discussed in the EEO counselor's report prepared on May 16, 1995 pursuant to Plaintiffs informal EEOC complaint. Marinelli then wrote the Directorate to ask that the other incidents he reported be investigated as well. The Directorate reiterated its refusal, explaining that the reassignment issues were not reported to an EEO counselor in a timely fashion. Marinelli appealed this decision to the EEOC, which affirmed the Directorate on August 23, 1996.

On September 8, 1998, an Administrative Law Judge with the EEOC recommended that Marinelli's claim of discrimination arising out of his tardy return from lunch on January 18, 1995 be dismissed, as Marinelli was never marked absent without leave or docked any pay. The EEOC affirmed this conclusion on October 12, 1999. In the meantime, Marinelli submitted further updated medical documentation of his ailments to his new supervisor, Hiram Quintana ("Quintana"), and requested accommodations once again on June 29, 1999. Specifically, Marinelli asked Quintana to instruct Marinelli's coworkers not to "harass and antagonize" him regarding his morning work schedule, pursuant to which Marinelli begins his day later than normal, and to moderate the office air conditioning. Marinelli states that he was never accommodated. Also on October 12, 1999, at the conclusion of Marinelli's appeals with the EEOC, he was granted a right to sue letter, and commenced this action on February 22, 2000.

Marinelli also alleges that certain annual performance award bonuses he received as a BLS employee were unfairly low. Specifically, in August of 1994, Marinelli received an award bonus of $150, whereas some individuals received bonuses of $300 or $500. He received the same bonus in August of 1995 and a $200 bonus in July of 1996, as well as in August of 1997.

Marinelli asserts two causes of action. First, for allegedly failing to provide reasonable accommodations, Marinelli asserts a claim against BLS pursuant to the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA").*fn3 For allegedly transferring him to the position of office automation clerk and filling his vacated statistical clerk position with a younger employee, Marinelli asserts a claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA").*fn4



A motion for summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See Rodriguez v. Hahn, 209 F. Supp.2d 344, 346 (S.D.N.Y. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The role of the Court is not to resolve issues of fact but, rather, "to determine as a threshold matter whether there are genuine unresolved issues of material fact to be tried." Gibson v. Am. Broad. Cos., 892 F.2d 1128, 1132 (2nd Cir. 1989). The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The nonmoving party "must support with specific evidence his assertion that a genuine dispute as to material fact does exist," id., 477 U.S. at 324, 106 S.Ct. 2548, and "may not rely on conclusory allegations or unsubstantiated speculation," Scotto v. Almenas, 143 F.3d 105, 114 (2nd Cir. 1998). The opposing party's showing of a genuine dispute must be grounded in concrete evidence sufficient to support a reasonable jury's rendering a verdict in his favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). ("The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient."); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). All ambiguities and inferences drawn from the underlying facts must be resolved in the light most favorable to the party opposing the motion. See United States v. One Tintoretto Painting Entitled "The Holy Family With Saint Catherine and Honored Donor", 691 F.2d 603, 606 (2nd Cir. 1982) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).

The Court is "mindful that summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated. . . . The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would 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." Meiri v. Dacon, 759 F.2d 989, 998 (2nd Cir. 1985); accord Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2nd Cir. 1998).


The Government argues that Marinelli's claims, apart from the one arising out of the January 18, 1995 incident in which Marinelli returned to work late from lunch, must be dismissed because Marinelli failed to exhaust his administrative remedies before filing his civil complaint. Specifically, the Government claims Marinelli failed to report these other incidents to the EEOC within 45 days of learning of them, as required by EEOC regulations.*fn5

Regarding the January 1995 incident, the Government argues that that incident cannot constitute a valid basis for a discrimination claim because Marinelli never suffered an adverse employment action. Marinelli maintains that each of his claims was properly reported to the EEOC in that: (1) he was not aware, prior to February of 1995, that EEOC regulations required reporting of incidents within 45 days, (2) all of the incidents of which he complains are part of the same continuing violation, and (3) all of the incidents underlying his claims are "reasonably related" to the January 1995 incident which was timely reported to the EEOC.*fn6 The Court agrees with the Government and dismisses Marinelli's claims of discrimination arising out of incidents occurring prior to February 2, 1995.

Exhaustion of administrative remedies is a precondition to civil suit under both the Rehabilitation Act and the ADEA. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82-83 (2nd Cir. 2001) (ADEA); Downey v. Runyon, 160 F.3d 139, 145-46 (2nd Cir. 1998) (Rehabilitation Act). "The purpose of the requirement of primary resort to the EEOC is to provide notice to the employer and to encourage conciliation and voluntary compliance." DeJesus v. Allstate Ins. Co., No. 96-CV-6073, 2001 WL 1006653, at *6 (S.D.N.Y. August 30, 2001) (citing Snell v. Suffolk County, 782 F.2d 1094, 1101 (2nd Cir. 1986)). To exhaust such claims, the underlying incident must be properly reported to the EEOC. The Code of Federal Regulations requires that incidents of alleged discrimination be reported to the EEOC within 45 days of their occurrence. See id; 29 C.F.R. ยง 1614.105(a)(1) ("An aggrieved person must initiate contact with a[n EEO] 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."). Marinelli effectively concedes that he did not report the pre-1995 incidents of alleged discrimination to the EEOC in accordance ...

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