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
OPINION AND ORDER
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
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
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
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
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
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.
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
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.
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
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
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
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
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
[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,"
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
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
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
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.
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
(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
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
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
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
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.
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
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)
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
"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.
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
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
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
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
withheld case files from her and inundated her with "senseless"
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
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
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
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
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.
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.
IT IS SO ORDERED.