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FERRER v. POTTER

May 3, 2005.

LISA FERRER, Plaintiff,
v.
JOHN E. POTTER, POSTMASTER GENERAL, Defendant.



The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

OPINION AND ORDER

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 GRANTED. FACTS

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 258-59.)*fn2 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 this correspondence.
(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 198, 235-36.)

  ANALYSIS

  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 Cir. 1991).

  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 ...


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