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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


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. Page 2


  The following statement of facts is taken from the uncontroverted allegations of Defendant's Rule 56.1 Statement, filed December 15, 2003 ("Def. 56.1").

  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. ¶¶ 24-27.

  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 Page 3 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. ¶ 57.

  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 Page 4 "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. Id.

  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 Page 5 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.


  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 Page 6 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 Page 7 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 ...

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