The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge
Julia Oyewo ("Oyewo") commenced this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17, against the Secretary of the United States Department of Transportation, alleging employment discrimination, based on race and national origin, and retaliation. Oyewo contends that, on September 30, 2003, she settled an employment discrimination action with the defendant, pursuant to which she was promoted to a K-Band position. She asserts that a "month after the Settlement Agreement was signed, Plaintiff was ordered by [Jack] Nager and [Sheldon] Gross to relocate her office from the Regional headquarters at Kennedy Airport to the remote location at Garden City, L.I. (This space was reserved as a training facility)[.] The reasons given for this most unusual relocation was the lack of office space at Kennedy." Oyewo alleges "this was obviously pretext" because vacant and appropriate office space existed at the Regional Office at Kennedy Airport ("ROKA"). According to Oyewo, no personnel were located at the Garden City facility, and "she was so isolated there that the entire time she was assigned to Garden City, she was the only FAA employee on the whole second floor." Oyewo asserts that, contrary to the terms of her 2003 settlement agreement, which provided for an increase in her duties and responsibilities, her duties and responsibilities "were taken away by Mary Golia and Jack Nager under the guise of a new title which meant very little and offered only minimal authority and often obsolete responsibilities." According to Oyewo, she was reassigned to ROKA "in July 2006, after the lease expired for the space in Garden City."
Upon relocating to ROKA, Oyewo claims she was placed in a "secretarial station-not the requisite office which all other K-Band employees were assigned," and she was "subjected to the humiliation of being mistaken for a secretary." Oyewo maintains that, in response to her immediate supervisor Juaida Norrell's ("Norrell") complaint concerning Oyewo's work space, Oyewo was provided "with a cubical space," which "was so inadequate that it didn't even provide a file cabinet and the materials necessary to be used by the Plaintiff had to be stored in several large boxes." Oyewo asserts that, on or about August 2006, she "sustained a serious injury as a result of one of these boxes falling on her left knee." Moreover, the chair she was given was "dysfunctional and decrepit," and, on or about September 30, 2008, it broke, causing severe injuries to her back, head and spine. Oyewo alleges that all individuals involved in the decisions respecting her claims had knowledge of her "protected participation," in matters related to her previous employment discrimination action, which resulted in the 2003 settlement agreement.
The parties consented to jurisdiction by a United States magistrate judge, pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil procedure. Before the Court is the defendant's motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, consisting of a: (1) notice of motion; (2) memorandum of law; (3) Local Civil Rule 56.1 statement of undisputed facts; (4) declaration by Mary Bonsall*fn1 ("Bonsall"); (5) declaration by Marie Kennington-Gardiner ("Gardiner"); and (6) declaration by Christine Poscablo, the defendant's counsel, with numerous exhibits attached to it. Oyewo opposes the motion with a memorandum of law.
Oyewo is black, Jamaican-American and a native of Jamaica. She has been employed by the Federal Aviation Administration ("FAA"), as an engineer, since the early 1990s. In September 2003, Oyewo and the FAA signed a Stipulation of Settlement, settling an employment discrimination action commenced by Oyewo in the United States District Court for the Eastern District of New York. The 2003 settlement agreement provided, inter alia, that "within sixty (60) days," Oyewo be appointed to "the position of Engineer, Job Category: Engineering, Pay FV, Series 801, Level 5, K-pay Band with an 8% increase over her current pay, in accordance with FAA policies and procedures, effective October 5, 2003." The 2003 settlement agreement also provided that Oyewo "will report to the Engineering Center, Washington, D.C., but the workstation will be located at the Liberty Sector Management facility, Garden City, Long Island, New York."
From in or about October 2003 to December 2003, Oyewo reported directly to Director of Facilities Services, Jack Nager ("Nager"). From December 2003, Oyewo reported directly to Paul Laven ("Laven"), who assigned Oyewo to attend certain training programs and "to dial in whenever we have team meetings." A few months after she began reporting directly to Laven, Oyewo began reporting directly to Susan Knapton ("Knapton"), who, except for giving Oyewo small writing assignments, had no challenging tasks to assign to Oyewo. Oyewo testified that Knapton "was a nice lady but was intimidated by my education and experience; told me she had nothing to task me with because she herself was not very busy." Oyewo stated that she had no problem with these assignments, "but I didn't get any thing [sic] I would have asked a K-Band to do." In February 2004, Oyewo was reassigned to a directorate called Air Traffic Control ("ATC") Facilities or AJW-2.
From September 2004*fn2 , to May 2008, Oyewo reported directly to Norrell. Oyewo was satisfied with the assignments she received from Norrell, because they were challenging. Norrell assigned work to Oyewo without input from others. The assignments from Norrell consisted of "A-76 contract" and a presidential mandate. An A-76 contract "is where the federal government will look at its workload and decide what they [sic] can give to the outside entity for contractual obligations that would not impact our mission, which was safety." A presidential mandate entails performing tasks required to comply with the FAA's presidential directive "to identify real estate and other things that we have - real properties within the agency that we will not be utilizing and turn them over to [the General Services Administration] GSA so that we can lighten the inventory, probably sell those properties and have some money circulating back into the agency." From June 2005 to January 2006, Nager was Oyewo's third-level supervisor. From July 2006 to July 2010, Bonsall was Oyewo's third-level supervisor.
In June 2005, Oyewo was transferred from the FAA's Garden City facility to ROKA. On the first day Oyewo arrived at ROKA, in June 2005, she was directed to an office, but that office was occupied by another employee, Bill DeGraaf. The following day, Oyewo was provided her current work space. It has four walls, a window facing outside, a door, a desk, an overhead cabinet, a desk chair, and two additional chairs. Oyewo does not supervise any employees.
In May 2008, Oyewo began reporting directly to Cornell Collie ("Colllie"). Collie supervised two other managerial K-band employees, one was stationed in Kansas City and the other at headquarters; both worked in cubicles. Collie assigned work to Oyewo without input from others. The first task Collie assigned to Oyewo was to draft a statement of work ("SOW") for a shelter replacement project and determine how the agency "can procure shelters for a national contract, through a service order agreement with AML in OK City." Oyewo started working on that assignment but then became ill and had to take a leave from work. In order to stay on schedule with the project he assigned to Oyewo, Collie reassigned it to another employee, who was at a lower grade than Oyewo. In July 2008, Collie assigned Oyewo the task of writing SOWs "for national contracts, one being the tower repair and the other being HVAC installation."
On July 1, 2008, Collie advised his staff of an impending change to the alternate work schedule ("AWS") policy. He stated that, within the next two pay periods, "all ten hour compressed work days would be eliminated due to the operational demand and to improve the effectiveness of our new organization." Collie indicated that all key role employees (those who have direct support to the field or service area) would have ten hour work days eliminated. Ms. Oyewo and Mr. Kodsi were both on ten hours days. However they had an options [sic] of 9/5/4 or straight eight hours.
By having an option they could take one day off every two weeks, opposed to one day off every week. . . . [Oyewo] submitted in writing on 7/16/08 a schedule for a 9/5/4 AWS option with one day off every two weeks and she chose Mondays as her day off.
Oyewo was on disability leave from about September 2008 to July 2009. Upon her return to work, in July 2009, Oyewo continued working on the two SOWs on which she had been working before going on disability leave. In March 2010, Collie assigned Oyewo to work on a "decommissioning program," to decommission any system on the agency's real property that is no longer used. Oyewo worked on that assignment until May 2011, when she took medical leave.
On September 8, 2008, an EEO ("Equal Employment Opportunity") Counselor Report was filed with the Equal Employment Opportunity Commission ("EEOC") Complaints Manager, Office of Civil Rights, Federal Aviation Administration, concerning grievances raised by Oyewo. Oyewo complained about her assigned duties, namely that she had been "asked to write a national contract for Tower Refurbishment in 1 month equivalent to the TSSC contract which took 40 people and 2 1/2 months to write." According to Oyewo's complaint, she had been given "other assignments and due dates that are unrealistic and not within the scope of [her] abilities." Oyewo alleged she was subjected to a hostile work environment, was removed from the AWS without discussion, and that she believed "Mary Golia is removing the black females from the organization." The EEO counselor summarized Oyewo's grievances, as follows:
The aggrieved person wants the same accommodation as other ATO Employees in K-Band status/her peers. She was put in supposed temporary location but is still there. It is an enclosed cube that does not have her name or room number and there is no room for her things/equipment. Mary Golia allegedly stated that the aggrieved person is "fine where she is." The aggrieved person states that a prior settlement agreement states that her duty station is in the Regional Office Building in Jamaica, Queens, New York, but they agreed to send her to Garden City so long as when she returns she is given the same or better accommodations. She has yet to receive these accommodations. In addition, she is given unrealistic work goals, is being asked to cease her AWS, and she believes that Ms. Golia has the intent to remove all A-A employees under her.
On September 26, 2008, Oyewo received a notice of final interview and right to file a complaint of discrimination, informing her, inter alia, that the "complaint must be specific and contain only those issues discussed with [the EEO counselor]."
On October 18, 2008, Oyewo filed a complaint of discrimination with the Department of Transportation ("DOT"), claiming she was discriminated against by the defendant because she is black, Jamaican, female, fifty-three years old and as a reprisal for her previous "EEO activities." In her DOT complaint, Oyewo alleged that, on August 14, 2008, she inquired about the status of "the permanent space that was part of my EEO settlement since October 2003," but was told that the management in Washington informed the regional administrator "not to prepare a permanent space for [Oyewo] because Ms. Norrell is not my supervisor and had no authority to authorized [sic] permanent space for [her]." Oyewo alleged in her 2008 DOT complaint, inter alia:
In the settlement agreement, my duty station is and is still listed as the Eastern Region Headquarters, at Kennedy International Airport, Jamaica, NY. When the agreement was to be implemented, management objected to me staying at the Regional Office as called out by the agreement and they were willing to pay for my daily commute to Liberty SMO at Garden City, NY. I did objected [sic] to this arrangement at first because the place where my office was located, I was the only FAA employee on the floor. What management did was placed [sic] an addendum to the agreement which stated that when I am permanently given an office, it would be same or better. I had approximately 2,500 square feet all by myself whereas at the time the Regional office was one third empty. The agency saw it fit to punish me by placing me in isolation and taking all my work away from me. . . . I stayed at liberty SMO for nearly three years, until the leased space for the SMO expired. . . . During this period, I was passed from one supervisor to the next because no one knows what task to assign or was instructed not to give me any assignments. . . . I still live from boxes because the temporary space that I have does not have any cabinet space for my documentations [sic] and books. . . .[O]ther employees in Eastern Region who is [sic] also working for Headquarters . . . have never been through what the Region or my Line of Business is putting me through. The majority of the employees are white with the exception of one black female; they all have proper offices. . . . I am the only black female ATO-W employee that is in the New York Regional office having the issues that I have. . . . I do not have an office either; it is only an enclosed cubicle. . . . The other issue that greatly disturbs me is, the Director for ATC Facilities, Mary Golia is on a rampage to remove all her acquired (she did not select any of us) FV-K black females from the organization and replacing [sic] us with white males. . . . Management gave a Position Description for a project that does not exist in the organization for more than six years. I was passed from one supervisor to another with absolutely no work assignment. Whenever I complain, I was appeased by giving a small assignment. This continues until I had Ms. Norrell as my manager, this is when I started to get "real work." . . . I am given projects with no prior training. The project is unrealistic for a one-person team and the period of accomplishment ...