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Carby v. Holder

United States District Court, Second Circuit

July 10, 2013

CAROL A. CARBY, Plaintiff,

Carol Carby, proceeding pro se, Bronx, NY, for Plaintiff.

Natalie Kuehler, United States Attorney's Office, Southern District of New York, New York, NY, for Defendant.


DENISE COTE, District Judge.

Carol A. Carby ("Carby") filed this action on July 25, 2011, against Eric Holder, Jr. Attorney General, and the Federal Bureau of Prisons ("BOP") alleging that she was discriminated against on the basis of race and gender in violation of Title VII of the Civil Rights Act of 1964, 32 U.S.C. §2000e et seq. ("Title VII"), and that the defendant failed to accommodate her disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the "Rehabilitation Act"). On October 18, Carby's claims against the BOP were dismissed because the Court lacked subject matter jurisdiction over the claims. The remaining defendant has moved for summary judgment. For the reasons that follow, the defendant's motion for summary judgment is granted in part.


The following facts are undisputed, or taken in the light most favorable to the plaintiff. From August 1994 through June 2009, Carby worked as an administrative assistant at the U.S. Department of Justice's Metropolitan Correction Center ("MCC"), which is a detainment facility operated by the BOP, located in lower Manhattan

For many years, Carby experienced excruciating headaches. From December 5, 2005 through March 8, 2006, Carby took sick leave from the BOP due to a serious medical condition. During this period of sick leave, Carby's doctors diagnosed her with a brain tumor. On March 3, 2006, five days before Carby was due to exhaust her annual and sick leave, Carby requested 80 hours of advanced sick leave in order to begin treatment for the brain tumor. She made a second request on March 6, 2006. Patricia Rodman ("Rodman"), the Associate Warden of MCC, informed Carby that she needed to submit documentation on her present medical condition, her diagnosis and prognosis. Around this time, Carby recalls having a telephone conversation with Marvin Morrison ("Morrison"), Warden of the MCC, in which she explained that she would need to undergo "Gamma Knife" surgery. She recalls that during the conversation, Morrison asked her how she would be able to pay back the advanced sick leave and told her she needed to submit information pertaining to her diagnosis and prognosis. Carby also states that she repeatedly submitted medical documentation to various people. Nonetheless, on March 20, Rodman recommended to Morrison that he deny Carby's request because she had failed to provide the requested documentation. That same day, Morrison denied Carby's request for advanced sick leave.

On March 30, 2006, Carby again requested advanced sick leave from Warden Morrison and asked to be enrolled in the Voluntary Leave Bank Program (the "VLBP"), which is run by the Department of Justice ("DOJ"). On March 31, Carby submitted an application to be enrolled in the VLBP as well as the Voluntary Leave Transfer Program ("VLTP"), which allows "federal employees to donate annual leave for the use of other federal employees who are experiencing a medical emergency." U.S. Department of Justice, 630.3 Voluntary Leave Transfer Program. Under applicable VLTP guidelines, if the local donations submitted through the VLTP are "insufficient, " the agency "may request nationwide solicitation if the employee so desires." Carby indicates that she had a conversation with Shirley Robinson ("Robinson"), an Employee Services Specialist at the MCC, in which she indicated that she wanted to participate in the "nationwide" VLTP. The defendant maintains, however, that Carby never applied to the "nationwide program."[1]

On March 31, [2] plaintiff's request for advanced sick leave and her request to participate in the VLBP were denied. According to the defendant, the plaintiff's request to participate in VLBP was denied because the program requires participants to have previously donated leave to the program, and Carby had not donated leave. Carby does not dispute that she had not previously donated leave to the VLBP program, but contends that she was not told about that requirement prior to submitting her application. On March 31, Carby was approved for leave without pay ("LWOP") status.[3]

On April 10, 2006, Carby was approved to participate in the VLTP, through which roughly five employees donated leave. For reasons that are disputed by the parties, the plaintiff was not immediately credited with the donated hours. The defendant maintains that, due to an administrative error that occurred at the BOP's Employee Services Complex in Grand Prairie, Texas, the donated hours were not immediately credited to the plaintiff. Because Robinson initially gave incorrect paperwork to one of Carby's co-worker's who wanted to donate, Carby posits that the delay may have occurred because Robinson mistakenly gave one donor the wrong paperwork to fill out.[4] Carby was retroactively credited with 80 hours of leave donated by four employees in November 2006, after she had returned to work. Another co-worker Cheountia LeGrand ("LeGrand") testified that he also donated leave to Carby, but these hours were evidently never credited to Carby.

From roughly March 8 through September 1, 2006, while Carby was undergoing brain surgery and convalescing, Carby received no pay. Carby returned to work in September 2006. She took disability retirement in June 2009.


Carby initiated contact with an EEO Counselor on August 10, 2006. In October and November 2006, Carby and the BOP engaged in alternative dispute resolution, at which time it was discovered that the leave donated by Carby's co-workers had not been credited to her. Following this discovery, Carby was retroactively credited with the leave which had been donated to her by each of these co-workers with the exception of LeGrand.

Sometime after January 3, 2007, Carby filed a complaint with the EEOC, alleging that she was discriminated against on the basis of race and sex.[5] The complaint alleged that the BOP discriminated against her by denying her request for advanced leave and failing to credit her with donated leave. The complaint did not allege that the BOP discriminated against her by denying her request to participate in the VLBP or by failing to circulate her VLTP email nationwide and otherwise frustrating co-workers' efforts to donate leave. Additionally, although the EEOC complaint did not expressly allege disability discrimination, it disclosed the fact that Carby had a medical condition and had sought the leave in connection with needed surgery. It also alleged that the defendant's conduct "to some extent violated my right to handle the matter of my health confidentially among my co-workers." The BOP investigated the plaintiff's complaint, provided the plaintiff with a report of the investigation, and notice of her right to request a hearing before an Administrative Judge ("AJ"). Carby requested a hearing before an AJ, and on May 4, 2009, [6] the AJ issued a bench decision affirming the BOP's determination that the plaintiff failed to initiate contact with an EEO counselor within 45 days of the denial of her request for advanced leave, and that the plaintiff had failed to present a prima facie case of discrimination based on BOP's delay in crediting her with the donated leave. She filed an appeal on September 17, 2009. The AJ's determination was affirmed by the EEOC on June 6, 2011.

On July 25, 2011, Carby filed her suit pro se in this Court. Carby's complaint based her claims of discrimination on (1) the denial of her requests for advanced medical leave, (2) the delay in crediting or failure to credit her with the annual leave donated by her co-workers through the VLTP; and (3) the BOP's determination that she failed to qualify for the VLBP. In her opposition to the defendant's motion for summary judgment, Carby raises for the first time an allegation that the BOP's obstruction of her efforts to obtain donated leave by, for instance, giving a co-worker incorrect paperwork and failing to circulate her VLTP email nationwide, was also an act of discrimination.

Following the completion of discovery, the defendant moved on January 14, 2013, for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure ("FRCP"), and in the alternative, summary judgment pursuant to Rule 56 of the FRCP. Treating defendant's motion as one for summary judgment, the motion is granted in part for the reasons stated herein.


Summary judgment may not be granted unless the submissions of the parties taken together "show[] 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). The moving party bears the burden of demonstrating the absence of a material fact question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial, " and cannot rest on mere "allegations or denial" of the movant's pleadings. Fed.R.Civ.P. 56(c); ...

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