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Nadel v. Shinseki

United States District Court, S.D. New York

September 30, 2014

LARRY NADEL, Plaintiff,

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[Copyrighted Material Omitted]

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For Plaintiff: Stewart Lee Karlin, Stewart Lee Karlin, Attorney-at-Law, New York, NY.

For Defendant: Patricia L. Buchanan, Susan D. Baird, U.S. Attorney's Office, SDNY, New York, NY.

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VERNON S. BRODERICK, United States District Judge.

Defendant's Motion for Summary Judgment is granted in its entirety because Plaintiff fails to state a claim of disability discrimination, retaliation, and hostile work environment under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.

Before the Court is the Motion of Defendant Eric Shinseki, as former Secretary of Veterans Affairs (" VA" ), for summary judgment and to dismiss Plaintiff Larry Nadel's Complaint. (Doc. 20.) Plaintiff alleges that Defendant discriminated against him on the basis of his disability or perceived disability by unlawfully terminating his employment, retaliating against him for engaging in protected activity, and creating a hostile work, all in violation of the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (" ADA" ) and the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. For the reasons set forth below, the Court grants Defendant's Motion in its entirety, and all of Plaintiff's claims are dismissed.

I. Background

A. Facts

The following facts are uncontested, unless otherwise noted. Plaintiff was hired by the VA on April 25, 2010 as a GS Grade 11 accountant in the Administrative Services Fiscal Service division located in New York, New York. (Buchanan Decl. Ex. A, at US0143; Pl. 56.1 ¶ ¶ 1-3.)[1] Pursuant to VA regulations, Plaintiff's appointment was subject to a one-year probation period. (Pl. 56.1 ¶ ¶ 5, 14.) Angela Micalizzi was Plaintiff's supervisor during his employment with the VA. ( Id. ¶ 4.)

Plaintiff ruptured his left knee patellar tendon two months after he began working at the VA, and was consequently on medical leave from June 23, 2010 to September 28, 2010. ( Id. ¶ 16.) Dr. Ronald Light, Plaintiff's orthopedic surgeon, wrote a letter stating Plaintiff could return to work without stating any restrictions. ( Id. ¶ ¶ 22-23; Buchanan Decl. Ex. F.) Plaintiff returned to work on September 29, 2010. (Pl. 56.1 ¶ 24.) At no point did Plaintiff request an accommodation. ( Id. ¶ 25.)

Plaintiff walked with a limp and used a cane; however, his knee injury did not affect his ability to perform his job. (Nadel Decl. ¶ ¶ 23, 27; Pl. 56.1 ¶ 18.)[2] Although Plaintiff may have subjectively viewed himself as being disabled, he admits that no VA employee made any direct or indirect comments suggesting that he was regarded as disabled. ( See Pl. 56.1 ¶ ¶ 19-21.)

As an accountant, Plaintiff was responsible for overseeing the accurate input of financial transactions and ensuring that sufficient funds were available. (Buchanan Decl. Ex. C, at US0541.) Specifically, Plaintiff's duties included, among other tasks, maintaining a Work-in-Process (" WIP" ) report, which tracked the payment status for ongoing projects, (Pl. 56.1 ¶ 9; Buchanan Decl. C, at US0545; Buchanan

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Decl. Ex. J, at 86-87),[3] and managing the Online Certification System (" OLCS" ), a program that monitored the outstanding liability invoices for the various hospital departments, ( see Pl. 56.1 ¶ ¶ 9-10, 54-58; Buchanan Decl. B, at 55; Buchanan Decl. Ex. J, at 79).[4]

Prior to injuring his knee and going out on medical leave, Plaintiff began exhibiting performance problems in June 2010. ( Id. ¶ 38.) Plaintiff was responsible for processing a WIP report by June 15, 2010, yet he failed to do so. (Buchanan Decl. Ex. I, at US0570.) On June 17, 2010, Plaintiff's supervisor, Angela Micalizzi, verbally counseled him concerning his failure to complete this assignment. ( Id.)

Plaintiff's performance problems continued after his return from medical leave. As a result, Micalizzi continued to regularly counsel Plaintiff concerning chronic errors in his WIP reports, and advised him that the accurate maintenance of these reports was a critical part of his job responsibilities. ( Id. at US0569-570, US0592, US0595, US0625.) Micalizzi also advised Plaintiff on several occasions that she expected him to work with FCP users to manage their budget and accurately use the OLCS. ( See id. at US0586-87.)

Despite all of this counseling, Plaintiff's performance did not improve. (Buchanan Decl. Ex. K, at US0093.) As a result, Micalizzi issued Plaintiff a written counseling memorandum on January 7, 2011 describing, among other issues, his failure to maintain accurate WIP reports and properly manage the OLCS, and again advising him of her expectations for his work. ( Id.) Following the written counseling memorandum Plaintiff continued to exhibit the same performance problems. (Buchanan Decl. Ex. I, at US0629-33.) Finally, on February 17, 2011 Micalizzi recommended that Plaintiff's employment be terminated for unsatisfactory work. ( Id. at US0634.) Plaintiff's employment was then terminated for unsatisfactory work on April 13, 2011, prior to the expiration of his probation period. (Pl. 56.1 ¶ ¶ 85-90.) Plaintiff does not dispute that VA policy required Micalizzi to observe and monitor a probationary employee's performance, provide training or counseling to correct deficiencies, and take action to terminate a probationer who failed to demonstrate the qualifications for continued employment. ( Id. ¶ ¶ 4, 12-15.)

On November 30, 2010 Plaintiff filed a complaint alleging employment discrimination with the VA's Equal Employment Opportunity (" EEO" ) Office. ( Id. ¶ 26.) That complaint attached a copy of an October 29, 2010 email sent by Plaintiff to Micalizzi's supervisor complaining about eight instances of alleged " harassment" by Micalizzi, including her: (1) refusing to discuss Plaintiff's medical situation with his wife on June 23, 2010; (2) sending Plaintiff a letter on August 9, 2010, which took an unreasonable tone, and contained " accusations" that his medical documentation was " not enough" ; (3) instructing Plaintiff to obtain passwords in an " accusatory tone" ; (4) counseling Plaintiff concerning his work performance on October 5, 2010, and stating that he should not need help with his work because he is a GS Grade 11; (5) sending Plaintiff an email on October 6, 2010 that compared his work

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performance to that of a GS Grade 4 employee; (6) sending Plaintiff an email on October 20, 2010 instructing him to comply with the VA's leave procedures; (7) stating " you're ridiculous" during a counseling session on October 21, 2010; and (8) pointing out to Plaintiff that he was questioning her authority during a counseling session on ...

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