United States District Court, S.D. New York
March 9, 2004.
EARL C. RANDALL, Plaintiff, -against- JOHN E. POTTER, Postmaster General of the United States, et al., Defendants
The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge
MEMORANDUM OPINION AND
Plaintiff, Earl C. Randall, brings this action claiming race and gender
discrimination, as well as unlawful retaliation, under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
("Title VII"), and various other federal and state statutes. Plaintiff
has named as Defendants John E. Potter, Postmaster General of the United
States ("the Postal Service"), and the following employees of the Postal
Service: Freda Lanier ("Lanier"), Frank Ruggiero ("Ruggiero"), Maynard
Jones ("Jones"), Deborah Aronovici ("Aronovici"), Atiya Beard ("Beard"),
and Leon Smith ("Smith"). The parties have consented trial before this
court pursuant to 28 U.S.C. § 636(c). Presently before the Court is
Defendants' motion for summary judgment, brought pursuant to Federal Rule
of Civil Procedure 56. For the reasons that follow, the motion
is granted and this action is dismissed with prejudice.
Plaintiff is employed by the United States Postal Service as a mail
handler at the Detached Mail Unit ("DMU"), which is part of the Postal
Service's Bronx Processing Center ("Bronx P & DC"). Plaintiff was
employed in this position in June 1999, when the events underlying this
On June 8, 1999, Jones, the Manager of Distribution Operations at the
Bronx P & DC, asked Ruggiero, a Supervisor in Distribution Operations
at the Bronx P & DC, to look into an incident that had occurred that
morning at the DMU. (See Declaration of Francis J. Ruggiero,
dated July 29, 2003 ("Ruggiero Decl."), ¶ 4.) Jones told Ruggiero
that it had been reported to him that, at approximately 10:55 A.M. on the
same day, Plaintiff was operating a powered industrial truck ("PIT"), and
struck Freda Lanier, a supervisor, on her right elbow. Ruggiero
subsequently reviewed witness statements that had been taken from
Plaintiff, Atiya Beard, Ricky Malcolm, Marcelle Darlington, Addy Reyes,
and Luis Irizanny, by Aronovici, a Postal Service Inspector.
(Id. ¶ 5 & Ex. A.)
The interview with Plaintiff occurred in the presence of his union
representative. In his statement and at his interview with Aronovici,
Plaintiff indicated that his supervisors, David Powell and Siddique Ali
Shahbaaz, had told him to load pallets onto a trailer, using the PIT.
According to Plaintiff, after commencing this task, Lanier ordered him to
stop loading the pallets onto the
trailer. Plaintiff refused and told her that the truck had to be
loaded with pallets for safety reasons. She again instructed him to stop
loading the truck. Plaintiff asked Lanier to move, she refused, and
Lanier positioned herself in front of the PIT. Plaintiff again asked her
to move and when she refused he maneuvered the PIT around her. He claimed
that he was not aware of striking her with the PIT and, only later was he
told by the investigator that he had struck her. He denied that he did
so. (See Ruggiero Decl., Ex. A; Declaration of Earl C. Randall,
filed Oct. 20, 2003 ("Randall Decl."), ¶¶ 3-6.)
Ruggiero also interviewed Lanier. In her statement to Inspector
Aronovici and during her interview, Lanier stated that she was
supervising the loading of a trailer at the DMU, and that she had ordered
Plaintiff to stop loading the trailer with the PIT until some rolling
stock in the area could be removed. According to Lanier, Plaintiff became
upset and began yelling at her and using profanity. Plaintiff then
proceeded to disregard her order and attempted to drive the PIT around
her to continue loading the pallets. While Lanier was facing away from
Plaintiff, the forklift part of the PIT struck Lanier's right elbow.
Lanier called the Postal Service police and then sought medical treatment
at the station. (See Ruggiero Decl. 1 8 & Ex. A.)
Only one of the Postal Service employees interviewed by Aronovici
actually witnessed the incident. Atiya Beard, an
African-American woman, stated that Plaintiff had become "verbally
abusive" to Lanier and that she had seen Plaintiff hit Lanier with the
PIT. (See Ruggiero Decl. ¶ 9 & Ex. A.) The other
employees, Marcelle Darlington and Luis Irizanny, only witnessed
Plaintiff yelling at Lanier, but did not witness their further
interaction. Irizanny heard Plaintiff arguing with Lanier about how to
load the trailer, but Irizanny walked away. Darlington merely heard them
arguing, but did not hear the content of the argument. (See
Ruggiero Decl. ¶ 9 & Ex. A.)
Based on his investigation, Ruggiero determined that Plaintiff should
be suspended from duty pending a final decision on what discipline
Plaintiff should receive. Ruggiero concluded that Plaintiff had
disregarded an order of a supervisor in contravention of Postal Service
policy, had done so while operating a PIT in a crowded environment, and,
as confirmed by a witness, had struck and injured Lanier with the PIT,
(See Ruggiero Decl. ¶ 10.) Ruggiero then informed Jones of
his findings and recommendation. Jones agreed with Ruggiero's
recommendation, and they issued to Plaintiff an Emergency Placement in
Off-Duty Status, dated June 10, 1999, which retroactively placed
Plaintiff into off-duty status as of June 8, 1999. (See
id. ¶ 11 & Ex. B.)
Plaintiff filed a grievance contesting the decision. (See
Declaration of Geraldine O. Rowe, dated July 31, 2003 ("Rowe Decl."), Ex.
A.) Pursuant to the controlling collective bargaining
agreement, Ruggiero held a Step 1 Grievance Hearing with Plaintiff
and a union representative. (See Ruggiero Decl. ¶¶ 12-13.)
At the hearing, Plaintiff gave various explanations for his actions,
including that he had continued to operate the PIT because of safety
concerns, and that Lanier did not have the authority to give him an order
because his direct supervisors, Powell and Ali Shahbaaz, had ordered him
to load the truck, and it was therefore his responsibility to determine
how to load the truck. Plaintiff admitted at the hearing that he had
failed to follow Lanier's order. In addition, his supervisors, Powell and
Ali Shahbazz, informed Ruggiero that neither one had authorized Plaintiff
to disregard another supervisor's order. (See id.
¶ 15 & Ex. C.) For all of these reasons, Ruggiero denied
Plaintiff's grievance. (See id.)
Following the Step 1 Hearing, Ruggiero and Jones decided that
Plaintiff's misconduct disobeying a supervisor's orders while
operating a vehicle in a crowded working environment, and causing Lanier
injury was serious enough to merit his dismissal from the Postal
Service. They then issued to Plaintiff a Notice of Removal, dated July
14, 1999, which removed Plaintiff from his position with the Postal
Service as of August 20, 1999. (See id. ¶ 16
& Ex. D.)
Plaintiff then sought review of his suspension and termination at the
Step 2 and 3 levels of the grievance/arbitration process in the
collective bargaining agreement applicable to his position.
(See Rowe Decl., Exs. B & C.) Plaintiff's grievances were
denied, and Plaintiff then sought review of the denials by an arbitrator,
then final step in the grievance review process. (See
id., Ex. C.)
After taking testimony, the arbitrator ruled that Plaintiff had
disregarded Lanier's order to stop using the PIT to load the truck, and
had recklessly continued to operate it, resulting in injury to Lanier.
The arbitrator found, however, that it had not been proven that Plaintiff
had intentionally assaulted Lanier with the PIT, as was required for
discharge under the collective bargaining agreement. (See Rowe
Decl., Ex. C.) The arbitrator therefore found that Plaintiff was entitled
to immediate reinstatement to his position. Nevertheless, he concluded
[b]ecause of the gravity of the infraction,
including that it involved operation of a powered
industrial truck in a crowded industrial
environment, with the result of impact and injury
to Supervisor Lanier . . . Mr. Randall is found not
to be entitled to an award of back pay on the
removal case. In addition, the arbitrator believes
that Mr. Randall should consider himself warned to
stay away from any such incident in the future and
to be sure that his future conduct is fully
consistent with the principles of the Joint
Statement on Violence in the Workplace.
(Id. at pp. 9-10.)
Plaintiff was reinstated to his position of mail handler at the DMU,
and continues to hold that position today.
I. Summary Judgment Standard
Summary judgment is appropriate only when the submissions of
the parties, taken together, "show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment
as a matter of law." Rule 66(0), Fed.R.Civ.P. In deciding a motion for
summary judgment, the Court must "view the evidence in a light most
favorable to the non-moving party and draw all reasonable inferences in
its favor." American Cas. Co. of Reading. Pa. v. Nordic Leasing.
Inc. 42 F.3d 725, 728 (2d Cir. 1994).
On a motion for summary judgment, a court "`cannot try issues of fact;
it can only determine whether there are issues to be tried.'"
Donahue v. Windsor Locks Bd. of Fire Comm'rs. 834 F.2d 54, 58
(2d Cir. 1987) (quoting Heyman v. Commerce & Indus. Ins.
Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)); See also LaFond v.
Gen. Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995);
Cronin v. Aetna Life Ins. Co. 46 F.3d 196, 203 (2d Cir. 1995);
Gallo v. Prudential Residential Servs. Ltd. 22 F.3d 1219,
1224 (2d Cir. 1995). "If, as to the issue on which summary judgment is
sought, there is any evidence in the record from any source from which a
reasonable inference could be drawn in favor of the nonmoving party,
summary judgment is improper." Cronin. 46 F.3d at 203.
Nevertheless, to defeat a motion for summary judgment, a plaintiff
"must do more than simply show that there is some metaphysical doubt as
to the material facts." Matsushita Elec. Indus. Co, Ltd, v. Zenith
Radio Corp. 475 U.S. 574, 586, 106 So.
Ct. 1348, 1356. (1986). A plaintiff must "come forward with enough
evidence to support a jury verdict in [his] favor, and the motion will
not be defeated merely . . . on the basis of conjecture and surmise."
Trans Sport. Inc. v. Starter Sportswear. Inc. 964 F.2d 186,
188 (2d Cir. 1992). A party opposing a motion for summary judgment "may
not rest on the pleadings, but must further set forth specific facts in
the affidavits, depositions, answers to interrogatories, or admissions
showing a genuine issue exists for trial." Cifarelli v. Village of
Babylon. 93 F.3d 47, 51 (2d Cir. 1996); see also
Fed.R.Civ.P. 56(c) and (e); Celotex Corp. v. Catrett, 477 U.S. 317,
324, 106 S.Ct. 2548, 2553 (1986).
II. Subject Matter Jurisdiction
Plaintiff brings this action under Title VII, 42 U.S.C. § 1981
and 1983, and the New York State Human Rights Law. However, as Defendants
correctly contend, because they are federal employees, Title VII is the
exclusive remedy available to Plaintiff for his claims of employment
discrimination. See Rivera v. Heyman, 157 F.3d 101, 105 (2d
Cir. 1998); Morrongiello v. Ashcroft. No. 01 Civ. 2524 (WHP),
2004 WL 112944, at *3 (S.D.N.Y. Jan. 22, 2004); Lewis v. Snow.
No. 01 Civ. 7785 (CBM), 2003 WL 22077457, at *11 (S.D.N.Y. Sept. 8,
2003); Marshall v. Nat'l Ass'n of Letter Carriers BR. 36. Nos.
00 Civ. 3167 (LTS), 01 Civ. 3086 (LTS), 2003 WL 223563, at *6 (S.D.N.Y.
Feb. 3, 2003). Accordingly, Defendants are entitled to summary judgment
dismissing, for lack of subject
matter jurisdiction, all of Plaintiff's claims other than his Title
Defendants also seek to have the claims dismissed against all
Defendants except for Postmaster General Potter. Under Title VII, a
federal employee may only bring a claim against the head of the
department or agency that is alleged to have discriminated against him.
See 42 U.S.C. § 2000e-16(c) ("the head of the department,
agency, or unit, as appropriate, shall be the defendant").
42 U.S.C. § 2000e-16(a) defines the United States Postal Service as one such
"department, agency, or unit." Accordingly, Plaintiff's claims against
Defendants Lanier, Ruggiero, Jones, Aronovici, Beard, and Smith must be
dismissed for lack of subject matter jurisdiction. See
Morrongiello, 2004 WL 112944, at *3; Lewis. 2003 WL
22077457, at *4; Marshall. 2003 WL 223563, at *7.
III. Title VII Discrimination
The standards for adjudicating employment discrimination claims brought
pursuant to Title VII are well established. Such claims are governed by
the burden-shifting analysis developed by the Supreme Court in
McDonnell Douglas Corp. v. Green. 411 U.S. 792, 93 S.Ct. 1817
(1973). See, e.g. Wanamaker v. Columbian Rope Co.,
108 F.3d 462, 465 (2d Cir. 1997) (applying McDonnell Douglas to ADEA
claim); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178
(2d Cir. 1996) (applying McDonnell Douglas to Title VII
retaliatory discharge claim). Under this framework, the plaintiff must
establish a prima facie case of discrimination. See
St. Mary's Honor Ctr. v. Hicks. 509 U.S. 502, 506, 113 S.Ct. 2742,
2746-47 (1993); Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981); McDonnell
Douglas. 411 U.S. at 802, 93 S.Ct. at 1824. Once the plaintiff has
carried this initial burden, the burden of production then shifts to the
defendant to proffer a legitimate, non-discriminatory reason for the
challenged employment action. Hicks. 509 U.S. at 506-07, 113 So.
Ct. at 2747; Burdine. 450 U.S. at 253, 101 S.Ct. at 1093;
McDonnell Douglas. 411 U.S. at 802, 93 S.Ct. at 1824. Finally,
once the defendant has presented a legitimate reason for its actions, the
presumption of discrimination raised by the plaintiff's prima
facie showing "drops out of the picture," Hicks, 509 U.S.
at 511, 113 S.Ct. at 2749, accord Fisher v. Vassar College.
114 F.3d 1332, 1336 (2d Cir. 1997) (en bane) (citing Hicks. 509
U.S. at 510-11, 113 S.Ct. at 2749), and the plaintiff must then carry
the ultimate burden of persuasion, by demonstrating by a preponderance of
the evidence that improper discrimination or retaliation was a
determinative factor motivating the employer's conduct. See
Hicks. 509 U.S. at 507, 113 S.Ct. at 2747; Burdine. 450 U.S.
at 252-53, 101 S.Ct. at 1093-94; McDonnell Douglas. 411 U.S.
at 804, 93 S.Ct. at 1825; Terry v. Ashcroft, 336 F.3d 128, 138
(2d Cir. 2003).
Defendants are correct in their contention that Plaintiff has
not even met the very minimal burden of establishing a prima
facie case of discrimination. To establish a prima facie
case of race or gender discrimination, "a claimant must show that: 1) he
belonged to a protected class; 2) he was qualified for the position; 3)
he suffered an adverse employment action; and 4) the adverse employment
action occurred under circumstances giving rise to an inference of
discriminatory intent." Terry. 336 F.3d at 138; see also
Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).
Although the first three elements have been established, Plaintiff has
not presented any competent evidence to suggest that his suspension and
termination occurred under circumstances giving rise to an inference of
discrimination. Plaintiff does not deny that he was involved in the
incident with Lanier, a supervisor, and that he refused to comply with
her orders to stop loading pallets on the truck. His only contentions in
support of his claim of discrimination are that (1) because he did not
strike Lanier with the PIT and the arbitrator determined that there was
insufficient evidence to conclude that he intentionally assaulted Lanier,
he must have been suspended and discharged on the basis of his race and
gender; (2) because Jones and Ruggiero "took the position that my being a
man and beating up on a woman, they had to come to the defense of her
helplessness," they must have discriminated against him. (See
Randall Deposition ("Dep."), Ex. B to Declaration of Assistant United
States Attorney Ross E. Morrison, Esq., dated July
30, 2003 ("Morrison Decl."), at 52-53, 60-61.)
It makes little difference whether Plaintiff actually struck Lanier
with the PIT, intentionally or otherwise. There is no question that
Lanier claimed she was struck, and that based on the investigation,
including an interview with a third party who witnessed the incident,
Ruggiero and Jones believed that she had been struck.*fn1 Cf.
Holland v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (even
if defendant wrongly believed that plaintiff had engaged in improper
conduct, it did not demonstrate a discriminatory motive). Moreover, they
concluded, as did the arbitrator, and Plaintiff has not disputed, that
Plaintiff argued with and yelled at Lanier, and disregarded her orders,
while operating a machine in a crowded work environment.
Thus, even if Plaintiff had established a prima facie case of
discrimination, Defendants have offered a legitimate reason for their
discipline of Plaintiff. In response, Plaintiff has come forward with no
evidence that raises an inference of race or gender discrimination. His
belief that he was terminated because Ruggiero and Jones were protecting
the interests of a "helpless female," is simply his belief and has no
probative value. Plaintiff has not suggested that Lanier, Ruggiero, or
Jones ever said anything to him that suggested race or gender bias.
Plaintiff acknowledges that
prior to the incident in issue, he "thought [his] relationship with
everybody was fine including Freda Lanier." (Randall Dep. at 89.)
Moreover, Lanier, the source of the complaint against Plaintiff, is
African-American. Yet, Plaintiff believes that she discriminated against
him on the basis of his race. (See id. at 168.)
Jones, one of the ultimate decision-makers, is a male African-American.
(See id. at 168, 187.) Yet, Plaintiff claims that
Ruggiero and Jones discriminated against him on the basis of gender.
(See id. at 187-88.)
Nor has Plaintiff offered any competent evidence which indicates that
other, similarly situated employees were treated more favorably than him
under similar circumstances. Cf. McGuinness v. Lincoln Hall,
263 F.3d 49, 53 (2d Cir. 2001) ("A showing that the employer treated a
similarly situated employee differently is a common and especially
effective method of establishing a prima facie case of
discrimination. . . .") (quoting Abdu-Brisson v. Delta Air
Lines. 239 F.3d 456, 468 (2d Cir. 2001)) (internal quotation marks
omitted). At his deposition, Plaintiff referred to two other employees
who he believed had been treated more leniently than he had. However,
his beliefs are based solely on hearsay, and he has offered no competent
evidence to support them.
First, Plaintiff had heard "by word of mouth" that an employee named
Beverly had gotten into a fight with an unidentified supervisor, at some
unidentified time, and had not
been suspended. (See Randall Dep. at 99-100.) Second,
Plaintiff believed that a Postal Service worker named Frank Miceli had
not been disciplined after he pushed a postcard and the "postcard hit
another postcard which, in a domino effect, had incidental contact with
Ms. Lanier." (Id. at 168.) Plaintiff believes that Lanier took
no action against Miceli, who is white. Neither of these purported
incidents, even by Plaintiff's description, has any relationship to the
incident which led to Plaintiff's suspension and termination. For
example, he does not contend, even on belief, that in either incident a
supervisor was physically injured. In fact, Plaintiff has no first-hand
knowledge about the circumstances of these alleged incidents. Moreover,
on its face, the postcard incident appears to be a matter of Plaintiff's
imagination. It is difficult to discern how postcards could have a domino
effect, no less cause any injury to a person. Cf. Cruz v. Coach
Stores, Inc., 202 F.3d 560, 568 (2d Cir. 2000) (plaintiff failed to
produce evidence that other employees engaged in physical assault, as did
plaintiff, as opposed to a verbal assault, and thus they were not
In sum, Plaintiff has come forward with no competent evidence that
would permit a reasonable juror to conclude that the reason given for his
discipline disobeying a supervisor's orders, using a vehicle in
dangerous circumstances, and causing physical injury to a supervisor
was pretextual, and that the real reason he was
suspended and terminated was because of his race and gender.
Defendants are therefore entitled to summary judgment on Plaintiff's
claim of discrimination.
Title VII prohibits an employer from retaliating against an employee
who engages in protected activity, specifically, activity in opposition
to an unlawful employment practice. See
42 U.S.C. § 2000e-3(a); see also Fitzgerald v. Henderson, 251 F.3d 345, 358
(2d Cir. 2001). In order to establish a prima facie case of
retaliatory discharge or suspension under Title VII, a plaintiff here
must show that (1) he was engaged in protected activity; (2) the
defendants were aware of that activity; (3) he was terminated or
suspended; and (4) there was a causal connection between the protected
activity and the termination or suspension. Terry, 336 F.3d at
141; Collins. 305 F.3d at 118; Reed v. A.W. Lawrence &
Co., 95 F.3d 1170, 1178 (2d Cir. 1996); Van Zant v. KLM Royal
Dutch Airlines. 80 F.3d 708, 714 (2d Cir. 1996); Cosgrove v.
Sears, Roebuck & Co. 9 F.3d 1033, 1039 (2d Cir. 1993). Although
the burden that a plaintiff must meet at the prima facie stage
is de minimis, see, e.g., Cronin, 46 F.3d at 203-04;
Chambers, 43 F.3d at 37, the plaintiff must at least proffer
competent evidence of circumstances that would be sufficient to permit a
rational finder of fact to infer a discriminatory motive. See, e.g.,
Cronin. 46 F.3d at 204; Chambers, 43 F.3d at 38.
The only protected activity which Plaintiff engaged in, which can be
discerned from the record, is that he filed EEC complaints in April and
October 1997, and October 1998. The first two of these complaints alleged
discrimination on the basis of a disability, and the last complaint
alleged discrimination on the basis of race, color, and national origin,
as well as unlawful retaliation, after he allegedly was advised that he
could no longer go to the Priority Mail Center to conduct union
activities. (See Rowe Decl. ¶ 5.) The filing of the EEO
complaints is protected activity and satisfies the first element of the
test for unlawful retaliation. See Gregory v. Daly,
243 F.3d 687, 700-01 (2d Cir. 2001); Tomka v. Seiler Corp.
66 F.3d 1295, 1308 (2d Cir. 1995). The Court will also assume, for the
purpose of the instant motion, that Defendants were aware that Plaintiff
filed EEO complaints, although the record contains no evidence that Lanier
or Ruggiero had such awareness. Moreover, Plaintiff's EEO complaints were
not against either Lanier or Ruggiero. (See Randall Dep. at 57,
70.) In addition, Plaintiff suffered adverse employment action. Thus, the
Court will assume that Plaintiff has satisfied the first three elements
of a claim of unlawful retaliation.
However, there is no evidence in the record which demonstrates or even
suggests that there was a causal connection between Plaintiff's EEO
complaints and his termination. When
asked, Plaintiff could think of nothing to support his claim of
retaliation other than the fact that he believes he was unfairly
disciplined because he claims not to have assaulted Lanier.
(Id. at 56.) Cf. Farias v. Instructional Sys., Inc.
259 F.3d 91, 99 (2d Cir. 2001) (affirming grant of summary judgment where
"[p]laintiffs failed to produce any evidence, other than conclusory
statements unsupported by the record"). Nevertheless, he concedes, as he
must, that he was involved in an altercation with Lanier, who is a
supervisor, and that he refused to comply with her orders. There was a
witness to the incident who supported Lanier's contention that Plaintiff
struck her with the PIT, and the arbitrator drew the same conclusion, but
found insufficient evidence to clearly establish that the assault was
intentional. Lanier, who precipitated the investigation that led to
Plaintiff's discipline, was not the subject of earlier EEO complaints by
Plaintiff. Indeed, she had never been his supervisor and Plaintiff
initially testified at his deposition that he was not accusing Lanier of
retaliation. (See Randall Dep. at 57.) He later backtracked on
that position, but was still unable to identify any reason for Lanier to
have retaliated against him. (See id. at 59.)
Finally, there was a significant lapse of time between Plaintiff's
filing of EEO complaints and his suspension and termination. The
complaints were filed in April and October 1997,
and October 1998. Plaintiff was suspended in June 1999 and removed
from his position in August 1999. Thus, at a minimum, the gap in time was
eight to ten months. To establish a link between protected activity and
an adverse employment action, a plaintiff must show "that the protected
activity was closely followed in time by the adverse action." Reed. 95
F.3d at 1178; see also Gregory. 243 F.3d at 701. There is no
"bright line to define the outer limits beyond which a temporal
relationship is too attenuated to establish a causal relationship between
the exercise of a federal constitutional right and an allegedly
retaliatory action." Gorman-Bakos v. Cornell Coop. Extension of
Schenectady County. 252 F.3d 545, 554 (2d Cir. 2001) However,
"[w]here timing is the only basis for a claim of retaliation, and gradual
adverse job actions began well before the plaintiff had ever engaged in
any protected activity, an inference of retaliation does not arise."
Slattery v. Swiss Reinsurance America Corp. 248 F.3d 87, 95
(2d Cir. 2001); see also Ponniah Das v. Our Lady of Mercy Med.
Cntr., No. 00 Civ. 2574 (JSM), 2002 WL 826877, at *12 (S.D.N.Y. Apr.
30, 2002.) ("Proximity in time alone will not support a finding . . .
that a plaintiff has proved a causal connection between protected
activity and an adverse employment action."). Courts in this Circuit,
faced with comparable or even shorter gaps of time between the adverse
action and protected activity than is present in this case, have declined
to draw such an inference of
retaliation. See, e.g., Hollander. 895 F.2d at 86 (even
where the gap was only three months, Second Circuit affirmed grant of
summary judgment on retaliation claim because of lack of evidence showing
a causal nexus between the termination and an age discrimination
complaint); Donlon v. Group Health. Inc. No. 00 Civ. 2190
(MBM), 2001 WL 111220, at *3 (S.D.N.Y. Feb. 8, 2001) (eight and one-half
month gap was insufficient, by itself, to imply causation); Lapsley
v. Columbia Univ.- College of Physicians & Surgeons,
999 F. Supp. 506, 525 (S.D.N.Y. 1998) (unreasonable to draw causal connection
where nearly one year passed between alleged protected comment and
In the face of a significant gap in time between Plaintiff's EEO
activity and the adverse action he suffered, the absence of any
statements which might suggest retaliatory animus, and a precipitating
incident with a supervisor, where orders were disregarded and a physical
injury resulted, and which has, in large part, been conceded, Plaintiff
has come forward with no evidence indicating that the Postal Service's
reasons for terminating his employment had anything to do with his filing
prior EEO complaints. See Cosgrove, 9 F.3d at 1039 ("a
plaintiff may establish a causal connection indirectly by showing that
the protected activity was followed by discriminatory treatment . . . or
directly through evidence of retaliatory animus")(quoting Lambert v.
Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993)) (internal
quotation marks omitted). Based on this record, no reasonable jury
could conclude that the reason Plaintiff was disciplined was in
retaliation for his filing EEO complaints. Compare Van Zant. 80
F.3d at 714 ("[Plaintiff] put forward nothing other than conclusory
allegations to suggest a causal relationship between her complaints . . .
and either her negative . . . evaluation or her termination. There was no
material issue of fact for the jury to consider."); with
Terry, 336 F.3d at 141-42 (where there was evidence that
co-employees who were promoted were not better qualified than plaintiff,
notations next to plaintiff's name that he a pending complaint and "EEO
activity," and agency had demonstrated pattern of retaliation, improper
to grant defendants summary judgment); Gregory. 243 F.3d at
701 (sufficient inference of retaliatory animus where adverse actions
complained of were proximate in time to the protected activity,
supervisor made sneering comments about plaintiff's lawsuit, and
harassment intensified after plaintiff complained and filed suit);
LaFond v. General Physics Servs. Corp. 50 F.3d 165, 174-75 (2d
Cir. 1995) (summary judgment inappropriate where there was a factual
dispute about whether plaintiff's conduct had been inappropriate, and
reference was made to plaintiff's engaging in protected activity when he
Accordingly, Defendants are entitled to summary judgment on Plaintiff's
claim of unlawful retaliation.
For the reasons set forth above, Defendants' motion for summary
judgment is granted and this action is dismissed with prejudice. The
Clerk of the Court shall enter a judgment in Defendants' favor.