The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
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 ...