The opinion of the court was delivered by: Ramon E. Reyes, Jr. United States Magistrate Judge
On February 23, 2007, plaintiff Anthony Laudadio brought this action for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII") against Mike Johanns, in his official capacity as Secretary of the United States Department of Agriculture ("defendant"). Laudadio alleges that defendant discriminated against Laudadio on the basis of his race (white) and national origin (Italian-American) and retaliated against him for seeking Equal Employment Opportunity ("EEO") counseling and filing a complaint with the Equal Employment Opportunity Commission ("EEOC").*fn1
On August 25, 2008, defendant moved for summary judgment, arguing that plaintiff failed to (1) exhaust his administrative remedies and timely bring this action as to his first EEO complaint, (2) contact an EEO counselor timely regarding his second EEO complaint, and (3) establish his retaliation claim.*fn2 For the reasons set forth below, the motion is denied in its entirety.
Plaintiff Anthony Laudadio is currently employed by the United States Department of Agriculture's ("USDA") Food Safety Inspection Service ("FSIS") as a Consumer Safety Inspector. (Defendant's Amended*fn3 Statement of Undisputed Facts pursuant to Local Civil Rule 56.1 ("Def.'s 56.1 Stmt.") ¶ 1.)*fn4 Plaintiff has worked in this position since June 1990. (Id. ¶ 2.) He is responsible for inspecting meat processing plants and distributors throughout the five boroughs of New York City. (Id. ¶ 3.) Inspectors are assigned to a certain plant or distributor on a four-month basis (or, according to plaintiff, on a six-month basis as of 2002). (Def.'s 56.1 Stmt. ¶ 4; Plaintiff's Rule 56.1 Counterstatement of Material Facts ("Pl.'s 56.1 Stmt.") ¶ 4.) Along with the location change, an inspector's supervisor also changes on a four or six-month basis. (Def.'s 56.1 Stmt. ¶ 5; Pl.'s 56.1 Stmt. ¶ 5.) During the relevant time period, plaintiff had three direct supervisors: Salah Ibrahim ("Ibrahim"), Dr. Mohammad Qureshi ("Dr. Qureshi"), and Anthony Rossano ("Rossano"); and one Deputy District Manager: Michael Washington. (Def.'s 56.1 Stmt. ¶¶ 6--7.)
Laudadio's First EEO Complaint
In December 2000, plaintiff's wife was diagnosed with cancer, and unfortunately passed away on May 25, 2001. (Def.'s 56.1 Stmt. ¶¶ 8--9.) Because of his increased child care responsibilities, plaintiff was on leave from January 2001 until September 2001. (Def.'s 56.1 Stmt. ¶ 10.) At some point during that period, plaintiff exhausted his sick and annual leave, so he applied for and was placed on the leave donor plan, a pool which allows employees to donate their annual leave for use by colleagues in need. (Def.'s 56.1 Stmt. ¶ 11; Pl.'s 56.1 Stmt. ¶ 11.)
After returning to work in September 2001, plaintiff had no difficulty obtaining accommodations to his work schedule. (Def.'s 56.1 Stmt. ¶ 13.) However, in July 2003, plaintiff made a verbal request (and according to plaintiff, received a verbal approval) to exchange work assignments with a co-worker named Frank Lenna. (Def.'s 56.1 Stmt. ¶ 14; Pl.'s 56.1 Stmt. ¶ 14.) Plaintiff wanted to exchange assignments with Lenna in order to meet plaintiff's child care demands more easily (Lenna's assignment would have spared Laudadio overtime assignments and a lengthy commute to the Bronx from Laudadio's residence in the southern most part of Brooklyn). (Def.'s 56.1 Stmt. ¶ 15; Pl.'s 56.1 Stmt. ¶ 15; Declaration of Neil M. Frank in Opposition to Defendant's Motion for Summary Judgment ("Frank Decl."), Ex. P.
Plaintiff's union contract required employees to submit requests for assignment exchanges to their immediate supervisor(s) in writing at least four weeks in advance. (Def.'s 56.1 Stmt. ¶ 16; Pl.'s 56.1 Stmt. ¶ 16.) Dr. Qureshi and Ibrahim were the two supervisors whose permission plaintiff needed. (See Def.'s 56.1 Stmt. ¶ 16, 19, 21; Pl.'s 56.1 Stmt. ¶ 18.) Defendant claims that Laudadio failed to comply with this requirement because he submitted his written request via email less than four weeks before the proposed assignment exchange was to occur. (Def.'s 56.1 Stmt. ¶¶ 17, 18; Pl.'s 56.1 Stmt. ¶¶ 17, 18.) Plaintiff claims that he "wrote" his email request four weeks in advance, but contends that the e-mail arrived three days late due to a "black out." (Pl.'s 56.1 Stmt. ¶¶ 17, 18.) Laudadio also contends that, ordinarily, FSIS would readily waive the written requirement. (Pl.'s 56.1 Stmt. ¶ 16.) In any event, at some point, plaintiff was informed that Dr. Qureshi denied the exchange request because it was not made in compliance with the four-week notice provision in the union contract. (Def.'s 56.1 Stmt. ¶ 22; Pl.'s 56.1 Stmt. ¶ 22.)
On September 12, 2003, plaintiff requested EEO counseling based on the denial of his request for assignment exchange, claiming that the denial was a result of race and national origin discrimination. (Def.'s 56.1 Stmt. ¶ 23; Pl.'s 56.1 Stmt. ¶ 23.) On January 30, 2004, plaintiff filed a formal EEO complaint alleging discrimination on the basis of race (white) and national origin discrimination (Italian-American), and reprisal for plaintiff's informal EEO counseling. (Def.'s 56.1 Stmt. ¶ 24; Pl.'s 56.1 Stmt. ¶ 24.) On April 9, 2004, the USDA accepted and referred for investigation plaintiff's claim that he had been subjected to harassment (based on prior EEO activity) and was discriminated against on the basis of race, national origin, and family status when: (1) on August 30, 2003, he was denied his assignment-exchange request, (2) from July 2003 to January 2004, he was subjected to ethnically derogatory remarks, (3) in September 2003 he was threatened with being reassigned to a Long Island duck farm, (4) from October through November 2003, he was denied certain leave, and (5) from September 2003 through January 2004, he was denied performance appraisals. (Def.'s 56.1 Stmt. ¶ 25; Pl.'s 56.1 Stmt. ¶25.)
On August 15, 2004, Laudadio requested a hearing before the EEOC. (Def.'s 56.1 Stmt. ¶ 26; Pl.'s 56.1 Stmt. ¶ 26.) On October 19, 2004, the law firm of Zabell & Associates, LLP appeared on plaintiff's behalf in connection with the EEOC case. (Def.'s 56.1 Stmt. ¶ 27; Pl.'s 56.1 Stmt. ¶ 27.) On October 20, 2004, plaintiff failed to appear at a deposition that had been noticed by the USDA on October 7, 2004. (Def.'s 56.1 Stmt. ¶ 28; Pl.'s 56.1 Stmt. ¶ 28; Frank Decl., Ex. C at 2.) On October 21, 2004, the USDA moved to compel discovery, impose sanctions, and disqualify plaintiff's counsel. (Frank Decl., Ex. C at 2.) On November 3, 2004, plaintiff opposed the motion, arguing that the deposition was improperly noticed and his failure to appear was not in bad faith. (Id.) He also stated his intent to file suit in federal district court. (Id.)
On December 6, 2004, the EEOC Administrative Law Judge ("ALJ") issued a decision on the USDA's motion. (Id.) The ALJ found that the USDA had properly noticed the deposition, the plaintiff did not have a good cause for failing to appear, and it was appropriate to draw an adverse inference against the plaintiff on that basis. (Id.) The ALJ did not disqualify plaintiff's counsel. (Id.) The ALJ also indicated that if plaintiff wanted to withdraw his EEOC complaint, such a request must be submitted in writing. (Id.) Thereafter, the EEOC would dismiss the case and return it to the USDA's jurisdiction for a Final Agency Decision ("FAD") on the merits. (Id.)
On December 15, 2004, plaintiff's counsel withdrew his request for a hearing and requested a FAD. (Def.'s 56.1 Stmt. ¶ 29; Pl.'s 56.1 Stmt. ¶ 29.) On December 17, 2004, the ALJ dismissed Laudadio's request for an EEOC hearing and returned the case to the USDA for further action. (Def.'s 56.1 Stmt. ¶ 30; Pl.'s 56.1 Stmt. ¶ 30.) The USDA did not issue its FAD with respect to Laudadio's first EEO complaint until August 21, 2007, almost six months after Laudadio commenced this action in federal court. (See Frank Decl., Ex. E.; Dkt No. 1.) The FAD dismissed the claim pursuant to 29 C.F.R. § 1614.107(a) (3) as a "compliant that is the basis for a pending civil action in a United States District Court." (Frank Decl., Ex. E.) See also 29 C.F.R. § 1614.107(a) (3) (2007).
Laudadio's Second EEO Complaint Between April 19, 2004 and July 20, 2004, plaintiff took unscheduled leave (either sick or annual) on approximately thirty occasions. (Def.'s 56.1 Stmt. ¶ 32; Pl.'s 56.1 Stmt. ¶ 32.) Plaintiff claims that the vast majority of these occasions were authorized. (Pl.'s 56.1 Stmt. ¶ 32.) On May 13 and July 16, 2004, Ibrahim counseled and warned plaintiff about his use of leave time. (Def.'s 56.1 Stmt. ¶¶ 33--34; Pl.'s 56.1 Stmt. ¶¶ 33--34.) On July 22, 2004, Ibrahim gave plaintiff a Leave Restriction Notice limiting his use of unscheduled annual leave and requiring plaintiff to request annual leave at least as far in advance as the amount of leave requested, except in emergency situations ("Leave Restriction"). (Amended Declaration of Assistant United States Attorney Susan Riley in Support of Motion for Summary Judgment ("Riley Decl."), Ex. 17.) The notice further stated that sick leave will be granted only upon submission of a medical certificate, while emergency annual leave will require proof of an emergency situation. (Id.) The Leave Restriction Notice also informed plaintiff that taking leave without proper approval would be considered Absent Without Leave ("AWOL"). (Id.; Def.'s 56.1 Stmt. ¶ 39; Pl.'s 56.1 Stmt. ¶ 39.)
Plaintiff claims that on July 23, 2004, he telephoned Arthur Simmons, an FSIS EEO counselor to complain about the Leave Restriction Notice. (Def.'s 56.1 Stmt. ¶ 45; Pl.'s 56.1 Stmt. ¶ 45.) On the same day, plaintiff "emailed Victor Betancur, the EEO counselor assigned to his first EEO complaint." (Def.'s 56.1 Stmt. ¶ 46; Pl.'s 56.1 Stmt. ¶¶ 46--47.) Because he had not received a reply, on August 25, 2004, Laudadio sent Betancur a follow-up email entitled "previous eeo counseling," requesting that Betancur contact plaintiff on his cell phone. (Def.'s 56.1 Stmt. ¶ 48; Pl.'s 56.1 Stmt. ¶ 48.)
On September 5, 2004, plaintiff rotated from Ibrahim's to Rossano's supervision. (Def.'s 56.1 Stmt. ¶ 55; Pl.'s 56.1 Stmt. ¶ 55.) On September 7, 2004, Ibrahim notified plaintiff that the Leave Restriction would remain in effect during his assignment with Rossano. (Def.'s 56.1 Stmt. ¶ 56; Pl.'s 56.1 Stmt. ¶ 56.) On September 16 and October 6, 2004, plaintiff arrived to work late, and was placed on AWOL. (Def.'s 56.1 Stmt. ¶¶ 57--58; Pl.'s 56.1 Stmt. ¶¶ 57--58.) On October 6, 2004, plaintiff sent another follow-up email to Betancur, requesting that Betancur contact him about EEO counseling. (Def.'s 56.1 Stmt. ¶ 49; Pl.'s 56.1 Stmt. ¶ 49.) Betancur replied to the October 6 message in an email that contained nineteen attachments and read: "Here are the email documents you requested." (Def.'s 56.1 Stmt. ¶ 50; Pl.'s 56.1 Stmt. ¶ 50.) All of these documents related to plaintiff's first EEO complaint. (Def.'s 56.1 Stmt. ¶ 51; Pl.'s 56.1 Stmt. ¶ 51.) Plaintiff sought these documents because they were necessary for Simmons to handle the second request for EEO counseling regarding the Leave Restriction. (Def.'s 56.1 Stmt. ¶ 52; Pl.'s 56.1 Stmt. ¶ 52.)
On October 26 and 28, 2004, Rossano denied plaintiff's requests for emergency annual leave. (Def.'s 56.1 Stmt. ¶¶ 59--60; Pl.'s 56.1 Stmt. ¶¶ 59--60.) Plaintiff arrived to work thirty minutes late on both occasions and was placed on AWOL. (Id.)
After plaintiff complained that the restriction placed on his annual leave violated his union contract, on October 28, 2004, Deputy District Manager Washington contacted FSIS's Employee Relations Branch ("ERB") to investigate the issue. (Def.'s 56.1 Stmt. ¶ 42; Riley Decl., Ex. 19; Pl.'s 56.1 Stmt. ¶ 42.) On October 29, 2004, William Kent, an ERB employee, informed Washington that, under the union contract, leave restrictions may be imposed on unscheduled annual leave. (Def.'s 56.1 Stmt. ¶ 44; Riley Decl., Ex. 19; Pl.'s 56.1 Stmt. ¶ 44.) That same day Washington replied that he remained unable to find a legal basis for the placing the leave restriction on annual leave. (Riley Decl., Ex. 19.)
On November 10, 2004, plaintiff arrived to work one and a half hours late, causing him to be charged with AWOL again. (Def.'s 56.1 Stmt. ¶ 62; Pl.'s 56.1 Stmt. ¶ 62.) On November 2 and 10, 2004, Rossano gave plaintiff written counseling memorandums, cautioning him that further incidents could lead to disciplinary action. (Def.'s 56.1 Stmt. ¶¶ 61, 63--64; Pl.'s 56.1 Stmt. ¶¶ 61, 63--64.)
On November 11, 2004, Rossano submitted to Deputy District Manager Washington a recommendation for further disciplinary action against plaintiff. (Def.'s 56.1 Stmt. ¶ 68; Pl.'s
56.1 Stmt. ¶ 68.) The decision as to whether disciplinary action is warranted and the nature of any such action are at the discretion of the Deciding Official in the ERB. (Def.'s 56.1 Stmt. ¶ 71; Pl.'s 56.1 Stmt. ¶ 71.) Accordingly, Washington referred the matter to the ERB for disposition pursuant to the FSIS policy. (Def.'s 56.1 Stmt. ¶ 72; Pl.'s 56.1 Stmt. ¶ 72.)
On December 2 and 27, 2004, plaintiff failed to report to work on time and was charged AWOL for fifteen and thirty minutes, respectively. (Def.'s 56.1 Stmt. ¶ 66; Pl.'s 56.1 Stmt. ¶ 66.) On December 29, 2004, plaintiff was scheduled to begin work at 5:00 a.m. (Def.'s 56.1
Stmt. ¶ 67; Pl.'s 56.1 Stmt. ¶ 67.) He paged Rossano at 4:50 a.m. to report that he would be late. (Id.) Plaintiff arrived at 5:30 a.m., and Rossano charged him with thirty minutes AWOL. (Id.)
On January 11, 2005, Employee Relations Specialist Sandra Bain (an ERB official), issued a letter to plaintiff notifying him that she proposed to suspend him without pay for five days for his unauthorized absences and failure to comply with the Leave Restriction Notice. (Def.'s 56.1 Stmt. ¶ 73; Pl.'s 56.1 Stmt. ¶ 73.) In order to respond to the proposed suspension, Laudadio requested a meeting with an Oral Conference Officer ("OCO"). (Def.'s 56.1 Stmt. ¶ 76; Pl.'s 56.1 Stmt. ¶ 76.) On February 15, 2005, OCO Luz Cantres conducted a conference with plaintiff. (Def.'s 56.1 Stmt. ¶ 77; Pl.'s 56.1 Stmt. ¶ 77.) On February 25, 2005, Chief of the ERB Kristie D. Kelm issued a Decision Letter, reducing the proposed suspension to one day. (Def.'s 56.1 Stmt. ¶ 80; Pl.'s 56.1 Stmt. ¶ 80.) The Decision Letter expressly advised plaintiff of his right to file a grievance within ten days of receipt of the letter or a discrimination complaint within forty-five days of the letter's effective date. (Def.'s 56.1 Stmt. ¶ 83; Pl.'s 56.1 Stmt. ¶ 83.) Plaintiff did neither. (Def.'s 56.1 Stmt. ¶ 84; Pl.'s 56.1 Stmt. ¶ 84.) Plaintiff claims he failed to contact an EEO counselor within forty-five days because he was led to believe that the Leave Restriction and all forms of discipline arising therefrom could be addressed when the Leave Restriction was lifted. (Pl.'s 56.1 Stmt. ¶ 84.)
Plaintiff's Leave Restriction was lifted on July 6, 2005. (Frank Decl., Ex. M.) On July 21, 2005, Laudadio contacted EEO Counselor Art Simmons and initiated informal EEO counseling, alleging retaliation for his initial EEO complaint. (Def.'s 56.1 Stmt. ¶ 85; Pl.'s 56.1 Stmt. ¶ 85.) On October 12, 2005, plaintiff filed his second formal EEO complaint. (Def.'s 56.1 Stmt. ¶ 86; Pl.'s 56.1 Stmt. ¶ 86.) "On January 20, 2006, the [USDA] accepted and referred for investigation the claim[s] that [p]laintiff was subjected to harassment [as a reprisal for his prior EEO activity] when: (1) he was placed under sick leave restriction and was charged AWOL on four occasions, (2) one of his supervisors destroyed leave slips to justify AWOL charges; (3) he was given a proposed five-day suspension that was reduced to a one-day suspension; and (4) one of his supervisors threatened to shoot plaintiff if he had a gun." (Def.'s 56.1 Stmt. ¶ 87; Pl.'s 56.1 Stmt. ¶ 87.)
On November 22, 2006, the USDA issued a FAD dismissing plaintiff's second EEO complaint as untimely filed pursuant to 29 C.F.R. § 1614.107(a) and 1614.105(a) (1), requiring a complainant contact an EEO counselor within forty-five days of the alleged discriminatory actions. (Def.'s 56.1 Stmt. ¶ 88; Pl.'s 56.1 Stmt. ¶ 88.) See also 29 C.F.R. §§ 1614.105(a) (1), 1614.107(a). The FAD also stated that "[e]ven assuming [timeliness of the contact], the weight of the evidence indicates that discrimination did not occur." (Riley Decl., Ex. 39, at 18.) Plaintiff initiated the instant action on February 23, 2007. (Dkt No. 1.) On August 21, 2007 the USDA issued another FAD (discussed above) dismissing the first and the second EEO complaints pursuant to 29 C.F.R. § 1614.107(a) (3) as complaints that are "the basis for a pending civil action in a United States District Court." (Frank Decl., Ex. E.)
Summary judgment may be a useful "tool for clearing the calendar of doomed lawsuits." Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d Cir. 2000). Generally, "the salutary purposes of summary judgment-avoiding protracted, expensive and harassing trials-apply no less to [Title VII] cases than to . . . other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d. Cir. 1985). But summary judgment is also a "drastic procedural weapon because its prophylactic function, when exercised, cuts off a party's right to present his case to the jury." Garza v. Marine Transp. Lines, 861 F.2d 23, 26 (2d Cir. 1988) (internal quotation marks omitted). Determination as to employer's motive in Title VII cases requires an assessment of "individuals' motivations and state of mind, matters that call for a sparing use of the summary judgment device because of juries' special advantages over judges in this area." Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001). Thus, in Title VII cases, district courts must be "especially chary in handing out summary judgment . . . because in such cases the employer's intent is ordinarily at issue." Chertkova v. Conn. Gen. Life Ins., 92 F.3d 81, 87 (2d Cir. 1996).
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). On a motion for summary judgment, the court should not weigh the evidence, but determine whether there exists a genuine issue of fact for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). An issue of fact exists where "the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). At this stage, the court has to resolve all ambiguities and draw all factual inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Pinto v. Allstate Ins., 221 F.3d 394, 398 (2d Cir. 2000) (citation omitted).
Here, the defendant, as the moving party, is initially responsible for demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citation omitted). If, however, plaintiff, as the opposing party, fails to make a showing of an essential element of its case for which it bears the burden of proof, summary judgment will be granted. See Celotex, 477 U.S. at 323. To overcome the motion for summary judgment, Laudadio cannot rely on conclusory allegations or unsubstantiated speculation and must set forth ...