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Carby v. Holder

United States District Court, S.D. New York

May 27, 2014

CAROL A. CARBY, Plaintiff,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, Defendant.

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

Jennifer Ellen Blain, United States Attorney's Office Southern District of New York, New York, NY, for the Defendant.

OPINION AND ORDER

DENISE COTE, District Judge.

Carol A. Carby ("Carby"), proceeding pro se, filed this action on August 5, 2011, against Attorney General Eric Holder, Jr. ("Holder"), 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, 42 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. In an Opinion and Order of July 10, 2013 ("July 10 Opinion"), summary judgment was granted in part. Carby v. Holder et al., 11 Civ. 5775 (DLC), 2013 WL 3481722 (S.D.N.Y. July 10, 2013). The July 10 Opinion reserved decision on one claim: that the plaintiff was discriminated against on the basis of her race, gender, and disability when the plaintiff's request for 80 hours of advanced sick leave was denied. Id. at *10.

After supplementing the record on the surviving claim, the defendant moved for summary judgment, and Carby failed to file opposition papers. For the reasons that follow, the motion for summary judgment is granted.

BACKGROUND

Familiarity with the July 10 Opinion is presumed. Only facts relevant to the present summary judgment motion on Carby's remaining claim are recited here. The following facts are undisputed, or taken in the light most favorable to the plaintiff.

Carby is a Black female. 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 detention 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 of 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. On the same day, Morrison denied Carby's request for advanced sick leave.

On March 30, 2006, Carby again requested advanced sick leave from Warden Morrison. On March 31, plaintiff's request was denied, but Carby was approved for leave without pay status.[1]

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.

On August 5, 2011, Carby filed her suit pro se in this Court. As noted above, Carby's claims against the BOP were dismissed at the pleading stage and the July 10 Opinion dismissed all claims at the summary judgment stage save one: plaintiff's claim that the defendant discriminated against her by denying her request for 80 hours of advanced sick leave.

As discussed in that Opinion, Carby attempted to support this claim by asserting that nine similarly situated individuals ("Comparators") who did not share the same race, gender, or disability requested and received advanced leave. The record did not contain sufficient evidence to suggest that Carby was similarly situated to the Comparators in all material respects, including, for example, the amount of advanced sick leave the Comparators requested or had requested in the past. Because the plaintiff was proceeding pro se and because records pertaining to the proposed Comparators were within the ...


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