The opinion of the court was delivered by: Sand, J.
Plaintiff Melrose Stephens-Buie brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"), and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ("Rehabilitation Act"), alleging discrimination on the basis of her race, color, national origin, and disability. Defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.
For the reasons stated below, Defendant's motion for summary judgment is granted with respect to all of Plaintiff's claims under Title VII, and Plaintiff's hostile work environment, failure of reasonable accommodation, and disability discharge claims under the Rehabilitation Act. Plaintiff is granted leave to amend her retaliation claim under the Rehabilitation Act.
Plaintiff is Black, was born in Jamaica, and has been a certified nurse practitioner since 1996. Def. 56.1 Stmt. ¶ 1--2; Pl. 56.1 Stmt. ¶ 1--2. In June 2004, she applied for a nurse practitioner position on the first floor of the Extended Care facility at the James J. Peters Medical Center ("Bronx VA"), operated by the United States Department of Veterans Affairs, in the Bronx, New York. Def. 56.1 ¶ 3. Plaintiff was offered the position by Natalie Sutcliffe, Director of the Extended Care Facility at the Bronx VA. Id. ¶ 5. Plaintiff began her employment at the Bronx VA on August 2, 2004. Id. ¶ 18.
During the time period covered by the Complaint, nurse practitioners at the Bronx VA were paid according to three grades, NP I through III, with each grade containing additional steps of increasing salary. Id. ¶¶ 9--10. NP II salaries ranged from $68,626 at step 1 to $91,264 at step 12, while NP III salaries ranged from $78,860 at step 1 to $102,215 at step 12. Id. ¶ 12. The VA Handbook establishes nine qualifications for each NP grade level. Id. ¶ 13. Plaintiff's initial salary determination assigned her a grade of NP II step 7 ("NP II/7"), indicating a salary of $80,974 per year. Id. ¶ 17; Pl. 56.1 ¶ 17 (contesting date and manner of determination).
Other nurse practitioners who worked in the Bronx VA's Extended Care facility included Lydia Keogh, Gladys Allen, and Jennifer Giwa. Def. 56.1 ¶ 29, 32, 35. Keogh is a Caucasian who began her employment at the Bronx VA with a salary of $31,311 in 1988, and had a salary of $90,690 when she left the Bronx VA in 2004. Id. ¶ 30--31. Allen is an African-American from the West Indies who began work at the Bronx VA as a Staff Nurse in 1983, earning a salary of $22,281; by March 21, 2004 she earned a salary of $97,605. Id. ¶ 32--34. Giwa, an African-American, was hired by the Bronx VA in 1986, and has since climbed to the highest position on the nursing grade scale. Id. ¶ 35, 37.
On October 19, 2004, Plaintiff slipped and fell on a wet floor in the Extended Care facility. Id. ¶ 38. Because of injuries sustained in the fall, she was absent from work between October 19 and December 28, 2004. Id. ¶ 39. Between December 28, 2004 and February 11, 2005, Plaintiff worked on a light duty status for four hours a day, three days a week. Id. ¶ 40. After a leave of absence, Plaintiff returned to work on March 8, 2005 on a shortened schedule of four hours a day, two days a week. Id. ¶ 41. Plaintiff made various requests to accommodate her disability. Id. ¶ 45. In response, the Bronx VA changed Plaintiff's start time form 10:00 A.M. to 8:00 A.M.; suggested that Plaintiff contact the Bronx VA's computer department for additional training; provided Plaintiff with an office closer to the nurse's station to reduce walking distances; reduced the number of patients for which Plaintiff was responsible, and her responsibilities for each patient; reduced the number of days in Plaintiff's work week from three to two; suggested additional training with Giwa; and allowed her to attend team meetings. Id. ¶ 46. Plaintiff ceased working at the Bronx VA on June 3, 2005, id. ¶ 42, and was eventually terminated on August 17, 2007 when her appointment expired. Stephens-Buie Decl. Ex. 14.
Plaintiff contacted Alfred Hong, an Equal Employment Opportunity ("EEO") counselor with the Bronx VA, on May 17, 2005. Def. 56.1 ¶ 48. On June 13, 2005, Plaintiff contacted the Office of Resolution Management ("ORM") within the Department of Veterans Affairs, and filed a formal complaint of discrimination on August 15. Id. ¶ 49; Compl. Attach. 1. After the ORM concluded its investigation, Plaintiff elected to have her case heard before the Equal Employment Opportunity Commission ("EEOC"), and an EEOC Administrative Law Judge ("ALJ") held hearings on Plaintiff's complaint on October 26, 2007, December 19, 2007, and February 11, 2008. Def. 56.1¶ 51. On November 7, 2008, the ALJ issued a decision finding that the VA did not discriminate against Plaintiff. Id. ¶ 53. The EEOC affirmed the ALJ's decision on December 15, 2008, and provided Plaintiff with a Notice of the Right to File a Civil Action. Id. ¶ 54.
Plaintiff originally brought her allegations of post-injury discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq. ("ADA"). As Plaintiff now concedes, Pl. Mem. Opp. Mot. S.J. at 22, a federal employee's claim of disability arises not under the ADA, but under the Rehabilitation Act.*fn1
Summary judgment is warranted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). "[T]he burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). An issue is genuine if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "[T]he moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case." Gallo, 22 F.3d at 1223--24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249--50. All ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Id. at 249.
The Court of Appeals for the Second Circuit has 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." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001); Gallo, 22 F.3d at 1224. 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).
A.Plaintiff's Title VII Pay Disparity Claim
Plaintiff alleges discriminatory disparity in pay under Title VII, based upon the Bronx VA's determination of her salary shortly after she was hired in the summer of 2004.
"The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. . . . The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Upon such a showing, the plaintiff must "be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext." Id. at 804. "The plaintiff must first establish a prima facie case by demonstrating that: (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination." Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006). The parties dispute whether Plaintiff has ...