The opinion of the court was delivered by: Azrack, United States Magistrate Judge:
Plaintiff Jennifer Montgomery brings this action against her employer, defendant U.S. Department of Homeland Security ("DHS"), alleging that DHS discriminated against her on the basis of her disability and sex in violation of the Rehabilitation Act of 1973, 29 U.S.C. §791, et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Plaintiff claims that defendant discriminated against her, created a hostile work environment, failed to reasonably accommodate her, and retaliated against her.
By motion dated August 17, 2006, defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The parties consented to me presiding over this motion, pursuant to 28 U.S.C. § 636(c). Viewing the evidence in the light most favorable to plaintiff, and for the reasons set forth below, I find that there are no material facts in dispute such that a reasonable jury could conclude that plaintiff was the subject of unlawful discrimination or retaliation. Accordingly, summary judgment is granted to defendant.
The following facts are taken from defendant's Statement of Undisputed Material Facts pursuant to Local Rule 56.1 ("Def. 56.1 Statement") and plaintiff's Counter-Statement pursuant to Local Rule 56.1 ("Pl. 56.1 Statement") and are undisputed unless otherwise noted. Because this is defendant's motion, the facts will be viewed in the light most favorable to the plaintiff.
Plaintiff Montgomery is employed by the United States Customs Service (now Customs and Border Protection) (collectively, "Customs Service") as a Canine Enforcement Officer (now Customs and Border Protection Officer) (collectively, "CEO") and has been since September 2, 1997. Throughout her employment, plaintiff has been assigned to the Canine Unit at John F. Kennedy Airport in Queens, New York ("JFK Airport"), with few exceptions. (Def. 56.1 Statement ¶ 5; Pl. 56.1 Statement ¶ 5.) As a CEO, plaintiff is responsible for screening arriving cargo, passengers or conveyance for contraband, using her assigned detector dog. (Def. 56.1 Statement ¶ 1.) She is authorized to conduct searches, make seizures, and gather evidence for use in criminal and civil proceedings; to detain and arrest suspected criminals, stowaways, terrorists, and other persons who violate federal law; and to carry a firearm during the performance of her duties. (Id.)
Plaintiff has been promoted throughout her employment and received regular automatic step or grade increases. (Def. 56.1 Statement ¶ 6; Pl. 56.1 Statement ¶ 6.) Plaintiff started her employment with the Customs Service as a GS-5, Step 1. (Def. 56.1 Statement ¶ 6.) Each year thereafter, through the date of her April 2005 deposition, she received a promotion to another grade or step.*fn2 (Id.) Plaintiff maintains that many of the changes in grade or step were not promotions, but rather were automatic step or grade increases. (Pl. 56.1 Statement ¶ 6.) Plaintiff also received "successful" performance evaluations each year of her employment. (Id. ¶ 7.)
Montgomery is a female with Attention Deficit Hyperactivity Disorder ("ADHD" or "ADD"). (Pl. 56.1 Statement ¶ 8.) She contends that she has had ADHD symptoms all her life and was first diagnosed at age 5. (Id.) Symptoms of plaintiff's ADHD include: difficulty concentrating and maintaining attention, irritability, restlessness, hyperactivity, impulsiveness, problems remembering, and quickness to anger. (Def. 56.1 Statement ¶ 12-32.) She has been treated by various physicians who have documented these symptoms in varying degrees. (Id.) Plaintiff takes medication which helps her symptoms, but does not cause them to completely disappear. (Pl. 56.1 Statement ¶¶ 9, 32, 145.) Plaintiff asserts that she has always been able to complete her CEO job duties successfully, regardless of her ADHD symptoms. (Id. ¶ 33-46; Compl. ¶ 16.)
Montgomery alleges that she has been discriminated against by her employer on the basis of disability and sex. She asserts claims of disparate treatment, hostile work environment, failure to accommodate, and retaliation. The crux of her disability claim is that her ADHD affects her ability to get along with her co-workers because of her general irritability and impulsiveness. These personality traits, which plaintiff asserts are "manifestations" of her ADHD, have created a situation at work where she is generally disliked, insulted, and made to feel like an outcast. (See, e.g., Pl. 56.1 Statement ¶¶ 127, 129-31; Def. 56.1 Statement ¶¶ 114, 122.)
In general, plaintiff alleges that there is an "in group" of CEOs, which is respected by the superiors and the "elite or special handlers," and an "out group," which is not, and that she has always been part of the "out group." (Def. 56.1 Statement ¶¶ 103, 114.) It is generally known that plaintiff is disliked. (See, e.g., id. ¶ 129.) She also claims that she has been treated in a "harsh manner," "singled out," and put in the "hot seat" by her supervisor, SCEO Steve Failla. (Def. 56.1 Statement ¶¶ 118, 124.)
Plaintiff also alleges specific instances of discrimination. For instance, she complains of being yelled at by SCEO Failla "in a violent manner for no justifiable reason." (Pl. 56.1 Statement ¶ 120.) She also claims she was discriminately threatened and disciplined on numerous occasions. (Def. 56.1 Statement ¶¶ 121-23, 126.) Rumors were spread about plaintiff (Id. ¶¶ 125, 132) and posters mocking her were found in and around the workplace (Id. ¶¶ 133-35.) Plaintiff also complains that her supervisor made inappropriate comments with sexual overtones. (Id. ¶ 136.) She claims that she has been given unfair work assignments and overtime assignments (Pl. 56.1 Statement ¶¶ 147-48; Compl. ¶¶ 22(l), (q), (r)) and is not trained in the same way as others (Pl. 56.1 Statement ¶¶ 167-68; Compl. ¶¶ 22(s) - (u)).
Plaintiff first contacted an Equal Employment Opportunity ("EEO") counselor on April 27, 2001. (Def. 56.1 Statement ¶ 138.) She then filed a formal discrimination complaint on July 12, 2001, claiming that she had been discriminated against on the basis of her sex and disability. (Id. ¶ 139.)
In October 2001, a meeting was held to discuss plaintiff's complaint. (Id. ¶ 89.) Plaintiff attended this meeting, along with the EEO investigator and another EEO representative, a union representative, Area Director Susan Mitchell (the senior Customs Service official at JFK Airport), and Assistant Area Director Joe Rivera. (Id.) Plaintiff became upset and started crying during this meeting. (Id.) At the meeting, Mitchell requested that plaintiff provide the agency with medical documentation about her ADHD and how it might affect her duties as a CEO, including her ability to carry a firearm. (Id. ¶ 90.) In response to this request, Dr. Feldman of the Long Island Counseling Center ("LICC") wrote a letter on October 29, 2001, documenting plaintiff's ADHD and stating, in sum and substance, that plaintiff had responded well to treatment and medication, should be able to function in her capacity as a CEO, but could benefit from workplace accommodations. (Id. ¶ 92.) On December 4, 2001, Dr. Feldman wrote another letter for plaintiff in response to a request from the EEO office. (Id. ¶ 94.) In contrast to the October letter, this letter stated that plaintiff's ADHD has interfered in all aspects of her life, including her functioning on the job. (Id.)
By letter dated February 26, 2002, Mitchell placed plaintiff on restricted duty, suspended her authority to carry a firearm, and directed her to undergo a fitness-for-duty examination. (Id. ¶ 96.) To comply with this request, plaintiff first submitted to a physical examination by Dr. Avram Nemetz. Dr. Nemetz examined plaintiff and recommended that she undergo a "full evaluation by an independent psychiatric consultant." (Id. ¶ 97.) By letter dated March 28, 2002, Mitchell directed plaintiff to undergo such an evaluation by Dr. Paul Podell, to evaluate plaintiff's capability to perform the full range of duties required of a CEO. (Id. ¶ 98.) The examination by Dr. Podell took place on April 9, 2002. (Id. ¶ 99.) Dr. Podell concluded that plaintiff's condition does not prevent her from pursuing her full duties as a CEO. (Id.) On April 19, 2002, Area Director Mitchell restored plaintiff to full duty status, effective immediately. (Id. ¶ 100.)
Plaintiff amended her EEO complaint on March 26, 2002 to add a claim for retaliation. (Id. ¶ 141.) On July 29, 2003, DHS issued a final agency decision denying plaintiff's claims in their entirety. (Id. ¶ 143). Plaintiff then filed this action on October 27, 2003.
A. Summary Judgment Standard
A motion for summary judgment may not be granted unless the court determines that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). Yet, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). It is not enough for the party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (internal quotations omitted).
There are special dangers in evaluating summary judgment motions in connection with claims of discrimination. "Because direct evidence of . . . 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) (quoting Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)). "However, even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Id. (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). Summary judgment continues to "remain available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." Pender v. State of New York Office of Mental Retardation and Developmental Disabilities, No. 02 CV 2438, 2006 WL 2013863, at *3-4 (E.D.N.Y. July 18, 2006) (citing McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); Abdu-Brisson v. Delta Air Lines, Inc., 239 F .3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.")). It is with these standards in mind that I address defendant's motion.
B. Substantive Rehabilitation Act Claims
Plaintiff claims substantive violations of the Rehabilitation Act in the form of disparate treatment, hostile work environment, and failure to accommodate. The Second Circuit analyzes such claims using the McDonnell Douglas burden-shifting analysis. See Regional Economic Community Action Program, Inc. v. City of Middletown ("RECAP"), 294 F.3d 35, 48-49 (2d Cir. 2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Under McDonnell Douglas, the initial burden is on the plaintiff to state a prima facie case. Id. In order to do so, plaintiff must demonstrate: (1) that she is a member of the class protected by the statute; (2) that she is qualified for the position; (3) that she suffered some adverse employment action; and (4) that the circumstances surrounding the adverse employment action give rise to an inference of discrimination. Nakis v. Potter, 422 F. Supp. 2d 398, 417-18 (S.D.N.Y. 2006) (citing Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2d Cir. 2003)).
Discrimination claims under the Rehabilitation Act are treated almost identically to claims brought under the Americans with Disabilities Act ("ADA") and cases interpreting the ADA are relevant to our discussion. RECAP, 294 F.3d 35, 48-49 (2d Cir. 2002); see also Peters v. Baldwin Union Free School Dist., 320 F.3d 164, 168 n. 4 (2d Cir. 2003) (citation omitted). The only difference is that under the Rehabilitation Act the defendant must have discriminated against the plaintiff "solely" because of the plaintiff's disability; under the ADA, it is enough if the plaintiff's disability was a motivating factor in the discrimination. RECAP, 294 F.3d at 48-49; Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000).
1. Member of the Protected Class: Is Plaintiff Disabled?
To make a prima facie showing of disability discrimination, plaintiff must first show that she is disabled. Le Prevost v. New York State, No. 03 CV 2544, 2006 WL 2819582, at * 6 (S.D.N.Y. Sept. 29, 2006). The Rehabilitation Act defines an "individual with a disability" as any person who: "has a physical or mental impairment that substantially limits one or more of the major life activities of such individual;" "has a record of such an impairment;" or "is regarded as having such an impairment." 29 U.S.C. § 705(20)(B). Plaintiff argues only that she qualifies under the first category. To satisfy the threshold inquiry into whether she has a substantially limiting impairment, the plaintiff must establish: (1) that she has suffered a physical or mental impairment; (2) that a major life activity is affected by the impairment; and (3) that the major life activity is substantially affected by the impairment. Le Prevost v. New York State, No. 03 CV 2544, 2006 WL 2819582, at * 6 (S.D.N.Y. Sept. 29, 2006)(emphasis in original) (citingBragdon v. Abbott, 524 U.S. 624, 631 (1998)).
Plaintiff satisfies the first prong of this analysis. Plaintiff is afflicted by ADHD, which qualifies as an impairment. DeMar v. Car-Freshner Corp., 49 F. Supp. 2d 84, 89 (N.D.N.Y. 1999) (citing Bercovitch v. Baldwin School, 133 F.3d 141, 155 (1st Cir. 1998) (noting that "while ADHD is not a learning disability per se, it is listed as a 'mental disorder' in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSMIV)")). However, merely having an impairment does not make one disabled for purposes of the Rehabilitation Act. See, e.g., Spychalsky v. Sullivan, No. 01 CV 0958, 2003 WL 22071602, at *7 (E.D.N.Y. Aug. 29, 2003) (internal citations omitted).
"The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual." Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88, 96 (2d Cir. 2003). To qualify as disabled, plaintiff must demonstrate that her impairment substantially limits a major life activity. The burden is on plaintiff to demonstrate this.
b. Plaintiff's Impairment Affects Major Life Activities
According to plaintiff, her ADHD affects three major life activities: learning, interacting with others, and "self-expression," which is how plaintiff labels the ability to express herself orally and in writing. (Pl. Mem. of Law 6.) It must first be determined whether or not these are major life activities within the meaning of the statute. Neither the Rehabilitation Act nor the ADA provide examples of such activities; however, regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") define "major life activities" to include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."
29 C.F.R. § 1630.2(i). As the Supreme Court has noted, "this list is illustrative, and not exhaustive." Colwell v. Suffolk County Police Dep't., 158 F.3d 635, 642 (2d Cir. 1998)(citingBragdon v. Abbott, 524 U.S. 624, 625 (1998)).
EEOC regulations establish that learning is a major life activity. The Second Circuit has held that "interacting with others" can qualify as one as well. Jacques v. DiMarzio, 386 F.3d 192, 202 (2d Cir. 2004); see also, LaBella v. New York City Admin. for Children's Services, No. 02 CV 2355, 2005 WL 2077192, at *12 (E.D.N.Y. March 28, 2005). The final category, "ability to express oneself" (Pl. Mem. of Law 6), has never been addressed by the Second Circuit or any other federal court and the plaintiff has offered no authority on its behalf. Writing has been discussed as a major life activity, Frank v. Plaza Const. Corp., 186 F. Supp. 2d 420, 434 (S.D.N.Y. 2002), though it has never been held as such. Because it is clear that plaintiff is not substantially limited in this category, this Court need not decide whether or not it is a major life activity.
c. Plaintiff is Not Substantially Limited in Any Major Life Activity
To qualify as disabled within the meaning of the Rehabilitation Act, the plaintiff must be substantially limited in one of these major life activities. Beason v. United Technologies Corp., 337 F.3d 271, 277 (2d Cir. 2003). This standard is interpreted strictly. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2005). An impairment substantially affects a major life activity only if a person is (a) unable to perform that activity as a result of the impairment, or (b) if the duration, manner, or condition under which an individual can perform that activity is significantly restricted compared to the average person performing the same activity. 29 C.F.R. § 1630.2(j)(1); Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999). "Minor and temporary impairments of one's ability to engage in major life activities are not actionable." Chandler v. AMR American Eagle Airline, 251 F. Supp. 2d 1173, 1181-82 (E.D.N.Y. 2003) (citing Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643-44 (2d Cir. 1998)).
Plaintiff has not alleged that she is unable to perform any major life activity, and the record demonstrates that she could not make such an argument. In order to qualify as disabled, therefore, plaintiff must show that her ability to perform a major life activity is significantly restricted compared to the average person performing the same activity. 29 C.F.R. § 1630.2(j)(1). This determination is fact specific and must be made on a case-by-case basis. Reeves v. Johnson Controls World Serv., Inc., 140 F.3d 144, 151 (2d Cir. 1998); Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 872 (2d Cir. 1998). Summary judgment will be granted if plaintiff fails to adduce specific facts demonstrating such a limitation. See, e.g., Blank v. Investec Ernst & Co., No. 97 CV 3260, 2004 WL 2725138, at *5 (S.D.N.Y. Nov. 29, 2004) (citing Chandler, 251 ...