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Miller v. McHugh


September 14, 2011


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Marytherese Miller, a legal technician in the Office of the Staff Judge Advocate ("OSJA") for the United States Military at West Point, New York ("West Point"), brings suit against her employer, John McHugh, Secretary of the Army (the "Government").*fn1 Miller primarily alleges employment discrimination on the basis of her disability, failure to accommodate her disability and unlawful retaliation, in violation of the Rehabilitation Act*fn2 as modified by the Americans with Disabilities Act ("ADA")*fn3 and Title VII of the Civil Rights Act of 1964 ("Title VII").*fn4 Miller further alleges that the Government maintained a hostile work environment in violation of Title VII and that her personal information was disclosed in violation of the Privacy Act.*fn5

The Government moves for summary judgment on the grounds that:

(1) Miller cannot establish a prima facie case of discrimination because she is not disabled under the meaning of the ADA; (2) Miller cannot establish a prima facie case of discrimination based on failure to accommodate because her requests for accommodation were granted; (3) Miller cannot establish a prima facie case of retaliation because the Government's actions preceded any of Miller's protected acts and because Miller suffered no adverse employment actions; (4) the Government has offered legitimate, non-discriminatory reasons for its actions; (5) Miller cannot establish a prima facie case of hostile work environment; and (6) Miller cannot establish a prima facie case of a Privacy Act violation. For the reasons set forth below, the Government's motion is granted in full and this case is dismissed.


Miller has been employed as a legal technician for the OSJA at West Point since approximately 1987.*fn7 The duties of a legal technician are similar to those of a court reporter and include: recording and transcribing hearings, preparing records and cases, making exhibits, and preparing legal reviews and action documents in cadet hearings and investigations.*fn8 In 1992, Miller became a lead legal technician,*fn9 a position with responsibilities including those of a legal technician as well as additional supervisory functions, including "serving as a working leader over three employees."*fn10 The lead legal technician is also responsible for balancing and distributing the caseload, training new employees and preparing a superintendent's report.*fn11 Until the Spring of 2005, Miller participated in cadet hearings that were held on the fourth floor of Nininger Hall, a building with no elevator.*fn12

A. Miller's First Surgery and Initial Requests for Worksite Accommodations After a meniscus tear in February 2005, as well as significant knee pain, Miller underwent knee surgery in April 2005.*fn13 Miller returned to work after three weeks with a leg brace and crutches.*fn14 Upon returning to work, Miller presented a doctor's note which limited her use of stairs.*fn15 Due to her surgery, Miller verbally requested to "not have to climb the stairs."*fn16 In response, all of Miller's court hearings were moved from the fourth floor of Nininger Hall to Building 606 (the OSJA Courtroom), a handicapped accessible location and the building in which Miller's desk is located.*fn17 In September 2005, Miller procured an additional doctor's note providing that she should engage in "minimal stair climbing while at work."*fn18

Beginning in September 2006, Miller was told by her supervisors, Colonel Brendan Donahoe and Captain Ann Ching, that she would need to use the stairs and that she would be subject to a fitness for duty hearing.*fn19 Miller contacted another supervisor, Colonel Robin Swope, on October 25, 2006, to protest having to walk up stairs and to request an explanation regarding the fitness for duty hearing.*fn20 Swope instructed Miller to get her medical accommodations "properly documented" so that the OSJA could act in "accordance with regulations."*fn21 Miller was informed that if she provided proper documentation, she would not be required to climb stairs or to submit to a fitness for duty investigation.*fn22 On November 7, 2006, Miller filed a formal written request for medical accommodation asking that she not be required to use the stairs at Nininger Hall.*fn23 In her written request, Miller also advised the OSJA that she would need a second surgery "[w]ithin the next six months."*fn24 Miller also provided a new doctor's note ordering "[m]inimal stairs please."*fn25

Miller's request for a temporary worksite accommodation was granted on November 17, 2006.*fn26 Miller has never participated in any hearings on the fourth floor of Nininger Hall since returning from surgery in 2005.*fn27 Her hearings have been mainly held in the OSJA Courtroom, and since sometime in early 2010, some hearings have also been held in the Red Reeder Room,*fn28 a handicapped accessible location approximately one half mile from Miller's desk in Building 606.*fn29 Miller declined certain accommodations related to traveling to the Red Reeder Room.*fn30

B. Miller's Requests for Parking Accommodation

Miller verbally requested a parking accommodation by phone before returning from work in order to avoid the stairs in West Point's parking lot.*fn31

Captain Daniel Greiser, her supervisor, advised Miller that such a permit would be too difficult to secure.*fn32 Instead, Greiser informed Miller that it would be easier to secure a handicapped parking pass from New York State, which Miller did.*fn33 This pass expired in October 2005, and Miller had to take the stairs in the parking lot between October 2005, and February 2007.*fn34 During this time, Miller made additional verbal requests for parking accommodations by the OSJA, but was denied.*fn35

On February 7, 2007, Miller submitted her first formal written request to West Point for a Reserved Parking Spot.*fn36 In response, Miller was granted a temporary reserved parking space on February 13, 2007, for one year.*fn37 No other formal parking accommodation requests were filed by Miller with West Point until June 2, 2011, at which time Miller was again granted handicapped parking accommodations by West Point.*fn38 Miller did not attempt to renew her New York State Parking pass until November 2009, at which point her request was granted.*fn39

C. Miller's Job Reclassification

In 2006, Miller's supervisor, Captain Greiser, was in the process of updating OSJA job descriptions.*fn40 Miller had requested in 2003 that her job description be updated to better match her actual job responsibilities.*fn41 Since approximately 1993, Miller had been the lead legal technician in charge of two other legal technicians.*fn42 According to the position description maintained by OSJA, a lead legal technician serves as a "working leader over three employees."*fn43

In accordance with this description, Captain Ching, Miller's new supervisor, reclassified Miller as a legal technician rather than a lead legal technician by a memorandum dated April 5, 2007.*fn44 Miller was informed of this reclassification by e-mail on May 3, 2007.*fn45 The reclassification took effect on July 8, 2007.*fn46

Miller experienced no decrease in grade or salary at the time of her reclassification.*fn47 Her duties, however, changed, as she no longer distributed the caseload, conducted trainings, or was solely responsible for superintendent's reports and red book pages.*fn48 Moreover, as lead legal technician, Miller was required to have a higher pay grade than other legal technicians, but as a legal technician, she would not be entitled to an automatic promotion once other legal technicians were promoted.*fn49

D. Miller's Second Surgery and Informal EEO Complaint

In Miller's Formal Memo requesting worksite accommodation, she notified the OSJA that she would need a second surgery.*fn50 On April 26, 2007, Miller submitted a formal written request to her supervisor, Captain Ching, for eighty-eight hours of advanced annual leave on or about May 17, 2007, in order to undergo the second surgery.*fn51 Captain Ching denied this request after a meeting with Col. Swope, Lt. Donahoe and Ms. Doughty (West Point's Labor Counselor), and provided a written memo explaining the decision on May 8, 2007.*fn52 Captain Ching's memo explained that Miller was not eligible for advanced annual leave, but that Miller could take time off using either leave without pay ("LWOP") or borrowing donated leave from other employees.*fn53 Miller did not opt to use either of these options and instead cancelled her surgery.*fn54

On May 8, 2007, Miller filed an informal complaint with the West Point Equal Employment Opportunity ("EEO") Office.*fn55 In her complaint, Miller alleged that she was discriminated against when her request for advanced leave was not approved.*fn56 After being denied her request for advanced leave, Miller stated that "she then contacted the COL Colpo the Chief of Staff and CPAC [who] told her she had enough to borrow."*fn57 Miller further stated that she believed that she had enough advanced leave, that she had been allowed advanced leave for pre-operative tests, that another employee was granted advanced leave, and that she was "reprised against because she went to the Chief of Staff about their continue [sic] pattern of treatment."*fn58

Miller underwent her second surgery on April 26, 2008.*fn59 Following this surgery, Miller received doctor's notes prohibiting stair climbing, walking on inclines and walking long distances.*fn60 She also received continued doctor's orders to park near the building.*fn61 More recently, the West Point medical staff also concluded that Miller has a "permanent limiting condition" such that she cannot "walk up and down stairs," cannot "walk on an incline or for long distances," and cannot endure "prolonged standing."*fn62 Nonetheless, Miller's difficulties do not affect her ability to perform her job.*fn63

E. Miller's 2007 Performance Evaluation and Other Employee Counseling On June 22, 2007, Miller received her annual performance evaluation.*fn64 This was the first annual evaluation that Miller received from her new supervisor, Captain Ching.*fn65 While Miller had received evaluation scores of "excellent" (one out of five, or the highest rating) in years preceding 2007, her 2007 evaluation resulted in an overall performance score of "successful" (two out of five).*fn66 Captain Ching explained that the performance evaluation was based on the fact that Miller "had vocalized for me on more than one occasion that she felt she did not need to participate in the same training as the other employees and it would be basically a waste of time and money, that the software shouldn't be used anymore and so forth."*fn67 As a result of her performance evaluation score, Miller received a sixteen-hour time off award instead of the forty-hour time-off awards she had received in years in which her performance evaluation score was "excellent."*fn68

Miller also received periodic employee counseling and guidance sessions during 2007-2008.*fn69 No disciplinary actions or changes in Miller's employment status resulted from these meetings or the associated memoranda.*fn70

F. Miller's Formal EEO Complaints

On July 9, 2007, Miller filed her first formal EEO complaint.*fn71 The complaint alleged discrimination, retaliation and the creation of a hostile work environment based on her supervisors: (1) denying her leave for the second surgery; (2) reclassifying her position; (2) participating in negative counseling sessions; (3) downgrading her evaluation; (4) discussing medical issues with co-workers present in violation of the Privacy Act; (5) requiring excessive justification for requested leave; and (6) causing her mental and emotional distress.*fn72

Miller filed a second formal EEO complaint on March 21, 2008.*fn73

This complaint further alleged discrimination, retaliation and the creation of a hostile work environment and included a detailed list of instances of alleged harassment and discrimination.*fn74 Among the specific workplace incidents referred to in the second EEO complaint as well as in the subsequent Amended Complaint are: (1) Captain Greiser's comments in May 2005, asking Miller whether she "would be ready to climb Storm King Mountain for an office outing," and his repeated questioning over a month;*fn75 (2) a comment by Corrine Barnes, a member of the OJSA management team, "how would you like me to kick your leg and see how it hurts?;"*fn76 (3) a statement by co-worker Christine Laiso, "Everyone hates you, I hate you!;"*fn77 and (4) a picture that Captain Brian Adams sent around by e-mail of himself with the caption, "you will remember me!"*fn78 Miller also claims that her unlisted telephone number was released without her consent on an office roster.*fn79 Miller commenced the present action on August 24, 2009.


A. Summary Judgment

Summary judgment is appropriate "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."*fn80 "'An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law.'"*fn81

"The moving party bears the burden of establishing the absence of any genuine issue of material fact."*fn82 "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim."*fn83 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, the non-moving party "'must do more than simply show that there is some metaphysical doubt as to the material facts,'"*fn84 and "'may not rely on conclusory allegations or unsubstantiated speculation.'"*fn85

In deciding a motion for summary judgment, a court must "'construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'"*fn86 However, "'[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'"*fn87

"'The role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.'"*fn88

B. Summary Judgment and Employment Discrimination

"'[S]ummary judgment is appropriate even in discrimination cases, for . . . the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to other areas of litigation.'"*fn89 Indeed, "'[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.'"*fn90

"Because direct evidence of an employer's discriminatory intent will rarely be found," motions for summary judgment in employment discrimination actions should be evaluated with caution. "However, even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment."*fn91

"Courts 'must . . . carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture.'"*fn92

"[T]he plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action . . . . To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination."*fn93


A. Failure to Accommodate

A federal employee's"sole claim for discrimination on the basis of disability is under the Rehabilitation Act, if anywhere."*fn94 Section 501 of the Rehabilitation Act provides that:

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activityreceiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.*fn95

Under the Rehabilitation Act, a plaintiff may allege "failure to make reasonable accommodations," and such claims are analyzed under the familiar "burden-shifting analysis established for employment discrimination cases under Title VII of the Civil Rights Act of 1964" by McDonnell Douglas Corporation v. Green.*fn96

Under the McDonnell framework, " a plaintiff must first establish a prima facie case of discrimination."*fn97 A plaintiff makes out a prima facie case of failure to accommodate by showing "(1) that he is an individual who has a disability within the meaning of the statute, (2) that an employer covered by the statute had notice of his disability, (3) that with reasonable accommodation, he could perform the essential functions of the position sought, and (4) that the employer has refused to make such accommodations."*fn98

The Rehabilitation Act defines an "[i]ndividual with a disability" by reference to the ADA.*fn99 The ADA defines a disability as either: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment."*fn100 Under this definition, a court must determine: (1) whether plaintiff suffers from a physical or mental impairment, (2) whether the impairment affects major life activities, and (3) whether the impairment substantially interferes with the major life activity identified.*fn101 Major life activities are those of central importance to daily life and include "'functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.'"*fn102 The impairment must also "substantially limit[]" the major life activity rather than cause trivial disruptions.*fn103 Factors included in determining whether interference is substantial include: "(i) [t]he nature and severity of the impairment;

(ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment."*fn104

"[I]t is the responsibility of the individual with a disability to inform the employer that an accommodation is needed."*fn105 However, at times "the employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation."*fn106 When accommodating an employee, the employer is not required to "provide every accommodation the disabled employee may request" or to "provide the employee with the accommodation of her choice."*fn107 It is sufficient that "the accommodation provided is reasonable."*fn108

If the plaintiff succeeds in establishing a prima facie case of discrimination, then the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action.*fn109 Finally, if the employer articulates a non-discriminatory reason for the challenged action, the burden shifts back to the plaintiff to demonstrate that the defendant's explanation was pretextual.*fn110

B. Retaliation

Title VII "makes it unlawful for an employer to discriminate against an employee 'because he [or she] has opposed any practice made an unlawful employment practice by this subchapter, or because he [or she] has made a charge . . . in an investigation, proceeding, or hearing under this subchapter.'"*fn111 Claims of unlawful retaliation can be brought under the Rehabilitation Act and "are analyzed under the same burden-shifting framework established for Title VII cases" under McDonnell.*fn112

A prima facie case of retaliation is established by showing: "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action."*fn113 An allegation of retaliation is separate from and independent of whether or not plaintiff is disabled.*fn114 "Actions are 'materially adverse' if they are 'harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.'"*fn115 To show that an employer's retaliation resulted in an adverse action, a plaintiff must "proffer objective indicia of material disadvantage; 'subjective, personal disappointment[]' is not enough."*fn116

A plaintiff may demonstrate causation in a retaliation claim: "(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by defendant."*fn117

"The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close."*fn118

"At the summary judgment stage, if the plaintiff presents at least a minimal amount of evidence to support the elements of the claim, the burden of production shifts to the defendant to proffer a legitimate non-retaliatory reason for the adverse employment action."*fn119 "If the employer produces such evidence, the employee must, in order to avoid summary judgment, point to evidence sufficient to permit an inference that the employer's proffered non-retaliatory reason is pretextual and that retaliation was a 'substantial reason for the adverse employment action.'"*fn120

C. Hostile Work Environment

An employee seeking to bring a hostile work environment claim must demonstrate that: (1) she is a member of a protected class; (2) she suffered unwelcome harassment; (3) she was harassed because of her membership in a protected class; and (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.*fn121

In order to prevail on a hostile work environment claim, a plaintiff must make two showings: (1) that "the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" and (2) that there is a "specific basis for imputing the conduct creating the hostile work environment to the employer."*fn122

Evaluating a hostile environment involves reviewing the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."*fn123

The question is whether a reasonable person would have found the environment to be hostile and if the plaintiff perceived it as such.*fn124 "[A] plaintiff need not show that her hostile working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered her working conditions."*fn125

D. Exhaustion

"EEOC regulations require an employee suing the federal government under the Rehabilitation Act to exhaust certain administrative remedies before initiating a suit in the district court."*fn126 "[A]n aggrieved agency employee must first seek EEO counseling within forty-five days of the allegedly discriminatory act. The employee must then file an EEO complaint with 'the agency that allegedly discriminated against the complainant.'"*fn127 In the Title VII context, the Second Circuit has held that "the claims forming the basis of such a suit must first be presented in a complaint to the EEOC or the equivalent state agency."*fn128

"Claims not raised in an EEOC complaint, however, may be brought in federal court if they are 'reasonably related' to the claim filed with the agency."*fn129 The Second Circuit considers claims reasonably related when:

(1) the claim would fall within the reasonably expected scope of an EEOC investigation of the charges of discrimination; (2) it alleges retaliation for filing the EEOC charge; or (3) the plaintiff "alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge."*fn130

E. The Privacy Act

The Privacy Act provides, in pertinent part, "Whenever an agency . . . fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection."*fn131 "To state a Privacy Act claim a plaintiff must show that: 1) the information at issue is a record contained within a system of records; 2) the agency violated the Act with respect to that record; 3) the disclosure had an adverse effect on the plaintiff; and 4) the violation was willful or intentional."*fn132 "The Privacy Act defines a 'record' as 'any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name . . . or other identifying particular.'"*fn133 The alleged adverse affect must stem from a willful violation of the Act, and not from "mere administrative error."*fn134


A. Miller's Disability Claims

Miller's failure to accommodate claims include three alleged violations: (1) failure to accommodate her parking needs up until February 2007, (2) failure to provide her with advanced leave for her second scheduled surgery in May 2007, and (3) the movement of certain hearings to the Red Reeder Room rather than OSJA courtroom sometime after her second surgery. Miller's failure to accommodate claims fail as a matter of law because (1) she has not produced evidence showing that she was disabled under the meaning of the ADA at the time of the requested parking accommodations and advanced leave, and (2) she has failed to produce evidence sufficient to raise a factual dispute as to whether she was reasonably accommodated regarding the advance leave and the hearings at Red Reeder.

1. Miller Was Not Disabled Under the ADA Prior to Her Second Surgery

Miller's request for advanced leave and inability to secure parking accommodations both occurred in 2006 and 2007, prior to Miller's second surgery.*fn135 To determine whether these claims can survive summary judgment, the Court must first address the threshold issue of whether Miller was disabled in the relevant time period. When "a plaintiff fails 'to offer any medical evidence substantiating the specific limitations to which he claims he is subject due to his condition,' he cannot establish that he is disabled within the meaning of the ADA."*fn136 Thus the Court looks to the medical evidence of Miller's disability found in the record.

Miller relies on her knee surgery and doctor's notes to support the claim that she was disabled under the ADA.*fn137 However, prior to May 2007, Miller had only two doctor's notes detailing her required accommodations at work, one stating "minimal stair climbing while at work" and the other "[m]inimal stairs please."*fn138 Miller further testified that between October 2005 and February 2007, she frequently walked up a significant number of stairs in the parking lot.*fn139

Moreover, in Miller's formal request for accommodations on November 7, 2006, she specifically asked for temporary accommodations.*fn140 It was not until Miller's doctor's notes and her physical exam at West Point in 2009 and later - after her second surgery - that Miller was absolutely prohibited from climbing stairs, walking long distances and on inclines, and was told by the West Point medical staff that she had a "permanent injury."*fn141 Miller thus provides insufficient medical evidence in the record to suggest that before May 8, 2007, her difficulties at work extended beyond hardship climbing stairs.*fn142

While Miller's condition prior to her second surgery may have constituted an impairment, this impairment did not substantially interfere with her ability to engage in a major life function as required by the ADA. Though there is some dispute in this Circuit regarding whether the inability to climb stairs alone constitutes a major life function, the authority weighs against it.*fn143 More importantly, though, it is well settled that difficulty climbing stairs or temporary hardship and fatigue do not alone constitute a "substantial impairment" to a "major life activity."*fn144 Based on Miller's medical evidence of her difficulty climbing stairs between October 2005 and May 2008, she has not shown that she was substantially limited in a major life function. Miller's Rehabilitation Act claims based on failure to accommodate her parking needs and request for advance leave therefore cannot survive summary judgment.

a. Miller Was Not Regarded by Her Employer as Disabled

Miller has also not shown that her employer regarded her as disabled for purposes of the ADA.*fn145 While the Government made certain accommodations for Miller prior to May 2007, such as moving her hearings out of Nininger Hall,

See also Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996) (climbing stairs is not a sufficiently "basic, necessary function . . . to qualify as a major life activity under the ADA"); Missick v. City of New York, 707 F. Supp. 2d 336, 352-53 (E.D.N.Y. 2010) (same); Addoo v. New York City Bd. of Educ., No. 04 Civ. 2255, 2006 WL 5838977, at *8 (E.D.N.Y. Dec. 18, 2006) (same).

Miller has not shown that the Government "regarded [her] as disabled within the meaning of the ADA."*fn146 Prior to May 2007, Miller was only granted temporary accommodations based on hardship climbing stairs, for instance moving the hearings and granting a parking pass.*fn147 Because these accommodations do not demonstrate that the Government believed that Miller was suffering from a disability that "substantially limited" her ability to engage in a "major life function," Miller cannot properly show that she was disabled under the ADA.

2. Miller Has Not Shown She Was Not Reasonably Accommodated

Miller has also failed to raise facts showing that the Government did not properly accommodate her need for a second surgery and to avoid climbing stairs. In response to Miller's request for eighty-eight hours of advanced annual leave, Captain Ching responded by written memo on May 8, 2007, informing Miller that the request could not be granted because there was a low likelihood that Miller could "pay back the advanced hours."*fn148 Ching also informed Miller that she had two options to take off time for her surgery: (1) leave without pay, or (2) donated leave.*fn149 Miller declined to use these options, and instead cancelled her surgery.*fn150 Because it is undisputed that leave without pay or borrowed leave would have enabled Miller to undergo her second surgery, Miller fails to raise facts showing that she was not accommodated.

Miller's only allegation of failure to accommodate that arose after her second surgery concerns the movement of certain hearings to the Red Reeder Room, rather than Building 606.*fn151 While Miller's medical evidence from that time does raise a genuine issue of material fact concerning her disability status under the ADA, Miller has failed to show that she was not reasonably accommodated. Miller testified in her deposition that the Red Reeder Room is handicapped accessible, and it is undisputed that she declined an accommodation to help her travel to that location.*fn152 While Miller understandably preferred that all hearings be held in Building 606, the Government is not required to provide Miller with any particular accommodations she requests - only ones that are "reasonable." Because the Red Reeder location was handicapped accessible and Miller was offered assistance traveling to that location, she has failed to raise a triable issue of fact as to whether the Government failed to reasonably accommodate her.

B. Miller's Retaliation Claims

Miller alleges four instances of retaliation by her employer in response to her complaints and EEO filings: (1) her job reclassification; (2) her lowered performance evaluation grade; (3) the movement of certain hearings to the Red Reeder Room; and (4) various employee counseling sessions and other worksite guidance given to her. Miller's claims of retaliation fail as a matter of law because (1) her job reclassification occurred before any protected activity; (2) Miller has failed to rebut the non-retaliatory reasons put forward by the Government for Miller's evaluation; (3) Miller has not shown any causal connection between protected events and the movement of certain hearings to the Red Reeder Room; and (4) her counseling sessions did not include any adverse employment consequences.

1. Miller's Job Reclassification Predated Any Protected Activity

Miller's job title was reclassified by Captain Ching on April 5, 2007.*fn153 Miller was informed of this change by e-mail on or about May 3, 2007.*fn154 Miller did not file her first informal EEO complaint until May 8, 2007.*fn155 Despite the fact that the reclassification did not take effect until July 8, 2007, the decision to reclassify predated any EEO or other internal complaints.*fn156

While "[t]he plaintiff's burden at the beginning of the case is a light one," the plaintiff must show "that the protected activity preceded the adverse action in order to satisfy the causation requirement."*fn157 The failure to submit evidence establishing any protected activity on or before May 7, 2007, is therefore fatal to Miller's prima facie case of retaliation based on her job reclassification.

2. Miller Has Not Rebutted the Government's Non-retaliatory Reason for Her Evaluation Score

Miller received performance evaluation scores of "successful" on her 2007 and 2008 evaluations, whereas she had received scores of "excellent" for at least the previous four years.*fn158 In June 2007, Miller was evaluated by Captain Ching, whereas previous annual evaluations were done by other supervisors.*fn159

Miller alleges that this creates a prima facie case of retaliation and that Captain Ching retaliated against her for scheduling her surgery as well as for her informal and formal EEO complaints. Miller bases this claim primarily on the proximity of her protected activity to the alleged retaliation - Miller filed her first EEO complaint naming Captain Ching on May 8, 2007, and was evaluated by Captain Ching on June 22, 2007.*fn160

As an initial matter, Miller cannot base a claim of retaliation on her scheduled surgery.*fn161 A prima facie case of retaliation involves an employer's retaliation against an employee for engaging in "protected activity."*fn162 Protected activities include opposing "a practice made unlawful by Title VII" or any activity that the employee has a "good faith" reason to believe is unlawful.*fn163 Miller's prima facie case for discrimination must instead rest upon her EEO complaints or other internal complaint letters. Drawing all inferences in Miller's favor, her submissions make out a prima facie case of retaliation based on her EEO complaint and Captain Ching's subsequent evaluation.

Proceeding to step two of the McDonnell framework, the Government offers a non-retaliatory reason for Miller's evaluation score - her reluctance to participate in staff trainings.*fn164 At the time of the evaluation, Ching considered the fact that "when it came to trying new things and seeking self-employment I had taken into account that she [Miller] had vocalized for me on more than one occasion that she felt she did not need to participate in the same trainings as the other employees and it would be basically a waste of time and money."*fn165 Miller likewise stated during her EEO fact-finding conference testimony that Ching had explained to her that the evaluation score was based upon the fact that "I [Miller] was resistant to training."*fn166 The Government has thus met its burden in coming forth with a non-retaliatory reason for Miller's evaluation score.

The third step of the McDonnell framework requires that "the plaintiff must then produce evidence that the proffered reason is a pretext."*fn167 To defeat summary judgment, it is not enough that Miller claims that Captain Ching's true purpose was retaliation, she must point to admissible evidence that raises a genuine issue of material fact.*fn168 However, there are no facts in the record supporting the assertion that Miller's evaluation score was a form of retaliation. Captain Ching had never given Miller a higher annual evaluation score in the past, and Miller cites to no remarks or behavior by Ching that suggest her reasons were disingenuous. Therefore, Miller's retaliation claims fail to raise a triable issue of fact and cannot survive summary judgment.

3. Miller Fails to Allege Causation Regarding the Hearings in the Red Reeder Room

All of Miller's protected activity, complaint letters, EEO complaints, and the filing of this civil suit took place between May 8, 2007 and August 24, 2009.*fn169 While Miller states that certain hearings were moved to the Red Reeder Room, she does not indicate when this occurred.*fn170 Reading the record in the light most favorable to the plaintiff, this practice may have begun in January 2010.*fn171

To prove that this change of location was retaliatory in nature, Miller must show either a direct causal connection between the protected activities and the retaliation, or some circumstantial evidence, such as proximity, that suggests retaliation.*fn172

Miller has not put forward evidence that raises a genuine issue of fact about what caused the movement to the Red Reeder Room. There is no evidence in the record that directly establishes that the move was motivated by a retaliatory purpose. In terms of circumstantial evidence, Miller can only point to the fact that the change was authorized some months after she began to engage in protected activity. However, "temporal proximity must be sufficiently close" in order to substantiate a charge of retaliation.*fn173 In the absence of any further evidence suggesting retaliation, months of separation between protected activity and alleged retaliation cannot be considered very close.*fn174 Here, the protected activity and the alleged retaliation were at least five months apart and there is no other evidence showing that the move was motivated by animus toward Miller. Therefore, Miller has not raised a factual issue of causation in the Government's moving certain hearings to the Red Reeder Room.

4. Miller's Counseling Sessions and Other Guidance Involved No Adverse Employment Action

Miller's counseling sessions and other guidance memoranda detailing her responsibilities as an employee do not rise to the level of adverse employment action.*fn175 Though a plaintiff must only make a "de minimis" showing of conduct by an employer that would "dissuade a reasonable worker from making or supporting a charge of discrimination," the Second Circuit has still required that there be some "injury or harm."*fn176 Many of the documents submitted by Miller state explicitly that they are not intended as discipline, and that they are standardized guidance documents.*fn177 Because adverse impact is an element of a prima facie case of retaliation, its absence is fatal to Miller's claim.

C. Miller's Hostile Work Environment Claims

Miller bases her hostile work environment claims on three inappropriate comments made by co-workers: (1) Captain Greiser's asking Miller whether she "would be ready to climb Storm King Mountain for an office outing,";

(2) co-worker Barnes' asking Miller "how would you like me to kick your leg and see how it hurts?"; (3) co-worker Laiso's remark, "Everyone hates you, I hate you!", as well as a picture that Captain Adams, a superior, sent by e-mail to Miller and some of her co-workers.*fn178 However, "Title VII does not establish a general civility code for the American workplace" and "[s]imple teasing, offhand comments, or isolated incidents of offensive conduct (unless extremely serious) will not support a claim of discriminatory harassment."*fn179 Despite the inappropriateness and offensiveness of the comments referred to by Miller, they fail to describe conditions "sufficiently severe or pervasive to alter the conditions of [her] employment."*fn180

In addition, to make out a prima facie case for a hostile environment, a plaintiff must establish "that she was harassed because of her membership in a protected class."*fn181 Only two of the comments noted by Miller, however, relate to her disability - Greiser's and Barnes'. Two comments over at least a two-year period are insufficient to constitute a discriminatory environment that is pervasive or severe. Moreover, although employees may not appreciate receiving a picture of a supervisor by e-mail, Captain Adams' e-mail had nothing to do with Miller's disability and it was not just sent to Miller.*fn182 Accordingly, Miller's hostile work environment claim fails as a matter of law.

D. Miller's Privacy Act Claim

Miller argues that the Government has violated the Privacy Act by disclosing information about her condition to co-workers and by providing her phone number on an office roster without her consent.*fn183 To survive summary judgment, Miller must provide facts that support the elements of the claim including evidence showing that a "record" was disclosed and that she suffered an adverse effect.*fn184 While Miller maintains that the Privacy Act elements have been met, these conclusions are unsupported. For instance, the only incident in the record of co-workers discussing Miller's medical conditions concerns a request by Captain Adams that a co-worker, Christine Henderson, write a statement based on what Miller had told her about her knee injuries.*fn185 While this suggests that co-workers had discussed Miller's condition, it fails to show that the government released records, or information from records, concerning Miller. Miller also fails to explain why the release of her telephone number had any adverse impact upon her. Because Miller fails to provide evidentiary support for the necessary elements of her Privacy Act claim, the Government is entitled to summary judgment on this claim.


For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk is directed to close this motion [Docket No. 30] and this case.


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