The opinion of the court was delivered by: John T. Curtin United States District Judge
By order of Chief United States District Judge William M. Skretny dated , 2011 (Item ), this matter has been reassigned to the undersigned for all further proceedings.
Plaintiff Bonita L. Lindstrom commenced this action pro se on December 18, 2008, by filing a form complaint for discrimination in employment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117 ("ADA"); and the New York State Human Rights Law, N.Y. Exec. Law §§ 290-297 ("NYSHRL").*fn2 Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking dismissal of the complaint in its entirety (Item 36).
For the reasons that follow, defendant's motion is granted.
The following background facts are derived from the pleadings and submissions on file, including the parties' respective statements of fact submitted pursuant to Rule 56.1 of the Local Rules of Civil Procedure for the Western District of New York.*fn3
Plaintiff began her employment with the Postal Service in May 1986, working as a Letter Carrier in the City of Buffalo, New York. Toward the latter part of 1991, plaintiff began to develop symptoms of bursitis in her right shoulder, and she submitted an "occupational disease" claim to the Department of Labor's Office of Workers' Compensation Programs ("OWCP"). By letter dated August 16, 1993, OWCP notified plaintiff that her claim had been accepted for the condition of bursitis (Item 38-1). The letter also stated that, although plaintiff's doctor indicated the possibility of a diagnosis of carpal tunnel syndrome, that condition was not accepted as a basis for plaintiff's workers' compensation claim because it was not substantiated by objective findings (id.; see also Deft. Local Rule 56.1 Statement, at ¶¶ 1-4).
Meanwhile, in October 1992, plaintiff filed the first of several discrimination charges with the Postal Service's Equal Employment Opportunity ("EEO") division. In this charge (designated Case No. 1R-1162-92), plaintiff claimed that she was discriminated against on the basis of gender and disability when her work schedule was changed on several dates in February and March 1992, which caused her to use her own annual and sick leave. The EEO denied this claim by written decision dated February 11, 1993, finding that plaintiff failed to raise her scheduling complaints with an EEO Counselor in a timely manner, as required by the Equal Employment Opportunity Commission ("EEOC") regulations governing the processing of EEO complaints (Item 39-2, pp. 2-3). This determination was affirmed by the EEOC in a written decision dated June 4, 1993 (id. at pp. 4-7).
On June 14, 1994, plaintiff filed a second EEO charge (designated Case No. 4B-140-1053-94) claiming that her supervisors discriminated against her because of her gender and disability by refusing to sign an insurance form. On July 26, 1994, plaintiff entered a settlement agreement with the Postal Service, by which she accepted a transfer to the position of Central Forwarding System ("CFS") Mark-up Clerk, effective August 6, 1994, "[i]n full and final settlement of all EEO complaints," including Case No. 4B-140-1053-94 (Item 1, p. 38). The agreement was signed on behalf of the Postal Service by Anthony Pacella, Manager of Customer Service Operations (id.). As part of the settlement, plaintiff waived her rights to further appeal of her complaint through the EEO process (id.).
Plaintiff worked as an Automated Mark-up Clerk in the CFS Unit from August 1994 until May 1999, when she bid for and was transferred to the position of Distribution Window Mark-up Clerk. During that period, plaintiff's supervisors were Olga Wolkenstein and Marlene Hoerner (Item 37, ¶¶ 12-14). Also during that period, plaintiff filed the following additional EEO charges:
1. Charge No. 4B-140-1112-95
In this charge, dated and filed September 28, 1995, plaintiff claimed
disability discrimination and retaliation for her prior EEO activity,
based on Ms. Wolkenstein's denial
of her request for a "temporary change of schedule" submitted on July
25, 1995, while subsequently approving a similar request by a female
co-worker. Plaintiff further charged that on August 3, 1995, Ms.
Wolkenstein refused to sign a sick leave request form for the previous
evening, interrogated her on the workroom floor regarding the leave
request, and gave her an "official discussion" when she requested a
union steward (see Item 40-2). She also claimed that Ms. Wolkenstein,
Mr. Pacella, and Joseph Liberti (manager of the CFS Unit) had
"continuously" harassed her since as far back as her first EEO charge
in October 1992, or at least since her transfer to the CFS Unit in
August 1994 (id.).
2. Charge No. 4B-140-1008-96
In this charge, dated and filed November 23, 1995, plaintiff alleged that she was discriminated against on the basis of her disability and gender, and in retaliation for her prior EEO activity, on several occasions in August and September 1995. She claims, among other things, that during this time period Ms. Wolkenstein denied her request for leave without pay due to unsafe working conditions, and refused to call an ambulance for her when she complained of chest pains; that Ms. Wolkenstein made a slanderous comment about plaintiff's daughter; that plaintiff received notice to report for a Fitness for Duty (FFD) examination when she had already been cleared for duty by her doctor, and was threatened with discipline for not reporting for the FFD exam; and that she was questioned about being late for work, told not to talk to co-workers while "load/sweeping," and told not to bring her hip sack onto the workroom floor, while other workers were not subjected to the same treatment (see Item 40-4).
3. Charge No. 4B-140-0026-97
On January 3, 1997, plaintiff filed an EEO charge alleging disability discrimination and retaliation for prior EEO activity based on a series of incidents in November and December 1996, in which management scheduled her to work on her designated holiday (Thanksgiving eve), denied her request for Family and Medical Leave Act (FMLA) sick leave, and scheduled her for another FFD exam on December 3, 1996 (Item 41-1). She filed a subsequent charge on February 20, 1997 (No. 4B-140-0036-97), alleging that she received a letter from Mr. Pacella advising her that she would be scheduled to work up to forty hours per week based on the results of the December 3, 1996 FFD exam, which she claimed violated her doctor's medical restrictions (Item 41-2). These two EEO charges were subsequently consolidated as No. 4B-140-0026-97 (see Item 41-3).
4. Charge No. 4B-140-0070-98
In this charge, dated and filed June 20, 1998, plaintiff alleged that she was discriminated against on the basis of her disability and in retaliation for prior EEO activity when, on April 13, 1998, she was notified that she was rated "ineligible" on the Maintenance Mechanic, MPE-07 examination that she took on March 28, 1998 (see Item 42-4).*fn4
In January 2001, following the conclusion of the EEO's investigation of each of these matters, plaintiff requested an evidentiary hearing before an EEOC Administrative Judge ("AJ") (see Item 43-2). The matters were assigned to AJ Ricardo Cuevas, whoconsolidated all four cases and scheduled a hearing for January 2003 (see id; see also Item 43-4). The hearing was subsequently adjourned upon the agency's determination that plaintiff's claims were to be subsumed under the EEOC class action in Glover v. United States Postal Serv., EEOC Appeal No. 01A04428 (April 23, 2001) (order certifying class comprised of individuals with disabilities in permanent rehabilitation duty positions) (available in Westlaw at 2001 WL 427464 (E.E.O.C.)). However, the AJ in Glover eventually determined that plaintiff's claims were not encompassed by the class certification order, and plaintiff's case was remanded to AJ Cuevas. Upon remand, the agency moved for decision without a hearing, and on September 8, 2006, a preliminary telephonic conference was held before AJ Cuevas, at which plaintiff and the Postal Service stipulated to the issues remaining for decision (see Item 43-5).
On April 25, 2008, AJ Cuevas issued a "Commission Decision on Summary Judgment" dismissing each of plaintiff's claims for failure to prove discrimination based on disability, sex, or retaliation for engaging in protected activity (Item 44). On September 16, 2008, the EEOC issued an order affirming the AJ's decision as the agency's final order, finding that "a preponderance of the evidence does not establish that discrimination occurred." Item 44-1, p. 5. The order also advised plaintiff of her right to file a civil action in federal court within ninety days from the date she received notice of the decision. This action followed.
On her form pro se complaint, plaintiff checked the spaces indicating that the action is being brought for discrimination in employment pursuant to Title VII, the ADA, and the NYSHRL (Item 1, pp. 1-2), based on the following conduct:
* Failure to provide her with reasonable accommodations so she can perform the essential functions of her job.
* Harassment on the basis of her sex. * Harassment on the basis of unequal terms and conditions of her employment.
* Retaliation because she complained about discrimination or harassment directed toward her.
* Creating a hostile work environment. (Id. at 4). As supporting facts, plaintiff primarily reiterates the claims she asserted in her multiple EEO charges (id. at 7-8), as described above, and has attached to the complaint a copy of the EEOC's September 16, 2008 decision on appeal (id. at 9-14) as well as copies of the four EEO complaints consolidated for hearing and decision (id. at 16-38).
Upon completion of discovery, defendant moved for summary judgment*fn5 on the following grounds:
1. Failure to exhaust administrative remedies, or state a prima facie case, with respect to plaintiff's gender discrimination claim.
2. Failure to establish a prima facie case of disability discrimination under the Rehabilitation Act.
3. Failure to establish the elements of a hostile work environment claim.
4. Failure to establish a prima facie case of retaliation. Each of these grounds is discussed in turn below.
Under Rule 56, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue of fact is material if it "might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine "if the evidence is such that a reasonable jury could ...