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Anya Juan Risco v. John M. Mchugh

June 14, 2012


The opinion of the court was delivered by: Ramos, D.J.:


Plaintiff, Anya Juan Risco, brought suit against Defendant, John M. McHugh, Secretary of the Army ("Defendant" or the "Army"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e-2000e-17, alleging that Defendant, acting by and through his agents, discriminated against her on the basis of her race, color, disability and/or perceived disability, and in retaliation for her initiation of protected activity, by subjecting Plaintiff to a hostile work environment.*fn1 (Compl. ¶ 46). Plaintiff also alleges that Defendant discriminated against her by terminating her employment because of her race and color, her disability and/or perceived disability and in retaliation for engaging in protected activity. (Id. ¶ 47). Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) arguing that all of Plaintiff's claims against the Army should be dismissed. For the reasons stated herein, Defendant's motion is GRANTED in full.


The following facts are undisputed unless otherwise indicated.*fn2 Risco is a dark-skinned Hispanic woman who is currently fifty years old. (Def.'s Stmt. Undisputed Facts Pursuant to significant respects. (See Pl.'s Response Def.'s Rule 56.1 Stmt. ("Pl.'s 56.1 Response"), Doc. 21.) First, it frivolously purports to deny certain factual assertions that a review of the record establishes have previously been admitted by Plaintiff in sworn testimony, or otherwise relied on by Plaintiff. See, e.g., infra notes 9, 16 (discussing Pl.'s 56.1 Response ¶¶ 9, 21). Indeed, in one response, counsel both "admits" and "denies" the same asserted fact. (Pl.'s 56.1 Response ¶ 25.)

Second, the Statement fails to comply with Fed. R. Civ. P. 56(c) and Local Rule 56.1 in that it fails to support many of Plaintiff's purported denials with any citations to admissible evidence or with citations to evidence that actually support her contentions. See, e.g., infra notes 8, 9, 16, 17, 30 (discussing Pl.'s 56.1 Response ¶¶ 9, 21, 25); see also Holtz, 258 F.3d at 74 (explaining that where, as here, there are no citations to admissible evidence, or the cited materials do not support the purported undisputed facts in a party's Rule 56.1 statement, those assertions must be disregarded); Costello v. N.Y. State Nurses Ass'n, 783 F. Supp. 2d 656, 661 n.5 (S.D.N.Y. 2011) (disregarding plaintiff's responses to defendant's Rule 56.1 statement where plaintiff failed to refer to evidence in the record). "Allowing a Local Rule 56.1 statement to substitute for the admissibility requirement set forth in Fed. R. Civ. P. 56(e) 'would be tantamount to the tail wagging the dog,'" and "would risk creating tension between Local Rule 56.1 and Fed. R. Civ. P. 56." Holtz, 258 F.3d at 74, 74 n.1(quoting Rivera v. Nat'l R.R. Passenger Corp., 152 F.R.D. 479, 484 (S.D.N.Y. 1993)).

Third, the Statement improperly interjects arguments and/or immaterial facts in response to facts asserted by Defendant, without specifically controverting those facts. See, e.g., infra notes 9, 10, 12, 14, 16, 17, 23, 25, 30 (discussing Pl.'s 56.1 Response ¶¶ 8, 9, 10, 13-15, 21, 25); Costello, 783 F. Supp. 2d at 661 n.5 (disregarding plaintiff's responses to defendant's Rule 56.1 Statement where plaintiff responded with conclusory assertions or legal arguments). In other instances, counsel neither admits nor denies a particular fact, but instead responds with equivocal statements such as: "Admit that the email so stated but deny as incomplete" (Pl.'s 56.1 Response ¶ 10), "Admit, but incomplete" (id. ¶ 20), or "Deny as to the claims." (Id. ¶ 21.) "Responses of this nature, which do not point to any evidence in the record that may create a genuine issue of material fact, do not function as denials, and will be deemed admissions of the stated fact." Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 458 n.1 (S.D.N.Y. 2011); see also Costello, 783 F. Supp. 2d at 661 n.5 (disregarding plaintiff's responses where plaintiff failed to specifically dispute defendant's statements); Buckman v. Calyon Secs., 817 F. Supp. 2d 322, 328 n.42 (S.D.N.Y. 2011) ("56.1 statements not explicitly denied by plaintiff are deemed admitted"); Geoghan v. Long Island R.R., No. 06 CV 1435 (CLP), 2009 WL 982451, at *5-6 (E.D.N.Y. Apr. 9, 2009) ("Since plaintiff's response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion.")

Fourth, the Statement improperly asserts new allegations or arguments not otherwise made. See, e.g., infra note 16 (discussing Pl.'s 56.1 Response ¶ 21). Fifth, though admittedly less important, the Statement fails to conform to my Individual Practices which require litigants to reproduce each entry in the moving party's Rule 56.1 Statement and set out the opposing party's response directly beneath it. Individual Practices Rule 2(C)(i). This requirement is also contained in the individual rules of other judges in this District and in this courthouse before whom Plaintiff's counsel frequently appears.

The balance of counsel's submissions in no way serve to cure the deficiencies in Plaintiff's 56.1 Statement and, indeed, Plaintiff's other submissions simply serve to add to the Court's burden. For example, Plaintiff's Affidavit is replete with improper averments, including statements not based on personal knowledge and assertions that are explicitly contradicted by admissible evidence in the record (including Plaintiff's prior sworn testimony) and Plaintiff's other submissions. See, e.g., infra notes 7, 16, 52 (discussing Pl.'s Aff. Opp. Def.'s Mot. Summ. J. ("Pl.'s Aff.") ¶¶ 4, 13, 24, 29-30); see also Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 131 n.12 (2d Cir. 2004) (noting that district court was free to disregard hearsay statements and speculation in affidavits); Flaherty v. Filardi, No. 03 Civ. 2167(LTS)(HBP), 2007 WL 163112, *4-5 (S.D.N.Y. Jan. 24, 2007) (disregarding inadmissible portions of plaintiff's affidavit in analyzing motion for summary judgment); Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 568-69 (E.D.N.Y. 1999) (same); Rojas v. Roman Catholic Diocese of Rochester, 783 F. Supp. 2d 381, 406-07 (W.D.N.Y. 2010) (plaintiff's affidavit that disputes her own prior sworn testimony must be disregarded), aff'd, 660 F.3d 98 (2d Cir. 2011), cert. denied, 132 S. Ct. 1744 (2012); Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) (same) (citing Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 468-71 (S.D.N.Y. 1998) (Sotomayor, J.), aff'd, 205 F.3d 1324 (2d Cir. 2000)).

Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, while loaded with factual arguments which could conceivably have raised a genuine issue of material fact, does not contain one single citation to the record, and, in certain instances, Plaintiff's factual assertions are expressly contradicted by admissible evidence in the record. See, e.g., infra notes 50, 52 (discussing Pl.'s Mem. 7, 10-11). By way of further example, counsel devotes approximately one and one-half pages of Plaintiff's Memorandum to defending a purported Americans with Disabilities Act ("ADA") claim. (Pl.'s Mem. 8-9). There are two problems with this argument, one factual the other legal. The factual problem is that there is no ADA claim in the Complaint. Plaintiff arguably raises two causes of action in her Complaint, both sounding in Title VII violations. (Compl. ¶¶ 46-47). The legal problem with Plaintiff's "ADA claim," had it actually been asserted, is that there can be no ADA claim against the federal government. See infra Section V. (Defendant's papers fared no better in this regard, it devoted three-and-one-half pages to opposing a non-existent Rehabilitation Act claim. (Mem. Supp. Def.'s Mot. Summ. J. ("Def.'s Mem.") 15-17; Reply Mem. Supp. Def.'s Mot. Summ. J. ("Def.'s Reply Mem.") 4-5.)) Plaintiff's Memorandum also contains references to discrimination and hostile work environment claims on the basis of age, national origin and gender. (See, e.g., Pl.'s Mem. at 5, 8, 10.) These also are not among the claims that Plaintiff has asserted in the instant case. As these references appear to be mistakes, the Court has disregarded all references to age, gender and national origin.

In addition, unlike the usual attorney affirmations which merely attach copies of documents alleged to be relevant and admissible, and identifies those documents for the Court, Plaintiff's counsel submitted an affirmation which includes arguments and factual assertions. (Aff. of Michael H. Sussman, Esq. ("Sussman Aff."), Doc. 22.) The affirmation is patently improper in that he could not possibly have personal knowledge of the matters discussed, as evidenced by the fact that the affirmation-unlike counsel's other submissions-actually contains citations to the record (see, e.g., Sussman Aff. ¶¶ 2-7), and because counsel attaches documents that contain inadmissible hearsay or that are inadmissible by virtue of the fact that they are nowhere properly identified, much less authenticated. (See, e.g.,Sussman Aff. Exs. 6-8, 12, 14); see also Fed. R. Civ. P. 56(c)(4) (an affidavit or declaration used to oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated). In resolving this motion, the Court has relied only on the exhibits to the affirmation that contain admissible evidence, and has not considered the improper assertions and arguments contained in the affirmation, or the exhibits to the affirmation containing inadmissible evidence. Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983) ("An affidavit of the opposing party's attorney which does not contain specific facts or is not based on first-hand knowledge is not entitled to any weight."); see also Little v. City of New York, 487 F.Supp.2d 426, 433 n. 2 (S.D.N.Y. 2007)("The law is clear that an attorney's affirmation that is not based on personal knowledge of the relevant facts is to be accorded no weight on a motion for summary judgment.").

Although the court is not required to search the record for genuine issues of material fact that the party opposing summary judgment failed to bring to the Court's attention, Holtz, 258 F.3d at 73, the net result of counsel's deficiencies has been to impose on the Court and its limited resources the burden of parsing the entirety of the voluminous record in the instant case to ensure that his client's claims receive thorough and just consideration. (The Court also notes that Defendant failed to raise any of these deficiencies in responding to Plaintiff's Memorandum, and thus placed the onus of this arduous undertaking entirely on the Court.) In this regard, the Court notes that in Local R. 56.1 ("Def.'s 56.1 Stmt.") ¶ 1.*fn3 ) Prior to her employment with the Army, Risco served in the United States Navy for over twenty years, and was honorably discharged in 2001. (Bober

several instances, in the interests of justice, recourse was made to facts contained in the admissible evidence submitted by Defendant because Plaintiff had failed to submit, or even to make reference to, evidence favorable to her. See, e.g., infra notes 16, 39, 43; see also infra notes 35, 51.

In sum, for the reasons set forth above, and explained further below where necessary, in analyzing the instant motion, the Court has disregarded: (1) averments in Plaintiff's 56.1 Statement that are not denials of the specifics facts asserted by Defendant, or not supported by citations to admissible evidence in the record, or that are contradicted by other admissible evidence in the record, or that are improper legal arguments; (2) improper assertions and arguments contained in Plaintiff's counsel's affirmation that are clearly not based on personal knowledge; (3) inadmissible evidence attached as exhibits to Plaintiff's counsel's affirmation; and (4) the improper portions of Plaintiff's Affidavit.

As noted, this is not the first time a member of this Court has had to take the extraordinary step of admonishing Plaintiff's counsel concerning his obligations to follow the Local and Individual Rules of this Court. The admonitions date back as far as five years and as recently as two months. See, e.g., Tomlins v. Village of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d 357, 361 n.2 (S.D.N.Y. 2011) (admonishing Plaintiff's counsel for repeated failure to follow Individual Practices and declining to consider averments in plaintiff's 56.1 statement that were not supported by, or that were contradicted by, admissible evidence, or that were "legal arguments under the guise of undisputed facts"); Vero v. Pepsi Cola of the Hudson Valley, 10-CV-4112, 1 n.1 (Apr. 3, 2012)(same); McGuire v. Warren, No. 05 Civ. 02632 (DCP) (WCC), 2009 WL 3963941, at *2 n.5, *5 n.7, *11 n.9 (S.D.N.Y. Nov. 18, 2009) (same); Woods v. Newburgh Enlarged City Sch. Dist., 473 F. Supp. 2d 498, 504 n.3 (S.D.N.Y. 2007) (admonishing Plaintiff's counsel for, inter alia, failing to cite to the record in his Memorandum and including material allegations not otherwise asserted or supported), aff'd, 288 Fed. App'x 757, 760 (2d Cir. 2008); see also Rockland Vending Corp. v. Creen, No. 07-CV-6268 (KMK), 2009 WL 2407658, at *9 n.14, *16 (S.D.N.Y. Aug. 4, 2009) (noting that Plaintiff's counsel merely restated assertions from complaint in opposing summary judgment motion "without adding any dates, other specifics, or citations to the record," and rejecting arguments based on inadmissible hearsay); Newsom-Lang v. Warren Int'l, Inc., 249 F. Supp. 2d 292, 294 nn.2, 3 (S.D.N.Y. 2003) (disregarding plaintiff's responses that purported generally to deny defendant's factual proffer where plaintiff did not deny any of the specific facts in defendant's proffer, and instead focused on immaterial facts tangentially related to defendant's statement), aff'd, 80 Fed. App'x 124 (2d Cir. 2003); Copeland v. Sears, Roebuck & Co., 25 F. Supp. 2d 412, 417 n.1 (S.D.N.Y. 1998) (disregarding denials in plaintiff's 56.1 statement that were not supported by citations to admissible evidence).

It simply will not do for counsel to say that genuine issues of material fact exist and then rely on the Court to go find them. Much more is expected from an experienced member of the bar of this Court and will henceforth be strictly required.

Decl. Ex. B (Risco Dep. 11:22-13:16).*fn4 ) Risco completed her bachelor's degree in 2004, and held various part time jobs from 2005 through 2008. (Id. 14:7-15:5.)

A.Risco's Employment

Risco began her employment with the Army on September 28, 2008, as a probationary Guidance Counselor Intern in the U.S. Army Civilian Training Education Development System ("ACTEDS") at the United States Military Academy, West Point, New York.*fn5 (Def.'s 56.1 Stmt. ¶ 2.) As a probationary guidance counselor intern, Risco assisted military personnel who were interested in pursuing educational opportunities that were available to them through the Army. (Id. ¶ 3.) Risco's permanent appointment was subject to the satisfactory completion of a one-year probationary period. (Id. ¶ 5.) The purpose of the probationary period was to determine Risco's fitness for a permanent guidance counselor position. (Id. ¶ 5.) Federal regulations provide that the employer "shall terminate [an employee's] services during this period if [she] fails to demonstrate fully [her] qualifications for continued employment." 5 C.F.R. § 315.803. Termination can be based on unsatisfactory performance or conduct. 5 C.F.R. § 315.804.

Risco's immediate supervisor at West Point was David Byrd, Director of the Education Center. (Def.'s 56.1 Stmt. ¶ 4.) Byrd was also the individual who selected Risco for the intern position in September 2008 from a list of candidates provided to him by ACTEDS. (FFC Tr. 29:22-30:18; Risco Dep. 17:10-23.) Byrd's immediate supervisor was Michael Bilello, Director of Human Resources. (FFC Tr. 272:5.) Byrd and Bilello are both white males. (Def.'s 56.1 Stmt. ¶ 4.) As a probationary guidance counselor intern, Risco was also supervised by a number of individuals in the Installation Management Command ("IMCOM") and Army Continuing Education ("ACES")/ACTEDS chain of command.*fn6

Defendant argues that Risco began to exhibit erratic behavior shortly after she was hired, and that her inappropriate behavior escalated over time, notwithstanding her supervisor's efforts to correct the behavior through informal counseling.*fn7 (Def.'s Mem. 2, 5-8, 23; Def.'s Reply Mem. 1-3.) Plaintiff claims that neither of her supervisors raised any serious issues concerning her performance or conduct from September 28, 2008 through March 8, 2009. (Compl. ¶ 14; Pl.'s Aff. ¶ 11.)

On July 10, 2009, after approximately nine months of employment, Risco was told she was being terminated from the internship program by Ileen Rogers, the director of ACES. (Def.'s 56.1 Stmt. ¶ 26.) The stated basis of the termination was Risco's "fail[ure] to exhibit the requisite behavior to perform successfully as a guidance counselor." (Bober Decl. Ex. O, at 1.) The termination was effective on July 25, 2009. (Id.) Of the numerous individuals involved in the decision to terminate Risco's probationary employment, Risco imputes improper motives to only two people: Byrd and Bilello. (Compl. ¶ 38; Risco Dep. 79:5-8.)

B.Risco's Behavior

Defendant has identified various instances of Risco's behavior that her supervisors and co-workers deemed inappropriate, unusual, or disruptive to the workplace, which formed the basis for Risco's termination. (Def.'s Mem. 5-8; Def.'s Reply Mem. 2-4.) Plaintiff does not dispute the occurrence of the incidents recounted below.

The first conduct-related incident occurred in late 2008 or early 2009. On that occasion, after learning that Risco was scheduled to accompany Byrd on a work trip to Hawaii, Victoria McPeak, one of Risco's co-workers, is alleged to have said to Byrd: "Well, what does your wife think of you taking [Risco] to Hawaii?"*fn8 (FFC Tr. 143:17-19.) Risco was offended by McPeak's comment and subsequently told Byrd: "where I come from, she [McPeak] would be disciplined by her mother, father, brother, sister, she would be slapped by her mother, brother, father, sister." (Def.'s 56.1 Stmt. ¶ 9; *fn9 Risco Dep. 96:14-19; FFC Tr. 144:1-9.) Byrd immediately counseled Risco in person about this statement. (Def.'s 56.1 Stmt. ¶ 9; FFC Tr. 144:6-7, 148:2-3.) Byrd also counseled McPeak about the incident. (FFC Tr. 280:10-19.) McPeak did not recall making the comment but assured Byrd that it wouldn't happen again. (Id. 280:15-22.) Risco continued to refer to this incident repeatedly over the next four to five months, despite directions from both Byrd and Bilello to "drop it." (Id. 282:16-283:13.)

During the first five months of her employment, Risco was also in the habit of referring to her co-workers and superiors by pet names such as "Aunties," "Papa" and "Don." (Def.'s 56.1 Stmt. ¶ 8.*fn10 ) Although the parties disagree as to the frequency and duration of this practice (Pl.'s 56.1 Response ¶ 8), it is undisputed that Risco did use these nicknames, and that both Byrd and Bilello had to ask Risco to stop referring to them by pet names. (FFC Tr. 244:1-18, 245:5-246:19; 438:20-441:3.) Risco states that she stopped using the pet names as soon as she was asked to do so. (Pl.'s 56.1 Response ¶ 8.)

On March 8, 2009, Risco sent Byrd an email stating that she was feeling "overwhelmed" by her work assignments, and that her health issues were distracting her from work and affecting her productivity level.*fn11 (Def.'s 56.1 Stmt. ¶ 10.*fn12 ) Risco also expressed her belief that she was being assigned duties that were beyond the scope of her job as a guidance counselor intern. (Bober Decl. Ex. D; Pl.'s 56.1 Response ¶ 10.) In response, Byrd explained that he was giving her duties beyond the narrow scope of her position in an effort to expose Risco to the broad range of tasks that she would encounter as a permanent guidance counselor, and to ensure that he was providing her with the "proper education, training and tools to accomplish the robust mission that ACES is charged with." (Bober Decl. Ex. D, at 2.) He also explained that he was sincerely trying to help her and wanted her to succeed. (Def.'s 56.1 Stmt. ¶ 11.) In addition, Byrd noted that Risco's workload was only a fraction of that of other Education Center personnel. (Id.)

On March 22, 2009, Risco sent an email to her supervisors and co-workers with the subject line "Proffessionalism [sic] and Etiquette in the Workplace," stating that she "observed many departments . . . diminish their professionalism, productivity and positive work environment due to malicious gossip," and that she hoped her co-workers were "far too superior and professional to engage in gossip." (Def.'s 56.1 Stmt. ¶ 12; Bober Decl. Ex. E.) Byrd verbally counseled Risco about sending this email, which he believed was inappropriate and accusatory in nature.*fn13 (FFC Tr. 314:5-316:3.) Several of Risco's co-workers also reported to Byrd that they found Risco's email to be accusatory and harmful to the work environment. (Def.'s 56.1 Stmt. ¶ 13;*fn14 Bober Decl. Ex. F, at 2-4; see also FFC Tr. 774:3-775:8.) Byrd and Bilello were unable to determine what motivated Risco to send the email (FFC Tr. 314:10-316:3, 661:1-662:3), and Risco claims that she was not accusing her co-workers or supervisors of engaging in gossip.*fn15 (FFC Tr. 248:13-15, 249:5- 250:21.)

In March of 2009, Risco also left several voicemail messages for Byrd and Bilello which they considered unusual. (FFC Tr. 430:3-7, 431:8-11, 433:6-8, 434:4-435:1, 662:10-665:2.) In one such message, Risco expressed concerns that her co-workers were misinterpreting her platonic relationship with a local business owner, and made a comment about all New Yorkers being ignorant.*fn16 (FFC Tr. 432:3-432:17, 662:10-663:1, 664:1-11.) Both Byrd and Bilello described the message as unusual in nature, and neither supervisor understood the impetus behind the messages, if any.*fn17 (FFC Tr. 434:21-22, 435:20-437:8, 663:10:665:2.) Risco's belief that others were commenting on her relationship with the business owner was also reported by one of her co-workers, who similarly found Risco's seemingly unfounded concerns to be unusual. (Bober Decl. Ex. F, at 3-4.)

On March 24, 2009, without explanation, Risco sent Byrd and Bilello an email informing them that she was "submitting her two-week resignation letter." (Def.'s 56.1 Stmt. ¶ 16; Bober Decl. Ex. G.) Three days later Risco sent an email to Byrd and Bilello rescinding her resignation, again without explanation. (Def.'s 56.1 Stmt. ¶ 18; Bober Decl. Ex. I.)

On April 24, 2009, Risco sent Bilello an email to request Army regulations regarding monitoring civilian personnel email accounts, explaining that she believed that Byrd was accessing her email account. (Def.'s 56.1 Stmt. ¶ 19; Bober Decl. Ex. J.) In the email, Risco alleged that Byrd had told her on several occasions that he was capable of reading Risco's email messages, and she claimed that Byrd had repeated some of her email messages to her verbatim. (Bober Decl. Ex. J.) Byrd testified that those conversations never occurred. (FFC Tr. 505:8-506:10.)

C. Risco's Initial Contact with the Army EEO Office in March 2009

In March 2009, Risco contacted the Army Equal Employment Opportunity ("EEO") office for the purpose of obtaining information about the rules relating to disabled employees working for the government (Def.'s 56.1 Stmt. ¶¶ 27-28), and because she wanted someone to speak to Byrd about her training, their communication issues, and Byrd's unprofessional conduct.*fn18 (FFC Tr. 33:13-34:7, 54:2-55:4; Risco Dep. 45:13-18, 46:17-19.) Risco met with Linda Burnett, an EEO representative, at the EEO building at West Point. (Risco Dep. 43:2-8, 48:11-49:14.) Risco has admitted that when she first contacted the Army EEO office, she did not believe that she was being discriminated against. (Def.'s 56.1 Stmt. ¶ 29; Risco Dep. 38:25-39:4, 40:6-9, 45:9-18, 47:22-48:19.)

During this time period, Burnett had a separate meeting with Byrd to address the unprofessional behavior about which Risco had complained.*fn19 (FFC Tr. 427:11-12.) Byrd described the meeting as a "mediation" intended to improve Byrd's future interactions with Risco. (Id. 428:12-14.) During the meeting, Byrd told Burnett about Risco's increasingly erratic behavior, including the unusual voicemail messages described above. (Id. 429:17-430:7, 432:6-10, 434:4-17.)

On March 24, 2009, Risco forwarded her resignation email to Burnett with the message: "I finally decided to follow my conscious [sic] and resign!" (Def.'s 56.1 Stmt. ¶ 17; Bober Decl. Ex. H.) On March 27, 2009, Risco sent another email to Burnett to inform her about a comment that she claims Byrd made on March 24, 2009.*fn20 (Sussman Aff. Ex. 5.) Risco claimed that Byrd made a remark about Risco's inability to perform certain duties because of her "health issues," and then said: "It's probably mental."*fn21 (Pl.'s Aff. ¶ 21; FFC Tr. 58:10-59:6). In the email to Burnett, Risco describes Byrd's comment as an insult and expresses a desire to speak to Byrd and an EEO representative about it. (Sussman Aff. Ex. 5.) Plaintiff avers that she "began to develop for filing [sic] an informal complaint of discrimination on the basis of perceived disability" at this time.*fn22 (Pl.'s Aff. ¶ 22.)

D.Personnel Actions and Risco's Termination

By March 2009, Byrd had become sufficiently concerned about Risco's behavior to raise the issue with his director supervisor, Bilello, as well as Risco's supervisors in the ACES/ACTEDS reporting chain. Specifically, he spoke with Anthony Clark, the IMCOM Intern Coordinator, and Renee Mongo-Jenkins, an ACES Education Services Specialist who was responsible for the intern training program. (FFC Tr. 316:5-16.) In addition, in late March or early April, Byrd and Bilello met with William Riddle, a labor-management employee relations specialist at the Civilian Personnel Advisory Center. (Id. 457:13-19, 865:8-10.) After hearing Byrd's concerns, Riddle, Clark, Mongo-Jenkins and David Rood (IMCOM Northeast Education Chief) all directed Byrd to collect statements from any of Risco's co-workers who had directly witnessed the conduct at issue. (Id. 288:18-289:3, 317:9-19, 466:13-473:22, 637:8-11.)

Pursuant to these instructions, in late April and early May, Byrd collected written statements from Risco's co-workers in the Education Center. (Id. 317:3-19, 467:4-468:5; Bober Decl. Ex. F.) The statements include descriptions of the incidents summarized above, as well as other examples of Risco's conduct that they considered unusual and inappropriate, and which they believed had negatively affected their working environment. (Def.'s 56.1 ¶¶ 14-15;*fn23 Bober Decl. Ex. F.)

Based on the reports of the conduct described above, IMCOM initially decided to terminate Risco's probationary employment in late April or early May 2009. (Compl. ¶ 32; FFC Tr. 850:6-8, 854:17-855:9.) On May 1, 2009, Byrd sent a memo to the West Point Garrison Commander, Colonel Daniel V. Bruno recommending Risco's termination on the basis of the same inappropriate behavior.*fn24 (Def.'s 56.1 Stmt. ¶¶ 20-21;*fn25 Bober Decl. Ex. K.*fn26 ) In his memo, Byrd wrote that Risco "regularly exhibits inappropriate behavior and comments," "seems unable to demonstrate empathy, remain non-judgmental, and remain objective in a diverse range of circumstances," and is hindered in her ability to be a counselor by her "preconceptions [and] stereotypes." (Bober Decl. Ex. K, at 1.) Byrd stated that Risco was unable to get along with her co-workers, and that her confrontational and disruptive conduct "has had a definite negative impact on [the] workforce and environment." (Id. at 1-2.) Byrd included several of the written statements that had been collected from Risco's co-workers with the May 1 memo he sent to Bruno. (Id. at 7-10.)

On May 7, 2009, Risco sent Bilello a memo requesting a transfer from the Education Center, and complaining that Byrd had subjected her to "discrimination," which she did not otherwise define, and retaliation for "going up the Chain of Command."*fn27 (Def.'s 56.1 ¶ 22; Bober Decl. Ex. L.) Bilello told Risco that she had to submit her transfer request to the ACES/ACTEDS chain of command, because he didn't have the authority to transfer her. (FFC Tr. 42:2-20, 116:11-117:12.)

On May 14, 2009, Risco was informed that IMCOM was not going to approve any more training or a transfer for her. (Sussman Aff. Ex. 9.) On the same day, Risco was placed on paid administrative leave pending a termination decision. (Def.'s 56.1 Stmt. ¶ 23.) Risco alleges that when she called Riddle to ask why she had been placed on administrative leave, she was told it was because of concerns about violence in the workplace, which she described as a "wholly baseless accusation." (Pl.'s Aff. ¶ 32.) The following day, on May 15, 2009, Risco contacted the Army EEO office to make an informal complaint of discrimination, in which she alleged that Byrd had been subjecting her to racial harassment since February 2009, and that she had been placed on administrative leave because of discrimination. (Sussman Aff. Ex. 13; Def.'s 56.1 Stmt. ¶ 30.*fn28

While Risco was on administrative leave, Byrd, Bilello and Riddle met with Wilfred Plumley, the Deputy Garrison Commander at West Point, to discuss Byrd's May 1 memo. (FFC Tr. 403:5-404:8.) Plumley informed them that Colonel Bruno wanted them to return Risco to work because she had never been provided with the specific performance objectives for her position. (Id. 401:10-403:3, 618:1-5, 847:20-848:20.) When IMCOM learned of Colonel Bruno's decision to return Risco to work at the end of May, it began the process of officially terminating her probationary employment.*fn29 (Id. 848: 20-849:3, 856:8-11.)

Plumley also instructed Bilello to provide Risco with written counseling about their expectations for her performance and conduct when she returned to work. (Compl. ¶ 31; FCC Tr. 400:15-401:13, 620:7-13.) Accordingly, when Risco returned to work on May 29, 2009, Bilello provided her with a written counseling statement. (Def.'s 56.1 Stmt. ¶ 24; Bober Decl. Ex. M.)On June 5, 2009, Bilello provided Risco with a second counseling statement that had been prepared by Byrd, which documented the instances of inappropriate conduct that occurred prior to Risco's administrative leave. (Def.'s 56.1 Stmt. ¶ 26; Bober Decl. Ex. N; see also FFC Tr. 621:10-20, 625:13-19, 654:11-14). The June 5 counseling statement specifically referenced the prior threatening statements and Risco's failure to follow supervisory instructions.*fn30 (Def.'s 56.1 Stmt. ¶ 25; Bober Decl. Ex. N.) According to Plaintiff, the June 5 counseling memo "falsely recounted [her] conduct and took entirely out of context innocent remarks [she] had made to another employee." (Pl.'s Aff. ¶ 36.)

On June 26, 2009, Risco filed a Formal Complaint of Discrimination with EEO alleging that both Byrd and Bilello had subjected her to discrimination and harassment because of her race, color and an unspecified physical disability.*fn31 (Bober Decl. Ex. Q; Def.'s 56.1 Stmt. ¶ 31.*fn32 ) As identified in the EEO Notice of Acceptance, Risco's formal complaint of discrimination alleged discrimination and harassment on the basis of race, color and physical disability when, from the period beginning March 2009: (1) Byrd alienated other employees from her by asking them to provide statements about her; (2) Byrd made offensive statements and remarks about her to her co-workers; (3) Byrd failed to give her proper guidance, direction ...

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