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United States District Court, S.D. New York

March 9, 2004.

MAUREEN O'DWYER, Plaintiff, -against-, JOHN W. SNOW, Secretary, United States Department of the Treasury, Defendant

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge Page 2


Plaintiff Maureen O'Dwyer ("Plaintiff) alleges that the Defendant Secretary of the Treasury ("Defendant"), through his agents, Plaintiff's supervisors at the Internal Revenue Service ("IRS"), discriminated against her on the basis of gender, created a hosfile work environment, and engaged in retaliatory behavior in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff also alleges that Defendant discriminated against her on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff seeks injunctive relief, compensatory and punitive damages, and other relief, including attorneys' fees and costs. The Court has federal question jurisdiction of this action pursuant to 28 U.S.C. § 1331. Defendant has moved for summary judgment.

  For the reasons that follow, Defendant's motion is granted.


  Unless otherwise indicated, the following facts are undisputed. Plaintiff is a female who was born in 1937. Compl. at ¶ 9. At all times relevant to this action, Plaintiff was employed by the United States Department of the Treasury as an International Examiner, Grade GS-512-13, in the Examinations Division of the Manhattan District of the IRS. Id. ¶ 10. She began working for the IRS in 1987 as a Grade 7 Revenue Agent, and has had several grade increases since then. See Tr. 12/27/2001 O'Dwyer Dep. at 17-23. Around 1991, Plaintiff became an International Examiner. Compl. at ¶ 11. She continues to work for the IRS in that capacity. Tr. 12/27/2001 Page 3 O'Dwyer Dep. at 6.

  In the early part of 1996, Raymond Ring became Plaintiffs group manager. PL Local Rule 56.1 Statement*fn1 ("P.R. 56.1 St.") ¶ 5; Mem. Supp. Def's Mot. for Summ. J at 3. At that time, there were 12 people in Plaintiff's group, of whom Plaintiff was the eldest and most senior. 12/27/2001 O'Dwyer Tr. at 67-8, 77. Plaintiff had trouble with Mr. Ring early in his tenure, when, she alleges, Mr. Ring denied her religious credit that would have allowed her to take a day off for Lent. See id. at 86-8. From there, Plaintiff's problems with Mr. Ring escalated.

  Plaintiff's June 1996 Appraisal

  In October 1996, Plaintiff received her June 1996 Appraisal, which had been performed by Mr. Ring. See Tr. 12/27/2001 O'Dwyer Dep. at 89. Plaintiff alleges that the appraisal did not accurately reflect her job performance, since during that same time Plaintiff was singled out as one of only a few examiners asked to write a technical coordination report to be sent to Washington, D.C., and Plaintiff therefore deserved higher marks. Id. Specifically, Plaintiff alleges that Mr. Ring gave her the same numerical ratings that she had been given in the past, but gave her a worse narrative on paper than he had given her verbally when they met on October 1, 1996. She alleges that the narrative did not reflect her actual performance. Id. at 89-93. Because Page 4 she felt that the appraisal was inaccurate, Plaintiff filed a grievance with her union on October 21, 1996, in an effort to increase her numerical ratings and correct the appraisal's supporting narrative. Exh. H attached to Declaration of Danielle A. Gentin ("Gentin Decl").

  The Regional Analyst Position

  In or around January 1997, a Management Grade 14 Program Analyst position, for which Plaintiff was interested in applying, became available at the IRS. Tr. 12/27/2001 O'Dwyer Dep. at 26-29. In order to pursue the promotion, Plaintiff requested that Mr. Ring certify her for the position, which he refused to do. Id. at 27. Instead, Plaintiff alleges, Mr. Ring met with her on February 4, 1997, and "demeaned, humiliated and belittled her." PL R. 56.1 St. at ¶ 10; Tr. 1/29/2002 O'Dwyer Dep. at 272. In addition, Mr. Ring wrote two memos, dated February 5, 1997 and February 6, 1997, that Plaintiff alleges belittled Plaintiff's job performance. Tr. 12/27/2001 O'Dwyer Dep. at 207. Mr. Ring failed to certify Plaintiff even though, according to Plaintiff, he did certify younger employees and male employees. Id. at 108, 114.

  Defendant contends, however, that Plaintiff was not denied the position because of Mr. Ring's failure to certify her. Rather, Defendant asserts that she did not get the job because she never applied for it, having been informed by the personnel department that the job was a non — bargaining unit position for which Plaintiff was ineligible. See Mem. Supp. Def.'s Mot. for Summ. J. at 3; Tr. 12/29/2002 O'Dwyer Dep. at 307. Defendant points out that Plaintiff testified that, if she had been eligible for the promotion, she would have applied for it even without Mr. Ring's certification. Mem. Supp. Def's Mot. for Summ. J. at 4 (citing Tr. 1/29/20002 O'Dwyer Dep. at 307). In addition, Defendant alleges that Mr. Ring had good reason not to certify Page 5 Plaintiff for the management position — namely that, based on a document managers use to determine a candidate's qualifications, Plaintiff did not have enough of the attributes required and therefore was not qualified for the position. Id. (citing Tr. 1/29/2002 O'Dwyer Dep. at 316) Thus, while Plaintiff alleges that she was fully qualified for the Analyst position because she had been previously certified for a management position (Tr. 12/27/2001 O'Dwyer Dep. at 112), Defendant alleges that, in Mr. Ring's estimation, Plaintiff was not qualified since she did not possess enough of the requisite attributes. See Tr. 1/29/2002 O'Dwyer Dep. at 316.

  On February 26, 1997, Plaintiff filed a grievance with her union regarding Mr. Ring's alleged refusal to certify her for the analyst position. Exh. J to Gentin Decl.

  Plaintiff's Workload Review

  Shortly after Mr. Ring wrote the memos regarding Plaintiff's work performance, he scheduled a workload review of Plaintiff. The review took place over two days, February 13-14 1997. Tr. 12/27/2001 O'Dwyer Dep. at 71. Plaintiff alleges that the workload review violated procedure by wrongly including certain issues and material. Plaintiff does not detail each and every issue about which she complains. Id. at 72-3, 105. For example, Mr. Ring included Plaintiff's "survey after assignment," a one — sheet assessment of Plaintiff's work, in the review, which Plaintiff alleges he should not have done. Id. at 72-73. In addition, Plaintiff alleges that no other employee besides herself had a two — day workload review. Id. at 73-4. Plaintiff claims that Mr. Ring would not have treated her this way if she had been younger and male, and alleges that Mr. Ring did not treat a male who had to be retrained as badly as he treated her. Pl's R. 56.1 St. at ¶ 18; Tr. 12/27/2001 O'Dwyer Dep. at 121-22, 125, 127. Defendant contends, Page 6 however, that Plaintiff does not know how long other employees' workload reviews took to complete. Tr. 12/27/2001 O'Dwyer Dep. at 74. Defendant also points out that the second day of Plaintiff's workload review consisted of only one hour of review time. Id. at 75-6.

  On March 17, 1997, Plaintiff received her workload review evaluation and, on April 7, 1997, she brought a union grievance that resulted in the narrative portion of the review being removed from her records. Id. at 65-67; Exh. I to Gentin Decl.

  The March 17. 1997 Incident

  On the same afternoon she received her workload review evaluation, March 17, 1997, Plaintiff met with Mr. Ring so that he could talk to her about her visits with her Union representative. Tr. 12/27/2001 O'Dwyer Dep. at 138-39. According to Plaintiff, at that time Mr. Ring asked Plaintiff the purpose of a meeting she had scheduled with the Union for later in the day, and Plaintiff informed him that she had recorded her meeting on her daily locator and did not have to inform Mr. Ring of her reasons for scheduling the meeting. Id. at 139. As Plaintiff was speaking, she alleges, Mr. Ring tried to interrupt her, but Plaintiff continued to talk over him. Id. Then, according to Plaintiff, Mr. Ring "jumped across the desk," stretched out his hand toward her, coming as close as two inches to her face so that she jumped back in reaction, and told her to lower her voice. Id. at 139-45. Plaintiff alleges that she felt physically threatened, so she jerked backwards to avoid his outstretched arm and told Mr. Ring to take his hand down. Id. at 143-45, 150. Plaintiff then left Mr. Ring's office and went to the nurse's office because she felt unable to continue working and was afraid of further physical threats from Mr. Ring. Id. at 150. Page 7

  Defendant contends, however, that Mr. Ring merely asked Plaintiff where she was going and who she was going to see, in addition to telling her not to see anyone other than her Union steward. See Mem. Supp. Def.'s Mot. Summ. J. at 5; Tr. 12/27/2001 O'Dwyer Dep. at 141. According to Defendant, Plaintiff responded by shouting at Mr. Ring, whereupon Mr. Ring merely raised his hand over the desk between them and asked Plaintiff to lower her voice. See Mem. Supp. Def.'s Mot. Summ. J. at 5; Tr. 12/27/2001 O'Dwyer Dep. at 139-140.

  Plaintiff's Initial EEO Contact

  Because Plaintiff believed that Mr. Ring was singling her out because of her age and gender, Plaintiff made initial contact with an EEO Counselor on April 3, 1997. P.R. 56.1 St. at ¶ 22-23; Def. R. 56.1 St. at 31. Plaintiff alleges that Mr. Ring knew about this contact. Tr. 12/27/2001 O'Dwyer Dep. at 126, 152-55.

  The May 1997 Vulnerability Assessment/The Key Incident

  During the first week of May 1997, a vulnerability assessment was conducted for Plaintiffs group, Group 1669, which revealed that there were no duplicates to several agents' (including Plaintiff's) cabinet keys. Id. at 160. On May 8, 1997, Mr. Ring asked Plaintiff to give him her set of keys, something Plaintiff alleges no other examiner was asked to do. Id. at 163-165. At that time, Plaintiff refused to give Mr. Ring her keys, choosing instead to ask the head of building security, Betty Carne, what the proper procedure was regarding missing duplicate keys. Id. at 163. Ms. Carne told Plaintiff that the correct procedure for copying missing keys was to fill out a form to get the keys from security. If security did not have a copy of a particular key, the original would be taken from an agent for only a short period of time for copying, and then Page 8 returned to the agent. Id. at 163-64. Even after Plaintiff told Mr. Ring what Ms. Carne said, Plaintiff alleges that Mr. Ring still demanded that she "surrender" her keys at that time. Id. at 169. Instead, Plaintiff suggested that she and Mr. Ring see the Branch Chief, Phil Mahler. Id. at 169-70. When Plaintiff and Mr. Ring arrived at Mr. Mahler's office, Plaintiff alleges, Mr. Ring ordered another person, Jeff Karoly, out of Mr. Mahler's office because the key situation was an emergency. Id. at 171. At that time, Mr. Mahler received a phone call. To better hear the call, Mr. Mahler turned his back and put his finger in his other ear to block out the background noise. Id. Plaintiff alleges that her and Mr. Ring's presence during Mr. Mahler's phone call embarrassed her, so she tried to leave in order to go to the ladies room, but Mr. Ring blocked the exit and demanded that she give him her keys first. Id. at 171-172. After Plaintiff yelled at Mr. Ring, Plaintiff alleges, Mr. Mahler told Mr. Ring to let her out. Id. at 172-173. Plaintiff later returned to the office, whereupon Plaintiff, Mr. Mahler, and Mr. Ring discussed the key issue. Id. at 174-175. At the end of that day, Plaintiff gave her keys to Mr. Mahler. Id. at 176. Plaintiff advised her EEO counselor of this incident. P.R. 56.1 St. at ¶ 33. She also filed a grievance with her union on May 16, 1997. Exh. K to Gentin Decl.

  Mr. Ring's Retaliatory Behavior

  Plaintiff alleges that, after she contacted her EEO Counselor, Mr. Ring treated her increasingly differently from other employees. She alleges that he took her files away for long periods of time, pre-audited her cases, inundated her with "senseless" memos, and failed to give her the kind of performance awards she had received while working under prior managers. P.R. 56.1 St. at I 35-38; Tr. 12/27/2001 O'Dwyer Dep. at 190, 116, 200-202, 8. Page 9 Plaintiff also alleges that her co-workers felt that Mr. Ring treated her differently than other workers. Tr. 1/29/2002 O'Dwyer Dep. at 386-88. In addition, Plaintiff alleges that Mr. Ring once said that Plaintiff' "brought wisdom to the Group because of [her] age and [her] years.'" Tr. 12/27/2001 O'Dwyer Dep. at 103. Plaintiff does not, however, remember who told her that Mr. Ring had said this. Id. Defendant asserts that neither Mr. Ring nor Mr. Mahler ever made any remarks about Plaintiff's age or sex. D. R. 56.1 St. at ¶ 23-26; Tr. 12/27/2001 O'Dwyer Dep. at 156, 185.


  Summary Judgment Standard

  Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). The trial court must view the record in the light most favorable to the nonmoving party and resolve all uncertainties and draw all reasonable inferences against the moving party. Hill v. Taconic Dev. Disabilities Services Office. 181 F. Supp.2d 303, 316 (S.D.N.Y. 2002) (citing Cifarelli v. Vill. of Babylon. 93 F.3d 51 (2d Cir. 1996)). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 249 (1986). An issue for trial only exists when the dispute over a material fact is genuine such that a reasonable jury could find in favor of the nonmoving Page 10 party. Id. A fact is considered material if it "might affect the outcome of the suit under the governing law." Holtz v. Rockefeller & Co. Inc.. 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson, 477 U.S. at 248). An issue of fact is considered genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

  While summary judgment is generally considered inappropriate in workplace discrimination actions because such cases usually require an inquiry into an employer's intent and motivation, summary judgment is in no way precluded in employment discrimination cases. See Henkin v. Forest Labs, Inc.. No. 01 Civ. 4255, 2003 U.S. Dist. LEXIS 3060, at *10 (S.D.N.Y. March 4, 2003) (citing Belfi v. Prendergast, 191 F.3d 129 (2d Cir. 1999)). "Conclusory allegations and conjecture are `insufficient to raise a jury question as to whether [plaintiff] was in fact the victim of discrimination.'" Irvine v. Video Monitoring Serv. of Am., Inc.. No. 98 Civ 8725, 2000 U.S. Dist. LEXIS 5461, at *10 (S.D.N.Y. Apr. 25, 2000) (quoting Woods v. N.M.C. Laboratories. No. 97-9193, 1998 U.S. App. LEXIS 22088, at *2 (2d Cir. Sept. 3, 1998)). Indeed, "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact — intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines, Inc.. 239 F.3d 456, 466 (2d Cir. 2001).

  Timeliness of Plaintiff's Claims

  Before a federal employee may make a discrimination claim in federal court, both Title VII and the ADEA require that the employee first exhaust all administrative remedies. See Brown v. General Serv. Admin., 425 U.S. 820, 832-33 (1976) (Title VII); Marinelli v. Chao, 222 F. Supp.2d 402, 410 (S.D.N.Y. 2002) (citing Holtz, 258 F.3d at 82-83) (ADEA). The Page 11 administrative guidelines established by the EEOC require a federal employee to consult an EEO counselor at the employer agency's EEO office within 45 days of the allegedly discriminatory activity. 29 C.F.R. § 1614.105(a)(1). Thus, the 45 — day period "functions as a statute of limitations in that discriminatory incidents not timely charged before the EEOC will be time — barred upon the plaintiffs suit in district court." Quinn v. Green Tree Credit Corp.. 159 F.3d 759, 765 (2d Cir. 1998).

  Plaintiff in this case first contacted her EEO counselor on April 3, 1997. Hence, any claims based on discriminatory acts that occurred before February 18, 1997, are time — barred. Because Plaintiffs June 1996 appraisal and the events underlying her failure — to — promote claim both took place before February 18, 1997, Plaintiff cannot pursue her claims based on those incidents. In addition, because Plaintiff's workload review also took place prior to that date, her discrimination claim based on the allegation that her workload review violated procedure by taking place over two days is barred.

  Despite the fact that the underlying events took place more than 45 days before she met with her EEO counselor, Plaintiff asserts that these claims should not be time — barred because the continuing violation doctrine applies. The filing of a timely EEOC complaint regarding an "ongoing policy of discrimination" extends the statute of limitations to cover all the acts occurring as a result of that policy. See Lightfoot v. Union Carbide Corp.. 110 F.3d 898, 907 (2d Cir. 1997). Plaintiff's attempt to apply the doctrine to her failure to promote claim, her claims regarding her June 1996 appraisal, and her claims regarding Mr. Ring's conduct of her workload review fails, however. The continuing violation exception was clarified and limited by the Page 12 Supreme Court's recent decision in National Railroad Passenger Corp. v. Morgan. 536 U.S. 101 (2002). See Fontanez v. Thompson. No. 00 Civ. 2090(DFE), 2003 U.S. Dist. LEXIS 6980, at *26-27 (S.D.N.Y. Apr. 24, 2003). In Morgan, the Court distinguished between discrimination claims based on discrete discriminatory acts and hosfile work environment claims based on repeated conduct. Morgan. 536 U.S. at 115. A discrete discriminatory act is one that "occurs" on the day that it "happened." Id. at 110. A hosfile work environment, however, "cannot be said to occur on a particular day." Id. at 115. Rather, "[i]t occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Id. (internal citations omitted). Only in the latter type of action can claims based on acts occurring outside of the filing period be treated as timely. Id. at 122; see also Fontanez, 2003 U.S. Dist. LEXIS 6980 at *26-27 ("With respect to [claims of discrete discriminatory acts], the Supreme Court abrogated the `continuing violation' doctrine" in Morgan). Thus, in employment discrimination cases based on discrete acts, the statutory filing period for claims based on those acts begins to run, as to each act, on the day it occurs. See Morgan. 536 U.S. at 110. As the Morgan Court noted:

[D]iscrete acts that fall within the statutory time period do not make timely acts that fall outside the time period. . . . [D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.
Id. at 112-114.

  Each of the three untimely acts of which Plaintiff complains was discrete, and all are therefore time — barred. While the Morgan Court did not articulate a definition of "discrete act," Page 13 the Court did use actions such as termination, failure to promote, denial of transfer, and refusal to hire as "easy" examples of what constitutes a discrete act. Id. at 114. Thus, Plaintiff's failure to promote claim is properly considered a discrete act and is time — barred.

  Similarly, Plaintiff's claim that her June 1996 appraisal did not accurately reflect her job performance also concerns a discrete act and therefore is time — barred. The Second Circuit has stated that, "[A]n employer performs a separate employment practice each time it takes adverse action against an employee, even if that action is simply a periodic implementation of an adverse decision previously made." Elmenayer v. ABF Freight System. Inc., 318 F.3d 130, 134 (2d Cir. 2003). Even assuming that Plaintiff's less — than — glowing appraisal qualifies as an adverse action under Title VII, it is still merely one, stand — alone discrete act. It cannot be combined with other discrete discriminatory acts to create a continuing violation. See Quinn. 159 F.3d at 765. Indeed, the First Circuit has held that a performance evaluation constitutes a discrete discriminatory act. See Miller v. N.H. Dep't of Corrections. 296 F.3d 18, 22 (1st Cir. 2002).

  Plaintiff's third claim, that Mr. Ring violated workload review procedure by wrongly including certain issues and by extending the review over two days, also concerns a discrete act. A workload review is substantively indistinguishable from a performance evaluation for the purpose of categorizing it as a discrete act. Both involve assessing an employee's performance, both result in written reports, and both are conducted by immediate supervisors at a particular point in time. Therefore, like a negative performance evaluation, the adverse action alleged with respect to the workload review constitutes a "separate employment practice," and is therefore a discrete act. Elmenayer. 318 F.3d at 134. Plaintiff's claims based on her workload review are Page 14 therefore dismissed as time — barred.

  Plaintiff also contends that, even if the time bar does apply to her above — referenced complaints, the time limit should be held waived, estopped or equitably tolled by the Court. The Court cannot agree. Equitable tolling is properly invoked in cases in which the plaintiff is unaware that he or she has a cause of action. Cerbone v. Int'l Ladies' Garment Workers' Union. 768 F.2d 45, 48 (2d Cir. 1985) (quoting Long v. Abbott Mortgage Corp.. 459 F. Supp. 108, 113 (D. Conn. 1978)). In these cases, the statute of limitations begins to run when the plaintiff acquires or should have acquired actual knowledge of the facts that created the cause for his complaint, rather than beginning on the date that the discriminatory action occurred. Id. Often, in cases where equitable tolling has been applied, defendants have actively concealed pertinent information from plaintiffs. See id. (citations omitted). Here, however, Plaintiff does not even allege that she did not know of the adverse actions taken against her or her right to complain to her EEO counselor. In fact, Plaintiff admits to filing union grievances about these actions soon after they were taken. Plaintiff merely makes a conclusory statement that, since equitable tolling exists, it should be applied to her. Mem. in Opp'n to Def.'s Mot. for Summ. J. at 8. Such conclusory statements cannot on their own support application of the equitable tolling doctrine.

  Unlike equitable tolling, equitable estoppel applies to cases in which the plaintiff was aware she had a cause of action, "but the defendant's conduct caused [her] to delay in bringing [her] lawsuit." Cerbone. 768 F.2d at 50. Once again, Plaintiff does not even allege that Defendant prevented or delayed her from consulting with her EEO counselor. Thus, there is no reason for the Court to find Defendant estopped from invoking the time limit. Page 15

  Plaintiff has proffered no factual basis for a finding of waiver.

  Exhaustion of Administrative Remedies

  Plaintiff is also barred from bringing claims regarding her June 1996 appraisal, her failure to be promoted, her workload review, and the May 8 "key incident" because she failed to exhaust her administrative remedies regarding the claims for which she filed a union grievance. Under the Civil Service Reform Act ("CSRA"), unionized federal employees who are subject to collective bargaining agreements may raise claims of discrimination pursuant to the union's negotiated grievance procedure or the statutory framework of the EEOC regulations, but not both. 5 U.S.C.A. § 7121(d) (West 1996 & Supp. 2003): see also Vinieratos v. United States, 939 F.2d 762, 768 (9th Cir. 1991) (the decision to pursue either the statutory or the union — negotiated grievance procedure is an "irrevocable" election). The EEOC regulations implementing this policy further provide that:

When a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits allegations of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or a grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure but not both.
29 C.F.R. § 1614.301(a) (2003). "An employee raising discrimination claims therefore must choose in which fora, either the negotiated grievance procedure or the statutory forum, he wishes to pursue his administrative remedy." Gill v. Summers. No. 00-CV-5181, 2001 U.S. Dist. LEXIS 2954, at *7 (E.D. Pa. Mar. 20, 2001) (citations omitted). Whichever route an employee chooses, she must then exhaust that administrative remedy before pursuing her claim in court. Id. at *11: see also Van Houten v. Gober. No. 98-270, 1998 U.S. Dist. LEXIS 17671, at *14 Page 16 (E.D. Pa. Nov. 10, 1998).

  Under the CSRA, an employee is deemed to have exercised her option to choose the statutory route when the employee timely initiates an action under the statutory procedure. 5 U.S.C.A. § 7121(d) (West 1996 & Supp. 2003). The EEOC regulations provide that the employee is considered to have initiated a statutory action when she files a written complaint. 29 C.F.R. § 1614.301(a) (2003). The employee is deemed, alternatively, to have elected to pursue union grievance procedures when she timely files a grievance in writing in accordance with the negotiated grievance procedure. 5 U.S.C.A. § 7121(d) (West 1996 & Supp. 2003); see also 29 C.F.R. § 1614.301(a)(2003).

  Plaintiff filed a written EEOC complaint on July 2, 1997. Ex. E to Gentin Decl. Before that date, however, Plaintiff had filed several written union grievances. On October 21, 1996, Plaintiff filed a grievance regarding her June appraisal; on February 26, 1997, she filed a grievance regarding Mr. Ring's failure to certify her for the regional analyst position; on April 7, 1997, she filed a grievance regarding her workload review; and on May 16, 1997, she filed a grievance regarding the May 8, 1997, key incident. These formal, written grievances, which were filed before her EEOC complaint, constituted irrevocable elections to pursue those issues through the union procedures. See Vinieratos. 939 F.2d at 769. Thus, for these claims to be actionable in this Court, Plaintiff must have exhausted the grievance procedure set out in her union's collective bargaining agreement.

  Plaintiff's collective bargaining agreement, the National Agreement Between Internal Page 17 Revenue Service and the National Treasury Employees Union ("NORD IV"*fn2), allows her to bring claims of discrimination, and sets out a four — step grievance procedure for doing so. First, there is either a formal or informal meeting between the employee and her supervisor that results in a written response given to the union within five days of the meeting. If the matter is still not resolved, the employee may appeal the grievance to the appropriate division chief within 10 days of receiving the step one written response. Third, if the employee is dissatisfied with the response to the appeal, she may file a second appeal with the head of the appointing office within 10 days of receiving the ruling on the first appeal. NORD IV Art 41, section 6. Finally, if the employee is still unhappy, she has the option of appealing the matter for binding arbitration. NORD IV Art. 41, section 8. If the employee is not happy with the result of the binding arbitration, she is entitled to appeal the arbitrator's decision to the Federal Labor Relations Authority and then to the EEOC, 5 U.S.C.A. § 7122(a) (West 1996 & Supp. 2003), or directly to the EEOC. 29 C.F.R. § 1614.401(d) (2003); see also Gill, U.S. Dist. LEXIS 2954, at *9-10.

  Plaintiff did not follow the four — step grievance procedure. Instead, she abandoned the union procedures after step one and attempted to bring her claims pursuant to the EEOC's statutory provisions. This she cannot do. In fact, the EEOC repeatedly rejected Plaintiff's claims because she had first filed a grievance with her union. Exs. F, G to Gentin Decl. This Court Page 18 must do the same.

  Plaintiff contends that her claims are not barred because, in her union grievances, she did not specifically allege discrimination. The relevant statute, 29 U.S.C. § 7121(d), provides that an employee may not raise the same "matter" under both a negotiated grievance procedure and the statutory procedure. Plaintiff essentially claims that the word "matter" refers to the legal allegations made in her complaints rather than the underlying conduct. See Mem. of Law in Opp. to Def.'s Mot. for Summ. J. at p. 9-10. Plaintiff has not cited, nor could the Court find, any decisions to support that contention, however. Rather, the term "matter" is generally deemed to "embrace[] the underlying action." Bonner v. Merit Systems Protection Board. 781 F.2d 202, 204 (Fed. Cir. 1986) (interpreting the legislative history of § 7121); see also Macy v. Dalton. 853 F. Supp. 350, 353 (E.D. Cal. 1994) ("[T]he `matter' to which § 7121(d) refers is not plaintiffs' discrimination claim, but rather is plaintiffs' termination in the 1990 RIF."); cf. Van Houten. 1998 U.S. Dist. LEXIS at *20 (finding that the plaintiff raised different matters in his union grievance and EEOC claim because ruling on the underlying issue in the union grievance would not necessarily have resolved the issue in the EEOC claim). Therefore, the "matter[s]" brought up in Plaintiff's grievances are the actions of Mr. Ring about which Plaintiff complains, not the legal complaints she is making. See Van Houten. 1998 U.S. Dist. LEXIS 17671 at *18 (citations omitted) ("Two complaints refer to the same `matter' if the disputed personnel action at the root of the employee's complaint is the same, regardless of the legal theory on which the action is challenged."). Thus, Plaintiff is barred from pursuing any claims for which she filed grievances Page 19 if she did not exhaust her union grievance procedure.*fn3

  Plaintiff's Remaining Claim

  Because Plaintiff's claims regarding actions prior to February 18, 1997, are time — barred and she cannot bring claims regarding the incidents about which she filed union grievances, her only actionable claim is that based on the March 17, 1997, incident in which Mr. Ring allegedly made threatening motions across a desk towards Plaintiff.

  Title VII makes it unlawful for employers to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual" based on that individual's race, color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-(2)(a)(1) (West 2003). Similarly, the ADEA bans discrimination against employees based on their age. 29 U.S.C.A. § 623(a) (West 1999 & Supp. 2003). Because Plaintiff alleges both that the incident constituted a discriminatory act and that it constituted part of a hosfile work environment, the Court will examine the sufficiency of the claim under both standards.

  Disparate Treatment

  Courts analyzing Title VII and ADEA discrimination claims apply the three — step burden — shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-803 (1973). See Wanamaker v. Columbian Rope Co.. 108 F.3d 462, 465 (2d Cir. 1997). To prevail on a discrimination claim under McDonnell Douglas, a plaintiff must first prove by a preponderance Page 20 of the evidence a prima facie case of discrimination. Texas Dep't of Cmty. Affairs v. Burdine. 450 U.S. 248, 252 (1981). Establishment of a prima facie case creates a presumption of discrimination such that, if the defendant is silent on that issue, the court must enter judgment for the plaintiff. Id. at 254. The defendant may, however, rebut the presumption of discrimination by articulating a nondiscriminatory reason for the adverse employment action taken. Id. at 252. The defendant need not persuade the court that it was motivated by the proffered reason, however. Rather, "it is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id.: see also St. Mary's Honor Center v. Hicks. 509 U.S. 502, 507 (1993). If the defendant articulates such a nondiscriminatory reason, the plaintiff then has the opportunity to show by a preponderance of the evidence that the defendant's reasons were mere pretexts for discrimination. Burdine. 450 U.S. at 252.

  To establish a prima facie case of disparate treatment violative of Title VII, a plaintiff must show (1) membership in a protected class, (2) qualification for the position, (3) an adverse employment action, and (4) circumstances that give rise to at least a minimal inference of discrimination. Fagan v. N.Y. State Electric & Gas Corp.. 186 F.3d 127, 132 (2d Cir. 1999) (ADEA); Weinstock v. Columbia Univ.. 224 F.3d 33, 42 (2d Cir. 2000) (Title VII).

  While the burden of establishing a prima facie case is "minimal," Carlton v. Mystic Transp. Inc.. 202 F.3d 129, 134 (2d Cir. 2000), it is not illusory. To show that she suffered an adverse employment action, a plaintiff must demonstrate that she sustained a "materially adverse change in the terms and conditions of employment." Galabya v. New York City Bd. of Educ.. 202 F.3d 636, 640 (2d Cir. 2000) (internal quotations omitted). A materially adverse change Page 21 "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (internal citation omitted). Examples of what constitutes a materially adverse change include "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation." Id. (internal quotations omitted). However, "[b]ecause there are no bright — line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of `adverse.'" Wanamaker. 108 F.3d at 466.

  It is clear that, while Plaintiff experienced an unpleasant altercation with her supervisor, Mr. Ring, that experience does not rise to the level of a material adverse change in Plaintiff's working condition. Taking as true the facts that Plaintiff alleges, it appears that Mr. Ring behaved in a reprehensible manner. There are, however, no allegations or evidence that this behavior had any materially adverse effect on Plaintiff's job. Plaintiff was not fired, demoted, or sanctioned as a result of the encounter. Nor did she lose any salary or benefits. Her supervisor merely yelled at her, and she went to the nurse feeling frightened because of his behavior. However, behavior that simply leaves a plaintiff feeling frightened or threatened does not constitute an adverse employment action. See Torres v. Pisano. 116 F.3d 625, 640 (2d Cir. 1997); Leget v. Henderson. 99 Civ. 3636 (DLC), 99 Civ. 4610 (DLC), 2001 U.S. Dist. LEXIS 285, at *18 (S.D.N.Y. Jan. 17, 2001). Based on the facts as she alleges them, Plaintiff thus cannot make out a prima facie case of discrimination with respect to the March 17, 1997, incident with Mr. Ring and therefore her claims based on that incident are dismissed to that extent. Page 22

  Hosfile Work Environment Discrimination

  To survive a summary judgment motion on a hosfile work environment claim, a plaintiff must show that her workplace was "permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems. Inc.. 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank. FSB v. Vinson. 477 U.S. 57, 65-67 (1986)). The conduct complained of must be both objectively "severe or pervasive enough to create an objectively hosfile or abusive work environment — an environment that a reasonable person*fn4 would find hosfile or abusive," and subjectively perceived by the victim as creating an abusive environment. Harris. 510 U.S. at 21. In general, to create an actionable hosfile environment, the discriminatory incidents "must be repeated and continuous; isolated acts or occasional episodes will not merit relief." Kotcher v. Rosa & Sullivan Appliance Ctr. Inc.. 957 F.2d 59, 62 (2d Cir. 1992). However, while isolated acts are not generally severe or pervasive enough to create a hosfile work environment, a single act, if vile enough, can by itself transform the plaintiffs workplace. Alfano. 294 F.3d at 374; Richardson. 189 F.3d at 437 (noting that a single sexual assault is enough to alter the conditions of employment). Thus, the plaintiff must show "either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently Page 23 continuous and concerted to have altered the conditions of her working environment." Cruz v. Coach Stores. Inc.. 202 F.3d 560, 570 (2d Cir. 2000) (quoting Perry v. Ethan Alien. Inc.. 115 F.3d 143, 149 (2d Cir. 1997)). In determining whether the plaintiff has satisfied this burden, courts must "consider the totality of the circumstances, and . . . evaluate the quantity, frequency, and severity of the incidents." Richardson. 189 F.3d at 437 (internal citations omitted). In addition, "it is axiomatic that in order to establish a sex — based hosfile work environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of the protected characteristic. See Alfano. 294 F.3d at 374.

  In situations in which a plaintiff is barred from bringing claims based on some, but not all, of the incidents characterized as indicative of a hosfile work environment because she failed to exhaust her administrative remedies through either the statutory or the negotiated grievance procedure with respect to the underlying incidents, it is unsettled whether courts should consider both the exhausted and the non — exhausted claims when evaluating the hosfile work environment claim, or whether only those incidents that are themselves actionable should be considered. While the Supreme Court in Morgan made it clear that in hosfile work environment cases courts should consider the totality of the circumstances when some claims are time — barred and others are not, the Court did not address cases in which claims are barred for other reasons. Morgan. 536 U.S. at 117. It is unnecessary for the Court to decide this issue here, however, as Plaintiff cannot make out a case for a hosfile work environment even if all of the alleged incidents are taken into account.

  While it is true that a single incident may create a hosfile working environment, Plaintiff Page 24 does not allege behavior severe enough to alter the terms and conditions of her employment based on her single actionable incident. In general, courts have only found serious incidents of overt violent or discriminatory acts sufficient to alter the work environment standing alone. See Tomka v. Seiler Corp.. 66 F.3d 1295, 1305 (2d Cir. 1995) (single sexual assault was found to create a hosfile working environment); Howley v. Town of Strattford. 217 F.3d 141, 154 (2d Cir. 2000) (instance of loud, verbal sexually — offensive abuse in front of plaintiff firefighter's subordinates is sufficient to create a jury question regarding Plaintiff's hosfile work environment claim in context of totality of circumstances including other conduct undermining plaintiff's authority). While having her supervisor yell and gesture at her across a desk was undoubtedly very unpleasant for Plaintiff, there is no allegation that Mr. Ring's behavior influenced Plaintiff's standing with her coworkers, affected her ability to deal with any subordinates or caused her physical harm.

  In addition, even if none of her claims were barred from consideration, Defendant would still be entitled to judgment as a matter of law on Plaintiff's hosfile work environment claim. Even when taking as true all of her factual allegations and considering the totality of the circumstances in the light most favorable to Plaintiff, Plaintiff "cannot establish a prima facie case that [she] was subjected to an unlawfully hosfile work environment because [she] proffers no evidence of `discriminatory behavior that is sufficiently severe or pervasive to cause a hosfile environment.'" Janneh v. Endvest, Inc.. 64 Fed. Appx. 814, 815 (2d Cir. 2003) (quoting Brown v. Coach Stores. Inc.. 163 F.3d 706, 713 (2d Cir. 1998)).

  Plaintiff claims that her supervisor, Raymond Ring, denied her religious credit and gave Page 25 her an inaccurate appraisal. Plaintiff also alleges that, in connection with Plaintiff's request that Mr. Ring certify her for a promotion sought by Plaintiff, Mr. Ring belittled Plaintiff in a face — to — face meeting, ultimately refusing to certify her, and then subsequently issued two memoranda falsely criticizing Plaintiff's job performance. Other than conclusory assertions made during her own deposition, Plaintiff proffers no evidence whatsoever to support her contention that the criticisms leveled at her by Ring were indeed unwarranted. Plaintiff also contends that she was the only employee required to endure a two — day workload review, which, unlike the reviews of her colleagues, involved the consideration of issues that were outside the proper scope of the review. Additionally, Plaintiff alleges that she met with Mr. Ring in his office a short time after receiving her workload review report, whereupon Mr. Ring questioned her about a meeting she had scheduled with the Union for later that day. According to Plaintiff, Mr. Ring attempted to interrupt Plaintiff while she was speaking, then lunged across the desk while pointing at Plaintiff, telling her to lower her voice. The experience prompted Plaintiff to go to the nurse's office.

  Plaintiff further contends that, when it was discovered during a vulnerability assessment that duplicate keys to cabinets used by certain employees, including Plaintiff, were missing, Mr. Ring required Plaintiff, and none of her colleagues, to surrender the keys to her cabinet despite the fact that, according to the head of building security, the protocol in such a situation did not call for an employee to be stripped of her keys in such fashion. When Plaintiff mentioned to Mr. Ring what she had been told by the head of security, Mr. Ring brought her to the Branch Chief's office, and later blocked her attempted exit, demanding that she hand over her keys before finally permitting her to leave the office. Finally, Plaintiff claims that Mr. Ring pre-audited her cases, Page 26 withheld case files from her and inundated her with "senseless" memoranda.

  It is, at best, doubtful that the above — described series of incidents complained of by Plaintiff was pervasive and/or severe enough to have altered the terms and conditions of Plaintiff's employment. The acts were infrequent and Plaintiff has failed to proffer evidence that they unreasonably interfered in any meaningful way with Plaintiff's work performance. While it is clear from Plaintiff's deposition testimony that she felt threatened by certain of Mr. Ring's actions, it is less than clear that Mr. Ring's behavior would satisfy the objective component of the test. That said, even if the Court were to conclude that Plaintiff has proffered facts sufficient to establish that the working environment was hosfile and/or abusive, Plaintiff proffers nothing but conclusory assertions to support her contention that Mr. Ring's actions were at all related to age or sex. To prevail on her hosfile work environment claim, Plaintiff "must show that the working environment is not merely hosfile or abusive, `but actually constituted discrimina[tion] . . . because of . . . sex'" and/or age. Ricks v. Conde Nast Publ'ns, Inc.. 6 Fed. Appx. 74, 79 (2d Cir. 2001) (quoting Oncale v. Sundowner Offshore Servs. Inc.. 523 U.S. 75, 81 (1998) (internal citation omitted)).

  The conduct of which Plaintiff complains did not involve any overtly discriminatory language or acts. Rather, Plaintiff relies on her conclusory assertions that Mr. Ring would not have behaved as he did if Plaintiff had been younger or male. Tr. 12/27/2001 O'Dwyer Dep. at 126, 155 ("I think he treated me differently because he saw me as more vulnerable, because I was older, he felt I wasn't going to go any place. He also treated me that way because I was a female"). Indeed, when Plaintiff was asked if there were any facts on which she based her belief Page 27 of age and gender bias, she could not point to any evidence beyond Mr. Ring's admittedly shabby treatment of her. Id. at 155-56. While it is true that "incidents that are facially sex — neutral may sometimes be used to establish a course of sex — based discrimination," such as when there are multiple acts of harassment, some of which are overtly discriminatory and some of which are not, there must be "some circumstantial or other basis for inferring that incidents sex — neutral on their face were in fact discriminatory." See Alfano v. Costello. 294 F.3d 365, 375, 378 (2d Cir. 2002). As the Alfano court explained:

Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hosfile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.
Id. at 377.

  Plaintiff does point to two possible specific indicators of age — based animus, but they are insufficient to establish the requisite inference of discrimination. First, Plaintiff refers in her deposition to a comment that someone allegedly said her supervisor made about Plaintiff providing age and wisdom to the group. However, Plaintiff's assertion as to what an unidentified person told her is hearsay and therefore does not constitute admissible evidence. Howley v. Town of Stratford. 217 F.3d 141, 155 (2d Cir. 2000); Fed.R.Evid. 801. Even if the Court were to consider such a statement, it provides insufficient evidence of discriminatory motivation to preclude summary judgment in Defendant's favor because the comment is, on its face, indicative of a positive view of Plaintiff's contribution to the work of the office rather than Page 28 of hostility.

  Second, in response to deposition questions pertaining to her two — day workload review, Plaintiff testified that Mr. Ring did not treat a male, Donald Rubin, who had to repeat training, as badly as he treated Plaintiff. Tr. 12/27/2001 O'Dwyer Dep. at 122. Plaintiff's conclusory assertion, however, is insufficient to establish an inference of discrimination. Plaintiff offers no information regarding the circumstances of Rubin's training and/or review, the reasons he had to repeat training, etc. Nor does Plaintiff proffer any evidence concerning how Rubin was treated by Mr. Ring other than the conclusory statement that the treatment he received was better than that which she received. Plaintiff has proffered nothing to indicate that Mr. Ring's treatment of Rubin really was better than his treatment of Plaintiff, or that such disparity was related to age and/or gender. Thus, the actions complained of by Plaintiff, even when considered in their totality and in the light most favorable to Plaintiff, are insufficient to establish the requisite inference of discrimination. As a result, Plaintiff's hosfile work environment claim cannot survive summary judgment and is dismissed. Page 29


  For the foregoing reasons, summary judgment is granted in favor of Defendants. Plaintiff's complaint is dismissed in its entirety. The Clerk of Court shall enter judgment and close this case.


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