Rodriguez-Coss v. Lynch
Filing
52
ORDER granting 35 Motion for Summary Judgment for the reasons set forth in the attached decision. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 06/29/2018. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JACABED RODRIQUEZ-COSS
Plaintiff
v.
JEFF B. SESSIONS, ATTORNEY
GENERAL, UNITED STATES
DEPARTMENT OF JUSTICE
Defendant
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CIVIL ACTION NO.:
3:16-cv-00633-VLB
July 29, 2018
MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [DKT. 35]
Plaintiff Jacabed Rodriquez-Coss (“Plaintiff” or “Rodriquez-Coss”) brings
this action raising claims of retaliation and sex discrimination under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and discrimination due to
perceived or actual disability under the Rehabilitation Act of 1973, 29 U.S.C. §
791, et seq., arising from her employment at the Department of Justice.
Defendant moves for summary judgment pursuant to Federal Rule of Civil
Procedure 56. [Dkt. 35].
For the reasons that follow, the Court GRANTS
Defendant’s motion.
Background
The following facts are taken from the Local Rule 56 statements of material
facts and evidence cited by the parties, and they are read in the light most
favorable to the non-movant. In 2008, Rodriquez-Coss joined the Department of
1
Justice’s Criminal Division, as an attorney in the Capital Case Unit (“CCU”) in
Washington D.C. [Dkt. 35-2 (D. Conn Civ. L. R. 56(a)(1) Stmt.) ¶ 1; Dkt. 47 (D.
Conn. Civ. L. R. 56(a)(2) Stmt.) ¶ 1].1 Initially, when Rodriquez-Coss first joined
the CCU, members of the CCU were not required to travel to the regional United
States Attorney Offices (“USAO”).
[Dkt. 46-2, Ex. B (Rodriquez-Coss Dep.) at
40:8–11]. One of the primary reasons that Rodriquez-Coss accepted the position
at the CCU was the promise from the previous chief of the CCU that there was no
travel requirement. Id. at 23:6–9.
In 2010, Kevin Carwile became Chief of both the CCU and the Capital Case
Section (“CCS”). [Dkt. 46-5, Ex. E (Carwile Dep.) at 166:1–167:14].
Carwile
expanded the unit’s mission to include the active litigation of cases with the local
USAOs. Id. This expansion meant attorneys in the unit were required to travel to
the venues where their assigned cases were pending.
In the months following this meeting, Rodriquez-Coss’s husband accepted
a job in Connecticut, leading Rodriquez-Coss to resign from her position at the
CCS. [Dkt. 46-2 at 53:3–9]. A week before her employment ended with the CCS,
Gwynn “Charlie” Kinsey, the Deputy Chief of the CCS, offered Rodriquez-Coss
the opportunity to continue working with the CCS remotely on a capital case
pending in Connecticut, United States v.
Aquart, which was then pending in
Connecticut. Id. at 53:10–16. Rodriquez-Coss accepted and signed her first
Flexiplace Agreement on November 8, 2010, which enabled her to work remotely
1
Prior to joining the CCU, Rodriquez-Coss previously served as an Assistant U.S.
Attorney in the District of Maryland and the District of Puerto Rico. [Dkt. 35-2 ¶ 1;
Dkt. 47 ¶ 1].
2
for the CCU from the USAO in Bridgeport, Connecticut.
[Dkt. 35-4, Ex. D
(Flexiplace Agreements) at 71 of PDF]. The term of this agreement lasted until
February 28, 2011. Id. As the agreement detailed, “[d]uring the period of this
arrangement, the employee will be assigned to assist in the pretrial preparation of
U.S. v. Azibo Aquart, et al. . . . as well as conduct case review and policy work
as assigned by CCU. At the end of the agreement period, the Chief of the Capital
Case Unit will evaluate if extension is warranted, and a new agreement will be
required if extension is granted.” Id. Rodriquez-Coss initially believed that this
assignment was only a temporary measure until she was able to find other
employment in Connecticut. [Dkt. 46-2 at 29:21–25].
After the Aquart trial concluded in July 2011, Carwile contacted RodriquezCoss to inform her that she could continue working for the CCS from Connecticut
based on continually updated Flexiplace Agreements. Id. at 29:16–30:2; [Dkt. 352 ¶ 5; Dkt. 47 ¶ 5]. Thereafter, until February 2014, Rodriquez-Coss worked for the
CCS in Connecticut under Flexiplace Agreements of varying duration on cases
pending in New England primarily. [Dkt. 35-2 ¶ 5; Dkt. 47 ¶ 5].
After the conclusion of the Aquart trial, during the summer of 2011,
Rodriquez-Coss was assigned to litigate a § 2255 habeas case, United States v.
Fell, in Vermont. [Dkt. 35-2 ¶ 8; Dkt. 47 ¶ 8; Dkt. 35-5, Ex. Q (Email 1/6/14)].
Months later, near the end of 2011 or at the beginning of 2012, RodriquezCoss was assigned an additional case, United States v. Stone, pending before
the Eastern District of California in Fresno.
[Dkt. 46-2 at 58:21–59:3].
When
Rodriquez-Coss received this assignment, she immediately called Carwile to
3
inform him that it would be very difficult for her to litigate the case, since it would
require her to be away from her family for three to four months at a time. Id. at
82:9–17.
Rodriquez-Coss did not resign from her position and proceeded to
litigate the case; however, she continually requested a reassignment, and even
proposed alternative solutions, so that she could assist with the case without
acting as the lead prosecutor.
Id. at 83:14–23.
Despite her misgivings,
Rodriquez-Coss entered her appearance in the case on March 26, 2012. [Dkt. 355, Ex. F (Not. Appearance)].
In addition to Fell and Stone, Rodriquez-Coss was also assigned a case
pending in Rhode Island, United States v. Pleau, in 2012. [Dkt. 35-5, Ex. Q]. All
three of these cases––Fell, Stone, and Pleau––remained active until the summer
of 2013, when the defendant in Pleau pled guilty. [Dkt. 46-2 at 162:24–164:1].
Several AUSAs submitted affidavits opining that the number of cases
assigned to Rodriquez-Coss was abnormal. [Dkt. 46-6, Ex. F (Mosley Decl.) ¶ 11;
Dkt. 46-7, (Hegyi Decl.) ¶ 16]. According to Kinsey, at the time his deposition was
taken the CCS currently had an estimated total of eight to 12 capital cases and 15
to 25 § 2255 cases, with a total of 13 attorneys.
[Dkt. 46-5 at 118:21–120:2].
Based on Kinsey’s estimate of a range of 23-38 cases and 13 AUSAs, there could
not be an equal number of cases assigned to each AUSA in the unit. There is no
evidence in the record showing the number of active criminal cases, criminal
trials or habeas cases pending in the unit during the time Rodriguez-Coss was
employed. Nor is there any evidence of the number of AUSAs in the unit, their
background and experience, their reporting relationships or their caseloads.
4
During the summer of 2012, Rodriquez-Coss complained of discriminatory
accommodations to her supervisors. [Dkt. 46-1, Ex. A (Rodriquez-Coss EEOC
Stat.) at 17:12–13].
Rodriquez-Coss complained that a white male coworker,
Stanley Rothstein, was not required to travel or litigate cases outside of
Washington, D.C. Id. at 17:13–19. Rothstein confirmed that, between 2008 and
2013, he was only assigned one case. [Dkt. 46-11, Ex. K (Rothstein Decl.) ¶ 4].
During that case, Rothstein was not an active litigator and only made two short
trips to the regional USAO. Id.
In late 2012, Rodriquez-Coss’s family was impacted by the tragic mass
shooting at Sandy Hook Elementary School, located five minutes away from
where Rodriquez-Coss lived. [Dkt. 46-2 at 117:10–12]. Rodriquez-Coss testified
that, given the proximity of this shooting, there was an emotional impact on
Rodriquez-Coss’s family, particularly her school-age children. Id. at 117:12–13,
119:24–120:8. Because of this turmoil, Rodriquez-Coss expressed concerned to
Carwile and Kinsey about leaving her family for months to conduct a lengthy trial.
Id. at 117:17–20. As Rodriquez-Coss informed Kinsey, the combined stress of
three active cases alongside her family’s struggles made it increasingly difficult
to adequately litigate each case. Id. at 117:24–118:2.
On February 26, 2013, Carwile wrote in an email:
As you know, we have Jackie Rodriquez-Coss on our payroll but
working out of the USAO in Connecticut. Not a perfect arrangement
but I prefer, at this point, to continue the arrangement until midsummer and see where we stand at that point as a result of hiring
additional attorneys, etc.
Her prior Flexiplace Agreement has
expired. . . . I would like to [renew] this asap because she recently
received her mid-year review and started squawking when she was
told she needed to be more proactive in traveling to cover her
5
litigation matters. Before I raise this matter with her again, I want to
get an updated agreement in place. I shortened the duration of the
agreement in the event this turns into a larger problem.
[Dkt. 35-5, Ex. H (Email 2/26/13)]. Rodriquez-Coss was subsequently issued a
four-month Flexiplace Agreement on February 27, 2013 with an expiration date of
June 29, 2013. [Dkt. 35-4 at 75 of PDF]. Rodriquez-Coss was later offered a sixmonth Flexiplace Agreement that was signed on June 30, 2013, and ended
December 31, 2013. Id.
As Rodriquez-Coss continued to litigate Stone in 2013, she encountered
numerous hurdles. She testified that the previous prosecutors had apparently
“neglect[ed]” the case before Rodriquez-Coss was assigned. [Dkt. 46-2 at 83:13–
17]. Moreover, the local AUSA assisting Rodriquez-Coss was inexperienced and
completely unfamiliar with the case. Id. at 93:20–94:1. The federal judge in Stone
was also considered to have negative feelings about the death penalty. Id. at
169:12–17. The record is devoid of any evidence of tardy filings in the Stone case
before it was assigned to Rodriquez-Coss.
Nor is there any evidence on the
record of judicial bias on the part of the presiding judge(s) or that RodriquezCoss filed a motion to recuse or to disqualify the judge.
On February 5, 2013, Judge John C. Coughenour noted that RodriquezCoss filed a tardy response to a discovery motion in Stone. [Dkt. 35-5, Ex. G
(Stone Tr. 2/5/13) at 13]. In the months that followed, Rodriquez-Coss missed
numerous other deadlines. See [Dkt. 35-5, Ex. K (Stone Order 10/21/13) (noting
six untimely filings on January 7, January 9, August 22, September 30, October 4,
and October 10)].
6
On October 9, 2013, Rodriquez, Carwile, and Kinsey discussed RodriquezCoss’s litigation assignments over a conference call. [Dkt. 46-4, Ex. D (Kinsey
Dep.) at 48:4–9]. During this call, Rodriquez-Coss informed Carwile and Kinsey
that she could not travel to California for several months in order to prosecute
Stone.
Id. at 53:6–7, 53:14–19. Either during this conversation or during one
similar, Rodriquez-Coss characterized the local AUSA as busy and less active
with the case. [Dkt. 46-2 at 169:9–170:23]. Nevertheless, Rodriquez-Coss asked
Carwile to reduce her workload by reassigning the guilt phase of Stone to the
inexperienced local AUSA, leaving her to try the penalty phase only. [Dkt. 46-2 at
83:14–23, 175:19–22]. Rodriquez-Coss believed that “the evidence [in Stone] was
pretty overwhelming for the government” and thus “felt that was something that a
regular prosecutor didn’t need capital experience in order to handle the guilt
phase of the trial.” Id. at 176:1–15. This proposed reassignment was rejected. Id.
at 84:20–22. Carwile admitted that he allowed similar arrangements for other CCS
attorneys. [Dkt. 46-5 at 24:1–5].
Nearly two years after the case was assigned to her, on October 21, 2013,
Judge Coughenour again reprimanded the prosecution, headed by RodriquezCoss, for failing to meet deadlines. [Dkt. 35-5, Ex. K at 2–3]. In a written order,
the court remarked that:
[T]he government has demonstrated a cavalier attitude towards
obeying deadlines and other procedural requirements, and thus its
demand that the Court refuse to grant Defendant an extension of
time after a timely motion is audacious at best. The inability of the
attorneys representing the United States to obey court orders has
significantly lowered their credibility with the Court. Counsel are
forewarned that the Court is seriously considering an order to show
7
cause why government counsel should not be held in contempt for
their flagrant disregard of the Court’s orders.
Id. The magistrate judge assigned to Stone, Magistrate Judge Gary S. Austin,
also noted the “government’s pattern of filing untimely motions and deficient
responses” on November 8, 2013. [Dkt. 35-5, Ex. L (Stone Order 11/8/13) at 1 n.1].
A few weeks later on November 20, 2013, Magistrate Judge Austin cautioned the
government “that future late filings in this case will not be tolerated and will likely
result in the imposition of sanctions.” [Dkt. 35-5, Ex. N (Order 11/20/13) at 2].
On November 26, 2013, there were two conference calls between
Rodriquez, Carwile, and Kinsey. [Dkt. 46-4 at 88:17–22, 93:11–15]. The first call
was a case review that included the Fresno USAO Branch Chief Kevin Rooney
and the Fresno AUSA, Mike Fry, assigned to Stone. Id. at 88:17–22. During the
call, Rodriquez-Coss claimed that her work in Stone was impairing her ability to
work on Fell. Id. at 91:7–10. Immediately afterwards, Rodriquez, Carwile, and
Kinsey held a conference call.
Id.
at 93:11–15.
Kinsey’s notes indicate
Rodriquez-Coss complained about the “fundamentally unfair” travel requirements
and said she would not try the Stone case as scheduled. Id. at 96:3–97:11.
A few weeks later, on December 19, 2013, Rodriquez-Coss was given a twomonth, instead of a six-month, Flexiplace Agreement, which was effective from
January 1, 2014 to February 28, 2014.
[Dkt. 35-5, Ex. D].
In an email sent
alongside the new agreement, Kinsey informed Rodriquez-Coss that subsequent
agreements were “dependent on your satisfactory completion of all pre-trial and
trial litigation duties and other assigned work responsibilities.” [Dkt. 35-5, Ex. J
(Email 12/19/13)].
In response, Rodriquez-Coss noted that, in her situation,
8
ending her Flexiplace Agreement “would be tantamount to a constructive firing”
and “our current disagreements are stressful enough without adding to them the
uncertainty, every two months, of whether my Flexiplace agreement will be
renewed.” Id.
Carwile later testified that the period for Rodriquez-Coss’s
Flexiplace was reduced in response to Rodriquez-Coss’s objections to travel and
to “buy additional time” to resolve this issue. [Dkt. 46-5 at 48:8–49:1].
Soon thereafter, on January 7, 2014, Carwile issued an official reprimand to
Rodriquez. [Dkt. 35-5, Ex. R (Official Reprimand)]. Carwile wrote:
This is an official reprimand for your refusal to handle a case
assignment given to you by your supervisors. You informed Capital
Case Section (CCS) that you are unwilling to litigate the case of
United States v. Samuel Stone (E.D. Cal.) due to the travel required
to adequately prepare and prosecute this matter. You cannot
unilaterally refuse to handle a case or change your work
assignments to accommodate your personal preferences. This
conduct is unacceptable and will not be tolerated. You are expected
to accept all assignments from your supervisors.
Id. The reprimand was “intended to be constructive in nature” and was added to
Rodriquez-Coss’s personnel file.
Id.
Later that month, on January 22, 2014,
Rodriquez-Coss contacted the Department of Justice’s Equal Employment
Opportunity Commission (“EEOC”), [Dkt. 35-5, Ex. T (EEOC Compl.)], and she
filed an internal grievance regarding her official reprimand, [Dkt. 35-5, Ex. Z
(Grievance Response 3/28/14). CCS was later notified of the EEOC contact on
February 4, 2017. [Dkt. 35-5, Ex. U (EEO Letter Excerpt 6/4/14)]. The reprimand
was later upheld by the Department of Justice’s Grievance Official, who called the
reprimand “fair and reasonable.” [Dkt. 35-5, Ex. Z].
9
Around February 10, 2014, Carwile and Kinsey learned of the deficient
filings in Stone. [Dkt. 46-4 at 159:22–160:22]. At this time, the U.S. Attorney for
the Eastern District of California alerted Carwile and Kinsey to the reprimands
issued by the Stone judges. Id. at 160:18–22; [Dkt. 46-5 at 82:19–83:4]. Two
weeks later, on February 24, 2014, Carwile notified Rodriquez-Coss that he would
not renew her Flexiplace Agreement after it expired on February 28, 2014. [Dkt.
35-5, Ex. Y (Email 2/24/14)].
Carwile explained his decision was based on
“revelations over the last 2 weeks that were brought to my attention which relate
to missed deadlines and other deficiencies in court filings.”
Id.
Moreover,
Carwile also “determined that more direct supervision of [Rodriquez-Coss’s]
work is needed” and instructed Rodriquez-Coss to resume working from the CCS
office in D.C. beginning March 31, 2014. Id. On March 24, 2014, Rodriquez-Coss
emailed Carwile seeking authorization to continue working from Connecticut until
April 30 in preparation for an evidentiary hearing in Fell. Id. This was denied. Id.
Rodriquez-Coss did not return to the CCS office on March 31, 2014. [Dkt.
35-2 ¶ 31; Dkt. 47 ¶ 31]. Instead, on March 31 at 10:35 pm, she emailed Carwile
and Kinsey, explaining:
Unfortunately, the stress from my current disputes pertaining to the
status of my flexi-place agreement has had a marked and detrimental
effect on my health, to the point where I am now under the
continuing care of physicians and taking medication. While I am
suffering medically from this situation and under the care of
physicians, I simply cannot act contrary to their advice and report for
duty in Washington.
I will be providing you with medical
documentation that the requested transfer is detrimental to my
health and that I can only continue working with the limitation that I
remain in their care.
10
[Dkt. 35-5, Ex. AA (Email 3/31/14)]. Rodriquez-Coss also indicated that she would
continue working out of the Connecticut USAO. Id. The following afternoon,
Kinsey replied and informed Rodriquez-Coss that she would be placed on “AWOL
status” starting April 2, 2014 unless she provided medical documentation, since
she did not report to the D.C. office. Id. On April 2, 2014 Rodriquez-Coss was
declared AWOL and, because of her AWOL status, Kinsey cancelled RodriquezCoss’s enrollment in a training that was necessary for her to stay in good
standing with her state bar. Id.; [Dkt. 35-2 ¶ 33; Dkt. 47 ¶ 33].
Rodriquez-Coss provided medical documentation from her general
practitioner on April 3, 2014.
[Dkt. 35-5, Ex. AA].
After receiving the
documentation, Kinsey informed Rodriquez-Coss that she was still on AWOL
status and could not work from the Connecticut USAO. Id. In the days that
followed, Rodriquez-Coss supplied further medical documentation indicating that
she had suffered chest pains and an anxiety attack induced by the “stress of her
present situation.” [Dkt. 35-5, Ex. GG (Medical Records)]. Rodriquez-Coss was
eventually granted sick leave from April 4, 2014 to May 12, 2014 and annual leave
under the Family and Medical Leave Act from May 13, 2014 to May 30, 2014. [Dkt.
35-2 ¶ 36; Dkt. 47 ¶ 36; Dkt. 35-5, Ex. BB (Leave 3/23/14 to 4/5/14); Dkt. 35-5, Ex.
CC (Sick Leave Grant)].
On May 6, 2014, Rodriquez-Coss filed a formal complaint of discrimination
with the Department of Justice’s EEO staff. [Dkt. 35-2 ¶ 37; Dkt. 47 ¶ 37].
Then, on May 20, 2014, Rodriquez-Coss informed CCS management that
she had accepted a position with the USAO in Connecticut and was resigning
11
from the CCS. [Dkt. 35-2 ¶ 39; Dkt. 47 ¶ 39]. Rodriquez-Coss also indicated that
she intended to remain on leave for the remainder of her time with CCS. [Dkt. 352 ¶ 39; Dkt. 47 ¶ 39].
Rodriquez-Coss’s position was converted from a Trial
Attorney to an AUSA in the District of Connecticut on June 1, 2014. [Dkt. 35-2 ¶
40; Dkt. 47 ¶ 40]. This was effectively a transfer and Rodriquez-Coss remained
continuously employed by the Department of Justice. [Dkt. 35-2 ¶ 40; Dkt. 47 ¶
40].
On March 23, 2016, the DOJ EEOC granted Rodriquez-Coss the right to a
file a complaint within 30 days. [Dkt. 1 (Compl. and Exs.) at 105 of PDF]. This
case was timely filed on April 21, 2016. Id. at 1.
Standard of Review
Summary judgment should be granted “if the movant shows 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
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether the burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
This means that
“although the court should review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not required to believe.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000); see Welch-
12
Rubin v. Sandals Corp., No. 3:03-cv-481, 2004 WL 2472280, at *4 (D. Conn. Oct. 20,
2004) (“At the summary judgment stage of the proceeding, [p]laintiffs are
required to present admissible evidence in support of their allegations;
allegations alone, without evidence to back them up, are not sufficient.”) (citing
Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996)). Put another way,
“[i]f there is any evidence in the record that could reasonably support a jury’s
verdict for the nonmoving party, summary judgment must be denied.” Am. Home
Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d
Cir. 2006) (quotation omitted). In addition, “the court should not weigh evidence
or assess the credibility of witnesses” on a motion for summary judgment, as
“[t]hese determinations are within the sole province of the jury.” Hayes v. New
York City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996).
A party who opposes summary judgment “cannot defeat the motion by
relying on the allegations in his pleading, or on conclusory statements, or on
mere assertions that affidavits supporting the motion are not credible.” Gottlieb,
84 F.3d at 518. “Summary judgment cannot be defeated by the presentation . . . of
but a ‘scintilla of evidence’ supporting [a] claim.” Fincher v. Depository Tr. &
Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010) (quoting Anderson, 477 U.S. at
252).
Rather, a party opposing summary judgment “must come forth with
evidence sufficient to allow a reasonable jury to find in [its] favor.” Brown v.
Henderson, 257 F.3d 246, 252 (2d Cir. 2001). The evidence such as affidavits
offered in opposition to a motion for summary judgment must be both admissible
and must be sufficient to raise a genuine issue of material fact. See Fed. R. Civ. P.
13
56(c); H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991); Beyah
v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986); Martinez v. State of Connecticut, 817
F. Supp. 2d 28, 37 (D. Conn 2011); Hollander v. Am. Cyanamid Co., 999 F. Supp.
252, 256 (D. Conn. 1998) (citing John Hancock Prop. and Cas. Ins. Co. v. Universal
Ins. Co., Ltd., 147 F.R.D. 40, 45 (S.D.N.Y. 1993); Welch–Rubin, 2004 WL 2472280, at
*1.
“Each statement of material fact by a movant in a Local Rule 56(a)1
Statement . . . must be followed by a specific citation to (1) the affidavit of a
witness competent to
testify as to the facts at trial, or (2) other evidence that
would be admissible at trial.” D. Conn. L. Rule 56(a)3; see also Fed. R. Civ. P.
56(e). The Local Rules also points out,
Failure to provide specific citations to evidence in the record as
required by this Local Rule may result in the Court deeming admitted
certain facts that are supported by the evidence in accordance with
Local Rule 56(a)1, or in the Court imposing sanctions, including,
when the movant fails to comply, an order denying the motion for
summary judgment, and when the opponent fails to comply, an order
granting the motion if the motion and supporting materials show that
the movant is entitled to judgment as a matter of law.
Id.; Fed. R. Civ. P. 56(e). Where there is no admissible evidence upon which a
jury could properly proceed to find a verdict for the party producing it and upon
whom the onus of proof is imposed, such as where the evidence offered consists
of conclusory assertions without further support in the record, summary
judgment may lie. Fincher v. Depository Trust and Clearance Co., 604 F.3d 712,
727 (2d Cir. 2010). “The burden is on the proponent to show that the material is
admissible as presented or to explain the admissible form that is anticipated.
14
There is no need to make a separate motion to strike.”
Fed. R. Civ. P. 56,
advisory committee’s note to 2010 amendment.
Analysis
Defendant moves for summary judgment on all three grounds: (1)
retaliation for conduct protected by Title VII; (2) sex discrimination in violation of
Title VII; and (3) discrimination due to disability protected by the Rehabilitation
Act. Defendant addresses the retaliation and disparate treatment claims under a
single analysis, presumably because they both utilize the McDonnell Douglas
framework and have overlapping facts. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–05 (1973). The Court will address disparate treatment first.
I.
Title VII Sex Discrimination Based on Disparate Treatment
The Complaint asserts a combined claim for discrimination on the basis of
sex and parental status.
[Dkt. 1 ¶¶ 31–32].
judgment on two grounds.
Defendant moves for summary
First, Defendant argues that the Court lacks
jurisdiction over the claim of parental status discrimination because parental
status is not actionable under Title VII and, instead, is only covered by Executive
Order 13152.
Exec. Order No. 13,152, 65 Fed. Reg. 26,115 (May 2, 2000).
Importantly, the executive order explicitly states, “This Executive Order does not
confer any right or benefit enforceable in law or equity against the United States
or its representatives.” Id. As a representative of the United States, Defendant
thus argues that the Court lacks subject matter jurisdiction over this issue. [Dkt.
35-1 (Mot. Summ. J.) at 18]. In response, Plaintiff recognizes that “discrimination
on the basis of parental status per se is not actionable under Title VII,” but
15
nonetheless argues that forms of gender discrimination can target female
parents.
[Dkt. 45 (Corrected Opp’n) at 2 n.1].
Therefore, Plaintiff has not
contested the lack of jurisdiction over her claim of parental status. The Court
construes this as a waiver of that claim and any evidence presented of disparate
treatment on the basis of Plaintiff’s parental status will be considered in the
analysis of Plaintiff’s sex discrimination claim.
Second, Defendant moves for summary judgment against Plaintiff’s gender
discrimination claim by contesting her prima facie case and articulating a number
of legitimate nondiscriminatory reasons for its actions.
Disparate treatment
claims under Title VII are analyzed under the McDonnell Douglas framework: (1)
Plaintiff must demonstrate a prima facie case of sex discrimination; (2) Defendant
must
then
offer
legitimate
nondiscriminatory
reason(s)
for
its
adverse
employment actions; and (3) Plaintiff then bears the burden to prove that
Defendant’s stated reasons were pretext for discrimination.
See McDonnell
Douglas, 411 U.S. at 803–05. The parties’ arguments under the sex discrimination
claim will be analyzed below under this framework.2
Notably, Plaintiff barely addresses the sex discrimination claim at all,
relying on the arguments and evidence from the retaliation claim in only one,
short paragraph.
Plaintiff has failed to comply with Rule 56 by filing a rule-
compliant Local Rule 56(a)(2) Statement and has submitted inadmissible material
2
Plaintiff neglected to include any citations to the record in the section of her
memorandum supporting her sex discrimination claim. Therefore, the Court will
only consider the evidence cited in support of her retaliation claim.
16
in support of her opposition to summary judgment. The Court has assessed the
evidence Plaintiff cites and applies it to the appropriate discrimination standard.
A. Prima Facie Case of Discrimination
In order to establish a prima facie case of sex discrimination, Plaintiff must
demonstrate: “(1) she is a member of a protected class; (2) she is qualified for her
position; (3) she suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination.” Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (quoting Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)). Defendant only contests the third
and fourth elements.
1.
Adverse Employment Action
For an action to be adverse in a claim of discrimination it must amount to a
“materially adverse change in the terms and conditions of employment.” Galabya
v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks
omitted) (citing Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d
Cir. 1999)). Moreover, “[a]n adverse employment action is one which is more
disruptive than a mere inconvenience or an alteration of job responsibilities.”
Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (internal quotation marks
omitted). For example, actions that are materially adverse include “termination of
employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices . . . unique to a particular situation.” Sanders v.
New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (quoting
17
Terry, 336 F.3d at 141). In the end of the day, “[a]n adverse employment action
may or may not entail economic loss, but there must be a link between the
discrimination and some tangible job benefits such as compensation, terms,
conditions or privilege of employment.” Alfano v. Costello, 294 F.3d 365, 373 (2d
Cir. 2002).
Defendant contends that neither Plaintiff’s work and travel assignments,
AWOL status, reduction and non-renewal of her Flexiplace Agreement, nor her
letter of reprimand constitute adverse employment actions.3 Plaintiff challenges
each position and argues that “[a] denial of a requested accommodation can
constitute an adverse employment action.”
[Dkt. 45 at 7].
The Court views
Plaintiff’s argument to be essentially the same as Defendant’s workload and
3
Of note, Plaintiff does not expressly assert a constructive discharge claim
in the Complaint. See [Dkt. 1]. She did, however, claim Defendant’s conduct
resulted in her constructive discharge in the Joint Rule 26(f) Report, which was
signed by both parties. See [Dkt. 26 at 2]. Constructive discharge is one example
of a materially adverse action. See Stetson v. NYNEX Serv. Co., 995 F.2d 355, 359
(2d Cir. 1993). “An employee is constructively discharged when [her] employer,
rather than discharging [her] directly, intentionally creates a work atmosphere so
intolerable that [s]he is forced to quit involuntarily.” Terry, 336 F.3d at 151–52.
Intolerable working conditions are those that “when, viewed as a whole, they are
‘so difficult or unpleasant that a reasonable person in the employee’s shoes
would have felt compelled to resign.’” Id. at 152 (quoting Chertkova v.
Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)). The discrepancy
between the two filings elucidates how murky these claims are. The Court
surmises the constructive discharge has been subsumed into the argument that
the non-renewal of the Flexiplace Agreement is an adverse action and that
Plaintiff intended not to raise a separate constructive discharge claim. This
conclusion is also necessitated by the fact that a pleading can only be amended
by re-pleading and not in a memorandum of law or other document filed in a case.
See Doe v. Torrington Bd. of Educ., 179 F. Supp. 3d 179, 189 n.3 (D. Conn. 2016);
Auguste v. Dep’t of Corrs., 424 F. Supp. 2d 363, 369 (D. Conn. 2006).
18
travel argument and will assess these positions together. The Court will then
address Defendant’s other arguments.
i.
Workload and Travel Assignments
First, Plaintiff argues that Defendant did not accommodate her travel and
workload. Plaintiff submitted several declarations from Plaintiff’s coworkers, who
opine without reference to any facts that Plaintiff was assigned more cases than
other attorneys and was required to travel more than certain male attorneys.
[Dkt. 46-6, Ex. F ¶ 11; Dkt. 46-7, Ex. G ¶ 16; Dkt. 46-11, Ex. K ¶ 4; Dkt. 46-1, Ex. A at
17:12–13].
Defendant presented a summary of various CCS attorneys’ travel. [Dkt. 355, Ex. MM (Travel Summary Data)].4 These records reveal that Rodriquez-Coss
traveled approximately as often as, and even less often than a few, other CCS
attorneys.
See id.
However, Defendant has not presented evidence that
challenges the claim that her workload was burdensome.
The Second Circuit has clearly held that “the assignment of a
disproportionately heavy workload can constitute an adverse employment
action.”
Vega, 801 F.3d at 85 (internal quotation marks omitted).
The key,
however is disproportionate. Courts within this circuit have held that unfavorable
4
Plaintiff objects to the admission of this summary chart on the basis that it is
not a CCS document and does not qualify as a business or Government record,
and it was not produced during discovery. See [Dkt. 47 ¶ 41]. The Court agrees
with Defendant that this chart is admissible as a summary chart under Rule 1006
of the Federal Rules of Civil Procedure, as it is authenticated by Chief Financing
Officer Stacey Bass and the original can presumably be inspected if the Court
were to order the production. See [Dkt. 35-5, Ex. LL (Bass Decl.)]. The Court
need not do so, however, because Plaintiff never requested to inspect the
originals and does not object on Rule 1006 grounds.
19
schedules, work assignments, or excessive work are not per se adverse
employment actions, and a plaintiff must show more than just these actions. See
Linell v. New York City Dep’t of Educ., No. 15-cv-5085 (CBA) (ST), slip op. at 6–7
(E.D.N.Y. Mar. 30, 2018) (granting summary judgment in age- and disabilitydiscrimination case for failure to show more); Johnson v. Long Island Univ., 58 F.
Supp. 3d 211, 224 (E.D.N.Y. 2014) (finding a disproportionate workload in a race
and gender discrimination case when the plaintiff was assigned seven weeks of
duty while other employees were only assigned two weeks).
therefore
demonstrate
a
triable
issue
of
fact
that
her
Plaintiff must
workload
was
disproportionate in order to survive summary judgment.
From 2012 through the summer of 2013, Rodriguez handled three capital
cases: Stone, a criminal trial in the Eastern District of California; Fell, a habeas
case in the District of Vermont; and Pleau, a criminal trial in the District of Rhode
Island.
See [Dkt. 46-2 at 162:21–164:16].
Rodriguez-Coss relies on affidavits
submitted by her colleagues Bruce Hegyi and Julie Mosley as evidence of her
disproportionate workload. See [Dkt. 45 at 7–8]. Attorney Mosley stated,
During my six-year tenure in the Capital Case Section, I do not recall
handling three active litigation matters simultaneously. Based on my
experience, the demands of a capital litigation matter are intensified
when it is pending in a district that is not particularly supportive of
the death penalty and when the local United States Attorney’s Office
does not allocate sufficient personnel or resources to the case.
[Dkt. 46-6 ¶ 11]. Bruce Hegyi also attested to similar matters:
During my tenure in the CCS, I was never required to handle
simultaneously three active capital matters with impending trial
dates; and I am not aware of anyone other than Ms. Rodriguez-Coss
who handled simultaneously that many active capital trial matters.
Over my tenure at CCS, there were times when a CCS Trial Attorney
20
had no active capital trial matters, and it seemed to me that the norm
was for CCS Trial Attorneys to have one, or at most two, active
capital trial matters with impending trial dates.
***
In every Federal Death Penalty Act (FDPA) case that involved CCS
during my tenure, the federal capital defense counsel employed a
“scorched Earth” litigation approach. In my experience, most of the
CCS cases that have gone to trial have in the neighborhood of 1,000
docket entries and/or pleadings.
[Dkt. 46-7 ¶¶ 16–17]. He then went on to describe the increasing demands when a
capital case is before a district judge “who is hostile to the FDPA” or the USAO
does not adequately assist the CCS attorney. Id. ¶ 17.
The Court finds that this evidence is insufficient for a jury to conclude
Rodriguez-Coss’s workload was disproportionate. First, Attorneys Mosley and
Hegyi submitted declarations that are speculative and not quantitative. They are
devoid of any facts which would allow their hypotheses to be tested. The only
facts offered to establish the disproportionality of Plaintiff’s workload was that
there were 23-38 cases and only 13 attorneys, meaning that the caseload was
necessarily disproportionate. There is also no evidence of the relative experience
of the attorneys in the unit or the complexities of their caseloads. The proffered
declarations represent the opinions of a small percentage of the 12 or more
attorneys who worked for the CCS during 2012 and 2013.5 Rodriguez-Coss had
the opportunity to discover both from public records and the discovery process
5
The record shows that 12 attorneys traveled for the CCS in fiscal year 2012 and
14 attorneys traveled for the CCS in fiscal year 2013. See [Dkt. 35-5, Ex. MM]. The
Court recognizes this may not be reflective of the entire CCS attorney list. Kinsey
testified that there were approximately 13 attorneys working for CCS at the time
of his deposition on August 2, 2017. See [Dkt. 46-4 at 118:21-120:2].
21
the information to make a factual showing of the relative workload of the
attorneys in the unit during the relevant time frame. After all, Defendant provided
the Court with a data sheet of all the attorneys’ travel broken down by fiscal year,
and it is likely they would have kept documentation of the caseloads in order to
approve travel.
The Court therefore cannot conclude, based on attorneys’
affidavits, that Rodriguez-Coss’s workload was disproportionate when compared
to the entire office.
Second,
Rodriguez-Coss’s
workload
does
not
even
appear
disproportionate in comparison to the workload referenced in the affidavits.
Attorney Hegyi stated he “was never required to handle simultaneously three
active capital matters with impending trial dates,” see [Dkt. 46-7 ¶ 16], but neither
was Rodriguez-Coss. Rather, she was assigned two active criminal trial matters
and one active § 2255 habeas petition. The Court cannot conclude RodriguezCoss’s workload to be disproportionate based on Attorney Hegyi’s testimony as
he appears to have misunderstood her caseload as three active criminal trials.
That Attorney Mosley never worked on three active litigation matters is of no
moment because there is no basis to conclude all other CCS attorneys would
testify to the same fact (i.e. that they did not have three active cases). Plaintiff
cites no evidence in the record leading a reasonable jury to conclude two active
criminal trials and one active habeas petition is disproportionate.
Third, the evidence indicates Rodriguez-Coss complained to her managers
only of her travel requirements, not the alleged excessive workload itself. For
example, on January 6, 2014, Rodriguez-Coss sent an email to Renee Caputo
22
regarding the shortening of her Flexiplace Agreement. See [Dkt. 35-5, Ex. Q].
She indicated she could not work on Stone because she could not be away from
home for three to four months.
See id.
Of note, she expressly stated her
“concerns relate primarily to [her] inability to travel, particularly to California, on
a regular basis.” Id. When explaining her case assignments with the CCS, she
stated the following: “In November 2011 I received a call from Chief Carwile
during which he asked whether I was willing to litigate another case. I told him
that as long as the case was ‘not in Alaska,’ meaning not far away from my home,
I would be willing to do so.” Id. In this same email, she indicated she “agreed” to
take on Pleau in 2012 and see Fell to its conclusion. See id.
The Court concludes that Plaintiff has not presented a triable issue of fact
that her workload was excessive notwithstanding the fact that Defendant did not
present any evidence speaking to her workload which is a function of more than
just the number of cases. At this stage of the litigation, Plaintiff has had the
opportunity
to
conduct
discovery
and
present
facts
establishing
the
disproportionality of her workload. She has failed to raise a triable issue of fact.
Therefore, in light of the authenticated summary chart showing Rodriguez-Coss
traveled the same or less than most CCS trial attorneys, the Court finds that her
assigned workload and travel did not constitute an adverse action.
Plaintiff’s main argument is that Defendant’s failure to accommodate her
travel needs constituted an adverse action. See [Dkt. 45 at 7]. She cites Little v.
Nat’l Broad. Co., Inc., 210 F. Supp. 2d 330, 337 (S.D.N.Y. 2002), a Title VII
23
discrimination action on the bases of race and sex. In defining “adverse action,”
the district court stated,
While there is no exhaustive list of what constitutes an adverse
employment action, courts have held that the following actions,
among others, may qualify: discharge or demotion, denial of a
provisional or permanent promotion, addition of responsibilities,
involuntary transfer that entails objectively inferior working
conditions, denial of a requested employment accommodation,
denial of training that may lead to promotional opportunities, and a
shift assignment that makes a normal life difficult for the employee.
Id. (internal citations omitted, emphasis added). The district court cited Pomilio
v. Wachtell Lipton Rosen & Katz, No. 97 Civ. 2230 (MBM), 1999 WL 9843, at *9
(S.D.N.Y. Jan. 11, 1999), in stating that a denial for a requested employment
accommodation is an adverse action. Pomilio is inapposite here as it addresses
a plaintiff’s discrimination claim in violation of the Americans with Disabilities Act
(“ADA”) and corresponding New York state provision. An individual’s need for a
reasonable accommodation is decidedly different in the context of the ADA where
“reasonable accommodation” is a statutory requirement.
See 42 U.S.C. §
12112(a)(5)(A). Rodriguez-Coss does not assert any entitlement to relief for an
ADA violation or for another basis in which a reasonable accommodation is
statutorily required to be given. Furthermore, Rodriguez-Coss has provided no
legal basis for the Court to extend an ADA case to this Title VII case based on
these facts in evidence.
She is essentially asking the Court to rule that a
supervisor must give case assignments based on the requests of the employees
without any legal support. The Court should not and will not usurp the role of the
employer to manage its workload and employees.
24
The Court finds that the
decision not to accommodate Rodriguez-Coss’s travel request and case
assignments is not an adverse action.
ii.
AWOL status
Second, it is disputed whether Plaintiff’s AWOL status from April 2, 2014 to
April 3, 2014 constitutes an adverse action. Generally, AWOL designation is not
an adverse action when employees are absent without any documented reason.
See, e.g., Pierre v. Napolitano, 958 F. Supp. 2d 461, 479 (S.D.N.Y. 2013) (finding
that plaintiff’s AWOL status was not an adverse employment action because it
“was the direct result of his failure to provide [medical] documentation” in
support of his request for medical leave); Lucas v. Potter, No. 3:08CV480, 2010
WL 148451, at *8 (D. Conn. Jan. 11, 2010) (finding that AWOL status was not an
adverse employment action because plaintiff neglected to provide the required
medical documentation until one month after his request for sick leave).
Although there are few decisions on this issue, other courts in this circuit have
found that AWOL status coupled with ignorance of a request for sick leave with
medical documentation qualifies as an adverse action.
See Krishnapillai v.
Donahoe, No. 09–CV–1022, 2013 WL 5423724, at *12–13 (E.D.N.Y. Sept. 25, 2013)
(finding that AWOL status and wrongful denial of sick leave constitutes an
adverse employment action); Jordan v. Potter, No. 05-CV-3005, 2007 WL 952070,
at *6, *21–22 (E.D.N.Y. Mar. 29, 2007) (on a motion to dismiss, finding an adverse
employment action in a Rehabilitation Act claim––analyzed under the McDonnell
Douglas framework––where plaintiff was wrongly declared AWOL and denied sick
leave).
25
In this case, Plaintiff did not provide medical documentation until the day
after she was declared AWOL.
[Dkt. 35-5, Ex. AA].
After providing the
information, she was ultimately granted sick leave from April 4 through May 12
after which she took annual FMLA leave until May 30. See [Dkt. 35-2 ¶ 36; Dkt. 47
¶ 36; 35-5, Ex. AA, Ex. BB, Ex. DD (Leave 4/6/14 to 5/31/14)]. The physicians’
letters indicate that Rodriguez-Coss had medical appointments for March 31,
April 4, and April 7. See [Dkt. 35-5, Ex. GG]. Her cardiologist signed a letter dated
April 8, 2014, indicating that she should not return to work until cardiac testing is
completed and reviewed. See [Dkt. 35-5, Ex. EE (Physician Letter 4/8/14)]. The
record therefore supports Defendant’s conclusion in giving Rodriguez-Coss
retroactive sick leave for all days except April 2 and 3 of 2014.
Alternatively, Plaintiff argues she was denied the opportunity to attend a
continuing legal education class because of her AWOL status, which “she
needed urgently to maintain her law license.” [Dkt. 45 at 9]. She does not allege,
however, that she lost her license.
Given the nearly constant stream of
continuing legal education courses offered to attorneys, the Court surmises that
she could have taken (and possibly did take) another course in lieu of the one she
missed. See [Dkt. 46-1 at 51:8–52:3]. The Court finds this set back was a mere
inconvenience but did nothing to materially alter the conditions of her
employment or cause some other loss of tangible job benefits, given that she was
not suspended and did not lose her license. See Terry, 336 F.3d at 138.
Moreover, Defendant withdrew Rodriguez-Coss from the training after she
represented that her physician advised her to remain in Connecticut under care
26
and not travel to Washington D.C. The Court is in a quandary how, under those
facts, she could allege she was harmed by her inability to attend a training in
North Carolina when she was advised to remain under her doctor’s care. See
[Dkt. 35-5, Ex. EE]. For these reasons, Rodriguez-Coss’s AWOL status does not
qualify as an adverse employment action.
iii.
Letter of Reprimand
Third, it is Defendant’s position that Rodriguez-Coss’s letter of official
reprimand did not constitute an adverse action.
“Reprimands or negative
evaluation letters may, in some circumstances, constitute adverse employment
action, and whether they do is typically a question of fact for the jury.” Lawrence
v. Melhman, 389 F. App’x 54, 56 (2d Cir. 2010) (Title VII discrimination case citing
Second Circuit cases); see McKinney v. Dep’t of Transp., 168 F. Supp. 3d 416, 423
(D. Conn. 2016) (recognizing in a Title VII race discrimination case that an adverse
employment action includes reprimand) (citing Morris v. Lindau, 196 F.3d 102, 110
(2d Cir. 1999) (First Amendment retaliation), abrogation recognized on other
grounds by Montero v. City of Yonkers, 196 F.3d 102, 110 (2d Cir. 1999)); Abraham
v. Potter, 494 F. Supp. 2d 141, 147 (D. Conn. 2007) (acknowledging a reprimand
may constitute an adverse action in a Title VII discrimination suit); see generally
Sanders, 361 F.3d at 756 (recognizing in a Title VII discrimination case that a
negative job evaluation may cause an adverse action).
Typically, district courts in this circuit have held that reprimands, without
more, are not adverse actions in employment discrimination suits. See Abraham
v. Potter, 494 F. Supp. 2d 141, 147 (D. Conn. 2007) (applying the “reprimand plus
27
other negative results standard”); Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d
236, 248 (S.D.N.Y. 2001) (holding that no adverse employment action occurred
where plaintiff was unfairly scrutinized and informally reprimanded for tardiness,
when monitoring and reprimands did not result in decrease in pay, probation, or
other negative consequence); c.f. Stembridge v. City of New York, 88 F. Supp. 2d
276, 283 (S.D.N.Y. 2000) (finding a reprimand was not an adverse action because
it did not indicate “any planned discipline or further action,” but acknowledging
“[a]n adverse employment decision is actionable under Title VII when it relates to
an employee’s ‘[c]ompensation, terms, conditions, or privileges of employment,’
or involves a classification which ‘[w]ould deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his status
as an employee.’”) (quoting 42 U.S.C. § 2000e-2(a)).
Defendant issued the official reprimand on January 6, 2014 in which it cited
Plaintiff’s refusal to litigate and travel for the Stone trial as the basis for the
reprimand. 6 [Dkt. 35-5, Ex. R]. Rodriguez-Coss previously discussed this issue
with her supervisors on multiple occasions. See, e.g., [Dkt. 46-4, Ex. D at 48:4–9,
53:6–19, 91:7–10].
The Court observes that Plaintiff did not experience any
changes in her terms of conditions directly after receiving the letter of reprimand.
The letter was deemed to be “constructive in nature” and cautioned that “future
misconduct may lead to more formal disciplinary action being proposed against
you, up to and including removal from the federal office.” [Dkt. 35-5, Ex. R]. The
6
The reprimand does not reference her delinquent filings in the Stone case, as
her supervisors did not find out about that issue until February 10, 2014. See
[Dkt. 46 at 159:22–160:13-22].
28
Court questions the letter of official reprimand was an adverse action. However,
in light of the previous discussions (leading the Court to conclude this was not
the first time Plaintiff was made aware of the issue), the subsequent non-renewal
of her Flexiplace Agreement, and in consideration of the prevailing case law, the
Court assumes without deciding the letter of reprimand was an adverse action.
iv.
Flexiplace Agreement Denial
The remaining actions addressed by Defendant is the reduction and
subsequent non-renewal of Plaintiff’s Flexiplace Agreements. The Second Circuit
has not addressed whether the denial or non-renewal of work-from-home status
or telecommuting privileges constitutes an adverse action.
See Martinez-
Santiago v. Zurich N. Am. Ins., No. 07 Civ. 8676, 2010 WL 184450, at *7 (S.D.N.Y.
Jan. 20, 2010).
In Martinez-Santiago, the plaintiff was pregnant and received
telecommuting status for the few weeks leading up to her due date. She took
leave after giving birth and then sought permission to telecommute a few days
per week “in order to observe the level of care being given to her son by the new
caretaker.” See id. at *3. The plaintiff maintained that the accommodation would
be temporary to resolve the unanticipated day care problem. Id. Her employer
denied the request, which gave rise to the litigation.
In ruling that the
telecommuting denial did not constitute an adverse employment action, the
district court stated the denial “was a short term inconvenience that did not rise
to the level of an adverse employment action.” Id. at *7. The district court cited
numerous cases finding such denied requests did not constitute an adverse
29
action, but it nonetheless acknowledged that “there may be some situation where
the denial of a request to work from home qualifies as an adverse action. . . .” Id.
The Court has assessed these cases and finds they differ in one key
respect: unlike the plaintiffs in those cases, the plaintiff in this case had been
working remotely for over three years prior to the non-renewal of her Flexiplace
Agreement.
After electing not to renew the Flexiplace Agreement, Defendant
gave her only one month to return to D.C. See [Dkt. 35-5, Ex. Y]. This would have
forced her to quickly relocate herself, her small children and husband; leave them
behind; or quit her job. Indeed, over the span of three years, Plaintiff lived in
Connecticut and established deep roots to her home. Her young children spent
three years growing accustomed to their school and her husband’s career was
based in Connecticut. CCS management was patently aware of Plaintiff’s familial
situation; after all, Plaintiff began working in Connecticut as a direct result of her
husband’s work transfer and her requests for accommodation frequently
referenced her children. On the other hand, she knew from the onset it was a
temporary arrangement.
It is worth noting that Carwile initially offered her the Flexiplace Agreement
in 2010 to keep her with the CCS. See [Dkt. 46-5 at 109:14–110:6]. He explained,
“I believed that she was leaving to move to Connecticut and that the only way
that I would be able to, perhaps, have a discussion with her about having a long
distance work arrangement for some period of time would be pursuant to some
sort of arrangement like this.”
Id. at 110:20–111:3.
30
His knowledge that a
Flexiplace Agreement was necessary to keep her with the CCS suggests
Defendant foresaw her resignation should the non-renewal be issued.
Clearly, this non-renewal is more than just an “inconvenience or an
alteration of job responsibilities.”
Terry, 336 F.3d at 138.
Given Carwile’s
motivation in issuing the Flexiplace Agreement and the length of time she worked
remotely, a reasonable jury could determine it is a material change in the terms
and conditions of her employment if not a calculated effort to squeeze RodriguezCoss out of employment. See Galabya, 202 F.3d at 640.
2.
Inference of Discriminatory Intent
The Court now addresses whether Defendant’s actions surrounding the
letter of reprimand or the non-renewal of the Flexiplace Agreement gives rise to
discriminatory intent.
With respect to the fourth element of the prima facie case, all that is needed
is “some minimal evidence suggesting an inference that the employer acted with
discriminatory motivation. . . .” Littlejohn v. City of New York, 795 F.3d 297, 307
(2d Cir. 2015) (internal quotation marks omitted); Walsh v. New York City Hous.
Auth., 828 F.3d 70, 75 (2d Cir. 2016) (stating the prima facie burden is minimal).
“Because an employer who discriminates is unlikely to leave a ‘smoking gun’
attesting to a discriminatory intent, a victim of discrimination is seldom able to
prove his claim by direct evidence, and is usually constrained to rely on
31
circumstantial evidence.” See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37
(2d Cir. 1994).7
Examples of circumstantial evidence giving rise to a discriminatory
inference include, “but [are] not limited to, the employer’s criticism of the
plaintiff’s performance in ethnically degrading terms; or its invidious comments
about others in the employee’s protected group; or the more favorable treatment
of employees not in the protected group; or the sequence of events leading to the
plaintiff’s discharge.”
Littlejohn, 795 F.3d at 312 (internal quotation marks
omitted); Chambers, 43 F.3d at 37; c.f. Vill. of Freeport v. Barrella, 814 F.3d 594,
601 n.9 (2d Cir. 2016) (“But we have nonetheless suggested that a plaintiff may be
able to plead a prima facie case under Title VII even without showing that the
defendant favored someone outside of the plaintiff’s protected class.”). Plaintiff
lists general principles about Defendant’s discriminatory motive without alerting
the Court to specific evidence.
First, she alleges Carwile and Kinsey are sexist and “biased in favor of
male and against female CCS attorneys.” This appears to be an argument that
similarly situated male employees were treated more favorably. See Littlejohn,
795 F.3d at 312. “An employee is similarly situated to co-employees if they were
(1) subject to the same performance evaluation and discipline standards and (2)
engaged in comparable conduct.” Ruiz v. Cty. of Rockland, 609 F.3d 486, 493–94
(2d Cir. 2010).
7
Plaintiff argues “the declarations of the present and former CCS attorney
declarants in many instances constitute direct evidence of discrimination.” [Dkt.
45 at 10]. Plaintiff does not, however, point the Court to any such direct evidence.
32
A plaintiff makes a prima facie case for an inference of discrimination “by
showing that a similarly situated individual not in [plaintiff’s] protected group . . .
was treated differently.” Tramble v. Columbia Univ., No. 97 Civ. 1271 (RWS), 1999
WL 61826, at *5 (S.D.N.Y. Feb. 10, 1999) (citing Shumway v. United Parcel Serv.,
Inc., 118 F.3d 60, 63 (2d Cir. 1997). In order to be similarly situated, plaintiff must
be similarly situated in all material respects to her comparator. Shumway, 118
F.3d at 64.
One measure of whether two employees are similarly situated is
whether they have comparable experience. See Bandhan v. Lab. Corp. of Am.,
234 F. Supp. 2d 313, 317-18 (S.D.N.Y. 2002); Shumway, 118 F.3d at 64; Ralkin v.
New York City Transit Auth., 62 F. Supp. 2d 989, 999 (S.D.N.Y. 1999). Plaintiff
does not identify any individuals, compare herself to any particular individual or
individuals, or provide any legal argument allowing the Court to assess those
who were similarly situated.
Without any evidence speaking to the CCS attorneys’ performance
evaluations, discipline standards, experience, or their caseloads, the Court will
not make assumptions on behalf of Plaintiff. See Amnesty Am. v. Town of West
Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (“Fed. R. Civ. P. 56 does not impose an
obligation on a district court to perform an independent review of the record to
find proof of a factual dispute.”); D. Conn. Civ. L. R. 56(a)3 (“Failure to provide
specific citations to evidence in the record as required by this Local Rule may
result in the Court deeming admitted certain facts that are supported by the
evidence in accordance with Local Rule 56(a)1, or in the Court imposing
sanctions, including, when the movant fails to comply, an order denying the
33
motion for summary judgment, and when the opponent fails to comply, an order
granting the motion if the motion and supporting materials show that the movant
is entitled to judgment as a matter of law.”). The Court will not consider the
attesting attorneys’ qualified opinions that male attorneys were often given more
desirable and high profile cases, whereas female attorneys were more likely to be
assigned to cases in remote districts before courts that were hostile to the death
penalty. See [Dkt. 46-6 ¶ 5; Dkt. 46-7 ¶ 7; Dkt. 46-8 ¶ 12]. The affidavits do not
elucidate who these male attorneys were, whether they should properly be
considered similarly situated, and the basis on which the profile or desirability of
a case can be evaluated.
For the same reason, the Court will not conclude
discriminatory intent based solely on Plaintiff’s statement that in the summer of
2012 she complained that her male coworker was given a travel accommodation
while she was not, because she does not assert he was similarly situated. See
[Dkt. 45 at 6; Dkt. 46-1 at 17:8-19; see Dkt. 35-5, Ex. Q (email from 01/06/2014
documenting his travel accommodation)].
Second, she alleges “comments by the decision maker” were made against
her protected group. See [Dkt. 45 at 10].
The central question in evaluating
remarks is whether they have a “tendency to show that the decision-maker was
motivated by assumptions or attitudes relating to the protected class.” Tomassi
v. Insignia Fin. Grp., Inc., 478 F.3d 111, 116 (2d Cir. 2007), abrogated on other
grounds by Vogel v. CA, Inc., 662 Fed. App’x. 72, 75 (2d Cir. 2016) (emphasis
added) (age discrimination); see Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149
(2d Cir. 2010) (citing Tomassi in a Title VII discrimination case). In other words,
34
“the more remote and oblique the remarks are in relation to the employer’s
adverse action, the less they prove that the action was motivated by
discrimination.” Tomassi, 478 F.3d at 115. A helpful framework to consider is “(1)
who made the remark (i.e., a decision-maker, a supervisor, or a low-level coworker); (2) when the remark was made in relation to the employment decision at
issue; (3) the content of the remark (i.e., whether a reasonable juror could view
the remark as discriminatory); and (4) the context in which the remark was made
(i.e., whether it was related to the decision-making process).” Henry, 616 F.3d at
149 (establishing these factors in the context of determining the probative value
under Fed. R. Evid. 403).
The Court finds instructive Norris v. New York City Housing Auth., No. 02
Civ. 6933 (RJH), 2004 WL 1087600, at *10 (S.D.N.Y. May 14, 2004). In this Title VII
disparate treatment and retaliation case, the plaintiff, an African American
woman, submitted an affidavit from a former supervisor who averred that the
director of the office “disparaged [the plaintiff’s] Afrocentricity, manner of dress,
hairstyles, and reading materials. . . .”
Id.
The district court held that the
allegations failed to “identify the content, place, or time of the remarks, and is
devoid of details from which such animus could be inferred.” Id. In support, the
court cited several cases in this circuit that find a “stray remark” remote from any
connection to the adverse action is insufficient to show an inference of
discrimination. See id. (citing Eastman v. United Parcel Serv., 194 F. Supp. 2d
256, 264–65 (S.D.N.Y. 2002); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d
Cir. 2000); Campbell v. Alliance Nat’l Inc., 107 F. Supp. 2d 234, 247 (S.D.N.Y.
35
2000); Sanders v. Mount Sinai Med. Ctr., No,. 98 Civ. 828, 1999 WL 1029734
(S.D.N.Y. Nov. 10, 1999)). Affidavits submitted on behalf of Rodriguez-Coss must
likewise provide some specificity linking the comments to the adverse action in a
way where discriminatory intent may be inferred—otherwise, they are mere stray
remarks.
Rodriguez-Coss generally cites the affidavits she submitted without
pointing the Court to the particular comments made or, at times, who made them.
A number of Plaintiff’s coworkers testified that CCS management gave male
attorneys preferential treatment and, at least once, expressed a derogatory
opinion of women. AUSA Haines recalled that Carwile once said that “women
only go to law school to find rich husbands.” [Dkt. 46-8 ¶ 12]. Carwile once
attempted to conceal an incident where Kinsey groped a female employee. [Dkt.
46-12 ¶¶ 6–8]. The Court has evaluated these affidavits and finds they fail to (a)
specify the time period when any alleged invidious comment was made and/or (b)
come from a decision-maker. See, e.g., [Dkt. 46-6 ¶ 6; Dkt. 46-7 ¶ 9; Dkt. 46-8 ¶ 12;
Dkt. 46-10 ¶ 4]. Nor do these comments rise to the legal of invective held to be
sufficient to constitute discriminatory intent in this circuit. See Norris, 2004 WL
1087600, at *10; Nurse v. Lutheran Med. Ctr., 854 F. Supp. 2d 300, 316–17
(E.D.N.Y. 2012); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468
(2d Cir. 2001) (finding in an age discrimination case that stray remarks of a
decision-maker, without more, is insufficient to show an inference of
discrimination); Tomassi, 478 F.3d at 114–15 (distinguishing stray remarks from
comments evincing a discriminatory state of mind). The Court cannot conclude,
36
based on the evidence submitted, that the comments show the letter of reprimand
or the non-renewal of the Flexiplace Agreement were motivated by discrimination.
See Tomassi, 478 F.3d at 116.
Accordingly, Plaintiff has failed to show that Defendant acted with a
discriminatory intent when it issued the letter of reprimand and did not renew the
Flexiplace Agreement.
B. Legitimate Nondiscriminatory Reason
Assuming arguendo Plaintiff had met her burden, the Court will now
address Defendant’s proffered legitimate nondiscriminatory reason for the
adverse actions detailed above.
The Court first addresses the letter of official reprimand.
The letter is
based on Rodriguez-Coss’s refusal to litigate Stone and it states, “You cannot
unilaterally refuse to handle a case or change your work assignments to
accommodate your personal preferences.”
[Dkt. 35-5, Ex. R].
Essentially,
Defendant explained that its actions were a response to Plaintiff’s unwillingness
to perform the same work as every other CCS attorney. Defendant contends that
Plaintiff’s work assignments and travel were no more burdensome than any other
CCS attorney. See [Dkt. 35-1 at 24]. Refusal to do work assignments constitutes
a legitimate, non-discriminatory reason for an adverse action.
See Becker v.
Ulster Cty., NY, 167 F. Supp. 2d 549, 554 (N.D.N.Y. 2001) (“Defendants assert that
Becker was terminated for excessive absenteeism and refusal to work on January
2 and 12, 2000. This suffices for defendants to meet their burden at the second
step.”); see generally Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) (“An
37
employer’s dissatisfaction with even a qualified employee’s performance may, of
course, ultimately provide a legitimate, non-discriminatory reason for the
employer's adverse action.”).
The Court next addresses the non-renewal of the Flexiplace Agreement.
On February 24, 2014, Carwile emailed Rodriguez-Coss informing her that he
would not be renewing her Flexiplace Agreement set to expire in four days. He
stated,
As you know, use of the flexiplace agreement is within
management’s discretion and is not an entitlement.
Due to
revelations over the last 2 weeks that were brought to my attention
which relate to missed deadlines and other deficiencies in court
filings, I have determined that more direct supervision of your work
is needed. As a result, I do not intend to renew your flexiplace
agreement upon its expiration.
[Dkt. 35-5, Ex. Y]. Indeed, approximately two weeks prior Kinsey was notified for
the first time of Rodriguez-Coss’s late filings in the Stone case. [Dkt. 35-5, Ex. I
(Kinsey Dep. Excerpt) at 159:22–162:8; Dkt. 35-5 Ex. W (Email 2/10/14)].
The late filings were numerous and resulted in several strongly-worded
reprimands from federal judges. On February 5, 2013, Magistrate Judge Austin
addressed one of the defendant’s discovery motions during an in-person hearing
and the government’s late response. Magistrate Judge Austin stated, “There was
a delay, a tardy delay of about five or so days.
And I would just like an
explanation at the end of these proceedings as to why that happened. Because I
don’t want to let either side think that deadlines that the court set will simply be
not considered seriously by the Court.”
[Dkt. 35-5, Ex. G, at 14:3–8].
When
Rodriguez-Coss stated the late filing was a mistake, Magistrate Judge Austin
38
responded, “Which tells me that you missed reading the orders that emanated
from the Court. Because it distinctly gave you a date set for the response.” Id. at
14:9–17.
On October 21, 2013, Judge Coughenour issued a ruling that granted the
defendant’s motion for extension of time. See [Dkt. 35-5, Ex. K]. The government
filed its response late, and Judge Coughenour stated the following:
[T]he Court cannot take the government’s arguments demanding that
Defendant comply with the “established deadline” seriously when
the government made those arguments in a document filed more
than three weeks late. Indeed, the government has demonstrated a
cavalier attitude towards obeying deadlines and other procedural
requirements, and thus its demand that the Court refuse to grant
Defendant an extension of time after a timely motion is audacious at
best. The inability of the attorneys representing the United States to
obey court orders and deadlines has significantly lowered their
credibility with the Court. Counsel are forewarned that the Court is
seriously considering an order to show cause why government
counsel should not be held in contempt for their flagrant disregard of
the Court’s orders.
Id.
Judge Coughenour cited nine instances in 2013 in which Plaintiff’s
performance fell below an acceptable standard. He cited six late filings in 2013
for which the government did not show good cause and three deficient filings in
2013. See id.
The next month, Magistrate Judge Austin also issued an order
acknowledging the government’s pattern of untimely filings, see [Dkt. 35-5, Ex. L],
issued a discovery order noting a deficient submission to the court, see [Dkt. 355, Ex. M (Supp. Disc. Order 11/8/13)], and granted a late filing, see [Dkt. 35-5, Ex.
N]. With respect to the order granting the late filing, Magistrate Judge Austin
stated, “[T]he United States is again cautioned that future late filings in this case
39
will not be tolerated and will likely result in the imposition of sanctions.” See
[Dkt. 35-5, Ex. N, at 2 (emphasis in original)].
Magistrate Judge Austin also
acknowledged that both he and Judge Coughenour have noted the government’s
pattern of late filings. See id. at 2 n.2.
Notwithstanding these admonitions, Rodriguez-Coss missed another
deadline set by the court and on February 4, 2014, she filed a motion nunc pro
tunc requesting court’s permission to file a document after the deadline. See
[Dkt. 35-5, Ex. V (Mot. 2/4/14)].
It is well-settled that poor performance is a legitimate, nondiscriminatory
reason for an employer’s adverse action. See Kirkland v. Cablevision Sys., 760
F.3d 223, 225 (2d Cir. 2014) (reversing on the grounds of sufficient pretext, but
acknowledging district court held defendant had “seemingly legitimate, nondiscriminatory reasons for firing [plaintiff]—primarily, poor performance reviews
and affidavits from three regional managers whom [plaintiff] supervised”); Jain v.
McGraw-Hill Cos., Inc., 506 F. App’x. 47, 48 (2d Cir. 2012) (stating plaintiff’s poor
work performance was a legitimate, non-discriminatory reason for terminating
plaintiff’s employment in an FMLA case); see also Forrester v. Prison Health
Servs., No. 12 CV 363(NGG)(LB), 2015 WL 1469521, at *15 (E.D.N.Y. Jan. 5, 2015)
(“Misconduct, excessive lateness, and poor performance are legitimate, nondiscriminatory reasons for defendants’ adverse actions.”).
In this case,
Rodriguez-Coss’s clear and repeated failures to timely and properly submit court
filings was egregious and caught the attention of not just one, but two federal
judges. It is a rare case in which this Court observes an attorney’s failure to
40
comply with deadlines is as consistent as that of the government in Stone. Such
a performance would clearly warrant closer monitoring from a supervised
attorney.
C. Pretext for Discrimination
Because Rodriguez-Coss could not show an inference of discriminatory
intent, she also cannot show Defendant’s legitimate, nondiscriminatory reasons
are pretext.
The Court also notes that the supervisors’ apparent absentee-style of
working does not mean that the non-renewal of the Flexiplace Agreement was
pretext for discrimination.
See [Dkt. 45 at 8]. There is no basis to conclude the
supervisors, in light of Rodriguez-Coss’s persistent delinquency in the Stone
case, would not have supervised her more closely if she was working in
Washington, D.C. than they did when she was working in Connecticut. At the
very least, changing her duty station to Washington, D.C. would have enabled
them to discern the amount of hours she was devoting to the performance of her
duties.
II.
Retaliation for Conduct Protected by Title VII
In support of her retaliation claim, Plaintiff has put forward two theories of
retaliatory conduct: (i) retaliation by creating a hostile work environment and (ii)
retaliation directly in response to plaintiff’s grievances.
A. Retaliatory Hostile Work Environment
With respect to the hostile work environment theory, Defendant argues that
Plaintiff has not provided evidence of any conduct that rises above the level of
41
“ordinary workplace conflicts.” [Dkt. 35-1 at 35]. In support, Defendant draws the
Court’s attention to numerous cases that support the general proposition that a
claim of retaliatory hostile work environment requires repeated instances of
severe harassment that create an abusive workplace environment. Id. at 11, 34;
see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile
environment claims are different in kind from discrete acts. Their very nature
involves repeated conduct.”); Fairbrother v. Morrison, 412 F.3d 39, 48 (2d Cir.
2005) (requiring that “the harassment was sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment” to establish a hostile work environment), abrogation recognized on
other grounds by Chung v. City Univ. of New York, 605 F. App’x 20 (2d Cir. 2015);
Carrero v. New York City Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989) (“The
incidents [of harassment] must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.”).
Although the
Plaintiff makes passing references to the legal standard of a hostile work
environment, she does not provide any legal or factual analysis as to this type of
retaliation claim. [See Dkt. 45 at 3–4, 5–11]. The Court has reviewed the evidence
and finds Plaintiff has not provided any evidence of repeated workplace
harassment targeting her because of her grievances. Therefore, Plaintiff has not
met her burden to bring forward evidence supporting her hostile work
environment claim and has not established a genuine dispute of fact on this
claim.
42
B. Discrete Retaliatory Actions
Under Title VII, it is unlawful for an employer to retaliate against employees
who oppose discriminatory practices or file complaints of discriminatory
treatment.
42 U.S.C. § 2000e-3(a) (2012).
When analyzing retaliation claims,
courts apply the McDonnell Douglas burden-shifting framework. Hicks v. Baines,
593 F.3d 159, 164 (2d Cir. 2010); see also McDonnell Douglas, 411 U.S. at 802–05.
Initially, the plaintiff must establish a prima facie case by demonstrating “(1)
participation in a protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse employment action; and (4) a causal connection between
the protected activity and the adverse employment action.” Hicks, 593 F.3d at
164 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)).
Thereafter, there is a presumption of retaliation that the defendant must rebut by
articulating “a legitimate, non-retaliatory reason for the adverse employment
action.” Jute, 420 F.3d at 173. Finally, if the defendant proffers such a reason,
“the presumption of retaliation dissipates and the employee must show that
retaliation was a substantial reason for the adverse employment action.
A
plaintiff can sustain this burden by proving that a retaliatory motive played a part
in the adverse employment actions even if it was not the sole cause[;] if the
employer was motivated by retaliatory animus, Title VII is violated even if there
were objectively valid grounds for the [adverse employment action]. Hicks, 593
F.3d at 164–65 (alterations in original) (internal quotations omitted).
43
1.
Prima Facie Case of Retaliation
Defendant contends that Plaintiff has failed to establish a prima facie case
primarily because her protected activity occurred well after the actions she
argues constitute retaliation. [Dkt. 35-1 at 22].
Defendant argues that Rodriguez-Coss does not have a valid retaliation
claim because she filed her EEOC complaint in January of 2014, her employer
became aware of the filing in February 2014, and there is no adverse action that is
causally connected to the filing. [Dkt. 35 -1 at 22]. Plaintiff does not dispute this
but rather asserts that the protected activity is different: that in the summer of
2012 she complained Defendant gave a travel accommodation to a white male,
Stanley Rothstein, but not to her. See [Dkt. 45 at 6]. Defendant’s response to this
position is that she did not actually complain of discriminatory treatment, but
rather was only attempting to get a travel accommodation for herself. [Dkt. 48 at
10–14].
Assuming Rodriguez-Coss’s alleged complaint in the summer of 2012 was
a protected activity, she cannot show any causal connection to an adverse
action. The adverse action standard for Title VII retaliation is slightly different
from that of discrimination. The Supreme Court in Burlington N. & Santa Fe R.R.
Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), expanded the
definition of an adverse action for Title VII retaliation claims to include changes in
employment outside the terms and conditions of employment. See id. at 64. The
Supreme Court held that an adverse action in the retaliation context means “the
employer’s actions must be harmful to the point that they could well dissuade a
44
reasonable worker from making or supporting a charge of discrimination.” Id. at
57.
The Court must thus consider alleged adverse actions that would not
necessarily be cognizable under a discrimination claim.
Most of the alleged adverse employment actions—namely, the letter of
reprimand, the Flexiplace Agreement non-renewal, and the AWOL status—were
issued more than 1.5 years after the summer of 2012. When temporal proximity
alone is used to show causation, the proximity must be “very close” in order to
support a prima facie case of retaliation. Clark Cty. School Dist. v. Breeden, 532
U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed.2d 509 (2001) (“Action taken (as here) 20
months later suggests, by itself, no causality at all.”); McCormick v. Donovan, 365
F. App’x 247, 249 (2d Cir. 2010) (affirming district court’s dismissal of pro se Title
VII retaliation claim where the 1.5 years delay between the alleged protected
activity and adverse action was “insufficient to suggest a causal relationship”);
Ofoedu v. St. Francis Hosp. & Med. Ctr., No. 3:04cv1707 (PCD), 2006 WL 2642415,
at *25 (D. Conn. Sept. 13, 20106) (finding 13 months to be insufficient to show
causal connection between the complaint and the termination); Ghaly v. U.S.
Dept. of Agric., 739 F. Supp. 2d 185, 200 (E.D.N.Y.2010) (nine month period
between protected conduct and retaliation did not support causation); see
generally Wanamaker v. Town of Westport Bd. of Educ., 11 F. Supp. 3d 51, 75 (D.
Conn. 2014) (finding a 15 month delay to be insufficient to support a causal
connection in an FMLA case); but see Summa v. Hofstra Univ., 708 F.3d 115, 128–
29 (2d Cir. 2013) (“The seven-month gap between Summa’s filing of the instant
lawsuit and the decision to terminate her employment privileges is not
45
prohibitively remote.”). Therefore, these actions are too temporally remote to
warrant a causal connection.
The only alleged adverse action that is close in time to the summer of 2012
is the alleged excessive workload and failure to accommodate travel and
workload needs. The evidence shows that Rodriguez-Coss took on the Fell case
in the District of Vermont and the Stone case in California in 2011, which is before
she complained to the CCS about the travel accommodations.8 [Dkt. 35-5, Ex. Q].
She admits that she agreed to take on Pleau in June of 2012. Id. The Court notes
that she could have taken all three assignments before she complained about
Rothstein’s travel accommodations, but it will put this possibility aside for now.
The fact of the matter is there is simply no evidence supporting a conclusion that
her workload assigned in the summer of 2012 could be causally connected to her
alleged protected activity given that she was asked and agreed to take on the
case. The Court will not consider the failure to accommodate her as she has not
shown a legal basis for concluding a requested accommodation is a cognizable
adverse action in the context of her particular Title VII discrimination and
retaliation claim. Rodriguez-Coss therefore fails to establish a prima facie case.
The Court need not address the second and third prongs because
Rodriguez-Coss willingly took on the third assignment.
C. Rehabilitation Act of 1973
The Rehabilitation Act of 1973 provides that “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or
8
Indeed, her assignment to the Stone case is what gave rise to her need for a
lighter travel requirement.
46
his disability, be excluded from the participation in, be denied the benefits of, or
be subjected to discrimination . . . under any program or activity conducted by
any Executive agency . . . .” 29 U.S.C. § 794(a) (2012). Furthermore, the Act
instructs that claims of discrimination are interpreted in accordance with the
standards applied under the Americans with Disabilities Act. 29 U.S.C. § 794(d).
Accordingly, the standard for a prima facie case of discrimination under the
Rehabilitation Act requires Rodriquez-Coss to show:
(1) that she is a ‘qualified individual’ with a disability; (2) that the
defendants are subject to one of the Acts; and (3) that she was
‘denied the opportunity to participate in or benefit from defendants’
services, programs, or activities, or was otherwise discriminated
against by defendants, by reason of her disability.
Dean v. Univ. at Buffalo Sch. of Med. & Biochemical Scis., 804 F.3d 178, 187 (2d
Cir. 2015) (quoting Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir.
2004)). However, in Plaintiff’s memorandum in opposition to summary judgment,
Plaintiff neglected to designate which facts in the voluminous record support her
claim under the Rehabilitation Act. Instead, Plaintiff baldly claims “[t]he record
also shows that Rodriquez-Coss was perceived to have a temporary disability”
without a single citation to the record, nor even reference to facts that might
support her claim.
[Dkt. 45 at 12].
Vague references to the record are not
enough; Federal Rule of Civil Procedure 56 makes quite clear that a party must
cite “particular parts of materials in the record.”
Fed. R. Civ. P. 56(c)(1)(A).
Moreover, Rule 56 also warns counsel that a court need only consider the
materials cited to decide the motion. Fed. R. Civ. P. 56(c)(3).
47
Plaintiff’s Rehabilitation Act claims falls at the first hurdle, since none of
the facts cited in her memorandum support a finding of disability. Plaintiff did not
produce a scintilla of evidence demonstrating the medical conditions alleged in
her complaint. See [Dkt. 1 ¶¶ 21–22]. Therefore, Plaintiff has failed to establish a
prima facie case and there is no genuine dispute of fact in regards to her
Rehabilitation Act Claim.
Even if she was disabled, the only adverse action taken after she claimed
to have been ill was the cancellation of her attendance at a training program in
North Carolina. However, Plaintiff informed Defendant that she could not travel to
Washington, D.C. because she needed to remain in Connecticut under the care of
her doctors. Because Plaintiff was required to remain in Connecticut she has
failed to show that the cancellation of her trip to North Carolina was an adverse
employment action.
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is
GRANTED. The Clerk is directed to close this case.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 29, 2018
48
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