The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
Plaintiff Lisa Ferrer brings this pro se Rehabilitation Act
action against the United States Postal Service ("USPS") claiming
that she was harassed by a co-worker and her supervisor and
transferred to another station. (Dkt. No. 6: 2d Am. Compl. ¶
8.)*fn1 The parties consented to decision in this action by
a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 14.)
Presently before the Court is defendant USPS's summary judgment
motion. For the reasons stated below, the motion (Dkt. No. 23) is
Lisa Ferrer has worked for the USPS since 1987, and began
working at the Hillside Station in the Bronx in February 2003,
where she worked for a total of six or seven weeks. (Dkt. No. 23:
Trager Aff. Ex. B: Ferrer Dep. at 5, 55, 89, 112.) According to
Ferrer, while at this facility, tensions mounted between her and
a co-worker, Nadine Robinson. (Ferrer Dep. at 78-79, 112-14,
116-18, 124-25, 131, 148-50, 160-61, 173, 215, 225; see also
Dunston Aff. Ex. A: USPS Form 2564-A, Ferrer "Information for
Pre-Complaint Counseling.") Their supervisor, Nilza Mercado,
requested that Ferrer, rather than Robinson, be "detailed"
(i.e., temporarily transferred) to another station. (Ferrer
Dep. at 121, 140, 173-74.) Ferrer agreed to be "detailed" to the
Baychester Station in the Bronx, but she understood that it would
be temporary. (Ferrer Dep. at 140, 174-75, 182, 214-15; Trager
Aff. Ex. C.) Ferrer had the same favorable schedule at Baychester
as she had had at Hillside. (Ferrer Dep. a 175.)
At some point after Ferrer transferred to the Baychester
Station, she contends that Mercado told her that she needed to
permanently "bid out" of the Hillside station (as opposed to the
temporary transfer to Baychester), because Robinson had
seniority. (Ferrer Dep. at 182-83, 207-08, 219, 224-25, 283,
285-86.) Ferrer succeeded in a bid to work at the Westchester
Station, but never reported for duty there because she "wasn't
ready due to what was going on, me having my case in court."
(Ferrer Dep. at 5, 211, 251, 257.) Ferrer has been on "stress
leave" without pay since March 2003. (Ferrer Dep. at 5.) Procedural History
On March 26, 2003, Ferrer submitted an informal complaint to
the USPS's EEO office, stating that she was detailed to the
Baychester station "based on false accusations made by [Ferrer's]
coworker Nadine Robinson." (Dunston Aff. Ex. A: USPS Form
2564-A.) On June 11, 2003, Ferrer received a June 9, 2003 USPS
letter authorizing her to file a formal EEO complaint. (Dunston
Aff. Ex. B: 6/9/03 EEO Letter; see also Ferrer Dep. at
The letter stated:
As your allegations were not resolved [at the
mediation], if you still believe you have been
discriminated against on the basis on (unspecified)
you have the right to file a formal EEO complaint. Enclosed are two forms for your signature and date. . . .
You have the right to file a formal EEO complaint
within fifteen (15) calendar days upon receipt of
(Dunston Aff. Ex. B: 6/9/03 USPS EEO Letter.) Ferrer failed to
file a formal EEO complaint until July 2, 2003, twenty-one days
after June 11, the date she received the letter. (Dunston Aff. ¶
4 & Ex. D: Ferrer EEO Complaint.) Ferrer explained at her
deposition that because her father had died and she was having
financial problems arranging for his burial, "[s]o it kind of
distracted [her] from the case, you know, [she] totally forgot
about the 15-day deadline." (Ferrer Dep. at 260; see also Dkt.
No. 17: 11/1/04 Conf. Tr. at 5-6.) On July 22, 2003, the USPS EEO
office dismissed Ferrer's complaint on the ground that Ferrer
received the notice letter on June 11, 2003 but did not file her
EEO complaint until July 2, 2003, beyond the applicable 15-day
filing period. (Dunston Aff. Ex. E: EEO Dismissal of Complaint.)
The EEO also dismissed Ferrer's complaint on the merits because
Ferrer "did not link [the] complaint to any of the above-listed
types of discrimination prohibited by law [i.e., Title VII,
ADEA, Rehabilitation Act or Equal Pay Act]. Accordingly, we also
dismiss your complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim." (Dunston Aff. Ex. E: EEO Dismissal.)
Ferrer asserts in her Second Amended Complaint that Mercado and
Mercado's supervisor, Mrs. Jackson, told Ferrer her that she was
not capable of being a "window clerk" and that Ferrer "discovered
in [her] medical records that it was noted that [she has] serious
head problems and precaution should be taken." (2d Am. Compl. ¶
8; see also Ferrer Dep. at 192-96, 234-35.)*fn3 Ferrer had no proof that supervisor Mercado saw her medical
records, but she assumed Mercado had access to them. (Ferrer Dep.
at 265-66.) Ferrer also claims that Robinson and Mercado
"conspired" against her "to make [her] look incompetent." (Ferrer
Dep. at 112, 116-18, 124, 199, 240.) Ferrer explained that when
Mercado told her the job was too much responsibility for her,
since Mercado did not specify what was wrong with her job
performance, Mercado must have meant that Ferrer "cannot mentally
handle the job." (Ferrer Dep. at 192-96.) Ferrer admitted,
however, that she did not "have a psychological disability during
the time that [she was] at Hillside Station." (Ferrer Dep. at
I. SUMMARY JUDGMENT STANDARDS IN EMPLOYMENT DISCRIMINATION
CASES*fn4 Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S. Ct. 2505, 2509-10 (1986); Weinstock v. Columbia Univ.,
224 F.3d 33, 41 (2d Cir. 2000), cert. denied, 124 S. Ct. 53 (2003);
Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d
The burden of showing that no genuine factual dispute exists
rests on the party seeking summary judgment here, defendant.
See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144,
157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.
1994). The movant may discharge this burden by demonstrating to the Court
that there is an absence of evidence to support the non-moving
party's case on an issue on which the non-movant has the burden
of proof. See, e.g., Celotex Corp. v. Catrett,
477 U.S. at 323, 106 S. Ct. at 2552-53.
To defeat a summary judgment motion, the non-moving party must
do "more than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356
(1986). Instead, the non-moving party must "set forth specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; see
also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41
(at summary judgment, "[t]he time has come . . . `to put up or
shut up'") (citation omitted).
In evaluating the record to determine whether there is a
genuine issue as to any material fact, "[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor." Anderson v. Liberty Lobby, Inc.,
477 U.S. at 255, 106 S. Ct. at 2513.*fn5 The Court draws all
inferences in favor of the non-moving party only after
determining that such inferences are reasonable, considering all
the evidence presented. See, e.g., Apex Oil Co. v.
DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied,
484 U.S. 977, 108 S. Ct. 489 (1987). "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." Chambers v.
TRM Copy Ctrs. Corp., 43 F.3d at 37.
In considering a motion for summary judgment, the Court is not
to resolve contested issues of fact, but rather is to determine
whether there exists any disputed issue of material fact. See,
e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs,
834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins.
Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied,
480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality,
the substantive law determines which facts are critical and which
facts are irrelevant. See, e.g., Anderson v. Liberty
Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While
"disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment[,] [f]actual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248, 106 S. Ct. at 2510 (citation omitted);
see also, e.g., Knight v. United States Fire Ins. Co.,
804 F.2d at 11-12.
When a case turns on the intent of one party, as employment
discrimination claims often do, a "trial court must be cautious
about granting summary judgment." Gallo v. Prudential
Residential Servs., Ltd. P'Ship, 22 F.3d at 1224.*fn6
Because the employer rarely leaves direct evidence of its
discriminatory intent, the Court must carefully comb the
available evidence in search of circumstantial proof to undercut the employer's explanations for
its actions. E.g., Gallo v. Prudential Residential Srvs.,
Ltd. P'Ship, 22 F.3d at 1224. "[S]ummary judgment may not be
granted simply because the court believes that the plaintiff will
be unable to meet his or her burden of persuasion at trial. There
must either be a lack of evidence in support of the plaintiff's
position or the evidence must be so overwhelmingly tilted in one
direction that any contrary finding would constitute clear
error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir.
1998) (citations omitted). Nonetheless, when an employer provides
convincing evidence to explain its conduct and the plaintiff's
argument consists of purely conclusory allegations of
discrimination, the Court may conclude that no material issue of
fact exists and it may grant summary judgment to the employer.
E.g., Budde v. H&K Distrib. Co., No. 99-9449, 216 F.3d 1071
(table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v.
Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997);
Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.
1995). In other words, to defeat summary judgment, "the
plaintiff's admissible evidence must show circumstances that
would be sufficient to permit a rational finder of fact to infer
that the defendant's employment decision was more likely than not
based in whole or in part on discrimination." Stern v.
Trustees of Columbia Univ., 131 F.3d at 312; see, e.g.,
Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000);
Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on
summary judgment is "whether the evidence, taken as a whole,
supports a sufficient rational inference of discrimination. To
get to the jury, it is not enough . . . to disbelieve the
employer; the factfinder must also believe the plaintiff's
explanation of intentional discrimination.") (internal quotations
& alterations omitted); Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not
simply `some' evidence, but `sufficient evidence to support a rational finding that the
legitimate, nondiscriminatory reasons proffered by the employer
were false, and that more likely than not [discrimination] was
the real reason for the discharge'").*fn7 Indeed, the Second
Circuit "went out of [its] way to remind district courts that the
`impression that summary judgment is unavailable to defendants in
discrimination cases is unsupportable.'" Weinstock v. Columbia
Univ., 224 F.3d at 41.
II. THE USPS IS GRANTED SUMMARY JUDGMENT ON FERRER'S
REHABILITATION ACT CLAIM BECAUSE FERRER FAILED TO ...