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Pierre v. Napolitano

United States District Court, S.D. New York

July 24, 2013

JANET NAPOLITANO as Secretary of the United States Department of Homeland Security, Defendant

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For Maurice Pierre, Plaintiff: Louis D. Stober, Jr., LEAD ATTORNEY, Law Office of Louis D. Stober, Jr. LLC, Garden City, NY.

For Janet Napolitano as Secretary of the United States Department of Homeland Security, Defendant: Rebecca Sol Tinio, LEAD ATTORNEY, U.S. Attorney's Office, SDNY, New York, NY; Cristine Irvin Phillips, United States Attorney Office, SDNY, New York, NY.


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HENRY PITMAN, United States Magistrate Judge.

I. Introduction

Plaintiff, a Special Agent employed by United States Immigration and Customs Enforcement (" ICE" ), commenced this action for employment discrimination on July 19, 2011, alleging violations of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § § 2000e et seq., the Americans with Disabilities Act of 1990 (" ADA" ),[1] 42 U.S.C. § § 12101 et seq. and the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § § 621 et seq (Complaint, dated July 19, 2011 (Docket Item 1)(" Compl." )). Plaintiff also alleged intentional and negligent infliction of emotional distress (Compl. ¶ 137). The parties have consented to my exercising jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c).

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On November 21, 2012, defendant moved for summary judgment on plaintiff's employment discrimination claims and for dismissal of plaintiff's tort claims for lack of subject matter jurisdiction (Memorandum of Law in Support of Defendant's Motion for Summary Judgement, dated Nov. 21, 2012 (Docket Item 18)(" Def. Mem." )). For the reasons set forth below, defendant's motion is granted in all respects.

II. Facts

Plaintiff was born on July 12, 1961, and is currently 52 years old (Transcript of Deposition of Maurice Pierre, dated May 16, 2011 (" Pl. Dep." ) at 6, annexed as Ex. A Declaration of Rebecca S. Tinio, Esq., dated Nov. 21, 2012 (Docket Item 20)(" Tinio Decl." )). In 1990, plaintiff began working for the Immigration and Naturalization Service (" INS" ), part of the United States Department of Justice (Pl. Dep. at 13). In 1996, plaintiff became a Special Agent with the INS (Pl. Dep. at 15). From 1996 through June 2010, plaintiff worked in the Manhattan office of the INS (" SAC NY" )(Pl. Dep. at 15). In 2003, INS was incorporated into ICE, then newly created, within the Department of Homeland Security.[2] In June 2010, plaintiff transferred to a field office in Castle Point, New York (" RAC Castle Point" ) (Pl. Dep. at 15-16), where he continues to work to the present day (Affidavit of Maurice Pierre, dated Jan. 16, 2013 (" Pl. Aff." ) at ¶ 1, annexed as Ex. A to Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated Jan. 18, 2013 (Docket Item 25)(" Pl. Mem." )).

On May 22, 2008, plaintiff injured his neck and back in an on-duty automobile accident (Pl. Aff. ¶ 2).[3] Plaintiff was placed on off-duty continuation of pay (" COP" ) status until July 7, 2008 (Compl. ¶ 21).[4]

While plaintiff was on COP status, Karen Pace, plaintiff's group supervisor, informed plaintiff of the potential consequences of an extended absence from work, including the loss of his job " series" (Ex. D to Tinio Decl.). In particular, she informed plaintiff that his job series required him to meet certain physical standards, and that if he was on leave for an extended period, ICE could require him to take a fitness for duty test to retain his job series (Ex D. to Tinio Decl.). According to plaintiff, on July 7, 2008, his last day of COP eligibility, Karen Pace and Milagros Pabon, a mission support specialist, gave him a choice of " whether to come back to work or to use [his] own sick leave or to utilize the Workers' Compensation" (Pl. Dep. at 60). Plaintiff elected to receive workers' compensation benefits (Pl. Dep. at 60). Plaintiff switched from COP status

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to leave without pay (" LWOP" ) status, and continued to be on LWOP status until May 2009 (Pl. Dep. at 73). While on LWOP status, plaintiff received workers' compensation payments in the amount of three-fourths of his regular salary (Pl. Dep. at 73; Ex. F to Tinio Decl.).

On March 11, 2009, plaintiff was examined by Dr. Robert Mantica, a referee examiner for the United States Department of Labor (" DOL" ) (Ex. G to Tinio Decl. at P000914-17). Dr. Mantica diagnosed plaintiff with " degenerative disk disease in the lumbar spine" and stated that plaintiff " still ha[d] the limitation from working full duty in that he [could not] be put in a situation where he would be in an altercation because of his work as a special agent in the violent crime group" (Ex. G to Tinio Decl. at P000915). However, Dr. Mantica found that plaintiff could perform light duty and that " the light duty that [plaintiff] could assume would be desk work" (Ex. G to Tinio Decl. at P000915). Dr. Mantica noted that he expected plaintiff to be able to " return to his regular duties in approximately one to two months" (Ex. G to Tinio Decl. at P000915).

On April 3, 2009, Lisa White, a claims examiner for the DOL's Office of Workers' Compensation Programs (" OWCP" ), relying on Dr. Mantica's findings, informed SAC N.Y. that plaintiff could return to work with restrictions and recommended that SAC N.Y. make an offer of light duty to plaintiff (Ex. G to Tinio Decl. at P000913).

On May 6, 2009, SAC N.Y. extended to plaintiff an offer of light duty, which entailed working at SAC NY's duty desk and performing administrative tasks (Ex. H to Tinio Decl. at P000502-03). The offer letter, signed by Peter Smith, Special Agent in Charge, stated that " the medical documentation provided by Dr. Mantica is sufficient to support your return to limited duties for a brief period of time" (Ex. H to Tinio Decl. at P000502-03). The offer letter also stated as follows:

As a Criminal Investigator you receive Law Enforcement Availability Pay (LEAP). To qualify for LEAP, 5 U.S.C. § 5545a(d)(2) and 5 C.F.R. § 550.183(a) require a Criminal Investigator perform a minimum annual average of 2 hours of unscheduled duty per regular workday. In order for you to continue to receive LEAP, you are required to satisfy the foregoing provisions.

(Ex. H to Tinio Decl. at P000502).

Plaintiff accepted the offer by letter dated May 7, 2009, but stated that he was " going to use Sick Leave, effective May 11, 2009 in order to complete the injection treatments" (Ex. H to Tinio Decl. at P000501).

On May 13, 2009, plaintiff met with Peter Fox, Assistant Special Agent in Charge, who told plaintiff that while he was on light duty, he would not receive Law Enforcement Availability Pay (" LEAP" ) (Pl. Dep. at 111-13).[5] LEAP comprised 25% of plaintiff's compensation. During a conference call on June 29, 2009, Fox learned from a supervisor that his determination as to plaintiff's LEAP eligibility was erroneous (Ex. K to Tinio Decl. at Govt001400-01). Fox thus rescinded his denial of plaintiff's LEAP pay, and plaintiff received LEAP retroactively for the period from May to June 2009 (Ex. K

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to Tinio Decl. at Govt001401; Pl. Dep. at 121).

From May 13 through May 15, 2009, plaintiff attended work. Plaintiff states that he did not have a service vehicle at the time and commuted " a total of 2-3 hours each way," which " caused [his] lower back to suffer from severe stress and pain and crippled [him] by the time the weekend had come" (Pl. Aff. ¶ ¶ 9-11).

On May 18, 2009, plaintiff submitted a request for six weeks of sick leave " in order to continue treatment and physical therapy prescribed by my physician," from May 18, 2009 through June 26, 2009 (Exs. L, M to Tinio Decl.). Peter Fox asked Karen Pace to inform plaintiff that federal regulations required him to submit medical documentation in support of his leave request (Ex. L to Tinio Decl. at Govt000944). During this time period, Karen Pace left plaintiff several voicemail messages stating that if he did not provide additional documentary support for his sick leave requests, he would be placed on Absence Without Leave (" AWOL" ) status (Exs. N, O to Tinio Decl.). Pace further stated that being placed on AWOL status " was not a disciplinary action" (Exs. N, O to Tinio Decl.).

On May 28, 2009, plaintiff sent an " Excuse Slip" signed by Dr. Mitchell Rosen to SAC N.Y. (Ex. Q to Tinio Decl.). The slip stated that plaintiff would be out of work from May 18, 2009 through June 26, 2009 (Ex. Q to Tinio Decl.). A checkbox labeled " is unable to return to work at this time because" was unchecked, and the slip did not explain why plaintiff was unable to work (Ex. Q to Tinio Decl.).

After submitting the slip to SAC NY, plaintiff was told by Karen Pace that he needed to provide additional information, particularly, that the box indicating that he was unable to return to work needed to be checked off and information about his medical condition and treatment needed to be provided (Pl. Dep. at 129-30). On June 1, 2009, plaintiff resubmitted the Excuse Slip with the above-mentioned box checked and the following statement: " lower back pain -- phy therapy treatment" (Ex. R to Tinio Decl.). An e-mail from Peter Fox to Claudette Castillo indicates that on June 1, 2009, SAC N.Y. again advised plaintiff that the Excuse Slip " did not contain sufficient information to justify his request for extended Sick Leave," and was asked to provide additional information about his alleged back injury, including whether it was new or related to the prior back injury, for which he had received clearance to work from the DOL examiner (Pl. Dep. at 146-47; Ex. S to Tinio Decl.). Plaintiff responded that the injury referenced in the Excuse Slip was his pre-existing back injury (Pl. Dep. at 146-47).

Peter Fox again denied plaintiff's sick leave request (Ex. T to Tinio Decl.). He offered several reasons for his denial, including the fact that (1) the DOL examiner had cleared plaintiff to work, (2) plaintiff had accepted the light duty assignment, (3) plaintiff could receive up to four hours' leave each day to attend doctors' appointments and (4) plaintiff had failed to provide sufficient medical evidence pursuant to applicable guidelines (Ex. T to Tinio Decl.).

Plaintiff provided further medical documentation from his treating physician, Dr. Nicholas Panaro, on June 17, 2009 (Ex. U to Tinio Decl.). On July 6, 2009, Peter Fox approved plaintiff's request for six weeks' sick leave, initiated the process to have any salary plaintiff lost during the time period restored to him and retracted plaintiff's AWOL status from his file (Ex. V to Tinio Decl.). In mid-July 2009, plaintiff received a lump sum payment for the period of time in which he had previously been considered AWOL. According to plaintiff, " [a]t that time I received all the

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money that I was owed" (Pl. Dep. at 159-60).

On September 24, 2009, plaintiff submitted a request to change his duty location from SAC N.Y. to RAC Castle Point to James Hayes, Special Agent in Charge (Ex. X to Tinio Decl.). The purpose of this transfer, plaintiff stated, was to shorten his lengthy commute and eliminate " sitting immobile for excessive periods of time" (Ex. X to Tinio Decl.).

Plaintiff remained on sick leave through October 2009, finally returning to full, unrestricted duty on October 5, 2009 (Pl. Dep. at 103). Upon his return, plaintiff learned that his previous service vehicle, a 2003 Ford Explorer, had been assigned to a less senior member of SAC NY, Agent Sean Sweeney (Pl. Dep. at 163-64). Plaintiff was assigned a different vehicle, a 2002 Pontiac Grand Prix, that he states had numerous problems, including the fact that it " did not have four-wheel drive, had bald tires, an inoperable gas gauge, electrical problems and a dead battery" (Pl. Aff. ¶ 20). After complaining, plaintiff was offered another vehicle by Karen Pace (Pl. Dep. at 168-73). Plaintiff ultimately had the 2002 Grand Prix for " [n]ot very long" before he was able to regain the use of the 2003 Ford Explorer by speaking with Agent Sweeney (Pl. Dep. at 168-73). Several months later, plaintiff's 2003 Ford Explorer " threw a rod" and was rendered inoperable (Pl. Dep. at 173).

On October 14, 2009, plaintiff states that " during a group meeting in front [of] all the agents in the Violent Gang Unit and myself, ASAC Peter Fox told Agent Erin Corcoran, who was involved in minor vehicle accident on October 13, 2009: 'You'd better not complain of a bad back'" (Pl. Aff. ¶ 25). On October 20, 2009, at an event honoring agents for completing 20 years of service (one of whom was plaintiff), plaintiff states that Peter Fox congratulated other agents while ignoring him completely (Pl. Aff. ¶ 26). Plaintiff states that this was " purposefully committed to make [him] feel like an outcast, to belittle [his] accomplishment and [was] purposefully done by ASAC Fox in retaliation for [his] filing [of] an EEO complaint" (Pl. Aff. ¶ 26). Plaintiff also states that he has been given " demeaning" assignments inappropriate to his level of seniority (Pl. Aff. ¶ 27).

On December 16, 2009, James Hayes denied plaintiff's request to transfer to RAC Castle Point, stating that there were no current Special Agent vacancies at RAC Castle Point, but that he would reconsider plaintiff's request if a vacancy became available (Ex. Y to Tinio Decl.). Hayes also offered to entertain any request plaintiff might make for a transfer to another unit within SAC N.Y. to " better suit [his] medical needs" if plaintiff desired to make such a request (Ex. Y to Tinio Decl.).

On February 19, 2010, Hayes reassigned plaintiff from the Violent Gangs Unit of SAC N.Y. to the Narcotics Unit of SAC N.Y. (Ex. Z to Tinio Decl. at P000328).

On February 23, 2010, Joseph Lestrange, Supervisory Special Agent, informed plaintiff by e-mail that there were still no vacancies within RAC Castle Point (Ex. AA to Tinio Decl.). Lestrange also stated the following concerning plaintiff's recent transfer to SAC NY's Narcotics Division:

The SAC is hoping that this position will present intermittent opportunities for you to follow up on leads and/or investigations that may extend to the Westchester and northern areas of the SAC/New York area of responsibility. I will discuss this matter with your new supervisor and ASAC so that they may accommodate you in this manner when feasible. Although this is not a permanent solution to your request to be reassigned

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to Castle Point, it could afford you the opportunity to better suit your medical needs than your previous assignment with the Violent Gangs Unit. The SAC is still open to a reconsideration of your request if your situation remains the same and if a vacancy becomes available in the future.

(Ex. AA to Tinio Decl.).

On March 2, 2010, in a letter from plaintiff to Hayes, plaintiff thanked Hayes " for taking [his] medical needs into consideration during [the] reassignment," but stated that he " fear[ed] that such a move would be counter-productive to [his] recovery" (Ex. BB to Tinio Decl.). Plaintiff requested to remain in his then-current position with the Violent Gangs Unit (Ex. BB to Tinio Decl.). Plaintiff also stated the following:

In response to my memo requesting to be reassigned to RAC/Castle Point, you very generously offered me the option to transfer to another group within SAC/NY that may better suit my medical needs, granted there was a vacancy. As it is now, I am able to make my physical therapy appointments with a minimal impact on my workday and still remain productive and an asset to my group. It is better for me both medically and physically to remain in my current ...

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