The opinion of the court was delivered by: Howard G. Munson Senior United States District Judge
MEMORANDUM - DECISION AND ORDER
Currently before the court are Defendant's motion for summary judgment and Plaintiff's cross-motion for continuance of summary judgment. The parties have filed their opposition. Plaintiff premises federal jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a) and brings her action pursuant to the Age Discrimination In Employment Act of 1967, 29 U.S.C. §§ 621-634(b) ("ADEA"), 42 U.S.C. §§ 1983 and 1988, the Fifth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Civil Rights Act of 1991. In her complaint,*fn1 Plaintiff sets forth five causes of action through which she alleges: (1) Defendant failed to extend her term appointment or alter her job description so that she could maintain her position and replaced her with a significantly younger individual in violation of the ADEA (Count I); (2) Defendant made certain comments evidencing age discrimination, which created a hostile work environment and violated the ADEA (Count II); (3) Defendant's failure to extend her term of employment or alter her job description so that she could maintain her position and Defendant's subsequent replacement of her with a significantly younger individual as well as the alleged comments violated 42 U.S.C. § 1983 (Count III); (4) Defendant denied her equal protection under the law in violation of the Fifth Amendment of the United States Constitution (Count IV); and, (5) Defendant created a hostile work environment by subjecting her to repeated and continual disparaging remarks regarding her sex and inability to perform certain tasks because she was a woman in violation of Title VII (Count V). For the reasons that follow below, the court GRANTS Defendant's motion for summary judgment and DENIES Plaintiff's cross-motion for continuance of summary judgment.
A. Renewal of Term Appointment
In June 1991, Plaintiff, Delores Dunn, began a term appointment with the United States Geologic Survey ("USGS")--a bureau within the United States Department of the Interior--Water Resource Division, Ithaca, New York, as a GS-4 administrative clerk. See Dkt. No. 17, Def.'s Statement of Material Facts at ¶ 1. In August 1995, the USGS renewed Plaintiff's term appointment through February 4, 1999. At the time of the renewal, Plaintiff signed a one-page form, Statement of Understanding Concerning Conditions Of Term Appointment, which stated that Plaintiff's appointment was not to extend beyond February 4, 1999, that the appointment would not extend beyond four years, that the appointment did not confer upon her permanent status in the federal service, and that Plaintiff could not be converted noncompetitively to a permanent position. Plaintiff signed the statement on February 6, 1995. See Dkt. No. 17, Def.'s Statement of Material Facts at ¶¶ 3-5. Throughout the period of her employment by USGS, Plaintiff maintains that her performance ratings were always excellent or satisfactory, and that she never received a less than satisfactory rating. At all times during the renewal term appointment, Plaintiff's immediate supervisor was Edward Bugliosi, who became the USGS Sub District Chief for the Ithaca Sub District, Water Resource Division in Ithaca, New York, in April 1994.
B. Expiration of Term Appointment
On July 24, 1998, District Chief, L. Grady Moore sent Plaintiff a memorandum stating that her term appointment was to expire on February 4, 1999, and that there would be no extension of that term, nor would there be a substantially similar position, whether temporary or permanent, available for her. Id. at ¶ 6. On July 29, 1998, Plaintiff sent Moore a response indicating her desire to remain employed by the USGS either through an extension of her current term, or with the creation of a similar position. On August 14, 1998, Moore responded with a second memorandum indicating that he would keep Plaintiff's request in mind, but that he did foresee another full-time administrative position at the Ithaca location. Between December 1998 and February 1999, Plaintiff made repeated requests for a permanent position but was consistently told that there were no positions available for her. Plaintiff asserts, however, that she was never told that she was unqualified for her position or for a substantially similar position. Plaintiff's employment with the USGS ceased February 4, 1999. See Dkt. No. 17, Def.'s Statement of Material Facts at ¶ 9.
II. New Position Advertised
Within weeks of Plaintiff's departure, Defendant posted a job opening, Vacancy H-99-618, at www.usajobs.opm advertising a vacancy announcement for a term position, not to exceed four years, at the Ithaca Sub District. The position had an open period from March 16, 1999, to March 31, 1999. Defendant subsequently canceled the vacancy announcement apparently because the Department of the Interior regulations prohibit back-to-back term appointments. As a result, Defendant again posted a job opening, Vacancy H-99-625, at www.usajobs.opm, which readvertised the vacancy announcement as a permanent position. See Dkt. No. 17, Def.'s Statement of Material Facts at ¶¶ 10-13. Plaintiff alleges that this readvertised permanent position was almost identical to the one that she had held, one for which she was qualified.
Plaintiff's theory of the case is that Bugliosi was well aware that when Plaintiff's term ended, there would be a need for an administrative employee at the Ithaca Sub District to perform substantially the same functions that Plaintiff had been performing. Despite this need, Plaintiff believes Bugliosi intentionally led her to believe that there would be no such position available. Plaintiff alleges that in June 1999, four months after the expiration of her term appointment, she became aware that Defendant created and posted a position substantially similar to the one in which she was previously employed and filled the vacancy with a substantially younger individual. She contends that she did not apply for the advertised vacancy announcement because Defendant lied to her regarding the availability of such a permanent position. Understanding that no such permanent position would be available, Plaintiff made no effort to look for the posting and consequently, she was unaware of it. By the time she became aware of the posting, the position's open period had expired. Dkt. No. 20, Pl.'s Statement of Material Facts at ¶ 15.
Defendant contends that Plaintiff did not apply for the vacancy announcement because she perceived a subterfuge underlying the creation of the permanent position and summarily concluded that her application would be futile. Furthermore, Defendant contends Plaintiff believed that because no one had contacted her about the opening, any time or money she were to have invested would have been wasted, for defendant had predetermined that she would no longer be employed by USGS at the Ithaca Sub District. See Dkt. No. 16, Def.'s Mem. of Law at 6.
III. Plaintiff Files an Equal Employment Opportunity Complaint
On June 30, 1999, Plaintiff requested Equal Employment Opportunity ("EEO") counseling, complaining of age discrimination. On October 12, 1999, Plaintiff filed an EEO complaint in which she alleged age and sex discrimination: Plaintiff referenced that on February 4, 1999, she was not offered a permanent position and that over the course of her employment with the USGS, Bugliosi allegedly told her--"You are not up with the times," "You're living in the past," and "I guess you just don't remember anymore." Notably absent from Plaintiff's EEO complaint is any allegation that Plaintiff suffered discrimination on June 23, 1999, when she discovered that the USGS hired Haire, although she does reference that the USGS began seeking her replacement "almost as soon as [her] employment was terminated." See Dkt. No. 16, Ex. C. Plaintiff's EEO complaint resulted in an investigation, the findings of which were detailed in a Report of Investigation issued by the Department of the Interior on August 14, 2000.*fn2 See Dkt. No. 17, Def.'s Statement of Material Facts at ¶¶ 23-25. The Department of the Interior's final decision, see Dkt. No. 16, Def.'s Mem. of Law at Ex. D, dismissed Plaintiff's complaint for failing to contact an EEO Counselor within the statutorily prescribed period of time. See 29 C.F.R. § 1614.107(a)(2) (dismissing those complaints which fail to meet applicable time limits, forty-five days, contained in §§ 1614.105, 1614.106,and 1614.204(c). In lieu of filing an appeal to the United States Equal Employment Opportunity Commission ("EEOC"), on November 16, 2000, Plaintiff filed the instant action in the United States District Court for the Northern District of New York pursuant to 29 C.F.R. § 1614.110(b).
IV. Plaintiff and the EEO Process While Employed by Defendant
Defendant asserts that as of January 1998, Plaintiff was aware of the EEO process. Citing Plaintiff's deposition testimony, Defendant submits that Plaintiff believes she posted a Water Resources Division memorandum, dated January 23, 1998, entitled "Zero Tolerance of Discrimination," on the break-room bulletin board. Again citing Plaintiff's deposition testimony, Defendant asserts that Plaintiff saw either the September 10, 1998, memorandum entitled, "Zero Tolerance of Discrimination and Process for Raising Issues of Harassment" or a similar memorandum to this effect while at the workplace. Furthermore, Defendant asserts that it distributed discrimination/harassment memoranda throughout the workplace to each and every employee. Citing Plaintiff's deposition testimony, Defendant asserts that Plaintiff admitted she had "no reason to believe" that she did not receive a copy of such memoranda. See Dkt. No. 17, Def.'s Statement of Material Facts at ¶¶ 17-19. In her opposition papers, Plaintiff generally denies these allegations asserting that she was only generally aware of the EEO process and that this general awareness did not include knowledge of the EEO's forty-five day filing restriction. Plaintiff notes that while she may have received copies of the various memoranda, she did not necessarily read them. See Dkt. No. 20, Pl.'s Statement of Material Facts at ¶¶ 17-19.
V. Alleged Offending Comments and Remarks
During the course of Plaintiff's employment, Bugliosi allegedly told Plaintiff--"You are not up with the times," "You're living in the past," "You're supposed to be using the computer for the forms," "We don't use typewriters anymore," "I guess you just don't remember anymore," and "You can't do that because you're a female." At her deposition, Plaintiff testified that she did not mention any of these alleged statements in the letters she wrote to Moore because she wanted him to focus on her, because she was not "taught that way," and because "you take what people hand you and you keep on trucking." Plaintiff described the alleged offending comments as normal for her and as typifying the experience of those in her generation.See Dkt. No. 16, Def.'s Mem. of Law at 7.
VI. Plaintiff's Cross-Motion for Continuance--Background
Pursuant toFED.R.CIV.P. 56(f), Plaintiff moves for a continuance of Defendant's motion for summary judgment arguing that an affidavit necessary to oppose Defendant's motion is unexpectedly unavailable. Plaintiff's counsel seeks to depose Catherine Haire, who at age forty-two allegedly "replaced" Plaintiff. Plaintiff represents that despite Haire's prior assistance and repeated assurances to provide sworn testimony in the form of a sworn affidavit to Plaintiff, two days before Plaintiff's opposition was due to Defendant, Haire declined to provide an affidavit and has since refused to cooperate. Plaintiff has interviewed Haire many times and is reasonably sure of the content of her anticipated testimony. In her cross-motion submissions, Plaintiff requested a continuance until such time that Haire's testimony can be compelled by subpoena and her deposition taken. Plaintiff's counsel believes such extension will be sufficient time in order for her to subpoena Haire, schedule and conduct a deposition, and obtain a transcript of the same.
Defendant opposes Plaintiff's cross-motion for continuance. Defendant protests that the parties have had adequate time for discovery, noting that the parties already twice agreed to extensions for discovery: one from the initial date of February 1, 2002, to August 1, 2002, and then to October 1, 2002. Defendant argues that Haire's testimony will not produce clear, direct and substantial evidence because Haire's credibility and character as to untruthfulness will be at issue during her deposition and at trial.*fn3 As an additional concern, Defendant speculates that Haire will seek counsel and invoke her Fifth Amendment right against self-incrimination. Defendant further argues that Haire's anticipated testimony does not address the merits of its motion for summary judgment: the anticipated testimony neither addresses ...