United States District Court, W.D. New York
September 16, 2005.
ROLAND JOHNSON, Plaintiff,
JOHN E. POTTER, Postmaster General, United States Postal Service, Defendant.
The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
DECISION AND ORDER
This is an employment discrimination action alleging
retaliation and constructive discharge in violation of Title VII
of the Civil Rights Act of 1964 ("Title VII"), as amended,
42 U.S.C. § 2000e et seq. Now before the Court is defendant's
motion [#3] to dismiss the amended complaint for failure to state
a claim pursuant to Federal Rule of Civil Procedure ("
Fed.R.Civ.P.") 12(b)(6), and alternatively, for summary judgment
pursuant to Fed.R.Civ.P. 56, and plaintiff's cross-motion [#9]
for leave to conduct discovery pursuant to Fed.R.Civ.P. 56(f). For the reasons that follow,
defendant's application for summary judgment is granted,
plaintiff's application is denied, and this action is dismissed.
This is the third employment discrimination lawsuit which the
plaintiff has filed against the United States Postal Service.
See, Johnson v. Henderson, 90-CV-7138 CJS and Johnson v.
Potter, 04-CV-6239 CJS. Because they are relevant to the instant
case, the Court will set forth the facts of the two previous
lawsuits. Plaintiff is an African American male who was hired by
the United States Postal Service in Buffalo, New York in 1985. In
September 1989, plaintiff filed a complaint with the Postal
Service's Equal Employment Opportunities Office, alleging that he
had been denied a promotion to the position of "204B Supervisor"
because of his race. At that time plaintiff's supervisor was Bill
Mitchell ("Mitchell"). According to plaintiff, Mitchell promised
plaintiff that he would be given another opportunity for
promotion to 204B Supervisor, but later reneged on the promise.
Plaintiff subsequently commenced a lawsuit in this Court pursuant
to Title VII entitled Roland C. Johnson, Jr. v. William J.
Henderson, Postmaster General, United States Postal Service,
Case No. 90-CV-7138 CJS(F) ("case 90-CV-7138").
Plaintiff continued working at the Postal Service while his
lawsuit proceeded. In or about September 1998, plaintiff was
promoted to the position of Claims and Inquiry Clerk, PS-5. At
all relevant times thereafter, at the branch where plaintiff
worked, there were two other Claims and Inquiry Clerks, Judith
Grove ("Grove") and Diana Chandler ("Chandler"). Grove and
Chandler held the same job classification as plaintiff, PS-5, but had more seniority than plaintiff. Plaintiff's position was also
referred to as "Lost and Found" and "Loose-In-The-Mails" clerk.
In that capacity, plaintiff was responsible for handling items
inadvertently mailed, dropped into mailboxes, or lost at the post
office, such as bank envelopes containing cash and checks, as
well as personal property such as purses, wallets, keys, gift
certificates, and photographs. Plaintiff stored these items in a
locked cabinet in his work area. Plaintiff was the only one of
the three Claims & Inquiry Clerks who routinely handled lost and
found money. Plaintiff also worked with a Kathy Deneka
("Deneka"), whose title was Complaints and Inquiry Clerk, PS-6.
Plaintiff's supervisor was Maryann Molenda ("Molenda").
Plaintiff's lawsuit in case 90-CV-7138 was tried before the
undersigned in November 1998. On the third day of the trial, the
parties agreed to a complete settlement. In exchange for settling
the lawsuit, defendant agreed to pay plaintiff $90,000.00 and
restore 496 hours of sick leave. Plaintiff contends that after
the lawsuit was settled, his immediate supervisor, Molenda, began
to harass him and retaliate against him.
The alleged post-lawsuit harassment began with a disagreement
between plaintiff and Molenda over the procedures plaintiff was
to use for inventorying and storing certain items of mail.
According to plaintiff,
supervisor Molenda directed me to keep a special
`log' of every single time I went into my overhead
cabinet where money and registered mail was kept, in
addition to the normal log that identified `Matters
Without Address Found in the Mails' that I was
required to keep. No other postal employee under
Molenda's supervision was subject to this treatment;
indeed, my predecessor Lester Morris was only
required to maintain the `Matters Without Address
Found in Mails' log.
Johnson Aff., 04-CV-6239 [#45] ¶¶ 37-38. While plaintiff
refers to "no other postal employee being subject to such treatment," as indicated above, he
was the only employee who routinely handled lost and found money.
Plaintiff's specific objection was that his predecessor had not
been required to keep such a log. Molenda described the event
differently, stating that plaintiff
was off from work for approximately 3 days during the
early portion of November 1998. When he returned he
stated his top drawer was opened and that he
remembers locking it when he left. He mentioned that
there are only two sets of keys; one he has and one I
have. He requested I sign off that he is not
responsible for missing items. I denied his request
and he filed a grievance where an agreement was
Id., Ex. W. Molenda made no reference to plaintiff having to
keep a special "log." The agreement referred to by Molenda,
reached between the Postal Service and plaintiff's union,
provided, in relevant part:
Management agrees to implement the following actions:
1) Clerk will deposit all monies on a daily basis.
2) Management will establish a inventory log, for all
loose in the mail items kept under lock and key.
Clerk will annotate on the inventory log final
disposition of all items.
3) Manager, Consumer Affairs will arrange to have
locks changed on drawers and cabinets.
4) Grievant's supervisor will maintain duplicate key.
Whenever duplicate key is issued, the Mgr CA will
record the individual name, time/date, and return
Id., Ex. E. Notably, while plaintiff claimed that he filed the
grievance in response to Molenda requiring him to establish a
log, the subsequent agreement required the postal service to
"establish" such a log, and defendant maintains that plaintiff
was only required to keep the log as a result of this agreement.
In May 1999, Karl Anderson ("Anderson"), one of plaintiff's
supervisors, commented that plaintiff's work area was "the dark side of the
room." Plaintiff insists that this was a racial slur, although
Anderson maintains that he was making a joke based upon the movie
"Star Wars." In papers submitted in connection with a summary
judgment motion, plaintiff suggested that Anderson's comment was
racially motivated because plaintiff and another black employee
were the only African-Americans on the side of the room to which
Anderson was referring. However, in a deposition, plaintiff
testified that there were African Americans stationed on both
sides of the room when Anderson made his remark.
On or about May 27, 1999, plaintiff and his union
representative met with the Postal Service's District Manager,
Nicholas Fabozzi ("Fabozzi"), to discuss the alleged harassment
by Molenda and the "dark side" comment by Anderson. Plaintiff
alleges that during the meeting, Fabozzi stated that he "used to
participate in the telling of racial jokes" and that it had been
On or about December 2, 1999, Molenda left a post-it note on
plaintiff's telephone, directing him to forward calls when he was
away from his desk. Plaintiff contends that he was singled out in
this regard, and that Molenda did not tell other employees to
forward their calls until after he complained of disparate
treatment. Molenda, however, maintains that she left similar
notes on all of her employees' phones at different times.
In January 2000, plaintiff claims that he overheard Grove and
Deneka having a conversation in which they made comments which,
although not about him, he found racially-offensive. Plaintiff
states that "they were speaking about `blacks not wanting to work
and standing on the corner selling drugs and stuff.'" Plaintiff
reported the incident to Molenda, who responded by issuing a memo that stated:
It has come to my attention that employee(s) are
using profane or obscene language in the office. This
type of behavior will not be tolerated by management.
This language is offensive to others. We must keep in
mind that this office is a customer service officer,
where at no given time [sic], customers are in our
office or on the telephone who may also hear this
type of language. This also relates to conversations
amongst one another (when others can hear you) that
may be offensive to others. Our workplace is a
professional place of business and we must conduct
ourselves in this manner. Thank you for your
Pl. Supp. Appendix, 04-CV-6239 [#80], Ex. L. Although this memo
was addressed to all of the employees in the office, and was sent
to address plaintiff's complaint, plaintiff insists that the memo
singled him out to be reprimanded in retaliation for having
On or about February 16, 2000, Molenda told plaintiff to "drop
everything" and handle claims while she and Deneka "had a
personal conversation over coffee in her office." On or about
March 6, 2000, plaintiff and his union representative again met
with Fabozzi to complain about what plaintiff viewed as a
continuing pattern of harassment by Molenda, as well as her
preferential treatment of Deneka. During the conversation,
Fabozzi again referred to his having told racial jokes in the
past. Plaintiff asked that Molenda be required to attend
"sensitivity training," but Fabozzi dismissed the idea.
On or about August 18, 2000, Molenda called a unit meeting and
announced that she was taking duties that had been performed by
the Claims and Inquiry department in Rochester, and was adding
them to the Buffalo Claims & Inquiry department. Molenda, in her
affidavit submitted in connection with the EEO investigation,
described the situation as follows:
I also had 2 Claims & Inquiry clerk positions in
Rochester. Due to technology, the workload diminished and those 2
positions were abolished. An 800 line was put in for
Rochester customers to call and that line is on all 3
level 5 Claims & Inquiry clerks phones in Buffalo,
not just Roland's. A light blinks when there is a
call and the first to pick it up takes the call. If
no one answers, it rolls over to Claims & Inquiry
Clerk Bill Maturski's voice mail. The line is not on
the level 6's phone (Kathy Deneka's) since the intent
of the line was to assist customers in Rochester with
Claims & Inquiry (level 5 positions).
Pl. Appendix to Local Rule 56.1 Counterstatement 04-CV-6239
[#71], Ex. T. Plaintiff initially alleged that Molenda used the
occasion to retaliate against him by assigning additional duties
only to him. However, he later admitted that the other PS-5
Claims and Inquiry Clerks were also given additional duties
similar to the ones he was given. Nonetheless, plaintiff
continued to claim that Deneka, was treated preferentially
because she did not receive any additional PS-5 work, even though
she was a PS-6 clerk.
Plaintiff also claimed he told Molenda that he was overwhelmed
with work and asked for her help, but she refused. According to
plaintiff, Molenda said that, if anything, she would consider
creating an additional position for someone to assist Deneka in
On August 25, 2000, plaintiff filed another EEO charge. In the
EEO complaint, plaintiff described an incident on August 18,
2000, as follows:
I was `combatively' approached by Consumer Affairs
Manager Maryann Molenda. She remarked, `I need to
review the way you are doing things, especially the
way you handle the money.' This overt racist
statement has numerous frequent [sic] since Sept.
Pl. Appendix to Local Rule 56.1 Counterstatement of Facts,
04-CV-6239 [#71], Exhibits I & U. However, plaintiff subsequently
gave a different version of those events:
Immediately after Plaintiff filed his August 25,
EEO charge, Molenda aggressively approached Plaintiff
in front of others and remarked `I want to review the
way you are doing things, the way you are doing them
is probably wrong.' (Exhibit A, p. 107, Lines 20-23).
Johnson Aff., 04-CV-6239 [#66] ¶ 70.
Plaintiff alleged that Molenda subsequently had him bring trays
of mail to her for inspection, and kept lists of his tasks, but
did not do so for other employees. Plaintiff also claimed that
Molenda continued to scrutinize his handling of money. Plaintiff
further maintained that Molenda then made a list of his
activities, and gave it to the union as proof that plaintiff "did
not have enough work to do." On August 30, 2000, Molenda directed
that certain work which plaintiff had been performing be
performed by another unit known as the "Nixie Unit." On October
11, 2000, Molenda directed the Nixie Unit not to send trays of
mail to plaintiff, purportedly to avoid double handling. Molenda
also told plaintiff not to continue his usual practice of
retrieving mail from the Nixie Unit for processing, because she
would get it herself. According to Molenda,
everyone's work was monitored, tallied, counted and
recorded, not just Roland's. This was done primarily
because of the changes that occurred in Claims &
Inquiry workload being done electronically in
addition to other changes that HQ made nationally
that affected Claims & Inquiry workload. With the
["]loose in the mails["] which Roland works on, I
wanted to see what Nixie [Unit] rewrap was giving
him. [Nixie Unit has] been know to use us as a
dumping ground. I have done this practice with the
previous claims and inquiry clerk who now is retired.
As a manager, the above monitoring should occur to
know the workload and to correct any deficiencies
Pl. Appendix to Local Rule 56.1 Counterstatement 04-CV-6239 [#71]
Ex. T. Plaintiff, however, claimed that Molenda was scrutinizing
his work in order to harass him, and in order to decrease his
workload so that she could justify eliminating his position.
In February 2001, Molenda sent a letter to the president of
plaintiff's labor union and to the Postal Service's labor
relations specialist, notifying them that she intended to eliminate plaintiff's PS-5 position and create a new PS-6
position. Molenda's letter stated:
This letter is to officially notify you, as outlined
in Article 37 of the National Agreement, that
position 2336157, Claims & Inquiry Clerk, currently
held by Roland Johnson, is under consideration to be
rescinded and to post a Complaints & Inquiry Clerk
position, level 6. The workload for Claims & Inquiry
Clerks [PS-5] will continue to decrease and the
workload impacted by the following events:
In Fall of 2000, signature capture (electronic
filing) took place. This sharply reduced the workload
for Claims & Inquiry eliminating the manual filing
and the manual lookups for accountable mail.
Because of the electronic filing of accountable mail,
filing claims is conducted in a shorter time frame.
Effective September 1999, the Postal Inspection
Service changed the procedures in handling PS Form
1510 (mail loss/rifling report) which sharply reduced
the workload for Claims & Inquiry.
A decrease in claims being processed took effect in
1997 because of local adjudication with unnumbered
claims. Streamlining efforts on overall claims
process is under review by Headquarters.
The National Call Centers that are in place and their
continued national roll out will impact the number of
Headquarters is currently identifying process
improvements for handling loose in the mail items at
the point of discovery. A finished product should be
seen sometime in Spring.
The workload for Complaints & Inquiry [PS-6] has
steadily increased. Customers have additional means
in contacting us with their service issues th[a]n
just by telephone or in writing. Service issues are
also received electronically through the National
Call Centers and the Internet. A review of the
workload by the Claims & Inquiry Clerks and
Complaints & Inquiry Clerk has been conducted and
warrants this decision. I am asking for your input by
February 21, 2001.
Molenda Aff., 04-CV-6239 [#79] Ex. A (emphasis added). There is
no indication in the record that the union responded to this letter. On or about
February 14, 2001, Molenda told plaintiff that she was going to
eliminate his position, and create a new Complaints and Inquiry
Clerk position as a PS-6 position, for the purpose of assisting
Deneka. On March 7, 2001, Molenda notified the union that she was
going to "revert" plaintiff's position and post a new PS-6
position. Plaintiff complained that plaintiff was singling him
out for retaliation. In response to that charge, Molenda told the
Roland is taking this personally. It is not HIS
position I want to eliminate. I observed that there
was not enough work for 3 level 5 Claims & Inquiry
clerks, however, there was enough workload for
another Complaints & Inquiry Clerk position. This
occurred because of workload and volume that I
conducted [sic] for several months when changes began
in Claims & Inquiry workload due to HQ changes made
nationally. While it is true, that because Roland is
the junior employee, it will be the position he
occupies, but the reason for that is contractual, not
personal, based on unit seniority.
Pl. Appendix to Local Rule 56.1 Counterstatement, 04-CV-6239
[#71] Ex. T. Plaintiff claimed that Molenda's proposal violated
the collective bargaining agreement between the union and the
postal service. However, the union did not support him in that
regard. Plaintiff subsequently filed complaints with both the
union and the Merit System Protection Board. On April 30, 2001,
the postal service advised plaintiff that it was "rescinding" its
attempt to eliminate the position at that time, but would review
the matter in six months.
On May 21, 2001 plaintiff filed another EEO complaint. This
time he alleged retaliation by Molenda.
On July 23, 2001, plaintiff claimed that someone sabotaged his
telephone by placing a sticky glue-like substance on it.
Plaintiff had no idea what was on the phone or how it came to be
there. In response, the postal service replaced the phone. At
around this same time, all the members of plaintiff's work unit were
assigned new telephone extension numbers. Plaintiff alleged that
his co-workers received their new numbers before him, although he
could not say how long he had to wait for his number. He also
claimed that after he was assigned a new telephone number, he
received fewer phone calls.
On August 15, 2001, Molenda went on leave and appointed Deneka
to handle certain tasks while she was away, such as collecting
leave slips. On August 17, 2001, plaintiff gave a leave slip to
Deneka. Plaintiff's request was apparently not transmitted to the
appropriate person, and as a result, he lost 2 hours of pay.
However, he was reimbursed for the error.
On October 19, 2001, the EEO issue a final order dismissing all
of plaintiff's claims of harassment and retaliation.
In November 2001, the lock on plaintiff's desk drawer became
stripped. Plaintiff complained that this was an act of vandalism,
although he had no idea nor any proof as to how the damage
occurred. Plaintiff stated that he never checked to see if
anything had been taken from the drawer. On or about December 10,
2001, someone placed a note saying "keep out" on plaintiff's work
In January 2002, plaintiff commenced his second lawsuit,
Johnson v. Potter, 02-CV-6025, which was later re-numbered as
case number 04-CV-6239 ("case 04-CV6-239"). In that case,
plaintiff alleged that the foregoing instances of alleged
mistreatment constituted retaliation under Title VII.
On or about November 29, 2002, the office Marketing Manager,
Laura Lewis ("Lewis"), promoted Deneka to the position of
Customer Service Representative, EAS-13. Plaintiff claimed that Deneka's promotion was retaliatory, since
he was never notified of the opening, and since Deneka's
promotion made his job less secure. However, plaintiff
subsequently admitted that he had been out of work on sick leave
when Deneka was promoted, and did not know whether or not the
position had been posted. Plaintiff also did not explain how
Deneka's promotion made his position less secure. On the other
hand, defendant submitted proof that the position had been posted
and that as a result of the posting, six individuals applied for
At some point between March 2002 and February 14, 2003,
plaintiff made a claim under the Family Medical Leave Act
("FMLA"). According to plaintiff, he was required to submit
"excessive documentation" in support of his FMLA claim.
Nonetheless, plaintiff's FMLA leave request was apparently
On February 18, 2003, plaintiff's pay check was short by $115.
After notifying his supervisors of the error, plaintiff was
reimbursed the $115 a few days later. Although plaintiff claimed
the shorting of his pay was intentional, he admitted that he had
no proof to support his theory.
On April 8, 2003, plaintiff filed an Amended Complaint [#20],
which served as the operative complaint throughout the remainder
of case number 04-CV-6239. The complaint alleged "an ongoing
pattern of retaliation."*fn1
On April 21, 2003, plaintiff filed an EEO complaint regarding
the FMLA claim, the one-day pay shortage, and Deneka's promotion.
On or about April 24, 2003, plaintiff wrote a letter to Lewis
accusing her of sexually harassing him. Lewis asked plaintiff to discuss the
letter, but plaintiff refused. Sometime after that, Lewis
confronted plaintiff and said, "why don't you be a man and talk
about the letter." Lewis further stated that plaintiff's problem
was that he was "seeing dollar signs," and that "it wasn't going
to happen off her career." Lewis further said that "she was aware
that Plaintiff was afraid of losing his job, but that if anyone
were to be fired, he would be the first to go." Although
plaintiff characterizes this last statement as a retaliatory
threat, he admits that he was the least senior of the Complaint
and Inquiry Clerks, and that if "any of the three Claims and
Inquiry positions need[ed] to be abolished . . . [he] would be
the next person in line to be terminated because of [his] lack of
Plaintiff left work on sick leave in May 2003, and never
returned. Plaintiff resigned his position on August 15, 2003. On
September 5, 2003, plaintiff filed a request for EEO
"pre-complaint counseling," alleging that he had been
constructively discharged. Plaintiff stated that his alleged
constructive discharge "comes after persistent management
harassment and a 8/13/03 8/14/03 revelation that an
`involuntary deduction' of $6,808.00 by the agency to pay my
creditors during a 1998 civil trial, has not been paid."
In May 2004, some nine months after plaintiff claims that he
was constructively discharged, plaintiff moved before this Court
for leave to file a second amended complaint in case 04-CV-6239.
The proposed second amended complaint contained a claim for
constructive discharge, and also included allegations of
retaliation by Lewis concerning her comments to him in April 2003. The Court denied
the application to amend, finding that plaintiff had failed to
demonstrate good cause for his delay in failing to move to amend
the complaint beyond the deadline set by the Court.
After having a full opportunity to conduct discovery, the
parties each subsequently moved for summary judgment in case
04-CV-6239. By Decision and Order [#83] filed on March 2, 2005,
the Court denied plaintiff's application for summary judgment,
granted defendant's application, and dismissed the action. In
connection with those cross motions, it was undisputed that
plaintiff had engaged in protected activity. However, defendant
asserted that none of the alleged acts of retaliation amounted to
an "adverse employment action" under Title VII. Plaintiff,
relying on the Second Circuit's decision in Richardson v. New
York State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d
Cir. 1999), argued that the adverse employment action consisted
of "unchecked retaliatory co-worker harassment." Plaintiff
alternatively asserted that the alleged retaliatory acts by
Molenda constituted adverse employment actions. The Court
rejected the "unchecked retaliatory co-worker harassment" theory,
finding that plaintiff had failed to come forward with evidence
that the alleged harassment by co-workers was either retaliatory
or unchecked. The Court also found that defendant was entitled to
judgment regarding the alleged retaliation by Molenda, in some
instances because plaintiff had failed to demonstrate a prima
facie case, and in other instances because plaintiff failed to
come forward with evidentiary proof, establishing that the
defendant's proffered reasons were false or pretextual. The
Court's summary judgment decision in case number 04-CV-6239
addressed all of the alleged acts of retaliation discussed above,
except for the two which plaintiff did not assert in that case:
1) the claim that plaintiff was required to submit excessive documentation in support of his FMLA
claim; and 2) the claim that Lewis retaliated against plaintiff
in April 2003 by threatening his job.
While the summary judgment motions were pending in case number
04-CV-6239, plaintiff filed the subject action on December 29,
2004. The complaint in this action sets forth the allegations of
retaliation involving the FMLA claim and the alleged threats by
Lewis, along with all of the allegations of retaliation that were
raised in case number 04-CV-6239. Based upon these allegations,
plaintiff asserts two causes of action: retaliation and
constructive discharge. Amended Complaint [#2] ¶¶ 179-87. With
regard to the retaliation claim, the complaint states, in
Plaintiff engaged in protected activity when he made
both informal and formal EEO complaints on March 19,
2003, April 21, 2003, May 15, 2003, [and] June 12,
2003. Shortly thereafter, he was subject to adverse
employment action, including threats to terminate his
position, falsifying his time card,*fn3 and
ultimately, his constructive discharge in retaliation
for having engaged in said protected activity.
Amended Complaint [#2], ¶ 180. Based upon the dates contained in
the paragraph above, the retaliation claim is based solely upon
alleged adverse employment actions occurring on and after March
19, 2003. The constructive discharge claim, on the other hand, is
based upon all of the instances of alleged retaliation discussed
above, including those occurring prior to March 19, 2003. In
other words, with the exception of the FMLA incident and the
alleged harassment by Lewis, the constructive discharge claim how
before the Court is based on the same alleged acts of retaliation
which the Court dismissed in case number 04-CV-6239. Prior to conducting any discovery in this action, defendant
filed the subject motion seeking dismissal and/or summary
judgment. Defendant contends that the retaliation claim must be
dismissed for several reasons. First, defendant contends that the
acts of alleged retaliation are barred by collateral estoppel,
except for two, the FMLA incident and the alleged threats by
Lewis. And, as to those two incidents, defendant contends that
plaintiff failed to establish a prima facie case of retaliation,
since plaintiff suffered no adverse employment action. Defendant
further notes that the FMLA incident is not retaliatory for two
additional reasons: first, the FMLA incident pre-dated the
protected activity alleged by plaintiff, and second, there is no
evidence that the employee who supposedly requested "excessive
documentation" from plaintiff was even aware of plaintiff's
protected activity. Defendant also contends that the constructive
discharge claim should be dismissed for several reasons. First,
defendant contends that, since the incidents which plaintiff
relies on in support of his constructive discharge claim are the
same incidents of alleged retaliation that the Court already
dismissed, the constructive discharge claim is barred by
collateral estoppel. More specifically, defendant contends that
since the incidents of alleged retaliation did not amount to
"adverse employment actions," they necessarily fall short of
establishing the aggravated circumstances required to establish a
constructive discharge. Alternatively, defendant contends that in
any event, the acts of alleged retaliation upon which the
constructive discharge claim is based fail, as a matter of law,
to establish a constructive discharge. Lastly, defendant argued
that the constructive discharge claim had not been timely filed
with the EEOC, and also had not been administratively exhausted.
In response to defendant's motion, plaintiff has filed an
application under Rule 56(f). Plaintiff states that he needs to conduct discovery before
responding to defendant's motion, primarily so that he can
establish that his constructive discharge claim was both timely
filed with the EEOC and administratively exhausted. Plaintiff
also requests leave to obtain discovery from his own doctors, so
that he can establish that it was medically necessary for him to
resign from his position.
Defendant subsequently filed a reply, in which he concedes, for
purposes of the subject motions, that plaintiff's constructive
discharge claim was both timely and administratively exhausted.
Defendant maintains, however, that plaintiff is not entitled to
discovery, and that the case should be dismissed.
On August 18, 2005, counsel for the parties appeared before the
undersigned for oral argument of the subject motions. Notably,
during oral argument, plaintiff's counsel argued that acts which
fail rise to the level of "adverse employment actions" under
Title VII may nonetheless establish a constructive discharge.
Following oral argument the Court permitted plaintiff's counsel
to supplement her brief on that issue of law. The Court has now
thoroughly considered the parties' submissions and the arguments
STANDARDS OF LAW
The standard for granting summary judgment is well established.
Summary judgment may not be granted unless "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). A party seeking summary judgment bears the burden of establishing that no genuine issue of
material fact exists. See, Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie
showing that the standard for obtaining summary judgment has been
satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew
Bender 3d ed.). "In moving for summary judgment against a party
who will bear the ultimate burden of proof at trial, the movant
may satisfy this burden by pointing to an absence of evidence to
support an essential element of the nonmoving party's claim."
Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)),
cert denied, 517 U.S. 1190 (1996). Once that burden has been
established, the burden then shifts to the non-moving party to
demonstrate "specific facts showing that there is a genuine issue
for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). To carry this burden, the
non-moving party must present evidence sufficient to support a
jury verdict in its favor. Anderson, 477 U.S. at 249. The
parties may only carry their respective burdens by producing
evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The
underlying facts contained in affidavits, attached exhibits, and
depositions, must be viewed in the light most favorable to the
non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655
(1962). Summary judgment is appropriate only where, "after
drawing all reasonable inferences in favor of the party against
whom summary judgment is sought, no reasonable trier of fact
could find in favor of the non-moving party." Leon v. Murphy,
988 F.2d 303, 308 (2d Cir. 1993).
When a party is unable to produce affidavits in opposition to a
summary judgment motion, she may make an application pursuant to Rule 56(f), which
When Affidavits are Unavailable. Should it appear
from the affidavits of a party opposing the motion
[for summary judgment] that the party cannot for
reasons stated present by affidavit facts essential
to justify the party's opposition, the court may
refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may
make such other order as is just.
FED. R. CIV. P. 56(f). In this Circuit, the requirements for
obtaining relief under Rule 56(f) are as follows:
[A] party resisting summary judgment on the ground
that it needs discovery in order to defeat the motion
must submit an affidavit showing `(1) what facts are
sought [to resist the motion] and how they are to be
obtained, (2) how those facts are reasonably expected
to create a genuine issue of material fact, (3) what
effort affiant has made to obtain them, and (4) why
the affiant was unsuccessful in those efforts.
Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292
, 303 (2d
Cir. 2003) (citations omitted).
A district court's decision to deny a request for additional
discovery under Rule 56(f) is reviewed on appeal using the "abuse
of discretion" standard. Gualandi v. Adams, 385 F.3d 236,
244-245 (2d Cir. 2004). However, in this regard, it is clear that
as a general rule, summary judgment is strongly disfavored where
the non-moving party has had no opportunity to conduct discovery.
Trammell v. Keane, 338 F.3d 155, 161 (2d Cir. 2003) ("[O]nly in
the rarest of cases may summary judgment be granted against a
plaintiff who has not been afforded the opportunity to conduct
discovery.") (quoting Hellstrom v. U.S. Dep't of Veterans
Affairs, 201 F.3d 94, 97 (2d Cir. 2000); see also, Abercrombie
& Fitch Stores, Inc. v. American Eagle Outfitters, Inc.,
280 F.3d 619, 627 (6th Cir. 2002) ("If the non-movant makes a
proper and timely showing of a need for discovery, the district court's entry of summary judgment without
permitting him to conduct any discovery at all will constitute an
abuse of discretion.").
"Title VII makes it unlawful for an employer to discriminate
against any individual with respect to the `compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.'"
Richardson v. New York State Department of Correctional
Services, 180 F.3d 426, 436 (2d Cir. 1999) (citations omitted).
However, "Title VII does not establish a `general civility code'
for the American workplace. Simple teasing, offhand comments, or
isolated incidents of offensive conduct (unless extremely
serious) will not support a claim of discriminatory harassment."
Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir. 2004)
Title VII Retaliation
To establish a prima facie case of retaliation under Title VII,
"a plaintiff must demonstrate participation in protected activity
known to the defendant, an employment action disadvantaging the
person engaged in the protected activity, and a causal connection
between the protected activity and the adverse employment
action." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.
2000) (citations and internal quotations omitted). Making a
complaint regarding harassment to one's supervisor is "protected
activity" under Title VII. Id.
To make a prima facie showing of an adverse employment action,
the plaintiff must show that the employer's actions caused a
materially adverse change in the terms and conditions of
employment. Valentine v. Standard & Poors, 50 F.Supp.2d 262,
283 (S.D.N.Y. 1999), aff'd, 205 F.3d 1327 (2d Cir. 2000). Things
such as "negative evaluations alone, without any accompanying
adverse result, are not cognizable." Id. It is well settled
[t]o be materially adverse a change in working
conditions must be more disruptive than a mere
inconvenience or an alteration of job
responsibilities. A materially adverse change might
be indicated by a termination of employment, a
demotion evidenced by a decrease in wage or salary, a
less distinguished title, a material loss of
benefits, significantly diminished material
responsibilities, or other indices unique to a
Galabya v. New York City Bd. of Educ., 202 F.3d 636
, 640 (2d
Cir. 2000) (Citations and internal quotations omitted). There is
no "bright-line rule" for identifying an adverse employment
action, rather, "courts must pore over each case to determine
whether the challenged employment action reaches the level of
`adverse.'" Richardson, 180 F.3d at 446.
Title VII Constructive Discharge
The elements of a claim for constructive discharge are as
A constructive discharge occurs when the employer,
rather than acting directly, deliberately makes an
employee's working conditions so intolerable that the
employee is forced into an involuntary resignation.
In determining whether or not a constructive
discharge has taken place, the trier of fact must be
satisfied that the working conditions would have been
so difficult or unpleasant that a reasonable person
in the employee's shoes would have felt compelled to
Pena v. Brattleboro Retreat, 702 F.2d 322
, 325 (2d Cir. 1983)
(Citations and internal quotation marks omitted). However,
[a] constructive discharge generally cannot be
established . . . simply through evidence that an
employee was dissatisfied with the nature of his
assignments. . . . Nor is it sufficient that the
employee feels that the quality of his work has been
unfairly criticized. . . . Nor is the standard for
constructive discharge merely whether the employee's
working conditions were difficult or unpleasant.
Stetson v. NYNEX Service Co., 995 F.2d 355
, 360-361 (2d Cir.
1993) (citations and internal quotation marks omitted). Instead,
the plaintiff "must show that the abusive working environment
became so intolerable that her resignation qualified as a fitting
response." Pennsylvania State Police v. Suders, 542 U.S. 129
124 S.Ct. 2342
, 2347 (2004).
Title VII discrimination and retaliation claims are analyzed
under the three-tier burden-shifting test "set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), and its progeny." Valentine v. Standard &
Poors, 50 F.Supp.2d at 281-82 (S.D.N.Y. 1999) (Citations and
internal quotations omitted). Under the first tier of the
McDonnell Douglas test, the plaintiff must establish a prima
facie case. If the plaintiff establishes his prima facie
the burden shifts to the employer to articulate some
legitimate, nondiscriminatory reason for the
employee's discharge. At this stage, the employer
need only articulate but need not prove the
existence of a nondiscriminatory reason for its
decision. If the defendant carries this burden of
production, the presumption raised by the prima facie
case is rebutted, and the factual inquiry proceeds to
a new level of specificity. Once defendant meets its
burden of production, the burden shifts back to
plaintiff. Under the third tier of the McDonnell
Douglas test, plaintiff bears the ultimate burden of
proving that the reason proffered by the employer is
a pretext for unlawful discrimination. In order to
survive a motion for summary judgment, plaintiff must
establish a genuine issue of material fact as to
whether the employer's reason for discharging her is
false and as to whether it is more likely that a
discriminatory reason motivated the employer to make
the adverse employment decision.
Valentine, 50 F.Supp.2d at 281-82 (Citations and internal
quotations omitted). Courts must be "particularly cautious about granting summary
judgment to an employer in a discrimination case when the
employer's intent is in question. Because direct evidence of an
employer's discriminatory intent will rarely be found, affidavits
and depositions must be carefully scrutinized for circumstantial
proof which, if believed, would show discrimination." Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and
internal quotations omitted). However, a plaintiff may not defeat
a motion for summary judgment merely by relying upon "purely
conclusory allegations of discrimination, absent any concrete
particulars." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985),
cert. den. 474 U.S. 829.
Applying the foregoing principles of law to the facts of this
case, the Court finds, at the outset, that plaintiff's
cross-motion under Rule 56(f) should be denied. The Court is
mindful that, as discussed above, a Rule 56(f) application should
ordinarily be granted where the plaintiff has conducted no
discovery. See, e.g., Czerw v. Ronald Billitier Elec., Inc.,
03-CV-6613 (CJS) & 03-CV-6614 CJS, 2005 WL 1159425 at *8
(W.D.N.Y. May 17, 2005) (Siragusa, J.) ("[A] grant of summary
judgment before any discovery has been conducted would be
inappropriate, since plaintiff has not had a fair opportunity to
show that defendants' articulated reasons are pretextual.").
However, the instant case is unusual in that plaintiff already
had a full opportunity to conduct discovery in the prior
proceeding between these parties involving essentially the same
claims. Sty-Lite Co. v. Eminent Sportswear Inc., No. 01 Civ.
3320 (CBM), 2002 WL 15650 at *5 (S.D.N.Y. Jan. 7, 2002)
("[A]lthough it is technically true that no discovery has taken
place in the present incarnation of this case, [plaintiff] had
ample opportunity to conduct full discovery in the identical prior action.") (emphasis in
original). In fact, the parties were conducting discovery in case
number 04-CV-6239 as late as August 2003, and plaintiff was
deposed by defendant on August 14, 2003, the day before plaintiff
resigned his position. Accordingly, the Court does not view this
case as one in which plaintiff has had no opportunity to conduct
discovery, but on the contrary, views it as a case where
plaintiff has already had a full opportunity to do so. Nor does
the Court believe that the additional discovery which plaintiff
seeks would be helpful. Most notably, the discovery that
plaintiff wants to obtain largely pertains to the timeliness of
his constructive discharge claim, and to the administrative
exhaustion of that claim. However, that discovery is unnecessary,
since as discussed above, defendant concedes, for purposes of
this motion, that the claim is both timely and administratively
exhausted. As for the "discovery" that plaintiff wants to obtain
from his own doctors, the Court sees no reason why plaintiff
could not have obtained such evidence already, since, in addition
to being available to him directly through the doctors, the
information that he references is also part of the administrative
record in his social security disability case. In any event, that
information, purportedly detailing plaintiff's subjective
reactions to the alleged harassment, would be irrelevant, since
the standard to be applied in a constructive discharge case is an
objective one. For all of these reasons, plaintiff's cross-motion
under Rule 56(f) is denied. Plaintiff's alternative request for
additional time to respond to the summary judgment motion, in the
event that the Court rejected his Rule 56(f) application, is also
denied. See, Players, Inc. v. City of New York,
371 F.Supp.2d 522, 534 (S.D.N.Y. 2005) (discussing reasons why a plaintiff
whose Rule 56(f) application fails is not necessarily entitled to
an additional opportunity to oppose the summary judgment motion). Plaintiff made a tactical decision to proceed
in the manner that he did in this case, and the Court declines to
extend the briefing schedule. See, Id.
Next, turning to the merits of defendant's summary judgment
motion, the Court finds that defendant is entitled to summary
judgment on plaintiff's retaliation claims. The Court previously
granted summary judgment to defendant on all of the very same
claims of retaliation alleged here except for two, the FMLA
incident and the alleged threats by Lewis. Moreover, as to the
FMLA claim, plaintiff had an opportunity to include that claim in
the previous action, but chose not to do so. Specifically,
plaintiff was obviously aware of the FMLA incident at the time he
amended his complaint in case number 02-CV-6239 on April 8, 2003.
Consequently, that claim, as well as all of the claims of
retaliation that the Court specifically addressed in the prior
action are barred by res judicata. Monahan v. New York City
Dept. of Corrections, 214 F.3d 275, 284-285 (2d Cir. 2000) ("The
doctrine of res judicata, or claim preclusion, holds that a final
judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have
been raised in that action.").
Even assuming, however, that the FMLA claim were not barred by
res judicata, defendant would still be entitled to summary
judgment. Plaintiff has not established a prima facie case of
retaliation concerning the FMLA incident for at least two
reasons. First, plaintiff suffered no adverse employment action,
but rather, he claims only that he was required to submit what he
viewed as "excessive documentation" in support of his FMLA claim.
Second, plaintiff has come forward with no evidence to refute the
affidavit of the FMLA claim administrator, who states that he was
unaware of plaintiff's protected activity. Similarly, plaintiff has failed to demonstrate a prima facie
case of retaliation concerning the alleged threats by Lewis.
Specifically, even accepting that Lewis told plaintiff to "be a
man," that she told him he was "seeing dollar signs," and that
she threatened him by telling him that "if anyone was fired, he
would be the first to go," these incidents do not establish an
adverse employment action, either separately or together.
Plaintiff does not claim to have suffered any concrete injury.
Even assuming, arguendo, that the most serious allegation,
Lewis's alleged threat, met the low threshold for a prima facie
showing, defendant came forward with a legitimate
non-discriminatory reason for Lewis' comment about plaintiff
being "the first to go," which is that he was the PS-5 clerk with
the least seniority. Moreover, defendant has presented evidence
that the elimination of plaintiff's position, even though it
never occurred, was warranted for legitimate business reasons.
Namely, the PS-5 clerks had too little work to do, and the PS-6
clerk had too much. Plaintiff has not come forward with any
evidentiary proof in admissible form to the contrary.
Accordingly, defendant is entitled to summary judgment on
plaintiff's retaliation claims.
The Court will now consider plaintiff's constructive discharge
claim. The Court finds that where, as here, a plaintiff is
claiming that he was constructively discharged based upon acts of
retaliation,*fn5 the acts complained of must actually
constitute retaliation under Title VII. In Suders, the Supreme
Court dealt with "one subset of Title VII constructive discharge
claims: constructive discharge resulting from sexual harassment, or "hostile work environment." Pennsylvania State
Police v. Suders, 124 S.Ct. at 2352. The Supreme Court further
noted that, "[c]reation of a hostile work environment is a
necessary predicate to a hostile-environment constructive
discharge case." Id. at 2356. Presumably then, when dealing
with a claim for constructive discharge resulting from
retaliation, actual retaliation is a necessary predicate. See,
Downey v. Isaac, 622 F.Supp. 1125, 1133 (D.D.C. 1985) ("In sum,
in a retaliatory constructive discharge case, a plaintiff must
show that he/she was retaliated against because of his/her
E.E.O. activity and that retaliation constituted intolerable
working conditions in which a reasonable person in similar
circumstances would have felt compelled to resign.") (emphasis
added), aff'd without opinion 794 F.2d 753 (D.C. Cir. 1986);
Delashmutt v. Wis-Pak Plastics, Inc., 990 F.Supp. 689, 697
(N.D. Iowa 1998) (Stating, regarding "constructive discharge as
the result of retaliatory conduct," that "if [a plaintiff] cannot
prove retaliation, because she cannot prove any adverse
employment action, then she necessarily cannot prove her
employer made her working environment so intolerable as to
establish any independent constructive discharge claim.")
(emphasis added); Amato v. Package Machinery Co., Civ. A. No.
81-0380 F, 1987 WL 7238 at *13 (D. Mass. Mar. 2, 1987) ("In
analyzing a claim of retaliatory constructive discharge,
plaintiff must show she was indeed retaliated against for
asserting her rights under Title VII and that retaliation
constituted intolerable work conditions leading to the alleged
constructive discharge. Because the Court concludes plaintiff has
failed to carry her burden of persuasion on the retaliation
element, her constructive discharge claim must be denied.")
(citation omitted). Consequently, since the Court has already
determined, both in the prior case*fn6 and in the instant case, that the
actions complained of fail to establish actionable retaliation,
plaintiff's constructive discharge claim based on retaliation
must also fail. Moreover, even if a reviewing court were to
disagree that the dismissal of plaintiff's retaliation claims
necessarily requires the dismissal of his retaliatory
constructive discharge claim, this Court would alternatively find
that the acts alleged by plaintiff fail to establish a
constructive discharge as a matter of law.*fn7 Martin v.
Citibank, N.A., 762 F.2d 212, 221 (2d Cir. 1985).
Defendant's motion [#3] for summary judgment is GRANTED,
plaintiff's cross-motion [#9] pursuant to Rule 56(f) is DENIED,
and this action is DISMISSED.
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