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Marro v. Nicholson

March 12, 2008


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Plaintiff Anthony Marro ("plaintiff" or "Marro") brought this action on December 15, 2006 against his former employer, the Department of Veterans Affairs ("defendant" or the "VA"). The action has two components. First, plaintiff alleges employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Specifically, in this lawsuit, Marro alleges that the VA violated Title VII by terminating him in retaliation for various discrimination complaints he has filed with the Equal Employment Opportunity Commission (the "EEOC") over the years against supervisor Robert S. Schuster ("Schuster"), as well as a 2005 gender-based discrimination complaint. Second, pursuant to 5 U.S.C. § 7703, plaintiff asks the Court to set aside the decision of the Merit Systems Protection Board (the "MSPB") affirming plaintiff's termination. In particular, the MSPB concluded that Marro's termination was justified because he had received, opened, and forwarded sexually explicit material using the VA's computer system and, thus, violated defendant's policies regarding appropriate computer use.

Defendant now moves for summary judgment on all claims, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. At the same time, plaintiff crossmoves for summary judgment on the claims related to the decision of the MSPB. For the reasons set forth below, after reviewing the discrimination claim de novo and the non-discrimination claim on the administrative record, the Court grants defendant's motion in its entirety, and therefore denies plaintiff's cross-motion in its entirety.

I. FACTS*fn1

The Court has taken the facts described below from the parties' depositions, affidavits, exhibits, and respective Local Rule 56.1 statements of facts, as well as from the MSPB administrative record submitted by the parties. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001).

A. Plaintiff's Employment History With Defendant

Marro is a former employee of the VA, where he served as a Budget Analyst at the VA Hospital in Northport, Long Island (the "VANorthport"). (Def.'s Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Def.'s 56.1") ¶ 1.) Plaintiff began working at the VANorthport in October 1985. (Marro Dep. at 12:13-17.)

(1) EEOC Activity

Marro filed approximately six EEOC complaints in the course of his employment at the VA. (Marro Dep. at 49:12-15.) Facts relating to the complaints relevant to the instant motion are set forth below.

a. Schuster

Between approximately 1982 or 1983 to 1991 or 1992, Schuster served as Chief Fiscal Officer at the VA-Northport and, in that capacity, was Marro's supervisor. (Schuster Dep. at 5:17-6:12.) In 1991, plaintiff filed an EEOC complaint against Schuster and another of Marro's supervisors alleging that they had failed to accommodate a psychiatric disability Marro suffered after a car accident. (Marro Dep. at 44:8-47:13.)

Further, also in approximately 1991, Marro filed an EEOC complaint against Schuster's secretary for discrimination arising from a "breach of security," i.e., the secretary allegedly accessed plaintiff's computer. (Marro Dep. at 48:2-14.) Marro could not recall the discrimination component of this complaint, but stated with respect to the alleged breach that "I think Mr. Schuster put her up to it because she was Mr. Schuster's secretary, and that they want - I am not really sure what it is now." (Marro Dep. at 48:8-14.)

Marro testified that, subsequently, "Mr Schuster - because he seen that there was a pattern of EEO complaints that I was filing, he started making life very, very difficult for me, to the point that he was even making it difficult to perform my duty, my work, and then what he was doing, he was holding information so I couldn't complete certain tasks." (Transcript of MSPB Hearing ("Hearing Tr.") at 227:4-14.)

Schuster was not assigned to the VANorthport from 1993 to 2003. (Def.'s 56.1 ¶ 19.) Marro made no complaint against Schuster after Schuster returned to the VANorthport in 2003. (Def.'s 56.1 ¶ 21.) Schuster never mentioned Marro's prior EEOC activity to plaintiff when Schuster returned. (Marro Dep. 51:25-52:2-6.)

b. Nancy Mirone

Nancy Mirone began working at the VANorthport, as its Fiscal Officer, in 2001. (Mirone Dep. at 4:13-16.) Mirone was Marro's supervisor. (Mirone Dep. at 12:2-4.) Plaintiff's EEOC complaints in 2002, 2004, and 2006*fn2 were only against Mirone, and not Schuster. (Def.'s 56.1 ¶ 20.) However, Marro has stated that he was "sure" Mirone knew of his earlier EEOC complaints against Schuster and other supervisors "because I am sure they are briefed when they come to - when they take on a new position." (Marro Dep. 51:15-18.) He stated that such briefings were "the normal procedures." (Marro Dep. 51:20.) However, Marro also stated that Mirone never mentioned plaintiff's prior EEOC activity, i.e., the activity related to Schuster and plaintiff's other supervisors, to plaintiff. (Marro Dep. 51:22-24.)

Marro testified that he had "difficulties" in his relationship with Mirone "all the time." (Hearing Tr. at 233:9-11.) For instance, when plaintiff returned from disability leave, Mirone had emptied out the contents of plaintiff's office. (Hearing Tr. at 233:13-15.) Plaintiff no longer had a private office and was, instead, placed in an area that was "heavily trafficated" [sic]. (Hearing Tr. at 235-36.) Mirone stripped Marro of certain of his duties, including making budget projections and attending meetings. (Hearing Tr. at 237:12-19.) According to plaintiff, she would also "ridicule" Marro in front of the staff. (Hearing Tr. at 239:7-8.)

In 2004, Marro filed an EEOC complaint against Mirone allegedly because "she was trying to frame [plaintiff] with telephone abuse." (Marro Dep. 40:15-19.) Specifically, Mirone had informed Marro that he had incurred five or six hundred dollars in personal phone charges, but plaintiff contended that they were attributable to telephone calls he made to physicians in relation to his wife's illness. (Marro Dep. 40-42.) Marro also suggested that "a lot of those phone calls didn't come from me, though, because my phone - it was in the middle of a room and my phone would be turned backwards when I came back from lunch." (Marro Dep. 42:18-22.) The EEOC complaint arising from the charges of telephone abuse alleged retaliation for prior EEOC complaints. (Marro Dep. 43-44.)

In 2005, Marro filed an EEOC complaint against Mirone because he was not selected for a promotion to a supervisory position. (Def.'s 56.1 ¶¶ 2-3.) Marro testified that rather than choose him for the supervisory position, Mirone hired her "close friend," who was female. (Hearing Tr. at 20-23.) Further, according to plaintiff, "most of the people that were being hired during that period were females." (Hearing Tr. at 242:23-24.) The 2005 EEOC complaint alleged gender discrimination and acts of reprisal for prior EEOC activity. (Def.'s 56.1 ¶ 3.) Marro filed the 2005 EEOC complaint informally in November 2005, and formally on December 22, 2005. (Def.'s 56.1 ¶ 3; Exh. M.)

B. The Investigation and Marro's Termination

On or about December 19, 2005, the VA commenced an investigation of Marro. (Def.'s 56.1 ¶ 4.) The investigation was conducted by Henry F. Schemitz ("Schemitz"), the Chief of Police at the VANorthport, and Detective Paul Romano ("Romano"). (Def.'s 56.1 ¶ 16.) Schemitz testified that the investigation of Marro began when Schemitz found sexually-explicit email between plaintiff and another employee of the VA-Northport, Joseph Nieves ("Nieves") in the course of investigating Nieves for a separate violation. (See Schemitz Dep. at 25:4-26:15.)*fn3

Plaintiff was placed on "non-duty" status with pay effective February 8, 2006 while the pending investigation proceeded. (Def.'s 56.1 ¶ 5.) Mirone proposed removal of Marro by notice dated February 24, 2006. (Pl.'s Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Pl.'s 56.1") ¶ 2.) The Notice of Proposed Removal contained two charges against plaintiff (the "charges"). (Pl.'s 56.1 ¶ 3.)

The first of the charges stated as follows:

You are charged with the inappropriate use of a government computer system in that you failed to follow a policy in accordance with the Rules of Behavior for VISTA and PC LAN, and VA Directive 6001, from 2000 through 2005 by receiving and opening, and forwarding sexually explicit material on your VA PC for the years 2000 to 2005.

(Id. ¶ 4.)

The second charge stated as follows:

You are charged with the inappropriate use of a government computer system in that you failed to follow policy in accordance with the Rules of Behavior for VISTA and PC LAN, and VA Directive 6001, and IRM-4, "Use of the V.A. Electronic Mail System" by your inappropriate personal use of your e-mail account.

(Pl.'s 56.1 ¶ 5.) Mirone based this Notice of Proposed Removal on conversations with Marro, Aaron Fields ("Fields"), Schemitz, and Sandra Gantz ("Gantz"). (Pl.'s 56.1 ¶ 16.) Fields was the VA's attorney in the MSPB hearing in this matter, and Gantz worked in the Personnel Department. (Pl.'s 56.1 ¶¶ 15-16.) No record was made of any of these discussions, except for the conversation with Marro. (Pl.'s 56.1 ¶ 17.)

In particular, Mirone's conversation with Marro took the form of a "fact-finding" on February 8, 2006 (the "fact-finding"). (Pl.'s 56.1 ¶ 22.) At the fact-finding, Mirone did not show plaintiff the emails or other electronic material in question.*fn4 (Pl.'s 56.1 ¶ 23.) Although Mirone recalled Marro denying any knowledge of receiving, opening, or forwarding sexually explicit or pornographic material through his government email account, she never undertook any follow-up after these denials. (Pl.'s 56.1 ¶ 24.)

On March 6, 2006, Marro amended the 2005 EEOC Complaint to include two additional complaints of discrimination based on his placement on non-duty status and the Notice of Removal. (Def.'s 56.1 ¶ 6.)

Schuster removed Marro by notice dated March 23, 2006, effective April 11, 2006. (Pl.'s 56.1 ¶ 6.) Schuster was the supervisor who terminated plaintiff. (Def.'s 56.1 ¶ 14.)

Neither Mirone (the "proposing official") nor Schuster (the "deciding official") has ever reviewed Exhibit 4T. (Pl.'s 56.1 ¶ 9.)

C. Proceedings Before the MSPB

Plaintiff challenged his removal by filing an appeal with the MSPB, citing retaliation for prior EEOC activity. (Def.'s 56.1 ¶ 8.) On August 10, 2006 and August 11, 2006, an administrative law judge ("ALJ") conducted a hearing on this appeal (the "hearing"). (Def.'s 56.1 ¶ 9.)

The ALJ upheld Marro's removal and rejected his discrimination claim in the Initial Order, dated August 25, 2006 (the "Initial Order"). (Def.'s 56.1 ¶ 10.)

By Final Order dated November 16, 2006 (the "Final Order"), the MSPB denied plaintiff's appeal of the ALJ's decision. (Def.'s 56.1 ¶ 11.)*fn5


The VA submitted the instant motion on October 22, 2007. Marro submitted his opposition and cross-motion on November 23, 2007, but did not address the section of the VA's motion requesting summary judgment on the Title VII claim.*fn6 The VA submitted a reply brief on its own motion and opposed plaintiff's cross-motion on December 21, 2007. Marro submitted a reply brief on his cross-motion on January 2, 2008. The Court held oral argument on February 15, 2008.


As set forth below, the Court applies separate standards of review to defendant's motion for summary judgment on the Title VII claim and plaintiff's appeal of his MSPB decision.

A. Title VII Claim

The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2004). 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. 242, 248 (1986) (holding that summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").

Once the moving party has met its burden, 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)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted); Tufariello v. Long Island R.R., 364 F. Supp. 2d 252, 256 (E.D.N.Y. 2005). Accordingly, it is insufficient for a 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). The Second Circuit has provided additional guidance regarding summary judgment motions in discrimination cases:

We have sometimes noted that an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions. See, e.g. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, "summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also 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.").

Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001)).

B. MSPB Appeal

"Pursuant to the provisions of the Civil Service Reform Act of 1978, 5 U.S.C. § 7701 et seq. (the "CSRA"), qualified federal employees may appeal certain adverse employment decisions to the [MSPB]. If the case is a `mixed case,' in other words involves an appeal from an ordinary personnel action coupled with an allegation that the action was discriminatory, the CSRA sets forth special procedures for review by a federal court." Murray v. U.S. Dep't of Justice, 821 F. Supp. 94, 101 (E.D.N.Y. 1993), aff'd, 14 F.3d 591 (2d Cir. 1993); see also Fernandez v. Chertoff, 471 F.3d 45, 53 (2d Cir. 2006) ("[A] `mixed' case involves both a claim of discrimination and a challenge to other types of prohibited personnel actions taken by the agency that are ultimately appealable to the [MSPB].") (emphasis in original). Here, because Marro's appeal to the MSPB not only challenged his removal, but also alleged that his termination was an act of discriminatory retaliation, this is a mixed case subject to the aforementioned "special procedures." In particular, "[w]hile petitions for judicial review of MSPB actions are ordinarily filed in the Court of Appeals for the Federal Circuit and reviewed on the administrative record, 5 U.S.C. §[§] 7703(b)(1), 7701(c)(1)-(3), in a `mixed case' judicial review of the final Board order lies in the district court. 5 U.S.C. § 7703(b)(2). The court must review the discrimination claim de novo, 5 U.S.C. § 7703(c), and the non-discrimination claim on the administrative record." Murray, 821 F. Supp. at 101; see also Hamilton v. Dep't of Labor, 04 Civ. 9605, 2006 U.S. Dist. LEXIS 12818, at *9 (S.D.N.Y. Mar. 23, 2006) ("In cases presenting discrimination and nondiscrimination claims, known as `mixed' cases, `the district court may review the discrimination claim de novo, and . . . the district court may review the nondiscrimination claims in the manner of review by the Federal Circuit Court of Appeals, i.e., on the administrative record.") (quoting Ugarte v. Johnson, 40 F. Supp. 2d 178, 181 (S.D.N.Y. 1999)). Thus, the Court will review Marro's retaliation claim raised before the MSPB de novo, and the challenge to his removal on the administrative record.


A. Title VII Claim

For the reasons set forth below, after conducting a de novo review of the discrimination claim, the Court grants summary ...

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