The opinion of the court was delivered by: John Gleeson, United States District Judge
ELECTRONIC PUBLICATION ONLY
Kevin Delaney, Thomas Fitzgerald, John Kaplun, John Landi, David Mangene, Kent Mitchell, Chris Piccola, Robert Serviss, John E. Smith and Peter Wong bring this employment discrimination action against the United States Department of Transportation ("DOT") and its secretary, Ray LaHood,*fn1 asserting unlawful sex and race discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. Specifically, plaintiffs allege that (1) they were put on administrative leave in July 2005 and terminated in October 2005 due to discrimination against them because they are white males, and (2) after they were reinstated in December 2005 pursuant to an agreement reached at arbitration, they were subjected to various acts of retaliation. The defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the motion is granted.
Plaintiffs are ten past or current air traffic controllers employed by the Federal Aviation Administration ("FAA"), an operating division of the DOT, at the New York Terminal Radar Approach Control ("TRACON") facility in Westbury, New York. For the purposes of the instant motion, I accept the undisputed facts as true and resolve the disputed facts in favor of the plaintiffs where there is evidence to support their versions of the events.
A. The Investigation Leading to the Administrative Leave and Termination of Plaintiffs
On July 9, 2002, DOT Deputy Assistant Inspector General for Aviation, David A. Dobbs, notified DOT Assistant Inspector General for Investigations, Charles H. Lee, of the potential abuse of Workers' Compensation traumatic injury claims by TRACON air traffic controllers. As a result of an audit, Dobbs had determined that many primarily stress-related claims, which involved the same diagnosing physicians, appeared "questionable, at best" and merited investigation. DOT's 56.1 Statement ¶ 7 & Ex. B. The matter was referred to the DOT Inspector General ("DOT IG") for further action. Id.
DOT IG Special Agent Daniel Helzner investigated the allegations, focusing on whether Workers' Compensation claims filed by TRACON air traffic controllers warranted referral to the Department of Labor Inspector General ("DOL IG"). The DOL IG, and not the DOT IG, has the jurisdiction to pursue administrative and criminal action related to Workers' Compensation claims because the DOL administers the Workers' Compensation program. DOT's 56.1 Statement ¶ 8 & Ex. C ("Helzner Dep.") at 28. Helzner conducted his investigation by reviewing documents such as Workers' Compensation claims and supporting medical records. He also visited TRACON on numerous occasions during the period from August 2002 to June 2005, where he met with Irene Grefe, an Employee Development Specialist at TRACON, and other members of management. DOT's 56.1 Statement ¶ 9; Helzner Dep. at 24; Pls.' 56.1 Statement ¶ 9 & Exs. I, S. Helzner did not meet any of the air traffic controllers who were the subjects of the investigation until he testified at the arbitration in December 2005. DOT's 56.1 Statement ¶ 9; Helzner Dep. at 21-23*.*fn3
In late 2002 or early 2003, Helzner informed the DOL IG of the TRACON air traffic controllers' questionable Workers' Compensation claims. However, the DOL IG did not indicate that it intended to take any action. DOT's 56.1 Statement ¶ 10; Helzner Dep. at 28. In the beginning of 2003, Helzner shifted the focus of his investigation to determining whether the air traffic controllers had disclosed the medical conditions and treatment underlying their Workers' Compensation claims on their FAA Airmen Medical Certificate Form 8500-8 ("8500"). DOT's 56.1 Statement ¶ 11; Helzner Dep. at 30-32, 40*.
Air traffic controllers must obtain medical certification on a regular basis to work. To be medically certified, an air traffic controller must undergo a physical examination by an FAA-approved physician on or about his or her birthday and forward a completed 8500 to the FAA flight surgeon for review. DOT's 56.1 Statement ¶ 12, Ex. D & Ex. E ("Piccola Dep.") at 15-17. Form 8500 states that an air traffic controller must (1) make full voluntary self-disclosure at box 18 of his or her medical history, and (2) list all visits to health professionals within three years at box 19. In addition, by signing his or her name in box 20 of the 8500, an air traffic controller "certif[ies] that all statements and answers provided . are complete and true to the best of [his or her] knowledge." DOT's 56.1 Statement ¶ 13 & Ex. D at 1.
Based on his review of Workers' Compensation records, Helzner decided additional investigation was warranted for 20 air traffic controllers. Specifically, the question was whether they disclosed on their 8500s the conditions and treatment underlying their Workers' Compensation claims. Helzner was not aware at that time of the race or ethnicity of these 20 individuals. DOT's 56.1 Statement ¶ 14; Helzner Dep. at 22-23*. Plaintiffs contest the defendants' assertion that Helzner alone -- without the consult of management officials from TRACON -- determined which 20 individuals would be investigated. DOT's 56.1 Statement ¶ 14; Pls.' 56.1 Statement ¶ 14. Because it does not concern a fact that is material for the purposes of this motion, resolution of this disputed issue is not necessary.
By a March 7, 2003 memorandum to Warren Silberman, the manager of the FAA Aeromedical Certification Division, and a March 24, 2003 memorandum to Dr. Harriet Lester, the regional flight surgeon for the eastern region, Helzner's supervisor, William Owens, requested 8500s for the 20 individuals under investigation, including the 10 plaintiffs in this action.*fn4 DOT's 56.1 Statement ¶ 15 & Exs. F, G. Owens received 8500s for each of those individuals except for Frederick Jones. Plaintiffs' 56.1 Statement ¶ 15.
B. The Reports of Investigation
Based on a comparison of the Workers' Compensation records to the corresponding 8500s on which disclosure would be required, Helzner prepared 14 Reports of Investigation ("ROIs"): one for each of the ten plaintiffs here and one each for four non-parties (Hong, Lindholm, Mark Boyer and Henry). The ROIs recited facts, set forth the evidence collected, and attached relevant documents. DOT's 56.1 Statement ¶ 16. They referred the 14 individuals because each had omitted medical information on his 8500 that he had used as the basis for a Workers' Compensation claim with the DOL. The DOT IG's office did not have the authority to take disciplinary action against FAA employees, nor did it make any recommendation as to what action, if any, the deciding officials should take. DOT's 56.1 Statement ¶ 17; Helzner Decl. of May 21, 2009 (submitted as Ex. B to DOT's May 21, 2009 supplemental submission), ¶ 6; Helzner's arbitration testimony of Dec. 5, 2005 (submitted as Ex. C to DOT's May 21, 2009 supplemental submission) at 174-76.
Helzner did not compile an ROI for (or refer) Manuel Lugris or Raymond Maldonado (both of whom allegedly received preferential treatment because they are Hispanic) for any action because Lugris and Maldonado disclosed on their 8500s their medical conditions and visits underlying their Workers' Compensation claims that were being investigated. DOT's 56.1 Statement ¶ 18-19 & Exs. I, J; Helzner Dep. at 80-81*. According to defendants, Helzner did not compile an ROI for or refer Frederick Jones (who allegedly received preferential treatment because he is African-American) for any action because Jones's 8500 had not been due, was not completed and thus was not forwarded when the DOT IG requested and received 8500s in March 2003. Jones's 8500 for the pertinent period was not submitted until June 13, 2003. DOT's 56.1 Statement ¶ 20. Plaintiffs dispute the facts about Jones's 8500 and state that Helzner had or should have had Jones's 8500 from years prior to 2003, upon which Jones had omitted information and/or made false statements. Plaintiffs' 56.1 Statement ¶ 20 & Ex. D. Here again, it is not necessary to resolve this dispute because it does not concern a fact that is material to the outcome of the motion.
In addition, ROIs were not compiled and no referrals were made for the three remaining individuals for whom 8500s had been requested in the March 2003 memoranda. No action was taken with respect to Thomas Crist because he had disclosed on his 8500 the medical condition that was the basis for his Workers' Compensation claim. Roger Bender retired in April 2004, before the ROIs were compiled and sent. Joanne Boyer was in the process of being removed from the FAA as of February 2004, before the ROIs were compiled and sent. DOT's 56.1 Statement ¶ 21 & Ex. C at 67, 108*; Helzner Decl. of May 21, 2009, ¶ 4.
C. The Administrative Leaves and Removals of Plaintiffs
In July 2005, ROIs for the ten plaintiffs and for non-plaintiff Wuon Hong, all of whom continued to work at the New York TRACON, were directed to Jeffrey Clarke, the Air Traffic Manager of the New York TRACON. The ROIs for non-plaintiffs Lindholm, Henry and Boyer were not forwarded to Clarke because they were no longer employed at New York TRACON. DOT's 56.1 Statement ¶ 22 and Ex. L; Helzner arbitration testimony of Dec. 5, 2005 at 176-77; Helzner Decl. of May 21, 2009, ¶¶ 7-9.*fn5
After consulting with Human Resources and regional counsel, Clarke issued Notices of Proposed Removal, dated July 28, 2005, to each of the 11 air traffic controllers whose ROIs were referred to him. The notices specified the basis for the proposed removal (failure to disclose on the 8500 medical information used to make Workers' Compensation claims) and provided an opportunity to contest the proposed action. A few days later, the air traffic controllers were placed on paid administrative leave pending a final decision. DOT's 56.1 Statement ¶ 24 & Ex. L at 103-107*.
By notice dated August 19, 2005, Dean Iacopelli, the president of the plaintiffs' union, the National Air Traffic Controllers Association ("NATCA"), filed a grievance regarding the proposed removal under the provisions of Article 9 of the parties' collective bargaining agreement. DOT's 56.1 Statement ¶ 25 & Exs. N, O. In relevant part, Article 9, section 4, allows allegations of discrimination to be raised in the grievance procedures. It states:
In matters relating to Title 5 U.S.C. 2302(b)(1) dealing with certain discriminatory practices, an aggrieved employee shall have the option of utilizing this grievance procedure or any other procedure available in law or regulation, but not both.
DOT's 56.1 Statement ¶ 25. However, discrimination claims were not alleged in the grievance.
In a letter dated September 9, 2005, William W. Osborne, Jr., NATCA-appointed counsel for the 10 plaintiffs and Wuon Hong, responded to the 11 notices of proposed removal. He argued, among other things, that the TRACON controllers had not committed any misconduct and that the discipline imposed was too severe and violative of the factors set forth in Douglas v. Veterans Administration, 5 M.S.P.B. 313, 5 M.S.P.R. 280 (MSPB 1981). DOT's 56.1 Statement ¶ 26 & Ex. P. Clarke rejected those contentions and terminated the 11 air traffic controllers by Notices of Removal dated October 14, 2005. DOT's 56.1 Statement ¶ 27 & Ex. Q. As a result, NATCA requested and received consolidation and expedited arbitration of the 11 cases. DOT's 56.1 Statement ¶ 28 & Ex. R.
Arbitration proceedings were held on November 7 and December 5, 7 and 8, 2005. DOT's 56.1 Statement ¶ 29 & Ex. S. At the arbitration, plaintiffs did not raise any allegations of discrimination. On December 7, 2005, plaintiffs' counsel, Osborne, asked Clarke, who is African-American, the following questions on cross-examination:
[BY MR. OSBORNE]: Did you ever talk to [Dean Iacopelli, the president of NATCA] about controllers Jones and Maldonado?
A: Yes, we have had a discussion about Jones and Maldonado.
Q: That they were on one of these lists and yet they weren't disciplined?
Q: I am not suggesting you to tell me that that is accurate, but there was a discussion about a Mr. Jones and a Mr. Maldonado?
A: Yes there was a discussion about it.
Q: They are working today?
Q: There was some question about them [Jones and Maldonado] being on an IG list with respect to their 8500 forms?
A: Kind of like that. I called him [Dean Iacopelli] about a rumor I heard.
Q: Fair enough. I am not trying to get into it more than that.
DOT's 56.1 Statement ¶ 30 & Ex. S at 490-92. On redirect examination by the FAA's attorney, Elizabeth Head, Clarke testified about the relevance of Mr. Iacopelli's inquiry:
[BY MS. HEAD]: What was the point of Mr. Iacopelli's inquiry to you about those two individuals [Jones and Maldonado]? Do you remember that?
A: He really didn't inquire to me. I inquired to him. I asked him -- I told him I heard a very ugly rumor.
A: The rumor was that I had manipulated the list of people and I did not want to take disciplinary action against any black people so I took the names Ray Maldonado, and I believe it is, Freddy Jones, off the list. So I told him that that was a pretty ugly rumor and it was pretty offensive to me that anyone would start a rumor like that. And he said that he had also heard that rumor. He says, "I want to assure you that NATCA did not start that rumor."
MR. OSBORNE: That is not a position we have taken or are taking in this case, period.
ARBITRATOR JAFFE: Thank you for that clarification.
DOT's 56.1 Statement ¶ 31 & Ex. S at 538-39.
When the testimony concluded on December 8, 2005, the parties jointly asked the arbitrator to mediate settlement discussions, which included ex parte discussions addressing the merits. DOT's 56.1 Statement ¶ 32 & Ex. S at 616, 619. Before proceeding to mediate a settlement, the arbitrator detailed how the process would be conducted and specifically requested and received the consent of each individual plaintiff. DOT's 56.1 Statement ¶ 32 & Ex. S at 627-631.
The mediated settlement discussions were successful. On December 9, 2005, the parties entered into, and the arbitrator signed, a Stipulated Award under which plaintiffs would be reinstated, with certain back pay, less an agreed-upon unpaid suspension. The Stipulated Award provided:
At the close of the evidentiary record on December 8, 2005, the Parties requested that I attempt to facilitate a resolution of these disputes. . After protracted mediation, the Parties reached an agreement settling each of the grievances and asked that I memorialize their agreement in the form of a Stipulated Award. The Parties are to be commended for finding terms that resolved this dispute. I find that these terms are eminently fair, reasonable, and responsible given the facts and circumstances which led to the removals in these cases. It should also be noted that each of the individual Grievants expressly noted their consent to the terms of the settlement and to the entry of this Stipulated Award. . This Stipulated Award resolves, in full, all claims arising out of the removals of the Grievants or the instant grievances.
DOT's 56.1 Statement ¶ 33 & Ex. T.
E. Plaintiff's EEO Proceedings
The plaintiffs returned to work on December 12, 2005. Thereafter, each plaintiff contacted an Equal Employment Opportunity ("EEO") counselor and filed an EEO complaint, alleging that: (1) their removals had been motivated by discrimination against them because they are all white males; and (2) upon returning to work they had been subjected to various acts of discrimination and retaliation. DOT's 56.1 Statement ¶ 34 & Exs. U1-U10. The following plaintiffs first contacted an EEO counselor on the following dates:
John Kaplun - January 19, 2006 (DOT's 56.1 Statement, Ex. V7)
John Landi - January 19, 2006 (Id. Ex. V8)
John Smith - January 19, 2006 (Id. Ex. V10)
Kevin Delaney - January 20, 2006 (Id. Ex. V6)
Robert Serviss - January 20, 2006 (Id. Ex. V9)
Christopher Piccola - January 23, 2006 (Id. Ex. V4)
Peter Wong - January 24, 2006 (Id. Ex. V5)
Thomas Fitzgerald - February 6, 2006 (Id., Ex. V1)
Kent Mitchell - February 9, 2006 (Id. Ex. V3)
David Mangene - February 23, 2006 (Id. Ex. V2)
Each of the plaintiffs' EEO complaints was dismissed, and with the exception of Delaney's, all the complaints were consolidated for the purposes of appeal to the E.E.O.C. Office of Federal Operations, which then affirmed the dismissal, initially by decision dated November 6, 2006, and on reconsideration by decision dated January 25, 2007. DOT's 56.1 Statement ¶ 37 & Exs. W, X. In relevant part, the E.E.O.C. ruled that: (1) plaintiffs elected to challenge their dismissal through the negotiated grievance procedures, which permitted them to raise allegations of discrimination, and thus could not maintain claims under the statutory procedures, i.e., Title VII, 42 U.S.C. § 2000e, et seq.; and (2) plaintiffs' claims of retaliation were meritless as a matter of law.
Delaney, who claimed, among other things, that he had been constructively discharged, appealed the dismissal of his EEO complaint in a proceeding before the Merit Systems Protection Board, Delaney v. Department of Transportation, NY-0752-07-0128-1-1. In a decision dated June 10, 2008, the board affirmed the administrative law judge's decision that Delaney failed to prove a constructive discharge. DOT's 56.1 Statement ¶ 38 & Ex. Y. Delaney appealed that decision to the United States Court of Appeals for the Federal Circuit, which, on April 3, 2009, affirmed the dismissal. DOT's 56.1 Statement ¶ 38 & Ex. Z.
The issue of back pay was raised in the grievance that led to the arbitration, and back pay was ordered by the arbitrator's Stipulated Award. DOT's 56.1 Statement ¶ 43 & Ex. T. On January 13, 2006, plaintiffs filed another grievance challenging the defendants' calculation of back pay. DOT's 56.1 Statement ¶ 43 & Ex. CC. The grievance was denied on February 2, 2006, and the parties did not appeal the denial. DOT's 56.1 Statement ¶ 43 & Ex. DD.
Plaintiffs filed their complaint on February 2, 2007. An amended complaint (adding Delaney as a plaintiff) was filed on October 5, 2007, alleging (1) discrimination based on race and gender and (2) retaliation. Plaintiffs seek back pay, front pay, benefits and compensatory damages in an amount to be determined at trial, plus attorney's fees. In addition, they ...