United States district Court, S.D. New York
March 3, 2004.
MARY SHARON WAYNE, Plaintiff, -v.- ANTHONY J. PRINCIPI, Secretary of the Department of Veterans Affairs, Defendant
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
OPINION AND ORDER
Plaintiff Mary Sharon Wayne, proceeding pro se, brings this
action pursuant to Title VII of the Civil Rights Act of 1964 ("Title
YE"), 42 U.S.C. § 2000e to 2000e-'17, and the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-634, alleging that
her former employer, the Department of Veterans Affairs ("VA"),
discriminated against her on the basis of her age and sex and retaliated
against her for engaging in protected activities. Defendant Anthony J.
Principi, Secretary of the VA ("Secretary"), has moved for summary
judgment pursuant to Fed.R.Civ.P. 56 on the grounds that Wayne did not
meet the statutory prerequisites to suit and that the suit fails on the
merits. The parties have consented to disposition of this matter by a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For
the following reasons, the motion is granted.
The following statement of facts is taken from the uncontroverted
allegations of Defendant's Rule 56.1 Statement, filed December 15, 2003
In July 1999, when Wayne was 49 years old, she entered the two
year Maxillofacial Prosthetic Technician Training Program ("MPTTP") at
the Bronx VA Medical Center. Def. 56.1 ¶¶ 1-3, 13-14. Only one person
is accepted into the training program each year. Id. ¶ 2.
At the end of Wayne's first trimester in the program (November 1999), she
received evaluations which indicated that her performance was
unsatisfactory. Id. ¶¶ 18-19. Eric Asher, the Director of
the MPTTP and Wayne's direct supervisor, made recommendations for her
improvement. Id. ¶¶ 5, 20. While Wayne's evaluations at the
end of the second trimester (March 2000) were slightly better, the
comments written by her supervisors reflected concerns about promptness,
organization, and completion of assignments. H. ¶ 23. Again, efforts
were made to assist Wayne in addressing these issues. Id. ¶¶
By the end of Wayne's fourth trimester in the program (November 2000),
her evaluations indicated that her performance remained substantially
unsatisfectory. Id. ¶ 33. Dr. Gerald Sabol, the Chief of
the Dental Service at the Bronx VA Medical Cento, who has ultimate
decision making authority over the hiring and firing of MPTTP
trainees, received letters from several staff members, including Asher,
describing Wayne's inappropriate removal of equipment and inappropriate
interactions with patients. Id. ¶¶ 6, 30-31. Dr. Sabol met
face to face with Wayne on January 2, 2001 and provided
her with a letter of "Written Counseling Regarding Your Conduct and
Performance." Id. ¶ 35. This letter informed Wayne that her
progress in the program had been slower than expected and that her
disrespectful conduct toward Asher had to
stop. Id. Wayne was also advised in writing that to the
extent she believed she may have been discriminated against, she could
contact an Equal Employment Opportunity ("EEO") counselor through the
VA's Office of Resolution Management ("ORM"). Id.
Wayne contacted the ORM in January 2001. Id. ¶ 52. On or
about February 6, 2001, Wayne spoke to Milagros Andino, the EEO counselor
assigned to her case. Id. ¶ 53. At some point in early
February 2001, Wayne met with Andino to go over EEO forms and discuss
Wayne's allegations. Id. ¶ 54. At this meeting, Andino told
Wayne that she would begin an investigation and determine whether it was
appropriate to proceed, as Wayne was a temporary employee. Id.
¶ 55; see also Letter to the Hon. Gabriel W. Gorenstein
from Wayne, dated July 17, 2001 ("Wayne Letter"), at 1.
At the same time, Wayne sought the advice of Celestino P. Monclova.
Def. 56.1 ¶ 56. Monclova was not an attorney, nor was he an employee
of the VA during the period of Wayne's employment. Id. Monclova
advised Wayne to file a lawsuit before she got fired. Id. ¶
On February 7, 2001, Wayne filed this action in federal district court
Id. ¶ 58: see Complaint, filed February 7, 2001
("Complaint"). Monclova assisted her in drafting the complaint and
filling out the necessary forms. Def. 56.1 ¶ 58. The complaint
alleged that from the outset of Wayne's employment at the VA, her
supervisors "consistently harassed, downgraded, [and] demeaned" her
because of her sex and age. Complaint ¶ 8.3. Among other things, she
alleged that Asher "sabotaged" her training by denying her "adequate
practice," "actual patient cases," and the right to work in the lab
unsupervised Id. ¶¶ 8.6, 8.11. Wayne also claimed that Asher
had called her "retarded," "mentally dysfunctional," "a weirdo," and a
"big joke." Id. ¶ 8.8. She alleged that another
female trainee, Margie Golden, was being subjected to the "same harsh and
unfair treatment" Id. ¶ 8.4.
At some point, Andino told Wayne that she needed to withdraw either the
EEO complaint or the federal complaint but that she was not in a position
to advise Wayne as to what she should do. Def. 56.1 ¶ 59. On February
28, 2001, Wayne withdrew her complaint from the EEO process.
Id. ¶ 60. She testified that she made the decision to
withdraw the complaint of her own free will and free of coercion.
Meanwhile, throughout February and March 2001, Wayne was reprimanded
repeatedly for continuing to work on unassigned projects, reporting to
work late, and removing materials from the laboratory without permission.
Id. ¶ 36. Based on such ongoing complaints and on Wayne's
fifth trimester evaluations (March 2001), for which her rankings were
largely "doubtful" or "unsatisfactory," Dr. Sabol decided to terminate
Wayne's employment. Id. ¶¶ 37-41; Fifth Trimester
Evaluations of Wayne (annexed as Ex. L to Declaration of Andrew O'Toole,
filed December 15, 2003 ("O'Toole Decl.")) On April 3, 2001,
Wayne was informed of this decision and that the effective date of her
termination was April 18, 2001. Def. 56.1 ¶¶ 37, 39.
On April 4, 2001, the day after Wayne was informed that her employment
would be terminated, she again contacted the ORM to initiate counseling
with respect to her claim that her termination was in retaliation for
having engaged in protected activity. Id. ¶ 61. On April 9,
2001, George T. Irvin, Sr., the assigned EEO counselor, sent Wayne
information regarding the EEO process. Id. ¶¶ 61-62. Wayne
then sent Irvin confirmation that she understood her rights and
responsibilities. Id. ¶ 63. On May 14, 2001, Irvin sent
Wayne a letter informing her that he
was closing his informal counseling on the matter she had
complained of on April 4 and providing her with a "Notice of Right to
File a Discrimination Complaint." Id. ¶ 64.
Wayne never filed a formal complaint of discrimination or retaliation
with the Equal Employment Opportunity Commission ("EEOC"). Id.
¶ 65. The EEOC first received notice of Wayne's intent to sue under
the ADEA by letter dated July 26, 2001. Id. ¶ 66.
II. APPLICABLE LEGAL PRINCIPLES
A. Law Governing Summary Judgment
Summary judgment may not be granted unless "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 Celotex Corp. v.
Catrett 477 U.S. 317, 322-23 (1986). A material issue is a
"dispute over facts that might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242.248 (1986). A genuine issue of material fact exists "if the evidence
is such that a reasonable jury could return a verdict for the nonmoving
party." Id. Thus, "`[a] reasonably disputed, legally essential
issue is both genuine and material'" and precludes a finding of summary
judgment. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)
(quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
When determining whether a genuine issue of material fact exists,
courts must resolve all ambiguities and draw all factual inferences in
favor of the nonmoving party. See, e.g., Savino v. City of New
York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson, 477
U.S. at 255); McPherson, 174 F.3d at 280. However, to survive a
motion for summary judgment, the nonmoving party "must come forward with
`specific facts showing that there is a genuine issue
for trial/" Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (emphasis omitted) (quoting
Fed.R.Civ.P. 56(e)). "Conclusory allegations, conjecture, and
speculation . . . are insufficient to create a genuine issue of fact."
Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)
(citation omitted). Thus, "[a] defendant moving for summary judgment must
prevail if the plaintiff fails to come forward with enough evidence to
create a genuine factual issue to be tried with respect to an element
essential to its case." Alien v. Cuomo, 100 F.3d 253, 258 (2d
Cir. 1996) (citing Anderson, 477 U.S. at 247-48).
Although the Second Circuit has noted that "an extra measure of
caution" is needed in granting summary judgment in discrimination cases
since direct evidence of discriminatory intent is rare, a finding of
summary judgment is nonetheless appropriate for discrimination claims
lacking a genuine issue of material fact. Holtz v. Rockefeller &
Co., 258 F.3d 62, 69 (2d Cir. 2001) (citations omitted); accord
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.)
("It is now beyond cavil that summary judgment may be appropriate even in
the fact intensive context of discrimination cases."), cert.
denied 534 U.S. 993 (2001); Distasio v. Perkin Elmer
Corp., 157 F.3d 55, 61-62 (2d Cir. 1998). Thus, a plaintiff in an
employment discrimination action must still offer "concrete evidence from
which a reasonable juror could return a verdict in his favor."
Anderson, 477 U.S. at 256.
B. Wayne's Response to the Secretary's Motion
In this case, Wayne does not dispute the facts contained in the
Defendant's Rule 56.1 Statement. See Answer to Defendant's
Request for Summary Judgment, filed January 22, 2004 ("Pl. Opp."), at
1-2. Wayne was notified in accordance with Local Civ. R. 56.2 that she
was to submit witness statements in the form of affidavits and/or
documents to. oppose the
Secretary's motion for summary judgment. She was further warned
that if she failed to do so, the Court might accept the Secretary's
assertions as true. See Notice to Pro Se Litigant Opposing
Motion for Summary Judgment (annexed as Ex. A to Notice of Motion for
Summary Judgment, filed December 15, 2003). Nonetheless, Wayne submitted
no affidavits or documents in response to the Secretary's motion.
Instead, her opposition papers consist of a brief, unsworn recounting of
some aspects of her case. See generally PL Opp. Accordingly,
the Court accepts as true the Secretary's evidence on any material issues
of fact. See Local Civ. R. 56.1(c) ("All material facts set
forth in the statement required to be served by the moving party will be
deemed to be admitted unless controverted by the statement required to be
served by the opposing party."). In any event, Wayne's submission does
not even purport to offer evidence controverting the areas of material
fact on which this Opinion and Order relies.
Wayne does seek additional time to conduct discovery, suggesting that
the Secretary's responses have not been complete. See PL Opp.
at 2, 5. That request is rejected, however, because Wayne was given
ample time to conduct discovery and to bring to the Court's
attention any perceived deficiencies in the responses to her previous
discovery requests. The Court originally set an October 18, 2002 deadline
for all discovery. See Order, dated April 16, 2002, ¶ 4. In
a later Order extending the discovery cutoff to January 18, 2003, the
Court specifically stated that "[t]he parties are warned that any failure
to respond to discovery shall not constitute cause for an additional
extension unless the failure is brought to the Court's attention
promptly." Order, dated August 9, 2002, at 2. A further extension of
discovery, to February 20, 2003, was granted by Order dated October 2,
2002. An additional 60 day extension, to April 21, 2003, was
granted on January 31, 2003. An additional 90 day extension, to
July 21, 2003, was granted on
April 21, 2003. Finally, an additional 60 day extension, to
September 21, 2003, was granted on July 17, 2003. At no time during this
period did Wayne seek the Court's intervention to obtain additional
While Fed.R.Civ.P. 56(f) contemplates that a party opposing summary
judgment may obtain a continuance to obtain discovery, that rule "applies
to summary judgment motions made before discovery is
concluded." McAllister v. N.Y.C. Police Dep't 49 F. Supp.2d 688,
696 n.5 (S.D.N.Y. 1999) (emphasis added) (citations omitted):
accord Chimarev v. TD Waterhouse Investor Servs., Inc.,
280 F. Supp.2d 208, 229 n.1 (S.D.N.Y. 2003); McNerney v. Archer Daniels
Midland Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995) ("Applications to
extend the discovery deadline must be made prior to expiration of the
deadline. . . . Rule 56(f) is not intended to circumvent discovery
orders."). Because Wayne has had ample opportunity to conduct discovery
and to obtain court relief with respect to any alleged insufficient
responses by the Secretary, her request for additional time to conduct
discovery is denied.*fn1
A. Statutory Prerequisites to Suit
The Secretary first argues that he is entitled to summary judgment
because Wayne failed to satisfy the preconditions to suit imposed under
Title VII and the ADEA. See Memorandum of Law in Support of
Defendant's Motion for Summary Judgment, filed December 15, 2003 ("Def
Mem."), at 19-23. The Secretary previously moved to dismiss the
complaint on this ground. See Memorandum of Law in Support of
Defendant's Motion to Dismiss the Complaint, filed July 26, 2001, at 5-8.
On January 25, 2002, Judge Sidney H. Stein, who was then assigned to
this matter, denied the Secretary's motion to dismiss. Order, filed
January 25, 2002 ("Order"). The court determined that Wayne had in fact
failed to exhaust her administrative remedies under Title VII and failed
to give proper notice as required by the ADEA. Id. at 6, 8. But
the court construed certain statements made by Wayne in opposing the
motion to dismiss as alleging that Wayne's failure to exhaust and failure
to give proper notice `were caused by her reliance on affirmative
misrepresentations made by the VA." Id. at 9. Accordingly, the
court held that `this constructive allegation of equitable estoppel is
sufficient to withstand a Rule 12(b)(6) motion to dismiss." Id.
The exhaustion requirements under Title VII, the exhaustion and notice
requirements under the ADEA, and the doctrine of equitable estoppel were
fully discussed in Judge Stem's decision on the motion to dismiss.
See id. at 5-9. These issues are reviewed here only
in brief principally in the context of whether there are disputed
material facts precluding the grant of summary judgment in favor of the
Secretary on these grounds.
1. Title VII
a. Exhaustion Requirements. Under Title VII and the
applicable EEOC regulations, a federal employee who claims to have been
subjected to discrimination on the basis of her sex must exhaust all
available administrative remedies prior to filing suit in
federal court. See Briones v. Runyon, 101 F.3d 287,
289 (2d Cir. 1996); 29 C.F.R. § 1614.101-.110. Specifically, within
45 day of the alleged discriminatory act the employee must consult, with
counselor. 29 C.F.R. § 1614.105(a). The counselor must inform
the employee of her rights and responsibilities and, if resolution is not
possible within 30 days, inform the employee of her right to file a
discrimination complaint with the agency. Id. §
1614.105(b)-(d). The employee must timely file such a complaint,
id. § 1614.106(b), and the agency has 180 days to
investigate the claims, id. §§ 1614.106(e)(2), 108(e). The
employee may file a civil action in an appropriate United States District
Court only after receiving notice of a final administrative decision or
after 180 days from the date she filed the administrative complaint if no
final administrative decision has been reached. See id. §§
In this case, Wayne began the administrative process twice by
contacting an EEO counselor through the ORM. Def. 56.1 ¶¶ 52, 61. She
voluntarily withdrew her first complaint on February 28, 2001.
Id. ¶ 60. As for Wayne's second complaint regarding her
termination, she never filed a formal complaint with the agency even
after being informed that she had to do so within 15 days of the
conclusion of informal counseling. Id. ¶¶ 64-65;
see 29 C.F.R. § 1614.105(d), 106(b). Nonetheless, she filed
the complaint in this action on February 7, 2001. See Complaint
Thus, it is clear that Wayne failed to exhaust the available
administrative remedies prior to filing suit and, as described in Judge
Stein's prior Order, her Title VII claim must be dismissed barring the
availability of equitable estoppel. See Order at 6.
b. Equitable Estoppel. Title VII's exhaustion requirements
are subject to equitable doctrines such as waiver, tolling, and estoppel.
See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982); Briones, 101 F.3d at 290. Despite a plaintiffs failure
to exhaust, the doctrine of equitable estoppel bars a defendant from
raising an exhaustion or notice defense where the [Illegible Text] that
the defendant's affirmative misconduct caused her to bring her suit
defective manner. See Fields v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., F. Supp.2d , 2004 WL 137538, at
*3-*4 (S.D.N.Y. Jan. 27, 2004); Avillan v. Potter, 2002 WL
252479, at *3 (S.D.N.Y. Feb. 21, 2002); see also Long v. Frank,
22 F.3d 54, 59 (2d Cir. 1994) (requiring affirmative misconduct aimed at
causing plaintiff to forgo her legal rights), cert. denied,
513 U.S. 1128 (1995); Cerbone v. Int'l Ladies' Garment Workers'
Union, 768 F.2d 45, 50 (2d Cir. 1985) ("equitable estoppel is
invoked in cases where the plaintiff knew of the existence of his cause
of action but the defendant's conduct caused him to delay bringing his
Although it was previously determined that Wayne's "constructive
allegation" of equitable estoppel was sufficient to withstand a motion to
dismiss, see Order at 9, a different standard applies now
inasmuch as the Secretary has moved for summary judgment. In the course
of discovery, Wayne was Deposed regarding her efforts to exhaust her
claims of sex discrimination. See Def. 56.1 ¶¶ 52-66.
Nothing in the record indicates that the act or statement of anyone
associated with the VA caused Wayne to fail to exhaust her Title VII
administrative remedies. To the contrary, the evidence shows that Dr.
Sabol provided Wayne with a letter advising her that she could contact an
EEO counselor through the ORM if she believed she had been subjected to
discrimination. Id. ¶ 35. Wayne did so twice and an EEO
counselor advised her of her rights and responsibilities each time.
Id. ¶¶ 52-54, 61-63. Nonetheless, Wayne filed this suit
without exhausting her claims under Title VII. Indeed, Wayne testified
that she was advised to file this suit on February 7, 2001 by Monclova,
an individual who was not an attorney and who was not affiliated with the
VA or the Bronx VA Medical Center at that time. Id. ¶¶
56-58. Andino's statement regarding the necessity of proceeding either
with the lawsuit or by way of EEO complaint roles not support a finding
that the Secretary's conduct was "aimed at"
causing Wayne to forgo her legal rights. See Long, 22
F.3d at 59. Rather, Andino's statement was occasioned only by Wayne's
improper and unjustified filing of an unexhausted lawsuit.
In sum, no genuine issue of material fact remains on the issue of
whether Wayne is entitled to equitable relief from her failure to exhaust
available administrative remedies prior to filing suit under Title VII
Because there is no evidence of conduct by the VA or any of its employees
that caused Wayne to file this suit defectively, equitable estoppel does
not apply. Thus, her Title VII sex discrimination claims must be
2. The ADEA
a. Exhaustion and Notice Requirements. Under the ADEA, a
federal employee who claims she has been discriminated against because of
her age may proceed either through the EEOC administrative process
described above or by filing suit directly in federal district court.
Stevens v. Dep't of Treasury, 500 U.S. 1, 5-6 (1991) (citing
29 U.S.C. § 633a(b)-(d)). If an employee decides to file suit directly
in district court, however, she must meet two prerequisites: she must
provide the EEOC with notice of her intent to sue within 180 days of the
alleged unlawful practice and she must then wait 30 days before filing
suit. 29 U.S.C. § 633a(d); accord Stevens. 500 U.S. at 6;
29 C.F.R. § 1614.201(a). The notice requirement is designed to afford
the EEOC the opportunity "to assure the elimination of any unlawful
practice." 29 U.S.C. § 633a(d).
Here, at the time Wayne filed this suit on February 7, 2001, she had
not provided the EEOC with notice of her intent to sue. Def 56.1 ¶
65. She did, however, provide that notice on July 26, 2001, id.
¶ 66 a date within 180 days of at least some of the alleged
Thus, the statute required Wayne to file her suit on or after
August 25, 2001. See 29 U.S.C. § 633a(d).
Judge Stein's decision assumed that Wayne's failure to wait for the 30
day period must necessarily result in dismissal of her ADEA
claims. See Order at 8. But this was not an issue that was
briefed by the parties, inasmuch as briefing on the motion to dismiss
occurred prior to Wayne's submitting the July 26, 2001 notice. In the
meantime, Wayne's notice did comply with the 180 day limitations
period with respect to some of her claims.
In the briefing on the current motion, the Secretary has not cited any
case law suggesting that dismissal is the appropriate remedy where suit
is filed prior to the expiration of the 30 day period.
See Def. Mem. at 22-23. Nor has he advanced a legal argument
that would justify dismissing the ADEA claims on that basis. Instead, he
merely points to the statute's bar against filing suit prior to the
expiration of the 30-day notice period and argues cursorily that the
"complaint was premature ab initio, and should be
dismissed." Id. at 23. It is not intuitively obvious, however,
(hat dismissal is an appropriate remedy for this failure inasmuch as
unlike a filing that occurs after the expiration of a statute
of limitations period the premature filing of a
complaint is easily cured by refiling the identical complaint In
instances where the applicable statute of limitations has not expired,
requiring such refiling might be characterized as an exaltation of form
Certainly, case law exists upon which an argument could be constructed
that would justify the dismissal of Wayne's ADEA claims on this basis.
See, e.g., McNeil v. United States,
508 U.S. 106, 111-13 (1993) (suit under Federal Tort Claims Act
must be dismissed where administrative exhaustion takes place only after
suit is filed); Hallstrom v. Tillamook County, 493 U.S. 20,
31-33 (1989) (early filed action under 42 U.S.C. § 6972(b)(1)
must be dismissed). But because the Secretary has not adequately briefed
the issue and because this lawsuit is easily resolvable on the merits,
the Court will forgo deciding this issue.
b. Effect of July 2001 Notice. Wayne's failure to provide
notice until July 26, 2001 may limit, however, the extent to which her
claims may now be heard. Under the ADEA, notice must be filed with the
EEOC within 180 days after "the alleged unlawful practice occurred."
29 U.S.C. § 633a(d). The Supreme Court has held that under Title VII,
"discrete" discriminatory or retaliatory acts "are not actionable if time
barred, even when they are related to acts alleged in timely filed
charges." Nat'l R.R Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002). Termination is a clear example of a discrete act.
Id. at 114. In contrast, hostile work environment claims are
timely so long as the acts complained of "are part of the same actionable
hostile work environment practice" and "any [one] act falls within the
statutory time period." Id. at 120. Courts have held that these
rules apply equally to claims brought under the ADEA. E.g.,
Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1291 (11th Cir.
2002); Bailey v. Synthes, 295 F. Supp.2d 344, 353 (S.D.N.Y.
2003): Marinelli v. Chao, 222 F. Supp.2d 402, 415-16 (S.D.N.Y.
2002); Coffev v. Cushman & Wakefield, Inc., 2002 WL1610913,
at *2-*3 (S.D.N.Y. July 22, 2002).
The ADEA's timing requirements are subject to equitable estoppel in
appropriate circumstances. See Cerbone, 768 F.2d at 48-50
Avillan, 2002 WL 252479, at *3. But there is no evidence that
Wayne's failure to provide notice to the EEOC until July 26, 2001 was
by any employee of the VA. The Secretary has submitted evidence,
not controverted on this motion by Wayne, that Wayne was informed of her
rights and responsibilities in February 2001 by Andino and in April 2001
by Irvin. Def. 56.1 ¶¶ 53-54, 62-63.
To the extent Wayne's claims are based on discrete acts of
discrimination or retaliation which occurred prior to January 26, 2001
(that is, 180 days prior to July 26, 2001), these claims are not
actionable. Thus, because she received notice of her termination on April
3, 2001, Def. 56.1 ¶ 39, any claims relating to her termination are
actionable. Her hostile work environment claim is actionable so long as
at least one act contributing to the claim occurred on or after January
26, 2001. While Wayne has provided nothing to the Court that sets forth
her contentions as to when the acts constituting a hostile work
environment took place, it does appear that at least one act of which she
complains (Asher allegedly calling her a "weirdo") took place after that
date. See Email from Wayne to Dr. Sabol, dated February 1, 2001
(annexed as Ex. AX to O'Toole Decl.). Accordingly, the Court will examine
the merits of both the termination and hostile work environment claims.
B. The Merits of Wayne's ADEA Claims
1. Elements of a Discrimination or Retaliation Case
As discussed above, the Secretary is entitled to summary judgment with
respect to Wayne's sex discrimination claims under Title VII. Thus, only
Wayne's age discrimination and retaliation claims under the ADEA remain.
The Secretary contends that Wayne cannot demonstrate that she was
discriminated against because of her age or that she was retaliated
against for engaging in protected activity. Def. Mem. at 26-30, 32-43. We
The ADEA makes it unlawful for an employer, inter alia, "to
discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C § 623(a)(1).
ADEA claims are analyzed "`under the same framework as claims brought
pursuant to Title VII.'" Schnabel v. Abramson, 232 F.3d 83, 87
(2d Cir. 2000) (quoting Woroski v. Nashua Corp., 31 F.3d 105,
108 (2d Cir. 1994)). Thus, Wayne's claims of discrimination are properly
analyzed under the three part framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973).
Under this three part framework, the plaintiff carries the
initial burden of establishing a prima facie case of discrimination,
id. at 802; accord St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 506 (1993); Tex. Dep't of Cmty. Affaire v.
Burdine, 450 U.S. 248, 252-53 (1981), the elements of which are
described in more detail below. If the plaintiff establishes a prima
facie case, a presumption of discrimination is created and the burden
shifts to the employer "to articulate some legitimate, nondiscriminatory
reason" for the adverse employment action. McDonnell Douglas,
411 U.S. at 802; accord St. Mary's, 509 US. at 506-07;
Burdine, 450 U.S. at 254. If the employer articulates a non
discriminatory reason for its action, the presumption of
discrimination is eliminated and "the employer will be entitled to
summary judgment . . . unless the plaintiff can point to evidence that
reasonably supports a finding of prohibited discrimination." James
v. N.Y. Racine Ass'n, 233 F.3d 149, 154 (2d Cir. 2000); accord
McDonnell Douglas, 411 U.S. at 804; Burdine, 450 U.S. at
256. This is because "`the ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated . . . remains at all
times with the plaintiff.'" St. Mary's, 509 U.S. at 507
(quoting Burdine, 450 U.S. at 253).
Wayne contends that she was subjected to age discrimination through her
employer's creation of a hostile work environment and by her wrongful
termination. Separately, she contends that her termination was motivated,
at least in part, by retaliation for her having made complaints of
discrimination. The McDonnell Douglas burden shifting
analysis applies equally to such claims of retaliation. See, e.g.,
Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003).
The Second Circuit has noted that the burden on an employment
discrimination plaintiff to defeat summary judgment at the prima facie
stage is de minimis. Slattery v. Swiss Reinsurance Am. Corp.,
248 F.3d 87, 94 (2d Cir.) (citing Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 37 (2d Cir. 1994)), cert. denied,
534 U.S. 951 (2001). Nonetheless, granting summary judgment in favor of a
defendant in a discrimination case is appropriate where there is no
genuine issue of material fact. E.g., Holtz, 258 F.3d at 69. A
court must make a "determination of whether the proffered admissible
evidence shows circumstances that would be sufficient to permit a
rational finder of fact to infer a discriminatory motive." McLee v.
Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) (citations
In accordance with this framework, we next consider whether Wayne has
made a prima facie case either of discrimination or of retaliation.
Because we conclude that she has not established a prima facie case with
respect to either, it is not necessary to proceed to the remaining steps
of the three part framework and summary judgment must be entered
in favor of the Secretary.
"In order to establish a prima facie case of discriminatory discharge
in violation of the a plaintiff must show that (1) at the time of
discharge she was at least 40 years of age,
(2) her job performance was satisfactory, (3) she was discharged,
and (4) her discharge occurred under circumstances giving rise to an
inference of discrimination on the basis of age." Grady v.
Affiliated Cent. Inc., 130 F.3d 553, 559 (2d Cir. 1997) (citations
omitted), cert. denied, 525 U.S. 936 (1998). The ADEA also
creates a cause of action based on a hostile work environment "[w]hen the
workplace is permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the conditions
of the victim's employment," Harris v. Forklift Svs., Inc.,
510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted)
(stating standard under Title VII). See Brennan v. Metro.
Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999) ("The analysis of the
hostile working environment theory of discrimination is the same under
the ADEA as it is under Title VII."). Similar to a claim of wrongful
termination, to state a prima facie case based on hostile work
environment the plaintiff must "demonstrate that she was subjected to the
hostility because of her membership in a protected class." Id.
The discriminatory motive aspect of a prima facie case with respect to
termination or hostile work environment can be shown in a number of ways.
See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d
Cir. 1996) (cataloging ways discriminatory motive may be shown in the
context of a termination). For example, a plaintiff could point to
remarks made by decision makers which reflect a discriminatory animus.
See id. Or a plaintiff could provide evidence of disparate
treatment between young and old employees. See id.; see
also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80
(1998) (for hostile work environment claim, the critical issue is whether
members of a protected group are subject to disadvantageous conditions
while other outside that group are not). "Whatever evidentiary route the
plaintiff chooses to follow, he
or she must always prove that the conduct at issue . . . actually
constituted discrimination." Oncale, 523 U.S. at 81 (internal
quotation marks omitted); see also Grillo v. N.Y.C. Transit
Auth., 291 F.3d 231, 234 (2d Cir. 2002) (plaintiff must produce "at
least some credible evidence" that defendant's alleged discriminatory
actions were "motivated by . . . animus or ill will" (citations
Here, Wayne makes a number of complaints regarding her treatment. She
states that she was "thwarted at every turn of the educational process"
in the MPTTP program. PL Opp. at 1. Specifically, she states that she was
not provided access to the books and other materials she needed, although
other trainees (whose ages are not specified) were not treated this way.
Id. She also states that she never received keys to the
affiliated lab at Columbia University where she worked a couple of days a
week, that the materials and equipment she was given were not
appropriate, and that her evaluations were often delayed by months and
even then were vague. Id Further, she states that when a
problem did exist, "there was no opportunity given to discuss, defend, or
correct the problem." Id. at 2. But she provides no evidence
from which a jury could find that any of the adverse treatment be
it her treatment during her term of service or her ultimate
termination was motivated by discrimination on the basis of her
Wayne's hostile work environment claim only survived a motion to
dismiss because she had alleged similar mistreatment of other employees
"over the age of forty." Order at 10-11: see Complaint ¶ 8. 13. At
the summary judgment stage, however, she must offer "admissible evidence
[which] shows circumstances that would be sufficient to permit a rational
finder of fact to infer a discriminatory motive." McLee, 109
F.3d at 135.
It is undisputed that Wayne was over 40 both when she was hired as a
trainee in the MPTTP program and when she was fired from the program.
Def. 56.1 ¶¶ 13, 44. It is also undisputed that she was discharged
from her position prior to the expiration of the two year term
for which she was hired. Id. ¶¶ 1-2, 14, 41. But this is
not sufficient evidence to support a determination that Wayne was
discriminated against because of her age. Wayne has alleged no facts
much less produced any admissible evidence that
derogatory remarks were ever made about her age, that her supervisors
harbored animus toward older workers generally, or that older workers
were treated differently than younger workers. Wayne has asserted in
sworn testimony that Margie Golden, another trainee in the MPTTP
program, was subject to similar mistreatment. See
id. ¶ 16. But this does nothing to advance Wayne's theory
of age based discrimination because Golden was only 34 years old
when she left the program, id. ¶ 17, and thus not even
subject to the protections of the ADEA. As was determined at the motion
to dismiss stage, the "conduct and comments that Wayne attributes to her
supervisors allegedly giving her unfair evaluations, falsely
accusing her of verbal abuse, and calling her `retarded,' `mentally
dysfunctional,' `a weirdo,' and a `big joke' are simply not
ageist in nature." Order at 10 (citations omitted).
Two other incidents that Wayne adverted to in her deposition are also
insufficient to establish her prima facie case. First, Wayne testified
that in March 2001 during a lunchtime conversation, Asher related a story
about an older woman flirting with him in a line and that he
was "grossed out by that." Deposition of Mary Sharon Wayne, October 21,
2002 ("Wayne Dep.") (annexed as Ex. B to O'Toole Decl.), at 250-59. While
she took this to mean that Asher was offended because the woman was older
than him, Wayne also knew that Asher was married
and had a child. Id. at 257-58. She also testified that
in March 2001, Asher displayed a sketch of her that he had drawn as part
of a training exercise which she felt was inaccurate in that the sketch
depicted her as having three chins, a long and pointy nose, wrinkles, big
ears, and disheveled hair. Id. at 569-76; Def. 56.1 ¶ 47;
see Sketch of Wayne by Asher (undated) (annexed as Ex. AY to
O'Toole Decl.). This testimony, however, is far too thin to permit a
rational trier of fact to conclude that Asher harbored animus against
people older than 40 or that Wayne was terminated or otherwise subjected
to discrimination because of her age. See, e.g., Abdu-Brisson,
239 F.3d at 468 ("stray remarks of a decision maker, without
more, cannot prove a case of employment discrimination").
Furthermore, the same person Dr. Sabol both hired and
fired Wayne. Def. 56.1 ¶ 6, 12, 41. As the Second Circuit has noted,
"when the person who made the decision to fire was the same person who
made the decision to hire, it is difficult to impute to her an invidious
motivation that would be inconsistent with the decision to hire. This is
especially so when the firing has occurred only a short time after the
hiring." Grady, 130 F.3d at 560 (citations omitted);
accord Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137-38
(2d Cir. 2000). Here, Dr. Sabol fired Wayne less than two years after he
hired her. This strongly suggests that discrimination was not a
motivating factor in his decision to fire Wayne. See Schnabel,
232 F.3d at 91 (that termination took place only three years after hiring
was "a highly relevant factor in adjudicating a motion for summary
judgment on an ADEA claim"); cf. Carlton, 202 F.3d at
137-38 (passage of seven years between hiring and firing "significantly
weakens" the "same actor inference"). The inference of a non
discriminatory motive is rendered even more obvious by the fact that the
person who hired and fired the plaintiff is also a member of the same
protected class. Austin v.
Ford Models. Inc., 2000 WL 1752966, at *14 (S.D.N.Y. Nov.
29, 2000), aff'd 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir.
Dec. 4, 2001), cert. denied, 537 U.S. 848 (2002); see
Def. 56.1 ¶ 42 (Dr. Sabol was 57 years old when he terminated Wayne).
In sum, Wayne has presented no evidence upon which a rational trier of
fact could conclude that she was subjected to age based
discrimination. See, e.g., McLee, 109 F.3d at 135. Instead, she
has "done little more than cite to [her] mistreatment and ask the court
to conclude that it must have been related to [her age]. This is not
sufficient," Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d
Cir. 2001). As Wayne has not established the discriminatory motive
element of a prima facie case, we need not proceed to the second and
third steps of the McDonnell Douglas analysis. Thus, summary
judgment is granted in favor of the Secretary with regard to Wayne's
discrimination and hostile; work environment claims.
Although Wayne has not mentioned retaliation in her recent submissions,
including her response to this motion, she had previously asserted that
her termination was in retaliation for her being "Vocal" about her "abuse
and discouragement," Wayne Letter at 1. The Court will thus consider
whether Wayne has put forth a prima facie case of retaliation.
In order to establish a prima facie case of retaliation under the ADEA,
"a plaintiff must show by a preponderance of the evidence `(1)
participation in a protected activity known to the defendant; (2) an
employment action disadvantaging the plaintiff; and (3) a causal
connection between the protected activity and the adverse employment
action.'" Slattery, 248 F.3d at 94 (quoting Holt v.
KMI-Cont'l, Inc., 95 F.3d 123, 130 (2d Cir. 1996)).
In this case, Wayne has shown no causal connection between any
protected activity she engaged in and her termination. The only protected
activities she participated in prior to her termination were contacting
the ORM and filing this lawsuit in February 2001. But Dr. Sabol
the person who actually made the decision to fire Wayne has
submitted an affidavit stating that he did not know that Wayne had
contacted the ORM or filed any suit at the time he made the decision to
terminate her employment. Declaration of Dr. Gerald Sabol, filed December
15, 2003, ¶ 12. Wayne has provided no evidence challenging this
assertion. Indeed, she conceded in her deposition that she did not know
whether Dr. Sabol or Asher knew of her contact with the EEO office. Wayne
Dep. at 824. Without personal knowledge of Wayne's involvement in
protected activity, Dr. Sabot's decision cannot have been in retaliation
for such activity.
Nor can the temporal proximity between Wayne's protected activity
(beginning with her contact with the ORM in January 2001) and her
termination just three months later meet her burden See generally
Clark County Sch. Dist v. Breeder 532 U.S. 268, 273 (2001) (per
curiam) (stating that "[t]he cases that accept mere temporal proximity
between an employer's knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to establish a
prima facie case uniformly hold that the temporal proximity must be very
close" and suggesting that a three or four month period
is insufficient (internal quotation marks and citations omitted)). This
is because, in instances where timing is the only basis for a claim of
retaliation, no inference of retaliation arises if "gradual adverse job
actions began well before the plaintiff had ever engaged in any protected
activity." Slattery, 248 F.3d at 95.
In this case it is well documented that beginning with her
first set of performance evaluations in November 1999 and containning
through all subsequent evaluations. Wayne was
made aware that her performance was unsatisfactory and needed
improvement. See Def. 56.1 ¶¶ 18-33. In December 2000, her
access to the affiliated lab at Columbia University was restricted
because she had been reported for taking molds and supplies from the lab
which were then lost or broken. Id. ¶ 50. In early January
2001, Wayne was provided with a letter of "Written Counseling Regarding
Your Conduct and Performance," warning that "[y]our continuance in the
program is contingent on your full compliance with the instructions and
conditions received from Mr. Asher as well as the specific requirements
stated in this letter." Id. ¶ 35. All of this preceded
Wayne's participation in any protected activity.
In sum, Wayne has not presented evidence that would allow a rational
trier of fact to conclude that her termination was causally linked either
to her contacting the ORM or to her filing this suit. This is fatal to
her prima facie case of retaliation under the ADEA and thus summary
judgment is granted in favor of the Secretary on this claim as well.
For the foregoing reasons, the Secretary's motion for summary judgment
is granted. The Clerk is requested to enter judgment in favor of the
Secretary and to close this case.