Lamphear v. US Postal Svc
ORDER granting 48 Motion for Summary Judgment. Signed by Tucker L. Melancon on 07/25/2012. (Lau, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Case No. 09-1640 (TLM)
John Potter, Postmaster General,
United States Postal Service
Before the Court is defendant John Potter’s, Postmaster General of the United States Postal
Service, Motion for Summary Judgment [Rec. Doc. 48], plaintiff Louis Lamphear’s Memorandum
in Opposition thereto [Rec. Doc. 51], defendant’s Reply Memorandum [Rec. Doc. 53] in further
support of his summary judgment motion, defendant’s Memorandum in Opposition to plaintiff’s
embedded Motion to Amend his complaint [Rec. Doc. 52], and plaintiff’s Reply memorandum in
further support of his Motion to Amend [Rec. Doc. 54]. For the reasons that follow, plaintiff’s
motion to amend will be DENIED and defendant’s motion for summary judgment will be
Plaintiff’s Amended Complaint alleges that defendant, through his agents, servants and/or
employees discriminated against him on the basis of a perceived mental disability, retaliated against
him for filing a Equal Employment Opportunity (“EEO”) complaint, created a hostile work
environment, and intentionally caused him severe emotional distress. Plaintiff brings claims under
the Americans with Disabilities Act (“ADA”), Title VII, and Connecticut State law.
Plaintiff, Louis Lamphear, is a maintenance department worker with the United States Postal
Service (“USPS”) at the Hartford Processing and Distribution Center. Am. Compl. at ¶ 5. Plaintiff
asserts that he was subjected to ongoing harassment, disparate treatment, and a hostile work
environment based on a perceived mental disability and in retaliation for filing an EEO complaint.
Id. On July 17, 2008, in response to complaints about plaintiff from seven managers and co-workers,
plaintiff was called into a private meeting with a manager, David Letourneau. Id. at ¶¶6-7. Plaintiff
asserts that he was subjected to discrimination as the manager required him to attend a Employee
Assistance Program (“EAP”) due to a perceived mental condition. Id. Furthermore, plaintiff asserts
he was discriminated against when management demoted him from a Level 9 to a Level 7 employee
after he failed a required promotional exam. Id. at ¶ 11; Def. Ex. 4: Student Failure or Early
Withdrawal Form. Plaintiff concedes that he failed the promotional exam but asserts that at least two
other employees failed the exam but were allowed to remain at Level 9 positions. Am. Compl. at
¶ 11; Def. Ex. 4.
Plaintiff filed an EEO complaint on or about December 22, 2008. Am. Compl. at ¶18. On
January 8 and June 21, 2009, plaintiff and co-worker Mike Ward had physical altercations relating
to their shared workstation. Pl. Opp. at 15 [Rec. Doc. 51]. After management investigated the
incidents, supervisors instructed both plaintiff and Ward that physical contact and invasion of
personal space was not acceptable and that work area access was restricted to duty hours. Def. Ex.
19: Foley Letter. Also, the manager of the maintenance department sent out a directive to all
employees that access to the shared area was restricted to one’s work hours. Def. Ex. 18: Manager
Directive. Furthermore, on April 22, 2009, plaintiff alleges that co-worker Ron Pelletier refused to
sell him a t-shirt in direct retaliation for filing an EEO complaint. Pl. Opp. at 15 [Rec. Doc. 15].
Plaintiff filed a complaint with the Hartford Post Office Veteran’s Committee, and ultimately
purchased a shirt. Pl. Ex. G: Lamphear Letter; Pl. Ex. B: Lamphear Aff. at ¶ 10. Lastly, on
September 14 and October 4, 2009, plaintiff’s toolbox was spray-painted gray and his nameplate for
his locker was covered with black marker, respectively. Management investigated the vandalism but
the culprit was never identified. Def. Ex. 23: Sullivan Dep. at 92: 1-3; Def. Ex. 6: Foley Dep. at 8384.
On November 12, 2009, plaintiff filed an Amended Complaint [Rec. Doc. 5], which asserts
the following causes of action: 1) violation of the ADA; 2) retaliation under Title VII; 3) hostile
work environment under Title VII; and 4) intentional infliction of emotional distress under
Connecticut State law. Defendant moves for summary judgment on all of plaintiff’s causes of action
[Rec. Doc. 48].
Summary Judgment Standard
Summary judgment is appropriate only when the record reflects 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). Such a determination is to be made “after construing the evidence in the light most
favorable to the nonmoving party and drawing all reasonable inferences in its favor.” Sledge v.
Kooi, 564 F.3d 105, 108 (2d Cir. 2009).
Initially, the party moving for summary judgment must demonstrate the absence of any
genuine issues of material fact. When a party seeking summary judgment bears the burden of proof
at trial, it must come forward with evidence which would entitle it to a directed verdict if such
evidence were uncontroverted at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). As to
issues which the nonmoving party has the burden of proof at trial, the moving party must satisfy this
burden by demonstrating the absence of evidence supporting the non-moving party’s claim, and if
the moving party succeeds the burden shifts to the non-moving party to show that there is a genuine
issue for trial. Id. at 322-23.
Once the burden shifts to the non-moving party, he must direct the attention of the court to
evidence in the record and set forth specific facts sufficient to establish that there is a genuine issue
of material fact requiring a trial. Id. at 324. The non-moving party may not rest on mere allegations
or denials of the adverse party’s pleadings as a means of establishing a genuine issue worthy of trial,
but must demonstrate by affidavit or other admissible evidence that there are genuine issues of
material fact or law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Adickes v. S.H.
Kress & Co., 398 U.S. 144, 159 (1970).
There is no genuine issue of material fact if, viewing the evidence in the light most favorable
to the non-moving party, no reasonable trier of fact could find for the non-moving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If no issue of fact is presented
and if the movant is entitled to judgment as a matter of law, the court is required to render the
judgment prayed for. Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at 322.
1. ADA Claim
A civil action pursuant to the ADA cannot be maintained against the Postmaster General in
his capacity as an employer. The ADA provides: “The term ‘employer’ does not include . . . the
United States . . ” 42 U.S.C. § 12111(5)(B)(I). Thus, the ADA specifically excludes the federal
government, including the USPS, in its capacity as employer, from its coverage. Sarvis v. U.S., 2000
U.S. App. LEXIS 26618, *5-6 (2d Cir. Oct. 19, 2000); Ziemba v. Slater, 36 F. Supp. 2d 81, 86 (D.
Conn. 1999); see Collins v. Soveriegn Bank, 482 F. Supp. 2d 235, 239 (D. Conn. 2007). As an ADA
action cannot be maintained against the defendant, the plaintiff fails to state a claim upon which
relief can be granted. Accordingly, defendant’s motion for summary judgment on plaintiff’s ADA
claim will be granted.
B. Motion to Amend Complaint to replace ADA claim with a Rehabilitation Act claim
In plaintiff’s memorandum of law in opposition to defendant’s motion for summary
judgment, plaintiff moves, for the first time, to amend his complaint “in order to supplement it with
a §504 [Rehabilitation Act] claim” in place of his ADA claim. Pl. Opp. at 5 [Rec. Doc. 51]. Plaintiff
seeks permission to “replace one claim with another” in response to defendant’s argument that the
ADA does not apply to defendant as a federal employer. Pl. Reply at 3 [Rec. Doc. 54]. Plaintiff
asserts that he has alleged acts by the defendant to support a claim under Section 504 of the
Rehabilitation Act of 1973. Pl. Opp. at 3 [Rec. Doc. 51]. Plaintiff failed to amend his complaint by
the January 4, 2010 deadline to amend the pleadings set by the Court [Rec. Doc. 9], which was
agreed to by the parties’ in their joint Rule 26(f) report [Rec. Doc. 8].
After a scheduling report has been filed and the deadline to amend the pleadings has passed,
the Second Circuit has required that the moving party demonstrate “good cause” to amend a
pleading. Parker v. Columbia Pictures Indus., 204 F.3d 326, 339 (2d Cir. 2000). Good cause
depends on the diligence of the moving party. Id. Generally, “a district court has discretion to deny
leave [to amend] for good reason, including futility, bad faith, undue delay or undue prejudice to the
opposing party.” Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009).
Based on the procedural history of this proceeding as set out hereinafter, the Court finds that
plaintiff has not demonstrated good cause to amend his complaint at this late juncture. Plaintiff filed
his original complaint [Rec. Doc. 1] on October 14, 2009, which included a Rehabilitation Act
claim. On November 12, 2009, plaintiff filed an amended complaint [Rec. Doc. 5], which dropped
his Rehabilitation Act claim. On August 12, 2011, defendant filed a motion for judgment on the
pleadings [Rec. Doc. 28], asserting, inter alia, that the ADA does not apply to defendant as a matter
of law since he was a federal employer. At this point, plaintiff did not seek to amend his complaint
to add a Rehabilitation Claim although he was alerted to his ADA claim’s inadequacies. Instead,
plaintiff admitted “that the ADA carved out certain exceptions to liability and the defendant does
in fact fall within the same” and simply sought to amend his complaint to take the factual allegations
in the ADA claim and explicitly plead them in his Title VII claim instead.1 Pl. Opp. Mem. at 4-5
[Rec. Doc. 32]. Plaintiff did not attempt to amend his complaint by adding a Rehabilitation Act
claim until May 9, 2012. Pl. Opp. at 3-11 [Rec. Doc. 51].
Specifically, the Court finds that plaintiff was not diligent. First, plaintiff delayed seeking
to amend his complaint until after discovery had been completed and while a summary judgment
motion was pending. Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) (finding that
a district court did not abuse its discretion in denying party’s motion to amend after discovery had
been completed and a summary judgment was pending). Plaintiff missed the deadline set by the
Court to amend the complaint by more than two years. Moreover, the procedural history of this case
clearly establishes that plaintiff’s attorney was aware of the deficiency in his ADA claim at least
nine months prior to seeking to amend the complaint.2 Plaintiff does not offer any explanation for
The Court denied defendant’s motion for judgment on the pleadings pro forma and granted the
defendant leave to file a motion for summary judgment [Rec. Doc. 46].
Plaintiff’s attorneys, Martyn Philbot and Jeffrey Schuyler, encountered the same circumstances
regarding a deficient ADA claim against the United States Postal Service in two cases prior to the filing
of this case. Moore v. Potter, 07-cv-108 (RNC) (D. Conn. May 23, 2008); Mann v. Donahoe, 10-cv-330
his failure to timely file an amendment. Thus, plaintiff fails to demonstrate good cause to amend his
pleadings at this late juncture. Parker, 204 F.3d at 339.
Assuming, arguendo, that plaintiff’s motion to amend had been filed timely, it still must fail
and thus to allow the amendment would be futile as plaintiff has not asserted sufficient facts to
support a Rehabilitation Act claim. Plaintiff asserts that defendant violated the Rehabilitation Act
by referring him to a Employee Assistance Program (“EAP”). However, a referral to EAP
counseling is not a materially adverse or adverse action. Eustace v. S. Buffalo Mercy Hosp., 36 Fed.
Appx. 673, 675 (2d Cir. 2002) (noting that defendant could mandate the plaintiff to attend a EAP
counseling session without running afoul of the ADA).3
Plaintiff also asserts that defendant violated the Rehabilitation Act by demoting him from
a Level 9 to a Level 7 position after plaintiff failed a required promotional test. Lamphear Aff. at
7. Section 504 of the Rehabilitation Act provides in relevant part that "no otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of [his] disability . . . be
subjected to any discrimination under any program or activity conducted by any program or activity
receiving Federal assistance." 29 U.S.C. § 794(a); Benoit v. State DMV, 2012 U.S. Dist. LEXIS 2011
(D. Conn. Jan. 6, 2012); see D’Amico v. City of New York, 132 F.3d 145, 150 (2d Cir. 1998). The
requirement that a plaintiff be “otherwise qualified” for the benefit which he alleges to have been
denied means that the plaintiff is “a person who is qualified in spite of his handicap.” Bolmer v.
Oliveira, 570 F. Supp. 2d 301 (D. Conn. 2008) (quoting Doe v. New York Univ., 666 F.2d 761, 775
(2d Cir. 1981)); Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1991).
(JCH) (D. Conn. June 30, 2011).
An analysis of a claim under ADA is the same as the analysis of a claim under the Rehabilitation
Act. Fulton v. Goord, 591 F.3d 37, 42 n.1 (2d Cir. 2009).
Plaintiff concedes that he failed the necessary promotional test to become a Level 9 Building
Equipment Mechanic. Am. Compl. at ¶¶ 10-11; Pl. Ex. B: EEO Compl. at 13; Lamphear Aff. at ¶7.
Thus, plaintiff was not “otherwise qualified” for the Level 9 position. See Brief v. Albert Einstein
College of Med., 423 Fed. Appx. 88, 91-92 (2d Cir. 2011) (finding a school did not violate the
Rehabilitation Act when it dismissed a disabled student who failed required examinations).
Moreover, in plaintiff’s EEO complaint, plaintiff asserted that he was reinstated to a “temporary”
Level 9 position a month after the failed examination. Pl. Ex. A: EEO Compl. at 13. In fact, plaintiff
was promoted to a Level 9 Building Equipment Mechanic once he passed the promotional test,
which leads to the unalterable conclusion that his failed test led to his Level 7 assignment rather than
any discrimination due to a perceived disability. Pl. Ex. C: Foley Dep. at 63:20-25. Plaintiff
therefore fails to assert sufficient facts to support a Rehabilitation Act claim.
Accordingly, plaintiff motion to amend his complaint will be denied.
A. Legal Standard
Retaliation claims under Title VII are evaluated using the three-step burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the
plaintiff bears the burden of establishing a prima facie case of retaliation. See Patterson v. County
of Oneida, 375 F.3d 206, 221 (2d Cir.2004). If a plaintiff meets his burden in establishing a prima
facie case, the defendant-employer must then articulate a “legitimate, nondiscriminatory reason” for
the adverse employment action. McDonnell Douglas, 411 U.S. at 802. A plaintiff must then provide
evidence that the employer’s explanation is not true, but rather a pretext for discrimination. Cifra
v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001).
To establish a prima facie case of retaliation, a plaintiff must “adduce evidence sufficient to
permit a rational trier of fact to find (1) that he engaged in protected [activity], (2) that the employer
was aware of this activity, (3) that the employer took adverse action against the plaintiff, and (4) that
a causal connection exists between the protected activity and the adverse action, i.e., that a
retaliatory motive played a part in the adverse employment action.” Kessler v. Westchester Cty.
Dep't of Soc. Servs., 461 F.3d 199, 205–06 (2d Cir. 2006) (quotations and alterations omitted).
In the case at bar, it is undisputed that plaintiff filed an EEO complaint on December 22,
2008 alleging discrimination based upon a perceived mental illness, which is a protected activity,
and that the employer was aware of this activity. Def. Ex. 15; Pl. Ex. A.
To meet the third element, that he suffered an adverse employment action, a “plaintiff must
show that a reasonable employee would have found the challenged action materially adverse, which
... means it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal
quotations omitted). Minor changes in schedules are not considered adverse employment acts, nor
are general personality disputes. Recio v. Creighton Univ., 521 F.3d 934, 940 (8th Cir. 2008).
To meet the fourth element, a plaintiff can establish a causal connection that suggests
retaliation by showing that protected activity was close in time to the adverse action. Espinal v.
Goord, 558 F.3d 119, 129 (2d Cir. 2009) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
273-74 (2001)). The Second Circuit has "not drawn a bright line to define the outer limits beyond
which a temporal relationship is too attenuated to establish a causal relationship between the
exercise of a federal constitutional right and an allegedly retaliatory action."Gorman-Bakos v.
Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001). A court may exercise its judgment about
the permissible inferences that can be drawn from temporal proximity in the context of particular
cases. Espinal, 558 F.3d at 129.
B. Alleged Adverse Acts
Plaintiff alleges that the defendant, through his agents and/or employees, engaged in five
adverse actions against him. The Court will address each in turn.
The Altercations with Mike Ward
On January 8 and June 21, 2009, plaintiff and Mike Ward had physical altercations.
Specifically, on January 8, 2009, Ward forcibly removed plaintiff from a shared workstation after
plaintiff occupied the workstation prior to the start of his shift. Pl. Ex. F: Lamphear Letter. Ward
asserts that he removed plaintiff because he remained at the workstation after Ward warned him that
he was still in charge of the workstation and needed to use it. Def. Ex. 17: Ward Letter. Plaintiff
admits that he regularly occupied the workstation prior to the start of his shifts for ten months prior
to the incident. Pl. Ex. F: Lamphear Letter. Plaintiff speculates that Ward acted with retaliatory
animus due to “the immediacy of the event following [his] EEO complaint”and the fact that he had
no altercations in the previous ten months. Lamphear Aff. at ¶9. On June 21, 2009, Ward ripped
plaintiff’s hat and book from his hands, threw them into the trash and then made a derogatory
comment directly at plaintiff. Id. at ¶11; Pl. Ex. H: Lamphear Letter. Plaintiff alleges that Ward
acted in order to instigate a fight. Pl. Ex. H. After management conducted an investigation of the
incidents, supervisors instructed both plaintiff and Ward that physical contact and invasion of
personal space was not acceptable and that work area access was restricted to duty hours. Def. Ex.
19: Foley Letter. Furthermore, the manager of the maintenance department sent out a directive to
all employees stating that access to the shop area was restricted to one’s work hours and ordered
supervisors to enforce the directive. Def. Ex. 18: Manager Directive; Def. Ex. 22 Foley Email.
The Court finds that a reasonable employee would not have found the challenged actions
materially adverse because minor changes in schedules are not considered adverse employment acts,
nor are general personality disputes. Recio, 521 F.3d at 940. Plaintiff was simply instructed to
refrain from entering the work area until his scheduled shift. Moreover, the Court concludes that the
two altercations with Mike Ward are not retaliatory adverse actions. The record before the Court
indicates that Ward acted because plaintiff occupied his workstation and to instigate a fight, not to
retaliate for plaintiff filing an EEO complaint. See Mills v. S. Conn. State. Univ., 2011 U.S. Dist.
LEXIS 88384, *33-36 (D. Conn. Aug. 10, 2011) (finding that door slamming, desk slapping and
other angry behavior is not actionable in absence of any prohibited motivation); Baptiste v. Cushman
& Wakefield, 2007 U.S. Dist LEXIS 19784, *27-28 (S.D.N.Y. Mar. 7, 2007) (“personality conflicts
at work that generate antipathy and snubbing by supervisors and co-workers are not actionable”).
The incidents with Mike Ward do no support a retaliation claim.
Denied ability to purchase Veteran’s Committee shirt by Pelletier
On April 22, 2009, plaintiff alleges that co-worker Ron Pelletier refused to sell him a
Veteran’s Committee shirt “in direct retaliation” for filing an EEO complaint. Lamphear Aff. at ¶
10; Pl. Ex. G: Lamphear Letter. The record fails to establish that a reasonable employee would have
found the challenged action materially adverse or that it might have dissuaded a reasonable worker
from making or supporting a charge of discrimination. Burlington, 548 U.S. at 68. The record
establishes that plaintiff filed a complaint with the Hartford Post Office Veteran’s Committee calling
Pelletier’s actions “harassing and discriminating” and was permitted to purchase a shirt. Pl. Ex. G;
Lamphear Aff. at ¶10; Pl. Rule 56(a)(2) Stmt. at ¶17. The Court finds that Pelletier’s actions would
not have dissuaded a reasonable worker from making a charge of discrimination and cannot support
a retaliation claim.
Anonymous vandalism of plaintiff’s toolbox and locker
Plaintiff alleges that the nameplate on his toolbox was spray painted grey, and his nameplate
on his locker was covered with black marker on September 14 and October 4, 2009, respectively.
Lamphear Aff. at ¶¶11-12; Pl. Ex. I, J: Lamphear Letters. Management investigated the vandalism
but the culprit was never identified. Def. Ex. 23: Sullivan Dep. at 92: 1-3; Def. Ex. 6: Foley Dep.
at 83-84. Plaintiff supports his claim that the anonymous acts of vandalism were adverse actions
with the following conclusory sentence: “It is my firm belief that this action was taken in direct
retaliation for my exercising my rights and filing an EEO complaint.” Lamphear Aff. at ¶12. Such
conclusory statements are insufficient to maintain a claim for retaliation. Spector v. Bd. of Trs., 316
Fed. Appx. 18, 21 (2d Cir. 2009) (finding that alleged incidents of retaliation are not materially
adverse where “plaintiffs offer only conclusory allegations of retaliatory motive”). Furthermore, an
“employee’s decision to report discriminatory behavior cannot immunize that employee from those
petty slights or minor annoyances that often take place at work and that all employees experience.”
Burlington, 548 U.S. at 68; Baptiste, 2007 U.S. Dist LEXIS 19784 at *27-28. Likewise, “Title VII
does not set forth a general civility code for the American workplace.” Id.
Lastly, plaintiff asserts that the temporal proximity between plaintiff filing his EEO
complaint and the vandalism, nine to ten months, supports finding of causal connection between the
protected activity and the adverse action. Based on the record, the Court finds that the temporal
proximity in this case, without any other evidence of a causal connection even assuming the alleged
incidents otherwise support a claim for retaliation, is too attenuated in time to maintain a claim for
retaliation. C.f. Espinal, 558 F.3d at 129 (noting that a lapse of eight months is the longest time
frame where a Court has found a causal connection between an EEO complaint and a retaliatory act).
As none of the acts asserted by plaintiff support a claim for retaliation under Title VII,
defendant’s motion for summary judgment on plaintiff’s retaliation claim will be granted.
3. Hostile Work Environment
To survive a motion for summary judgment on a hostile work environment claim, plaintiff
must demonstrate: (1) that the workplace was permeated with discriminatory intimidation due to his
membership in a protected class that was sufficiently severe or pervasive to alter the conditions of
his or her work environment, and (2) that a specific basis exists for imputing the conduct that created
the hostile environment to the employer. Carter v. New Venture Gear, Inc., 310 Fed. Appx. 454,
457-58 (2d Cir. 2009) (citing Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003)); see
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
The first element involves showing both objective and subjective elements: the misconduct
shown must be severe or pervasive enough to create an objectively hostile or abusive work
environment, and the victim must also subjectively perceive that environment to be abusive. Harris,
510 U.S. at 21-22. Whether a reasonable person would find a given work environment to be hostile
depends on the totality of the circumstances, including: (1) the frequency of the conduct, (2) the
severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere
offensive utterance, and (4) whether the conduct unreasonably interferes with the employee’s work
performance. Kaytir v. Electric Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010).
Plaintiff asserts that two unpleasant encounters with Mike Ward, a denial of his request to
buy a shirt, and two anonymous acts of vandalism upon his property constitute a hostile work
environment.4 Pl. Opp. at 19. There is no evidence, beyond mere conclusory statements, that the
incidents occurred due to plaintiff’s membership in a protected class; as someone perceived to have
a mental disability. Carter, 310 Fed. Appx at 458 (denying hostile work environment claim where
evidence lacked objective proof, beyond conclusory statements, of a connection between the alleged
incidents and plaintiff’s membership in a protected-class). Moreover, this is not the kind of frequent,
severe, physically intimidating and work-related treatment that qualifies as a hostile work
environment under Title VII. E.g., Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir. 2004)
(“Simple teasing, off-hand comments, or isolated incidents of offensive conduct (unless extremely
serious) will not support a claim of discriminatory harassment.”); Quinn v. GreenTree Credit Corp.,
159 F.3d 759, 768 (2d Cir. 1998) (“As a general matter, isolated remarks or occasional episodes of
harassment will not merit relief under Title VII.”)
As to the second element, the Supreme Court has ruled that employers are not automatically
liable for harassment perpetrated by their employees. See Burlington Indus., Inc. v. Ellerth, 524 U.S.
742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). “Where an employee is the victim
of a hostile work environment, by non-supervisory co-workers, an employer's vicarious liability
depends on the plaintiff showing that the employer knew (or reasonably should have known) about
the harassment but failed to take appropriate remedial action.” Petrosino v. Bell Atl., 385 F.3d at
223 (citing Faragher, U.S. at 789 and Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62,
72 (2d Cir. 2000)).
In this case, each incident was committed by a non-supervisory co-worker and plaintiff’s
employer took appropriate remedial action after each incident. After the incidents with Mike Ward,
The incidents are discussed in more detail in Section 2(B) of this Ruling.
a manager sent out a directive to all employees that access to the shop area is restricted to one’s
work hours. Def. Ex. 18. Moreover, manager Mike Sullivan had discussions with Ward on how to
interact with people and how to ensure his behavior remained appropriate. Pl. Rule 56(a)(2) Stmt
at ¶15. Furthermore, it is undisputed that the Hartford Post Office Veteran’s Committee ultimately
permitted plaintiff to purchase a t-shirt after he was initially denied the opportunity. Lamphear Aff.
at ¶10. Lastly, to remedy against vandalism towards plaintiff, managers investigated the incidents,
and conducted a department-wide talk cautioning employees against such activity. Def. Ex. 6: Foley
Dep. at 86; Def. Ex 23: Sullivan Dep. at 71; Def. Ex. 26: Email dated Sept. 23, 2009 with attached
Plaintiff has not alleged sufficient facts to maintain a hostile work environment claim and
defendant’s motion for summary judgment on plaintiff’s hostile work environment claim will
therefore be granted.
4. Intentional Infliction of Emotional Distress
The Federal Tort Claims Act (“FTCA”) allows tort actions to be brought against the United
States in District Court under limited circumstances. See 28 U.S.C. § 2671. Among its several terms,
the FTCA bars any tort claim from federal court “unless the claim was first presented to the
appropriate federal agency in writing, was so presented within two years after the claim accrued, and
specified the amount of the claim in writing.” Millares Guiraledes de Tineo v. United States, 137
F.3d 715, 719-20 (2d Cir. 1998) (citing 28 U.S.C. §2675(a)). This condition “must be satisfied for
a court to exercise jurisdiction.” Adelek v. United States, 355 F.3d 144, 153 (2d Cir. 2004); Sarvis
v. United States, 2000 U.S. App. LEXIS 26618, *10 (2d Cir. Oct. 19, 2000).5
Plaintiff’s contention that the Court can address claims that are “reasonably related” to those
asserted in his EEO complaint is totally with merit. An EEO complaint is not an FTCA complaint. Even
Plaintiff has never initiated the administrative tort claims process with respect to this or any
other tort claim against USPS. Def. Ex. 1: Decl. Of Kimberly Herbst. Accordingly, any tort claim
by plaintiff against defendant must be dismissed for lack of subject matter jurisdiction. Thus,
defendant’s motion for summary judgment on plaintiff’s intentional infliction of emotional distress
claim will be granted.
Plaintiff’s motion to amend the complaint [Rec. Doc. 51] will be DENIED. Defendant’s
motion for summary judgment [Rec. Doc. 48] will be GRANTED. Accordingly, plaintiff’s ADA,
Retaliation, Hostile Work Environment, and Intentional Infliction of Emotional Distress claims will
be dismissed with prejudice.
While the Court has no doubt that Mr. Lamphear felt aggrieved by the incidents described
in his complaint, the Court finds that as a matter of law each of the claims presented on his behalf
by his attorneys Martyn Philpot and Jeffrey Schulyer to be frivolous and that attorneys Philpot and
Schulyer knew or should have known at the time of filing plaintiff’s complaint, amended complaint,
and attempted amended complaint that the claims were frivolous. Significant tax payer funds and
limited judicial resources had to be expended to dispose of the claims. As a result of the Court’s
finding, an award of attorney’s fees would be appropriate and would be awarded if defendant had
not been a quasi-government agency subject to the limitation on attorney’s fees set forth in 42
U.S.C. § 2000E-5(k). However, other appropriate sanctions are available to the Court under its
inherent power, under Rule 11 of Federal Rules of Civil Procedure, and under 28 U.S.C. § 1927. The
Court will forbear imposing such a sanction in this case. In the light most favorable to attorney
assuming, arguendo, that an EEO complaint constitutes a FTCA complaint, plaintiff’s claim must still fail
because he did not specify the amount of the tort claim in his EEO complaint. Pl. Ex. A: EEO Compl.
Philpot and Schulyer, there was not a thorough investigation of the facts of the case or research of
the law applicable thereto. The Court reminds attorneys Philpot and Schulyer that lawyers are
special people in the fabric of our society. Lawyers can do things that no others can, among them,
file a lawsuit on behalf of another person not knowledgeable in the law. With that power comes
responsibility as power without responsibility, at a minimum, brings disrespect to the legal system
and at a maximum risks chaos.
Tucker L. Melançon
United States District Judge
July 25, 2012
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