The opinion of the court was delivered by: SIDNEY STEIN, District Judge
This litigation arises from the somewhat contentious end of
plaintiff Deborah Stroud's 19-year career with the New York City
Department of Correction ("DOC"). Stroud brings this action
pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and alleges that DOC retaliated against her and
constructively discharged her for bringing an earlier suit
against it for age, gender, and race discrimination. Defendant
City of New York, the sole remaining defendant in this
litigation, has moved for summary judgment in its favor.
As more fully set forth below, that motion is granted with
respect to Stroud's retaliation claim because Stroud failed to
show a causal link between the filing of her earlier suit and
DOC's adverse employment actions, and because Stroud failed to
controvert DOC's legitimate, non-retaliatory reasons for its
actions. In addition, the City's summary judgment motion is granted with respect to Stroud's constructive discharge claim
because Stroud again failed to show a causal link between the
filing of her earlier suit and her purported discharge, and
because the employment conditions she alleges were not
In 1981 Stroud commenced her career as a correction officer in
DOC's Transportation Division. (Def.'s Local Civil Rule 56.1
Statement of Undisputed Facts ("Def.'s Rule 56.1 Statement") ¶
18; Dep. of Deborah Stroud dated Feb. 9, 2004 at 25:5-6, Ex. C to
Def.'s Rule 56.1 Statement). The first event relevant to this
litigation did not occur until 1994 13 years later when
Stroud, while working on Rikers Island, slipped and fell on some
"black ice" and suffered a knee injury. (Letter of Deborah Stroud
to Louis R. Burgos dated Aug. 11, 1999, Pl'.s Affirm. in Opp'n to
Mot. for Summ. J.). Stroud's fall precipitated a gradual slide
into what DOC characterizes as a history of chronic absenteeism.
In 1994 Christine Parker, DOC's personnel supervisor, "formally
counseled and warned" Stroud that she had been "out sick" on
several occasions and that "if this pattern of sick leave use
continued, [Stroud] would be placed in Category A or B pursuant
to DOC Directive 2258R." (Def.'s Rule 56.1 Statement ¶ 57; Memo
from Christine Parker to Deborah Stroud dated Feb. 18, 1994, Ex.
P to Def.'s Rule 56.1 Statement).
DOC Directive 2258R (the "Directive") sets forth DOC's policy
on its employees' use of sick leave and the problem of "chronic
absence." (Directive 2258R, Ex. I to Def.'s Rule 56.1 Statement).
The Directive provides that a person who reports sick on five or
more occasions during a twelve-month period "shall be classified
in Category A and notified . . . in writing of the
classification." (Id. at 1). A person who reports sick either
on six or more occasions or on twelve or more days during a
twelve-month period "shall be classified in Category B." (Id.
at 2). An employee designated as Category A or B "may lose certain
discretionary benefits and privileges, which include, (a)
assignment to a steady tour; (b) assignment to a specified post;
[and] (c) access to voluntary overtime." (Def.'s Rule 56.1
Statement ¶ 38). A DOC employee has a "specified" or "steady"
post when she receives the same assignment every day. (Id. ¶
39; Stroud Dep. at 85:3-16, Ex. C to Def.'s Rule 56.1 Statement).
Similarly, an employee has a "steady tour" when she works either
days or nights exclusively. (Def.'s Rule 56.1 Statement ¶ 39;
Stroud Dep. at 85:3-16, Ex. C to Def.'s Rule 56.1 Statement).
Once an employee is designated as Category A or B, the
designation remains in effect for six months; if the employee is
not absent during that six-month period, then DOC removes the
designation. (Def.'s Rule 56.1 Statement ¶ 36).
Despite the warning from DOC, Stroud's absences continued. One
year later, DOC again warned her that because she had been absent
on three additional occasions for seven days she risked being
designated either Category A or B unless her absences ceased.
(Id. ¶ 58; Memo from Christine Parker to Deborah Stroud dated
Apr. 6, 1995, Ex. P to Def.'s Rule 56.1 Statement). Six months
later, however, DOC again warned Stroud that she had been absent
yet an additional three times for eight more days, and that she
risked a Category A or B designation. (Def.'s Rule 56.1 Statement
¶ 59; Memo from Christine Parker to Deborah Stroud dated Sept.
18, 1995, Ex. P to Def.'s Rule 56.1 Statement). Four months later
DOC informed Stroud that she had been absent three more times for
four days, and warned her for a fourth time that if the pattern
continued, DOC would designate her either Category A or B.
(Def.'s Rule 56.1 Statement ¶ 60; Memo from Christine Parker to
Deborah Stroud dated Jan. 18, 1996, Ex. P to Def.'s Rule 56.1
Statement). In August of 1997 one and a half years after Stroud's fourth
warning concerning her use of sick leave she filed Stroud v.
New York City Department of Correction, et al., 97 Civ. 6750
("Stroud I"), in which she alleged that DOC discriminated
against her because of her age, gender, and race. In the instant
action, Stroud contends that DOC retaliated against her and
constructively discharged for filing the 1997 suit.
Stroud's absences continued and eight months later DOC
designated her "chronic absent Category B." (Def.'s Rule 56.1
Statement ¶ 54; Designation of Chronic Absent Category B dated
Apr. 24, 1998, Ex. O to Def.'s Rule 56.1 Statement). DOC informed
her in writing that due to her designation, she ran the risk of
losing her steady tour, steady post, and the opportunity to work
voluntary overtime. (Memo from Clyton Eastmond to Deborah Stroud
dated Apr. 23, 1998, Ex. O to Def.'s Rule 56.1 Statement).
Stroud appealed her designation to DOC's Health Management
Division, asserting that her absences stemmed from a second
work-related injury that she sustained during a car accident in
1997. (Def.'s Rule 56.1 Statement ¶ 55; Category B Appeal dated
May 1, 1998 & Memo from Mortessa Gibbs to Clyton Eastmond dated
June 17, 1998 Ex. O to Def.'s Rule 56.1 Statement). Because a
work-related injury caused her to be absent, Stroud claimed,
those absences did not accumulate toward a Category A or B
designation. (Def.'s Rule 56.1 Statement ¶ 55). However, in June
of 1998 DOC rejected this view and denied her appeal. (Memo from
Clyton Eastmond to Absence Control Coordinator dated May 14,
1998, Ex. O to Def.'s Rule 56.1 Statement).
Six months later and 16 months after she filed Stroud I
Stroud had surgery on the knee she injured on Rikers Island in
1994. (Def.'s Rule 56.1 Statement ¶ 19). Although she was
hospitalized for only three days in March of 1999, she was absent
from work for five months from mid-December of 1998 until mid-May of 1999. (Id. ¶¶ 19-20;
Letter from Irma Jacqueline Ozer, Esq. to Deborah Stroud dated
Oct. 12, 1999, Ex. N to Def.'s Rule 56.1 Statement). Stroud
eventually returned to work on May 15, 1999, almost two years
after she filed Stroud I.
While Stroud was absent from work, DOC circulated to all
Transportation Division personnel a memo dated April 13, 1999
that set forth the division's policy with respect to medically
monitored correction officers. (Memo from David Goodman to
Transp. Div. Pers. dated Apr. 13, 1999, Ex. H to Def.'s Rule 56.1
Statement). The memo provided that, "Effective April 25, 1999,
all medically monitored correction officers will be assigned to a
4 × 2 squad for the duration of their medically monitored
status. 5 × 2 assignments at transportation will only be filled
by full duty officers in order to maximize personnel staffing of
the primary mission of court delivery and support." (Id.).
The terms "4 × 2" and "5 × 2" refer to the number of
consecutive days a correction officer works and the number of
consecutive days the officer has off. (Def.'s Rule 56.1 Statement
¶ 25; Stroud Dep. at 59:15-25, Ex. C to Def.'s Rule 56.1
Statement). For example, a 5 × 2 assignment requires a
correction officer to work for five consecutive days, followed by
two consecutive days off. If a correction officer is given a 5 ×
2 assignment, the days of the week that she has off remain fixed.
However, when an officer is given a 4 × 2 assignment, the days
that she has off will vary each week; this rotating schedule of
days off is known as "the wheel." (Def.'s Rule 56.1 Statement ¶
26; Stroud Dep. at 41:25-42:9, Ex. C to Def.'s Rule 56.1
Upon Stroud's return to work, a DOC physician examined her,
determined that she had "serious physical/psychological
limitations," and placed her on "Medically Monitored Returned
Duty Status." (Def.'s Rule 56.1 Statement ¶¶ 20-21; Medically
Monitored Return Restriction Form dated May 7, 1999, Ex. G to
Def.'s Rule 56.1 Statement). In the "medically monitored return restriction form," the doctor noted that Stroud could not
work overtime and did not require a steady tour. (Medically
Monitored Return Restriction Form dated May 7, 1999, Ex. G to
Def.'s Rule 56.1 Statement). Because of her medically monitored
designation, Stroud was placed on the wheel pursuant to the April
13 memo, but within "a couple of weeks" she returned to full
time, 5 × 2 assignments. (Def.'s Rule 56.1 Statement ¶¶ 27-28;
Stroud Dep. at 114:5-19, Ex. C to Def.'s Rule 56.1 Statement).
In addition, upon Stroud's return to work, for the second time
DOC designated her a Category B chronically absent employee.
(Def.'s Rule 56.1 Statement ¶¶ 40-44). DOC informed Stroud in
writing that she was subject to the denial or revocation of her
"steady assignment and/or tour of duty" and the opportunity to
"perform? voluntary overtime." (Def.'s Rule 56.1 Statement ¶¶
40-44; Memo from David Goodman to Deborah Stroud dated May 19,
1999, Ex. K to Def.'s Rule 56.1 Statement). Indeed, Stroud stated
that she knew that DOC could withdraw any one of those benefits
from her because of her Category B designation. (Stroud Dep. at
137:12-138:4, Ex. C to Def.'s Rule 56.1 Statement).
Stroud appealed her designation within DOC, again arguing that
because her absences resulted from a line-of-duty injury, they
did not count toward a Category A or B designation; however,
DOC's deputy warden in command denied Stroud's appeal. (Def.'s
Rule 56.1 Statement ¶¶ 45-49; Memo from David Goodman to Absence
Control Coordinator dated June 14, 1999, Ex. L to Def.'s Rule
56.1 Statement). In July, DOC placed Stroud back on a 4 × 2
assignment. (Def.'s Rule 56.1 Statement ¶¶ 52-53).
In August, Stroud retired from DOC after 19 years in its
employ. (Def.'s Rule 56.1 Statement ¶ 53). She left because she
was "fed up" with "all the different things that happened to
[her]. . . ." (Id. ¶ 63). She "felt that [she] should not go on
the wheel, lose the overtime, [and have her steady] post taken away. . . ." (Id.). Due to 37 days
of "terminal leave," Stroud remained on the payroll until
December 13; her retirement became effective the next day.
(Letter from Alan Vengersky to Deborah Stroud dated Nov. 10,
1999, Ex. Q to Def.'s Rule 56.1 Statement). Since retiring,
Stroud has collected a monthly pension. (Def.'s Rule 56.1
Statement ¶ 66; Retirement Resolution dated Oct. 19, 2000, Ex. S
to Def.'s Rule 56.1 Statement).
II. The Complaint and Procedural History
By the time Stroud commenced this action in January of 2000,
the City had filed a summary judgment motion in Stroud I
seeking judgment in its favor. Because the complaints in both
actions set forth very similar allegations and legal theories,
Magistrate Judge Eaton, who was handling the general pre-trial
management of both Stroud actions, stayed all proceedings in
this action until determination of the ...