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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

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. Page 2


  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 action occurred.

  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 Page 3 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 Page 4 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 Page 5 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. Page 6 (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 that,

[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 Page 7 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. Page 8 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 Page 9 matter jurisdiction, all of Plaintiff's claims other than his Title VII claim.

  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 first Page 10 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 Page 11 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 Page 12 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 Page 13 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 Page 14 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 similarly situated.)

  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 Page 15 suspended and terminated was because of his race and gender. Defendants are therefore entitled to summary judgment on Plaintiff's claim of discrimination.

 IV. Retaliation

  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. Page 16

  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 Page 17 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, Page 18 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 Page 19 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 plaintiff's dismissal).

  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 Page 20 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 was disciplined).

  Accordingly, Defendants are entitled to summary judgment on Plaintiff's claim of unlawful retaliation. Page 21


  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.

  So Ordered.

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