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MARINELLI v. CHAO
October 10, 2002
DEAN PAUL MARINELLI, PLAINTIFF,
ELAINE L. CHAO, SECRETARY, DEPARTMENT OF LABOR, DEFENDANT.
The opinion of the court was delivered by: Marrero, District Judge.
DECISION AND AMENDED ORDER
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
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
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
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
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.
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).
B. INCIDENTS OF ALLEGED DISCRIMINATION THAT OCCURRED PRIOR TO
THE FILING OF INFORMAL COMPLAINT WITH THE EEOC
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
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. § 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