PAUL v. TSOUKARIS

Filing 79

OPINION. Signed by Judge Kevin McNulty on 3/17/17. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 13-5891 (KM) (JBC)

Akash PAUL,
Plaintiff,

OPINION

V.

John TSOUKARIS, Field Office Director,
DHS/ICE, and Jeh JOHNSON, Secretary
of Homeland Security,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
The pro se plaintiff, Akash C. Paul (“Paul”), a former employee of U.S.
Immigration and Customs Enforcement (“ICE”), commenced this action on
October 3, 2013. On January 7, 2015, Paul filed an Amended Complaint
(referred to herein as the “Complaint” and cited as “AC”)’ alleging that the
Department of Homeland Security and ICE (collectively, “DHS”) discriminated
against him based on his national origin as to wages, and discriminated
against him based on his disability by monitoring or stalking him at work. Paul
alleges that, in doing so, DHS violated his rights under (1) Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e et seq.; (2) the Equal Pay Act

Citations to the record will be abbreviated as follows:
“AC”

=

Amended Complaint (ECF no. 38)

“Def. Facts”
“Def. Mot.”
“P1. Opp.”

=

Brief in Support of Defendants’ Motion for Summary Judgment
and Dismissal of the Amended Complaint (ECF no. 68-1)

=

Plaintiff’s Objection on Defendants’ Motion for Summary
Judgment and Dismissal of the Amended Complaint (ECF no. 73)

=

“Def. Reply”
“Paul Dep.”

Defendants’ Statement of Material Facts (ECF no. 68-2)

=
=

Defendants’ Reply Brief (ECF no. 74)
Deposition of Akash Paul (ECF no. 68-5)
1

§ 206(d); (3) Title I of the Americans with Disabilities
Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.; (4) the Rehabilitation Act of
1973, 29 U.S.C. § 791 et seq.; and (5) the Civil Rights Act of 1991, 42 U.S.C. §
of 1963 (“EPA”), 29 U.S.C.

2
2000e et seq.
Now before the Court is Defendants’ motion for summary judgment. (ECF
no. 68) For the reasons set forth herein, Defendants’ motion is granted as to all
counts.

I.

Background
3
A. Relevant Facts

Paul does not clearly separate his allegations into counts, but he does state at
the start that two “Issues Need to be Resolved”: (1) “Plaintiff and another employee
were hired by DHS / ICE as Detention and Removal Assistant as the GS-05 and GS-07
grade level [respectively].” (2) “On or around November 07, 2011 November 28, 2011,
Plaintiffs immediate supervisor unduly watched or monitored or stalked the plaintiff.
(While plaintiff was on disability) and sent emails to another recipient[] about the
alleged actions.” (AC 1) The alleged Title VII and Equal Pay Act violations clearly
pertain to the first issue, whereas the alleged Americans with Disabilities Act and
Rehabilitation Act violations pertain to the second.
2

—

DHS submitted a Statement of Material Facts, to which Paul has not
responded. DHS asks that the Court consider the facts in its statement admitted for
the purpose of summary judgment, in accordance with Local Civil Rule 56.1(a) which
states:
The opponent of summary judgment shall furnish, with its opposition
papers, a responsive statement of material facts, addressing each
paragraph of the movant’s statement, indicating agreement or
disagreement and, if not agreed, stating each material fact in dispute and
citing to the affidavits and other documents submitted in connection
with the motion; any material fact not disputed shall be deemed
undisputed for purposes of the summary judgment motion.
Id. A failure to dispute a party’s statement of material facts, however, “is not alone a
sufficient basis for the entry of a summary judgment.” See Anchorage Assocs. v. Virgin
Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990) (holding that even where
a local rule deeming unopposed motions to be conceded, the court was still required to
analyze the movant’s summary judgment motion under the standard prescribed by
Fed. I?. Civ. P. 56(e)); see also Muskett v. Certegy Check Serus., Inc., Civ. No. 08-3975,
2010 WL 2710555 (D.N.J. July 6, 2010) (“In order to grant Defendant’s unopposed
motion for summary judgment, where, as here, ‘the moving party does not have the
the [Court] must determine that the
burden of proof on the relevant issues,
designated in or in connection with the motion
deficiencies in [Plaintiff’s] evidence
entitle the [Defendants] to judgment as a matter of law.”’ (quoting Anchorage Assocs.,
2
.

.

.

The plaintiff, Akash Paul, was born outside of the United States (in India,
as it happens). He speaks English, but he states that his English-language
skills are imperfect. Before starting work at DHS, Paul had completed a
Master’s Degree and had been employed as a Sheriff Processing Associate in
Lawrenceville, Georgia, where he “showed exemplary service.” (AC

¶

3)

On April 8, 2008, ICE’s Newark Field Office posted an employment
vacancy announcement (identification numbers 184127 and 181298) seeking
to hire Detention and Removal Assistants (“DRAs”). (Def. Facts

¶

1) Around

May 2, 2008, Paul applied for a vacant DRA position, and underwent screening
conducted by the California-based Laguna Service Center (“LSC”). (Id.
AC

¶

¶J

2—3;

3, FDx. 5—6)4 LSC also determined pay grade ranges for prospective

employees. (Def. Facts

¶

4) After compiling a list of qualified candidates, LSC

reported the results to Supervisory Mission Support Specialist Noel Elia, who
served as a liaison between the Newark Field Office Director and LSC. (Id. ¶j 6—
7) Elia then forwarded the list and supporting documentation to Newark Field
Office Director Scott Weber, the official with ultimate authority to make “hiring
decisions and pay grade selections from the range provided by the LSC, based
on the applicant’s qualifications.” (Id.

¶J

8—10) A panel of ICE supervisors

interviewed the pre screened applicants, including Paul, and “determined which
applicants to refer to Weber for a final hiring decision.” (Id.

¶J

11, 14—16)

In May 2008, Weber selected Paul and seven other applicants for the
DRA position. (Id.

¶

17) On May 27, 2008, Elia provided to LSC Human

Resource Specialist Leah Tougas a list of the eight applicants selected for hiring

922 F.2d at 175)). I have reviewed Paul’s Complaint, attached exhibits, and briefing
with an eye to assertions of fact that may be supported by the record.
4
Attached to Paul’s Amended Complaint are documents, not separately
designated as exhibits but continuously page-numbered. Herein, “AC Ex. p.
identifies the page number within the collected attachments. Paul has also included
these same attachments with his opposition brief, paginated in the same manner,
marked overall as Exhibit P1.
“

3

5
and the pay grades, or OS levels, that Weber had assigned each applicant. (Id.

¶

19) In the e-mailed list, Paul was selected for the DRA position at the GS-7

6
level. (See id.

20) Within minutes, Tougas replied that “all of these selections

are good.”

21)

¶
(Id. ¶

However, Tougas followed up two days later, acknowledging that she had
“reviewed these applications too quickly.” It had occurred to her, she wrote,
that changes would need to be made to some applicants’ pay grades in order to
7
permit the hiring of E.G., an intern at the Newark Field Office:
[E.G.] is only qualified for a GS-5 so he will be offered an
appointment at the GS-5 but he is at the bottom of the list, he is
reachable, but changes would have to be made in the grade that
other applicants were selected at:
GS-5 selections:
[A.Z.}
[M.N.]
“The General Schedule (GS) classification and pay system covers the majority of
civilian white-collar Federal employees (about 1.5 million worldwide) in professional,
technical, administrative, and clerical positions.” https: / / www. opm. gov/ policy-data
oversight/pay-leave/ pay-systems / general-schedule!.
6

The email provided:
The following are the DRA selections for the Newark Field Office under
Vacancy Id#’s 184127 & 181298:
***

Asylum Clerk [F.M.] currently employed with DHS/CIS is selected
for DRA, GS-6, FNE-DRO-2008-0 129
jM.N.] is selected for DRA, GS-6, FNE-DRO-2008-01 16
[B.R.] is selected for DRA, GS-6, FNE-DRO-2008-0 174
[Y.P.] is selected for DRA, GS-6, FNE-DRO-2008-0 164
Akash Paul is selected for DRA, GS-7, FNE-DRO-2008-0 128
[T.D.] is selected for DRA, GS-7, FNE-DRO-2008-01 15
[A.Z.j is selected for DRA, GS-5, FNE-DRO-2008-0 173.
(Def. Facts ¶ 20)
DHS has used initials to protect individuals’ privacy in conjunction with
sensitive information such as their salaries. I do so as well.
4

Paul Akash
[T.D.]
[E.G.]
The rest of the selections would remain the same.
Please let me know if you would like me to make these changes on
your certificates in order to reach jE.G.]
(Def. Facts

¶

22, 25) Weber then lowered the pay grades for Paul, M.N., and

T.D. to GS-5. (Id.

¶

23—24)

Paul accepted the DRA position at the GS-5 level and began employment
with DHS on August 18, 2008.8 (Id.

¶

27; see also AC

¶J

1, 3)

On March 10, 2009, Paul sent an email to Elia requesting a
reconsideration of his salary grade level. (Def. Facts

¶

30; AC

¶

3, Ex. pp. 9—10)

That same day, Elia replied that the grade reconsideration request would have
to come from Paul’s supervisor in order for the Human Resources department
to consider it. (AC Ex. p. 8) Paul contacted Human Resources Specialist Sandra
Crellin, who referred Paul back to Elia, “because the selections and the grades
come directly from the Field Office.” (Id.)
On April 1, 2009, Paul was injured at work when a coworker startled him
from behind with an air duster, causing Paul to hit his right elbow on a table
9
and twist his neck. (AC

¶

4) While out on disability for these injuries, Paul

received a promotion on August 18, 2009, to GS-6, and again on August 18,
2010, to GS-7. (Def. Facts ¶j 3 1—33) Paul has stated that he graduated to GS-8
on August 18, 2011. (AC Ex. p.43)
On November 5, 2010, Paul filed a complaint (dated October 29, 2010),
with then-Acting Field Office Director John Tsoukaris. (Def. Facts

¶

34; AC Ex.

pp. 1—3) The bulk of that complaint related to Paul’s work-related injury and
issues concerning his return to work from disability leave. However, Paul also

The Complaint says “2009,” but that appears to be a typographical error. (See
AC ¶J 3, 4)
Given the date, this may have been an ill-considered April Fools’ joke.
8

5

complained that another employee was hired as a DRA in the same unit as
Paul, but at a GS-7 salary level, because of her “prior experience as a
contractor employee in the same building.”° Paul noted that this employee’s
“close relative is a supervisor in the same building with DHS/ICE.” Paul
explained that he reasonably expected to be hired at GS-7 because of his prior
government experience (in Gwinnett County, Georgia) and his advanced
degrees. Because “neither the hiring panel nor Newark field office
acknowledged about my education or skills even [after] I requested for a grade
re consideration and the same time another employee hired as grade 07
directly. I strongly believe that I was discriminated by the department.” (AC Ex.
p.3)
On November 7, 2011, Paul “filed a second claim for [workers’
compensation] benefits based upon injuries he allegedly sustained” in the April
1, 2009 incident. (Def. Facts

¶ 48) That same day, Paul began a third and final

attempt to return to work after receiving medical clearance to do so, albeit with
restrictions. (See AC

¶ 3) Those restrictions were submitted to Mission Support

Specialist Belinda Davis on a CA17 form. (Id.) Then, on November 28, 2011,
Supervisory Detention Deportation Officer (“SDDO”) Raquel Martinez” directed
Paul to photocopy an “A-file.” (Id.) Paul asked to be exempted from
photocopying the entire file because of the exertion required to repetitively pull
down and lift the copy machine’s lid. (Id.) Martinez brought a chair to the copy
room for Paul to use, but nevertheless required Paul to photocopy the entire
file. (IcL) That task allegedly aggravated Paul’s injuries, and he was admitted to
St. Trinitas Hospital in Newark, NJ, where the attending physician ordered
Paul to stay home from work. (Id.)

In the letter, Paul dates his awareness to around August 3, 2010. However, in
his opposition brief, he notes that the correct date is August 3, 2009. (See P1. Opp. 11)
10

11
Raquel’s last name is now Burnett. (Def. Facts ¶ 49 n.4) I will refer to her as
Martinez, her name at the time of the events described.

6

On December 5, 2011, Paul completed his CA2a Notice of Recurrence
and submitted it to Davis. (AC

¶

4) That same day, Davis asked Martinez in an

email whether Martinez had “ma[de] any accommodations or adjustments in
[Paul]’s regular duties due to injury-related limitation.” That information was
needed to process a duty status report in support of Paul’s application for
2
workers’ compensation benefits.’ (Def. Facts ¶j 49, 51; AC Ex. pp. 20 —21) In
reply, Martinez summarized the work Paul was assigned and completed during
the three weeks between November 7 and November 28, and included a three3
sentence summary of the November 28 photocopying assignment.’ (Def. Facts

Item 38 on the Office of Workers’ Compensation Programs’ “Notice of
Recurrence” CA-2a form requires the employing agency to answer the question: “After
the original injury, did you make any accommodations or adjustments in the
If so, provide full
employee’s regular duties due to injury-related limitations?
details.” (AC Ex. p. 12)
12

.

13

.

.

The body of the email reads:
Good afternoon Belinda,
Please see response below:
ERA Paul returned to duty 11/7/11. He was assigned minimal duties
during his first week (11/7/11 11/11/11) since he needed computer
access to be restored and multiple database passwords to be reset. He
submitted helpdesk tickets and completed 2 one-page application forms.
—

11/18/11) he was
tasked with completing all the mandatory virtual university courses and
preparing travel document presentation for about 2-4 files which he
completed successfully.
During ERA Paul’s secondweek on duty (11/14/11

—

The week of 11/23/11, ERA Paul was assigned 2 primary detained case
management dockets for completing travel document presentations and
other clerical actions such as photo copies. He completed about 3-5 files
successfully during this week.
On 11/28/11, ERA was assigned a task to make a photo-copy of one file
and 2 copies of the travel document presentation. He was provided a
chair by the copy machine and advised to take as many breaks as he
needed. ERA Paul completed the photo copy of the file but was not able
to photo copy the 2 travel document presentations.
All reasonable accommodations were made to accommodate ERA Paul
based on his limitations. He was provided with several breaks daily at his
discretion which he took to walk around the office or lay down in his car
7

52; AC Ex. pp. 20—2 1) Martinez’s report “had no effect on Paul’s wages or
compensation,” and “[fjollowing Martinez’s December 5, 2011 e-mail to Davis,

¶

Paul’s application for benefits was granted.” (Def. Facts

¶

53—54)

On January 12, 2012, Paul received a package from Davis regarding his
workers’ compensation claim. The package included Martinez’s December 5,
2011 e-mail to Davis. (Def. Facts

¶

55) Reviewing the documents, Paul “was

shocked to learn the content of the emails” sent by Martinez to Davis. (AC ¶ 5)
Paul took this to “affirm[] that (he] was unduly watched or monitored or stalked
even at [his] break time by [his] immediate supervisor SDDO Martinez.” (AC
6) Around this same time, Paul conducted “further research” regarding his

¶

claim of wage discrimination, and learned that the employee hired as a DRA at
the GS-7 level was named J.R. (AC

¶J

3, 7)

In a letter dated January 20, 2012, Paul complained to Tsoukaris that
Martinez’s email was discriminatory. (Def. Facts ¶ 56) On February 8, 2012,
Tsoukaris “informed Paul that he could contact the ICE Office of EEO within 45
days of the most recent alleged discriminatory act.” (Id.

¶

59)

In a February 10, 2012 letter, Paul wrote to the Equal Employment
Opportunity Commission (“EEOC”) asserting two grievances. First, Paul stated
that the DHS’s lack of consideration of his academic qualifications and work
experience when establishing his initial salary grade of GS-5, while hiring J.R.
at the GS-7 level, “forced [Paul] to believe reasonably that [he] was
discriminated [against].” (AC Ex. pp. 26—27) Second, Paul asserted that he was
discriminated against and harassed by Martinez because her December 5,
2011 email “details that [he was cleared for work on November 5, 2011], what I
am doing, what kind of job I did, how I utilized on my lunch hour etc. seems so
unfortunate. I reasonably believe that my employer is stalking.

.

.

scary too.” (Id. Ex. 27)
to rest. All of the files assigned to ERA Paul were below the weight
limitation of 10 pounds.
(AC Ex. p. 20)
8

me and it is

On March 30, 2012, Paul initiated contact with an ICE EEO Counselor to
complain of discrimination. (Def. Facts

¶ 72) Paul received notice of his right to

file a formal EEO complaint on June 28, 2012. He did file a formal complaint
with the EEOC on July 9, 2012, alleging “severe discrimination from [his]
employer based on [his] National Origin and [his] Physical Disability.” (Id. ¶j
75—76)
On February 4, 2013, DHS’s Office for Civil Rights and Civil Liberties
issued a procedural dismissal of Paul’s case. (Def. Facts

¶ 79; AC Ex. pp. 69-

71) DHS found that Paul “failed to timely initiate EEO Counselor contact”
within 45 days of the alleged discriminatory act. (Def. Facts

¶ 79; AC Ex. p. 70)

Paul had first “contacted the EEO Counselor on March 30, 2012, nearly four
years after the August 18, 2009 date of the alleged act of [wage] discrimination
and more than four months after the alleged act of [disability]
discrimination.” (AC Ex. p. 70) DHS considered but found unpersuasive Paul’s
“explanation that he delayed contacting an EEO Counselor because

Lhel did not

understand how to file a complaint [and] that he was unaware of the timeline
for doing such.” Id.

To the contrary, DHS found, “training records show that.

on October 18, 2008, [Paul] completed an EEO course entitled ‘EEO
Complaints Process Training for Employees’ and further, that as recent as
2011, [Paul] took and completed additional EEO-related courses.” (Id.) DHS
also rejected Paul’s explanation that he became aware of the first
discriminatory act only on August 3, 2010, and the second only on February
11, 2012.14 (Id.)

14

DHS notes:
Using the August 3, 2010 date for Claim 1, Complainant’s March 30,
2012 EEO Counselor contact was approximately one and a half years
after his August 3, 2010 realization. Using the February 11, 2012 date
for Claim 2, Complainant’s March 30, 2012 EEO contact was three days
after the March 27, 2013 deadline date.

(AC Ex. p. 70 n.2)
9

On March 18, 2013, Paul served a notice of appeal with the EEOC. (Def.
82) The EEOC failed to reach a decision on his appeal within 180 days

Facts

¶

(AC

2), and Paul commenced this action in federal court on October 3, 2013.

¶

On January 7, 2015, Paul filed the Amended Complaint that is the subject of
the motion for summary judgment now before this Court.
II.

Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202,
204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must
construe all facts and inferences in the light most favorable to the nonmoving
party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d
Cir. 1998). The moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—
23, 106 S. Ct. 2548 (1986). “[Wjith respect to an issue on which the nonmoving
party bears the burden of proof.

.

.

the burden on the moving party may be

discharged by ‘showing’—that is, pointing out to the district court—that there
is an absence of evidence to support the nonmoving party’s case.” Celotex, 477
U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Coip., 475
U.S. 574, 586, 106 5. Ct. 1348 (1986). The opposing party must present actual
evidence that creates a genuine issue as to a material fact for trial. Anderson,
477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on
which nonmoving party must rely to support its assertion that genuine issues
of material fact exist). “[Ujnsupported allegations.

.

.

and pleadings are

insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,
10

912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,

.

.

.

there can be ‘no

genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992)
(quoting Celotex, 477 U.S. at 322—23).
Where, as here, the nonmoving party is appearing pro

Se,

“the court has

an obligation to construe the complaint liberally.” Giles v. Keamey, 571 F.3d
318, 322 (3d Cir. 2009) (citing Haines v. Kemer, 404 U.S. 519, 520—52 1, 92 5.
Ct. 594 (1972); Gibbs v. Roman, 116 F.3d 83, 86 n.6 (3d Cir. 1997)). I have
construed Paul’s Complaint, and all of his pleadings and filings, in that liberal
spirit.

III.

Discussion and Analysis
A. Title VII: Wage Discrimination
1.

Administrative Exhaustion Requirement

“It is a basic tenet of administrative law that a plaintiff must exhaust all
required administrative remedies before bringing a claim for judicial relief.”
Slingland v. Donahoe, 542 F. App’x 189, 191 (3d Cir. 20 13)15 (quoting Robinson
v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997)). “In particular, ‘[t]he Supreme
Court has explained that when Title VII remedies are available, they must be
exhausted before a plaintiff may file suit.”’ Id. (quoting Spence v. Straw, 54 F.3d
196, 200 (3d Cir. 1995)). The Third Circuit has “explained that the purposes of
the exhaustion requirement are to promote administrative efficiency, ‘respect[
All Court of Appeals cases cited to F. Appx are non-precedential. See 3d Cir.
lOP 5.3; Fed. R. App. P. 32.1(a).
11

executive autonomy by allowing an agency the opportunity to correct its own
errors,’ provide courts with the benefit of an agency’s expertise, and serve
judicial economy by having the administrative agency compile the factual
record.” Robinson, 107 F.3d at 1020 (quoting Heywood v. Cruzan Motors, Inc.,
792 F.2d 367, 370 (3d Cir. 1986)).
“Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e—16,

establishes the virtually exclusive remedy for federal employees who allege
discrimination in the workplace.” Green v. Potter 687 F. Supp. 2d 502, 513
6
(D.N.J. 2009) (Simandle, C.J.), aff’d sub nom. Green v. Postmaster Gen. of U.S.,
437 F. App’x 174 (3d Cir. 2011). Exhaustion under Title VII “requires both
consultation with an agency counselor and filing a formal EEOC complaint
within the required times.” Robinson, 107 F.3d at 1021. The federal regulations
governing federal sector equal employment opportunity require that “the
employee contact an EEOC counselor within 45 days of the alleged
discriminatory conduct.” Pagan v. Holder, 741 F. Supp. 2d 687, 693 (D.N.J.
7
2010), affd sub nom. Pagan v. Gonzalez, 430 F. App’x 170 (3d Cir. 2011) (citing
The major exception is the Age Discrimination in Employment Act (“ADEA”).
ADEA applies narrowly to discrimination in the workplace based on age, but does not
require exhaustion of administrative remedies. See Green, 687 F. Supp. 2d at 513 n.6.
No ADEA claim is alleged in this action.
16

An “[a]ggrieved person[] who believes [he] ha[s] been discriminated against on
the basis of.
national origin [or] disability.
must consult a[n] [EEO] Counselor
prior to filing a complaint in order to try to informally resolve the matter.” 29 C.F.R. §
16 14.105(a). Further,
17

.

.

.

.

(1) An aggrieved person must initiate contact with a Counselor within 45
days of the date of the matter alleged to be discriminatory or, in the case
of personnel action, within 45 days of the effective date of the action.
(2) The agency or the Commission shall extend the 45—day time limit in
paragraph (a)(1) of this section when the individual shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have been known
that the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or
her control from contacting the counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
Id.
12

29 C.F.R.

§ 1614.105(a)(1)).

Thus, in the ordinary case covered by

§ 1614.i.05(a)(1), an aggrieved

federal employee who fails to contact an EEOC counselor has not exhausted
his administrative remedies and is barred from seeking judicial review. Where,
as here, the employee has contacted an EEOC counselor, a claim based on any
allegedly discriminatory act within the preceding 45 days is considered timely.
See Winder v. Postmaster Gen. of U.S., 528 F. App’x 253, 255 (3d Cir. 2013)
(“This 45-day time limit operates akin to a statute of limitations: a claim
brought more than 45 days after the date it accrued will be barred.”) (citing
Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997)); see also Pagan, 741 F.
Supp. 2d at 694 (granting summary judgment to defendant, inter alia, because
plaintiff did not consult an EEOC counselor within 45 days after the alleged
racist statement was made); Green, 687 F. Supp. 2d at 513—15 (plaintiff’s
contact with an EEO counselor “was beyond the forty-five day period allowed
for contact after the alleged discriminatory actions took place and thus was
untimely”). I will call this 45-day period preceding consultation with an EEOC
counselor the “administrative statute of limitations.”
DHS argues that Paul was aware of the alleged pay discrimination by
8
August 3, 2010, at the latest,’ when he “heard shocking news about hiring
another employee with higher grade.” (Def. Mot. 20) (quoting Paul’s Oct. 29,
2010 letter) Thus, say defendants, the 45-day limitations period began to run
on that date, requiring Paul to contact the EEO by September 17, 2010. If that
is the deadline, then clearly Paul failed to meet it, because he did not contact
an EEO Counselor until around March 30, 2012. According to defendants, Paul
therefore did not timely exhaust his administrative remedies, and his
discrimination claim should be barred.

18
DHS notes that in his opposition brief, Paul asserts that the correct date on
which he learned this information was August 3, 2009, a year earlier. (Def. Reply 2)
(citing P1. Opp. 11) If so, then DHS’s untimeliness argument would apply afortiori.

13

DHS’s argument may have been correct at one time, but it is no longer.
In 2009, the Lilly Ledbetter Fair Pay Act (“FPA”) amended Title VII to include
the following section:
[A]n unlawful employment practice occurs, with respect to
discrimination in compensation in violation of this subchapter,
when an individual is affected by application of a discriminatory
compensation decision or other practice, including each time
wages, benefits, or other compensation is paid, resulting in whole
or in part from such a decision or other practice.
42 U.S.C.

§ 2000e—5(e)(3)(A). “Thus, pursuant to the FPA, each paycheck that

stems from a discriminatory compensation decision or pay structure is a
tainted, independent employment-action that commences the administrative
statute of limitations.” Noel v. The Boeing Co., 622 F.3d 266, 271 (3d cir.
2010).
Paul says that, on a discriminatory basis, he was paid less than J.R. for
the same DRA position, even though he was more qualified and experienced.
The question is whether that claim of wage discrimination falls within the
administrative statute of limitations—i.e., within the 45-day period preceding
his first consultation with the EEOC counselor on March 30, 2012 (and
continuing thereafter, presumably).
Now it is true that Paul, although hired at a GS-5 level, was promoted to
GS-7 on August 18, 2010 (and to 05-8 on August 18, 2011). It would be
possible, then, to argue that any wage discrimination vis-à-vis J.R. had been
remedied long before the administrative statute of limitations period. But
reading this pro se plaintiff’s submissions liberally, I think Paul is saying that if
he had been hired at a higher OS level, his salary would have escalated from
that higher level. Thus the alleged discrimination at the time of hiring
continued to affect his salary through March 30, 2012 (when he contacted the
19
EEOC Counselor) and beyond. Paul may not be entitled to claim damages
In a June 14, 2012 letter to Contract EEO Counselor Rita Fowler, Paul wrote in
response to Fowler’s question asking him to identili the remedy he is seeking in his
EEO complaint:
14
19

based on paychecks dating from before the 45-day period preceding that EEOC
consultation. It does not follow, however, that his cause of action is barred.
I therefore conclude that DHS has not met its threshold burden to show
an absence of evidence that Paul was paid wages, benefits, or other
compensation affected at least in part by the allegedly discriminatory salary
decision, within 45 days before Paul’s initial contact with an EEO Counselor.
See Celotex, 477 U.S. at 325. Therefore, I cannot conclude that Paul’s initial
contact with an LEO Counselor was untimely, and I consequently cannot find
that, as to his wage discrimination claim, Paul failed to exhaust his
administrative remedies or missed the administrative statute of limitations.
However, Paul’s wage discrimination claim fails for other reasons, to which I
now turn.
2.

Standard of proof- McDonnell Douglas

Summary judgment on Title VII claims is governed by a specialized
burden-shifting regime set out in the Supreme Court’s decision in McDonnell
Douglas v. Green, 411 U.S. 792 (1973). McDonnell Douglas divides the burden
of production into three steps, shifting the burden between the plaintiff and the
defendant.
Step 1: The Prima Facie Case.
At the outset, the plaintiff must state a prima facie claim of
discrimination. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). A
prima facie case of racial discrimination encompasses four elements: (1) the

I was hired as grade 5 in August 18, 2008, with a salary of $33,187.00,
in 2009 August 18, I was promoted to grade 6 and salary was
$38,548.00, in 2010 August 18, I was promoted to grade 7 and salary
was $43,738 and in 2011 August 18, I was promoted to grade 8 and
salary was $48,439.00. I do not know the grade differential on these
periods.
(AC Ex. p. 43) Although mentioned only in an exhibit to the Complaint, I charitably
interpret Paul’s reference to grade differentials to refer to a continuing disparity
between what his compensation was and what it would have been had he not been
subject to the initial, allegedly discriminatory grade assignment of GS-5.
15

plaintiff belonged to a protected class; (2) he was qualified for the position in
°
2
question; (3) he was subject to an adverse employment action; and (4) the
adverse action was taken under circumstances giving rise to an inference of
discrimination. Greene v. Virgin Islands Water & Power Auth., 557 F. App’x 189,
195 (3d Cir. 2014) (citing Burton, 707 F.3d at 426); accord Shahin v. Delaware,
543 F. App’x 132, 136 (3d Cir. 2013); Rodriguez v. Nat’l R.R. Passenger Corp.,
532 F. App’x 152, 153 (3d Cir. 2013).
Step 2: Legitimate non-discriminatory reason for the action.
If the plaintiff states a prima facie case, the burden of production shifts
to the defendant, which must articulate a legitimate basis for the adverse
employment action. Burton, 707 F.3d at 426; Rodriguez v. Nat’l R.R. Passenger
Corp., 532 F. App’x at 153. “This burden is relatively light and is satisfied if the
employer provides evidence, which, if true, would permit a conclusion that it
took the adverse employment action for a non-discriminatory reason.” Burton,
707 F.3d at 426 (internal quotations omitted). Indeed, at this stage, “the
defendant need not prove that the articulated reason actually motivated its
conduct.” Burton, 707 F.3d at 426 (internal quotations omitted).
Step 3: Pretext.
Once the defendant has offered a non-discriminatory reason, the burden
of production shifts back to the plaintiff. Now the plaintiff must present
evidence to show that the defendant’s stated reason is merely a pretext for
discrimination. Burton, 707 F.3d at 426. The plaintiff can do that in either of
two ways: (1) he can discredit defendant’s proffered reason; or (2) he can offer
evidence that discrimination was more likely than not a motivating or
determinative factor in the adverse action. Fuentes v. Perskie, 32 F.3d 759, 764
(3d Cir. 1994). To meet that burden, the plaintiff may rely on direct or
circumstantial evidence. Id.

Because the plaintiff here happens to be male, I will use the male pronoun even
when referring to a generic plaintiff.
20

16

If the plaintiff relies on the first method (discrediting the defendant’s
proffered reasons), he faces a demanding standard: he must present evidence
that allows a factfinder “reasonably to infer that each of the employer’s
proffered non-discriminatory reasons

.

.

.

was either a post hoc fabrication or

otherwise did not actually motivate the employment action (that is, the
proffered reason is a pretext).” Fuentes, 32 F.3d at 764 (internal quotations and
citations omitted). The plaintiff “must show such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence, and hence infer that the employer did not act
for [the asserted] non-discriminatory reasons.” Iadimarco v. Runyon, 190 F.3d
151, 166 (3d Cir. 1999).
If the plaintiff relies on the second method (evidence that discrimination
was a motivating factor), he can provide the required evidence in at least three
ways: “by showing that the employer in the past had subjected him to unlawful
discriminatory treatment, that the employer treated other, similarly situated
persons not of his protected class more favorably, or that the employer has
discriminated against other members of his protected class or other protected
categories of persons.” Fuentes, 32 F.3d at 765.
3.

McDonnell Douglas standard applied to the
evidence

Paul has presented limited circumstantial evidence in support of his
claim that DHS discriminated against him. I do not believe his evidence met his
step one burden of establishing a prima facie case. Giving the benefit of the
doubt, however, I also consider it in connection with step three. I consider each
piece of evidence individually, and I also consider the overall picture that it
paints. Nevertheless, Paul’s evidence falls to rebut DHS’s evidence of its
nondiscriminatory reasons for setting his starting salary at the GS-5 level.

17

a. Paul’s Prima Fade Case
The record evidence supports the first three elements of Paul’s prima
facie case for wage discrimination: (1) Paul belongs to a protected class based
on his non-U.S. national origin (India); (2) Newark Field Office Director Scott
Weber initially selected GS-7 as Paul’s starting pay grade, raising an inference
that he was qualified for that pay grade upon starting the DRA position (see
Def. Facts

¶

20, 24); and (3) Paul was subject to an adverse employment

action when he was ultimately hired at a lower GS-5 level (and continued to
receive a correspondingly lower salary as his pay grade was escalated from that
depressed level). (See Def. Facts

¶

24)

Paul’s prima facie case falters, however, at the fourth element: that the
adverse action was taken under circumstances giving rise to an inference of
discrimination. “A plaintiff’s subjective belief that [national originj played a role
in an employment decision is not sufficient to establish an inference of
discrimination.” Rodriguez v. Nat’l R.R. Passenger Corp., 532 F. App’x 152, 153
(3d Cir. 2013) (discussing discrimination based on race) (citing Jones v. Sch.
Dist. of Phila., 198 F.3d 403, 410—li (3d Cir. 1999)). “However, discrimination
may be inferred by showing that the employer treated a similarly situated
employee outside of the plaintiff’s class more favorably.” Id. The comparison,
however, must be apt and clear. “[T]o be considered similarly situated,
comparator employees must be similarly situated in all relevant respects.”
Wilcher v. Postmaster Gen., 441 F. App’x 879, 88 1—82 (3d Cir. 2011) (citing
Russell v. University of Toledo, 537 F.3d 596 (6th Cir. 2008); Lee v. Kansas City
S. Ry. Co., 574 F.3d 253, 259—26 1 (5th Cir. 2009)).
Paul argues that he and J.R. were similarly situated in all relevant
respects—they were hired for the same DRA position in the same Field Office.
8; id. Ex. p. 3) If anything, says Paul, he was more qualified than J.R.,
given his master’s degree and 2½ years of experience working for Gwinnett
(AC

¶

County, GA, in contrast to J.R.’s one year of government experience. (Id.) DHS
replies that Paul and J.R. were not similarly situated, because they applied
18

under different vacancy announcements and J.R. was hired a year before Paul
was. (Def. Mot. 24; see also Def. Facts

¶

36)

I do not find the different vacancy announcements and the one-year
difference in hiring date to be dispositive in themselves. DHS may be able to
explain why these details affect either the nature of the job or the criteria
employed in assigning a GS grade, but it has not done so here. If that were
DHS’s only argument, I might find that Paul had established a prima facie case
of national origin discrimination. But DHS has more.
DHS submits evidence that comparators other than J.R. were treated the
same as Paul. One outlier, says DHS, does not establish a prima facie case.
Courts have been hospitable to that approach. One has noted that “isolated
incidents or random comparisons demonstrating disparities in treatment may
be insufficient to draw a prima facie inference of discrimination without
additional evidence that the alleged phenomenon of inequality also exists with
respect to the entire relevant group of employees.” Houck v. Polytechnic Inst. &
State Univ., 10 F.3d 204, 206—07 (4th Cir. 1993); see also Hem

v. Oregon Coil.

of Educ., 718 F.2d 910, 916 (9th Cir. 1983) (cautioning that “a comparison to a
specifically chosen employee should be scrutinized closely to determine its
usefulness” where plaintiffs chose one of 13 employees for comparison
“apparently because he was the highest paid employee performing
substantially equal work, not because he was the only comparable employee”)
(citing Heymann v. Tetra Plastics Corp., 640 F.2d 115, 122 (8th Cir. 1981));
Woodward v. United Parcel Serv., Inc., 306 F. Supp. 2d 567, 575 (D.S.C. 2004)
(“In cases where there are multiple comparators, identification of only a single
comparator not in the protected class paid more than the plaintiff may not be
sufficient to establish a prima facie case.”).
DHS identifies three other applicants also “selected for employment as
DRAs in May 2008 by the same selecting official, Weber, under the same job
announcement” as Paul: (1) M.N., a Black or African-American male; (2) T.D., a
female whose race/national origin is unknown; and (3) A.Z., a Caucasian male.
19

(Def. Mot. 24; see also Def. Facts

¶J

20, 26) M.N. and T.D. “also qualified for a

pay grade higher than the GS 5 level” but “received the same treatment as Paul
’
2
when Weber reduced their pay grades to the GS 5 level.” (Id.) Paul cannot
establish a prima facie case of discrimination, says DHS, because he “was
treated the same as two other applicants of other races/national origins.” (Id.)
Not quite. Paul alleges that his non-U.S. origins and imperfect Englishlanguage skills set him apart from J.R., who (Paul believes) was born in the
United States. (Def. Facts ¶ 41; Paul Dep. 76—77) DHS’s additional comparators
have not been proven to be similar to Paul in those particular, relevant
respects. The record identifies them by sex and race, which is suggestive, but
contains no specific information about their countries of origin or proficiency in
English.
Still, Paul’s speculation that his non-U.S. origin or imperfect English
motivated DHS’s pay decisions is insufficient to create a genuine issue of
material fact at this, the summary judgment stage. Paul’s national origin
discrimination claim is not specific to his Indian origin; rather, he asserts the
more general theory that he was discriminated against because he was “born
and raised in a different country.” Paul speculates that, reflective of their
different national origins, J.R. “spoke English perfectly, did not have a need for
a translator, [and that this] might have been the reason” Paul was hired at a
22
lower pay grade. (Def. Facts ¶ 42; Paul Dep. 85:15_17)23

M.N. qualified for GS-6, and T.D. qualified for GS-7. I do not discuss A.Z., who
was assigned to level GS-5 from the start. (See Elia Decl. Ex. B, ECF no. 68-26)
22
I note that prior to, and now in addition to, asserting that J.R. ‘s higher GS
grade resulted from national origin discrimination, Paul attributed the disparity to
nepotism:
While I was at work, I heard shocking news about hiring another
employee with higher grade. One of the employees (DRA) in the same
detained unit was initially hired as Grade 07 and that employee’s close
relative is a supervisor in the same building with DHS / ICE.
21

(Paul’s Oct. 29, 2010 Letter to Tsoukaris, AC Ex. p. 3) (see also Paul Dep. 76:6—il)
(“[T]he father of [J.R.] worked in the same building, in the same department as a
20

At his deposition, Paul could not recall whether any question in his DHS
application asked for his national origin (Id. at 83:17—21), or whether he told
anyone or was asked about his national origin before he was hired. (Id. at
74:20—25, 75:1)24 Paul also could not connect his claim of national origin
discrimination to the relevant decision makers at the time of hiring. He could
not recall whether he met Elia prior to his being hired by DHS, and he had no
recollection of ever having met or communicated with the key decision maker,
Tougas. (Id. at 75:2—14) It was Tougas who, prior to hiring and without ever
having met Paul, made the well-documented decision that Paul and two other
co-applicants would have to be reclassified as GS-5 in order to accommodate
the hiring of another person, E.G.
In sum, Paul points to no substantial evidence of discrimination, other
than the bare fact that J.R., who he believes was American-born, was hired at
the GS-7 level a year before. I do not believe that a reasonable jury could
conclude that DHS’s decision to offer Paul a GS-5 starting grade was made
supervisor. The reason she was hired in a higher grade was because of her
relationship with her father who was a supervisor.”)
Paul connects his allegations of nepotism and national discrimination,
explaining that in contrast to J.R., Paul “was born and raised in a different country”:
I have no one to ask for me, or speak for me. Therefore, if they—if I am
lower—therefore, since I was from a different country, they assumed that
it would be okay to give me a lower grade.
(Paul Dep. 77:8—12; Def. Facts

¶ 43)

In his deposition, Paul testified with the aid of an interpreter of Malayalam, a
language spoken in southern India. Paul refers to a “translator,” but he performed his
DHS job duties in English, and did not use a translator while working there. (Paul
Dep. 85:18—21) Paul testified that he interviewed inmates and prepared paperwork in
English while working in the sheriffs department in Georgia. (Paul Dep. 24, 27)

23

Paul testified further to what he hypothetically would have done “if somebody
had asked me where I was from, I would have told them I’m from India, or if there was
a question on my application requiring me to identify whether I was Indian or Asian, I
would have written that down.” (Paul Dep. 83:13—16) DHS has met its threshold
burden, however, of pointing to a lack of evidence that anyone involved in Paul’s hiring
knew of his national origin. Thus Paul “must do more than simply show that there is
some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v.
ZenithRadio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986).
24

21

under circumstances giving rise to an inference of national origin
discrimination. However, even if I were to give Paul the benefit of any doubt
and continue to McDonnell Douglas steps two and three, I would find that he is
unable to rebut DHS’s articulated legitimate basis for its actions. I turn to
those issues now.
b. Pretext and DHS’s Articulated Legitimate Basis
DHS explains that Paul was qualified for the GS-7 level, but—before
offering him the position—DHS lowered the GS levels for Paul and two other
selected applicants. DHS explains and documents that it had a non
discriminatory reason for that action. (Def. Mot. 25—27) An internal DHS e-mail
exchange in 2008, contemporaneous with DHS’s decision to offer Paul the DRA
position at the GS-5 grade level, demonstrates that Director Weber “exercised
his discretion” to hire Paul—as well as two others, M.N., and T.D.—at the GS-5
level, rather than at the higher levels for which they qualified. He did this
because Tougas advised him, in writing, that this would be necessary in order
to permit the hiring of E.G., already an intern in the Newark Field Office, who
only qualified for GS-5. (Def. Facts

¶J

19—26) DHS has articulated a

nondiscriminatory reason, supported by contemporaneous evidence, for its
decision to hire Paul at the GS-5 level despite his qualification for the GS-7
level in 2008. And there is no evidence that there was any similar need to
accommodate another hiree, like E.G., at the time J.R. was hired at the GS-7
level in 2007.
Paul fails to present evidence that the defendant’s stated reason is
merely a pretext for discrimination. He offers no evidence that discrimination
was a motivating or determinative factor in the disparity between his and J.R.’s
starting GS grade levels. He offers no direct evidence that the decision makers
even knew of his national origin, let alone acted upon it. Nor does he submit
any evidence of comments, practices, emails, or the like, showing that
management had an ethnic bias.

22

Paul’s indirect method of proof—his attempt to discredit DHS’s proffered
nondiscriminatory reasons—is unavailing. Paul observes that DHS “failed Etol
provide the ‘guidance’ from Ms. Tougas that” Paul, M.N., and T.D. “must be
hired as grade 5 only.” (P1. Opp. 8—9) (emphasis in original) I also understand
him to argue that DHS’s explanation is not credible because, if it were true, the
DRA vacancy announcement would not have described the position as eligible

25
for GS-7 in the first place. (Id. 8—10) Related is his argument that he had
been clearly told “that the Field Office Director [Weberj has the authority to
select the pay grade and he selected the guide lines of the Job Application,”
rather than being bound by Ms. Tougas’s guidance. (Id. 9—10)
First, contrary to Paul’s argument, DHS has indeed provided a copy of
the guidance Tougas sent to Elia in an e-mail on Thursday, May 29, 2008. (See
Elia Deci. Ex. B, ECF no. 68-26)
Second, given DHS’s evidence that it lowered the pay grade of Paul (and
two others) to accommodate the hiring of E.G., Paul would be required to offer
more than a bare denial. On summary judgment, evidence is required to negate
evidence. It is true that DHS has not identified the law, policy, or regulation
behind Tougas’s belief that the GS downgrade of Paul and two other applicants
was required to permit the hiring of E.G. But fundamentally, it is not relevant
whether DHS was correct, or could have developed an alternative plan to
preserve the GS-7 option: “[I]n a Title VII case,

25

.

.

.

a plaintiff cannot discredit

Paul states the argument thus:
Since the Job announcement is grade 5/7, the Plaintiff qualified for all
grades equally and the job announcement consisted of all job criteria,
which includes the educational qualifications of the candidates. If the
defense was stick with the guidelines to lower the grades, then the
purpose of job announcement in higher grades not required. Also Ms.
Crellin stated that the job selection (Plaintiffs Exhibit P1 Page 04) was
made from the field office, which is not corroborating with the guidelines
to lower the grade.

(P1. Opp. 8)
23

an employer’s proffered legitimate, nondiscriminatory reason for termination by
‘simply show[ing] that the employer’s decision was wrong or mistaken, since
the factual dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or competent.’”
Capps v. Mondelez Glob., LLC, 847 F.3d 144, 154 n.9 (3d Cir. 2017) (quoting
Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). Rather, a plaintiff must
“produce sufficient evidence to permit a reasonable factfinder to infer that the
employer did not actually act for the asserted non-discriminatory reason.” Id.
That Paul has not done. Assuming arguenclo that Paul has suggested
that DHS’s decision was arbitrary, or even nepotistic, he has not shown that it
was so implausible or contradictory that discrimination must have been the
real basis for it. Accordingly, I will grant summary judgment in favor of DHS on
Paul’s Title VII claim for wage discrimination based on his national origin.
B. ADA and Rehabilitation Act
Paul asserts claims under both the Americans with Disabilities Act of
1990 (“ADA”), 42 U.S.C.
U.S.C.

§ 12101 et seq., and the Rehabilitation Act of 1973, 29

§ 791 et seq. Paul’s ADA claim fails because federal agencies like DHS

are exempted from liability by the ADA itself, which expressly states that the
United States is not a covered employer. 42 U.S.C.

§ 1211 1(5)(B)(i). However,

federal employees like Paul may seek a remedy for disability discrimination
under the Rehabilitation Act, 29 U.S.C.

§ 794. I analyze his claim on that basis.

Under step one of the familiar McDonnell Douglas burden-shifting
framework, “a plaintiff seeking recovery pursuant to the [Rehabilitation Act]
must establish a prima facie case of discrimination by demonstrating that (1)
he is disabled within the meaning of the [Rehabilitation Act]; (2) he is otherwise
qualified to perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) he has suffered an
otherwise adverse employment [action] as a result of discrimination.” Wilkie v.
F. Supp. 3d , 2016 WL 4803762, at *3
Luzeme Cty., No. 3:14CV462,
24

(M.D. Pa. Sept. 14, 2016) (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.
1996)).
Here, the third element of the prima facie case—requiring an “adverse
employment action”—is sufficient to dispose of the case. “An ‘adverse
employment action’ is an action that ‘alters the employee’s compensation,
terms, conditions, or privileges of employment, deprives him or her of
employment opportunities, or adversely affects his or her status as an
employee.” Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 257 (3d Cir.
2014) (citing Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.
1997)).
Paul alleges that he was “unduly watched or monitored or stalked even at
[his] break time by [his] immediate supervisor SDDO Martinez” while at work
during November 2011 26 (AC

¶ 6) However, such actions, even if proven, do

not amount to an “adverse employment action.” See, e.g., DeLuzio v. Family
Guidance Ctr. of Warren Cty., No. CIV.A.06-6220FLW, 2010 WL 1379766, at
*14 (D.N.J. Mar. 30, 2010) (“complaints of ‘micromanaging,’ ‘increased
scrutiny,’ and ‘reprimands about plaintiffs lateness,’ would not rise to the level
of materially adverse actions”); McKinnon v. Gonzales, 642 F. Supp. 2d 410,
428 (D.N.J. 2009) (“courts have consistently found that an employee’s
perception that he has been micro-managed, criticized, or scrutinized by his

The alleged watching/monitoring/stalking occurred between November 7—28,
2011. Paul alleges that he first became aware of the alleged discrimination on January
12, 2012. (P1. Opp. 16) Although Paul does complain that—given his disability—
Martinez should not have assigned him an arduous photocopying task on November
28, 2011 (see Def. Facts ¶ 69), I do not interpret this as a failure to accommodate
claim. If so, Paul could not allege, as he does, that he first became aware of
discrimination upon learning of Martinez’s report.

26

Paul points to a log primarily recording accommodations that Martinez made for
Paul between November 7 and December 5, 2011. (P1. Opp. Ex. A3, ECF no. 73-3 pp.
19 21) Paul argues that this log “clearly reveals the conspiracy of recording the entire
discriminative issues and Plaintiff reasonably believes no further explanation
necessary to prove discrimination.” (P1. Opp. 15)1 disagree. No reasonable jury could
find a prima facie case of disability discrimination based on the fact that Martinez
made a written record of this kind.
—

25

supervisor fails to rise to the level of” even the lower standard of “material
adversity” applied to retaliation claims); Lester v. Natsios, 290 F. Supp. 2d 11,
30 (D.D.C. 2003) (“in any event, being closely supervised or ‘watched’ does not
constitute an adverse employment action that can support a claim under Title
VII”) (collecting cases).
Accordingly, Paul cannot establish a prima facie case of disability
27
discrimination under the Rehabilitation Act.
C. Equal Pay Act
The Equal Pay Act of 1963 (“EPA”) generally prohibits wage

discrimination on the basis of sex. 29 U.S.C.

§

206(d)(1). In a section of the

complaint titled “Rule of Law,” Paul lists and describes the EPA, without
elaboration. (AC 2 ¶ B) He states in his opposition brief that J.R. is a woman
and he is a man, and that J.R. was hired at a higher pay grade. (P1. Opp. 2-3)
DHS responds that Paul never alleged that the disparity between his and J.R.’s
wages was due to sex discrimination. (Def. Mot. 33—34) I agree that Paul has
not clearly alleged, let alone provided evidence, that his sex played any role in
his salary grade assignment. It is insufficient merely to describe an
28
employment action and identify the participants by sex.
No reasonable jury could find that Paul suffered wage discrimination
based on his sex. Accordingly, I will grant summary judgment in favor of DHS
on Paul’s Equal Pay Act claim.

Although Paul’s prima facie case is clearly inadequate, I nevertheless note in
the alternative that Paul is unable to discredit DHS’s legitimate, nondiscriminatory
explanation for Martinez’s report. DHS explains, and Paul admits, that Martinez only
wrote the report at Davis’s request, in order to support Paul’s application for workers’
compensation benefits. (See P1. Opp. 13)
28
As it happens, T.D., one of the other persons downgraded to GS-5 along with
Paul, is female. (See Def. Facts ¶J 19—26)
26
27

IV.

Conclusion
For the reasons set forth above, Defendants’ motion for summary

judgment is GRANTED as to all counts. An appropriate order follows.

Dated: March 17, 2017

HON. KEVIN MCNULTY,

27