Marinacci v. United States Postal Service et al

Filing 39

MEMORANDUM OF DECISION AND ORDER: As set forth in the Court's March 31, 2017 Memorandum of Decision and Order, Defendants' Motion for Summary Judgment 34 is hereby GRANTED in its entirety. The Clerk of the Court is hereby respectfully re quested to enter judgment closing the case and to serve a copy of this Memorandum of Decision and Order on the pro se Plaintiff. See attached Memorandum of Decision and Order for details. Ordered by Judge LaShann DeArcy Hall on 3/31/2017. (Zdanys, Joanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RUDY J. MARINACCI,

MEMORANDUM OF
DECISION AND ORDER

Plaintiff,
15-CV-01118 (LDH) (ST)
-againstUNITED STATES POSTAL SERVICE, PATRICK
DONAHOE, AND MEGAN BRENNAN,
Defendants.
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LASHANN DEARCY HALL, United States District Judge:
Pro se Plaintiff Rudy Marinacci brings the instant action under Title VII of the Civil
Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”),
alleging that Defendants United States Postal Service (“USPS”), Patrick Donahoe, and Megan
Brennan (collectively, “Defendants”) discriminated against him on the basis of age, gender,
religion, race, color, and national origin. Plaintiff also brings claims of hostile work environment
and retaliation. Defendants move for summary judgment pursuant to Federal Rule of Civil
Procedure 56.
UNDISPUTED FACTS 1
Plaintiff is a 59-year-old male born in 1957 who identifies as white, Caucasian, Catholic,
and American. (Defs.’ 56.1 Statement ¶ 1, ECF No. 34-3.) During the time period relevant to
the instant action, Plaintiff was an employee of USPS. (Id. ¶ 2.) In 2011, Plaintiff served as

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The Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York
require parties moving for summary judgment to submit a statement of allegedly undisputed material facts. See
Local Rule 56.1(a). Where, as here, a non-movant fails to controvert a fact set forth in a movant’s Rule 56.1
statement, that fact will be deemed admitted. See Local Rule 56.1(c); see also Giannullo v. City of New York, 322
F.3d 139, 140 (2d Cir. 2003). This Court has nevertheless searched the record before it to determine whether the
facts presented support granting summary judgment. Giannullo, 322 F.3d at 140 (facts in unopposed 56.1
statements must be independently reviewed and disregarded if not supported by the record because “the local rule
does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a
matter of law”) (quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001)).

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manager of customer services at the Middle Village USPS station, with a pay grade level
designation of EAS-20. (Id.) Prior to the events giving rise to this action, Plaintiff had filed two
formal Equal Employment Opportunity (“EEO”) complaints with the USPS Equal Employment
Opportunity Office dated August 10, 2009, and February 18, 2011. (Id. ¶ 70.)
I.

Plaintiff’s Temporary Detail at the Forest Hills Station
On May 20, 2011, USPS assigned Plaintiff to a temporary detail as manager of customer

services at the Forest Hills USPS station. (Id. ¶ 5.) The temporary detail was effected through a
PS Form 1723 signed by Plaintiff’s supervisor Paul Stremel on May 20, 2011. (Id.) Under the
form’s terms, Plaintiff was to serve on the temporary detail from May 21, 2011, until November
15, 2011, with a pay grade level designated EAS-22. (Id.) On May 20, 2011, Stremel also
completed and executed an affidavit in connection with Plaintiff’s February 18, 2011 EEO
complaint. (Id. ¶¶ 6, 73-75.) Stremel is a white, Caucasian, Catholic, American male born in
1975. (Id. ¶ 44.)
From June 1, 2011, until June 22, 2011, as the acting manager of customer services at the
Forest Hills station, Plaintiff participated in staff telephonic conferences with other USPS
employees. (Id. ¶ 7.) These conferences were referred to as “drill down” conferences, and their
purpose was to discuss the station’s performance, expectations, and action plans. (Id.) One of
the USPS employees involved in the drill down conferences was Postmaster Edward
Roggenkamp, who is a white, Caucasian, Catholic, American male born in 1955. (Id. ¶¶ 7, 46.)
During the drill down conferences, Roggenkamp and the area manager would ask Plaintiff to
account for the employees that Plaintiff supervised. (Id. ¶ 8.) They would also ask Plaintiff
about the performance of the Forest Hills station. (Id. ¶ 9.) Among other things, Plaintiff would
report on steps he took to correct any deficiencies at the station, as well as carrier and clerical

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operations. (Id. ¶ 10.) During the drill down conferences, no one mentioned or referred to
Plaintiff’s race, color, age, gender, religion, or national origin. (Id. ¶ 11.)
On June 15, 2011, Plaintiff attended a “Function 4 staff meeting” with Postmaster
Roggenkamp and other managers of customer services to review clerical staffing profiles for
USPS operations. (Id. ¶ 12.) Several days before the Function 4 staff meeting, Plaintiff asked
Stremel to excuse him from the meeting because Plaintiff would not have certain necessary data
prepared in time. (Id. ¶ 13.) Stremel declined to excuse Plaintiff from the meeting because
Roggenkamp, not Stremel, had scheduled it. (Id. ¶ 14.) Plaintiff subsequently provided
Roggenkamp with handwritten work product in response to Roggenkamp’s request for data. (Id.
¶ 15.) At his deposition, Plaintiff testified that he believed that Roggenkamp told Jennifer
Leung, another manager of customer services, that Plaintiff’s work product was “crap.” (Id. ¶
16.) Plaintiff further testified that he did not believe that Roggenkamp made any reference to
Plaintiff’s race, color, age, gender, religion, or national origin in connection with this criticism.
(Id. ¶ 17.)
Plaintiff subsequently met with Stremel and Roggenkamp on July 8, 2011, at which time
Roggenkamp expressed a number of concerns regarding Plaintiff’s performance during his
temporary detail at the Forest Hills station. (Id. ¶ 19.) Roggenkamp noted that Plaintiff had
permitted a lower-level employee to stand in for Plaintiff as a representative of USPS
management at a meeting with the National Association of Letter Carriers. (Id. ¶ 20.) In
addition, Roggenkamp noted that Plaintiff did not thoroughly investigate an allegation of assault
by another USPS employee. (Id. ¶ 21.) Further, Roggenkamp stated that he was concerned
about Plaintiff’s representation that he would personally conduct surveillance of a USPS
employee who was on extended sick leave but was alleged to be working a second job. (Id. ¶

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22.) Roggenkamp also noted that Plaintiff had failed to follow a Local Memorandum of
Understanding for posting holiday schedules, which could have resulted in monetary losses. (Id.
¶ 23.) Roggenkamp also noted his concern that letter carriers at the Forest Hills station had made
complaints of a hostile work environment caused by management, which included Plaintiff. (Id.
¶ 24.) Union representatives for those letter carriers had informed Roggenkamp that there was a
risk for workplace violence at the Forest Hills station. (Id. ¶ 25.) Based on these various
concerns, on July 8, 2011, Plaintiff was returned to his regular assignment at the Middle Village
station with his previous pay grade level of EAS-20 four months earlier than scheduled. (Id. ¶
26.)
II.

Plaintiff’s Denial of a Promotion to the Fresh Meadows Station
USPS has specific policies that govern how applicants are selected for particular jobs.

USPS grants positions through competitive and non-competitive processes. (Singh Decl. Ex. T,
at 4-5, ECF No. 36-1.) Pursuant to USPS policy, competitive procedures are not required when
an employee voluntarily accepts a position at a lower level pursuant to the noncompetitive
process. (Id. at 4.) USPS policy also states that a noncompetitive applicant may be selected at
any point before or during the competitive process. (Id. at 5.) When a position is not filled
through noncompetitive procedures, then it is filled competitively. (Id.)
On June 19, 2011, Plaintiff applied through a competitive procedure to be the Manager of
Customer Services at the Fresh Meadows USPS station, at a pay grade level of EAS-21. (Defs.’
56.1 Statement ¶ 18.) USPS ultimately gave the position to Robert Botman on a noncompetitive
basis. (Id. ¶¶ 27-28.) At the time, Botman was serving as Manager of Customer Services at the
Corona/Elmhurst station. (Id. ¶ 27.) The Fresh Meadows position was a downgrade for Botman,
who had previously received a pay grade level of EAS-22 at Corona/Elmhurst. (See id.)

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III.

USPS Investigates Complaints at the Forest Hills Station
On August 3, 2011, at Roggenkamp’s request and in response to employee complaints of

a hostile work environment, Mary McGovern and Jose Diaz conducted interviews of the Forest
Hills station’s employees. (Id. ¶ 30.) McGovern and Diaz asked the employees if they were
experiencing issues of any kind with their management. (Id. ¶ 31.) When these interviews
concluded, USPS did not take any employment action against Plaintiff. (Id. ¶ 32.) 2
IV.

Plaintiff Requests a Temporary Modification in his Schedule
In August 2011, Plaintiff requested a modification of his schedule so that he could arrive

at work and leave work earlier than scheduled from August 8, 2011, until August 12, 2011. (Id.
¶ 33.) Stremel denied the request and informed Plaintiff that he needed certain non-exempt
salaried employees like Plaintiff to be present during the later hours of the day. (Id. ¶ 34; Singh
Decl. Ex. U., at 93:25-94:4, ECF No. 36-1.)
V.

USPS Denies Plaintiff’s Request to have Rudy Perez Assigned Acting Supervisor
At some point in the summer of 2011, Plaintiff returned to his letter carrier assignment

from an acting supervisor detail. (Defs.’ 56.1 Statement ¶ 37.) Plaintiff requested that Stremel
assign Rudy Perez to be the new acting supervisor. (Id. ¶ 40.) Instead, Stremel offered the
position to Anna Palanska, Plaintiff’s second choice candidate. (Id. ¶ 41.)
VI.

Procedural History
On August 10, 2011, Plaintiff initiated contact with an EEO counselor. (Id. ¶ 59.) In his

pre-complaint, Plaintiff alleged that he had been discriminated against on the basis of his race,
color, religion, national origin, and age, and that he had been retaliated against based on his prior

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Plaintiff states—without support from the record—that these interviews were “clearly disputed acts of harassment
conducted to undermine the authority of the Plaintiff,” but does not dispute that no adverse employment action was
taken against him. (Pl.’s 56.1 Statement 5-6, ECF No. 32.)

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EEO activity. (Id. ¶ 60.) Subsequently, Plaintiff filed a formal EEO administrative complaint on
November 23, 2011. (Id. ¶ 61.) On November 28, 2011, Plaintiff contacted the EEO, alleging
that Stremel had further discriminated and retaliated against him by failing to reassign a
particular acting supervisor to work at Plaintiff’s station. (Id. ¶ 62.)
Plaintiff’s administrative complaint was accepted for investigation on December 19,
2011. (Id. ¶ 63.) The specific issues to be investigated were discriminatory harassment based on
Plaintiff’s race, color, religion, national origin, age, and retaliation. (Id.) In his EEO complaint,
Plaintiff complains that: (1) he was humiliated during a meeting on June 15, 2011, and at drill
down conferences between June 1, 2011, and June 22, 2011; (2) he was removed from the detail
at the Forest Hills station; (3) USPS did not promote Plaintiff to the position of manager of
customer services at the Fresh Meadows station; (4) USPS conducted a “witch hunt” concerning
Plaintiff at the Forest Hills station on August 3, 2011; (5) Plaintiff was not permitted to work an
earlier schedule between August 8, 2011, and August 12, 2011, so that he would also be able to
work at another job; and (6) Perez was not reassigned to Plaintiff’s station as an acting
supervisor. (Id. ¶¶ 64-69.) Plaintiff filed the instant complaint on March 4, 2015. (Compl., ECF
No. 1.)
STANDARD OF REVIEW
Summary judgment must be granted when 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, 247-48 (1986). A genuine dispute of material
fact exists when the evidence as to a fact that might affect the suit’s outcome is such that a
reasonable jury could find in favor of the non-movant at trial. Anderson, 477 U.S. at 248. At
summary judgment, the movant bears the initial burden of demonstrating the absence of a

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genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also
Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). Once the movant meets that burden,
the non-movant may defeat summary judgment only by producing evidence of specific facts that
raise a genuine issue for trial. See Fed. R. Civ. P. 56(c); see also Anderson, 477 U.S. at 248;
Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). The Court is to view all such facts in the
light most favorable to the non-movant, drawing all reasonable inferences in his favor.
Anderson, 477 U.S. at 255. Still, to survive summary judgment, a non-movant, even one whose
pro se status mandates a liberal reading of his or her papers, must present concrete evidence and
may not rely on mere conclusory or speculative claims or denials. Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (“The litigant opposing summary
judgment, therefore, ‘may not rest upon mere conclusory allegations or denials’ as a vehicle for
obtaining a trial.”); Tillman v. Luray’s Travel, 137 F. Supp. 3d 315, 325 (E.D.N.Y. 2015)
(“Nevertheless, pro se litigants must still be held to the normal standard for summary judgment,
and ‘bald assertions, unsupported by evidence,’ will not satisfy the summary judgment
standard.”).
DISCUSSION
I.

Plaintiff’s Unexhausted Claims
Title VII and the ADEA both require an aggrieved party to exhaust his administrative

remedies before filing suit in federal court. See Fowlkes v. Ironworkers Local 40, 790 F.3d 378,
384 (2d Cir. 2015) (discussing Title VII exhaustion standard); Sweeney v. U.S. Postal Service,
No. 08-cv-4417, 2013 WL 5744490, at *6 (E.D.N.Y. Oct. 23, 2013) (explaining exhaustion
requirement under the ADEA). The purpose of the exhaustion requirement is to give the
administrative agency the opportunity to investigate, mediate, and take remedial action.

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Fowlkes, 790 F.3d at 384 (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir.
1998)). The administrative exhaustion requirement applies to pro se and counseled plaintiffs
alike. Id. (citing Pikulin v. City Univ. of N.Y., 176 F.3d 598, 599-600 (2d Cir. 1999) (per
curiam)).
Although exhaustion is ordinarily an essential element of Title VII and ADEA claims,
claims that were not asserted before the EEOC or other administrative agency may be pursued in
a subsequent federal court action if they are “reasonably related” to those filed with the agency.
See Sweeney, 2013 WL 5744490, at *8 (ADEA); Ige v. Command Sec. Corp., No. 99-cv-6916,
2002 WL 720944, at *5 (E.D.N.Y. Mar. 12, 2002) (Title VII). The Second Circuit has
recognized three sets of circumstances under which claims not alleged in an administrative
charge are “reasonably related” to the allegations in the charge such that it would be unfair to
plaintiffs to bar such claims in a civil action. Ige, 2002 WL 720944, at *5 (citing Butts v. City of
N.Y., Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir. 1993)). First, a claim is
reasonably related where the complained-of conduct would fall within the scope of the agency’s
investigation that could reasonably be expected to grow out of the charge of discrimination.
Sweeney, 2013 WL 5744490, at *8 (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d Cir.
2001)). More simply put, the agency “likely would have investigated the conduct complained of
anyway.” Id. at *8 (quoting Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006)).
Second, a claim is also reasonably related if it alleges retaliation against the employee for filing a
charge. Ige, 2002 WL 720944, at *5 (citing Butts, 990 F.2d at 1402). Third, a claim is

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reasonably related if it alleges further incidents of discrimination carried out in precisely the
same manner alleged in the charge. Id. (citing Butts, 990 F.2d at 1402).
Here, Defendants argue that a number of Plaintiff’s claims must be dismissed because
Plaintiff either failed to timely present them to the EEO or did not present them at all. (Defs.’
Mem. Supp. 5-6, ECF No. 34-2.) Specifically, Defendants argue that Plaintiff’s claims premised
on feeling humiliated during staff meetings in June 2011 are untimely because Plaintiff did not
initiate contact with an EEO counselor regarding such claims within the 45-day time limit to do
so. (Id. at 5.) 3 Defendants also contend that Plaintiff never raised discrimination on the basis of
gender or Defendants’ alleged failure to respond to a discovery request in an unrelated state civil
lawsuit before the EEO. (Id. at 5-6.) As to Plaintiff’s gender discrimination claims, Defendants
are correct that Plaintiff never alleged discrimination on the basis of gender in his EEO filings
(see Singh Decl. Ex. X, ECF No. 36-1), nor is it related to any other claim raised. Accordingly,
the Court grants Defendants’ motion for summary judgment as to Plaintiff’s gender
discrimination claims for failure to exhaust his administrative remedies. See Chan v. Donahoe,
63 F. Supp. 3d 271, 298 (E.D.N.Y. 2014) (dismissing national origin discrimination claim where
administrative complaint only alleged discrimination based on race and age).
In addition, in his opposition 56.1 Statement, Plaintiff alleges for the first time that
Defendants subjected him to a seven-day suspension and breached an EEO mediation settlement
agreement. (Pl.’s 56.1 Statement 6-8, ECF No. 31.) Plaintiff did not raise these claims in the
instant complaint, nor did he raise them in his EEO materials. (See Compl.; Singh Decl. Ex. AA,
ECF No. 36-1.) Indeed, as Defendants clarify on reply, both of these incidents relate to other,
more recent EEO complaints that do not form the basis of the complaint before this Court.

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The Court finds that it is unnecessary to address whether equitable tolling applies in this instance because, as
discussed infra, this claim fails on the merits.

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(Defs.’ Reply Supp. 3-4, ECF No. 35.) The Court therefore will not consider these purported
incidents in analyzing Plaintiff’s claims.
II.

Discrimination Under Title VII and the ADEA
A. Burden-Shifting Analysis
Claims under Title VII are governed by the burden-shifting framework established by the

Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). At the first
step of this analysis, a plaintiff bears the burden of establishing a prima facie case of
employment discrimination by showing that: (1) he belongs to a protected class; (2) he was
qualified for the position he held; and (3) he suffered an adverse employment action that (4)
occurred under circumstances giving rise to an inference of discrimination. Leibowitz v. Cornell
Univ., 584 F.3d 487, 498 (2d Cir. 2009). If the plaintiff makes out a prima facie case, the burden
of production shifts to the defendant, who must proffer a legitimate, nondiscriminatory reason
for the challenged employment action. Id. at 498-99. If the defendant articulates such a reason,
the presumption of discrimination falls away, and the plaintiff must prove that the reason offered
by the defendant was pretextual. Id. at 499. In other words, to survive summary judgment, a
Title VII plaintiff must offer evidence from which a reasonable jury could conclude that an
adverse action taken by the defendant was motivated by discrimination. Dall v. St. Catherine of
Siena Med. Ctr., 966 F. Supp. 2d 167, 187 (E.D.N.Y. 2013) (citing Summa v. Hofstra Univ., 708
F.3d 115, 125 (2d Cir. 2013)). The legal analysis for discrimination claims under the ADEA is
substantially the same, except that a plaintiff bringing a discrimination claim pursuant to the
ADEA must prove that age was the “but-for” cause of the challenged adverse employment action
and not just a contributing or motivating factor. Gorzynski v. JetBlue Airways Corp., 596 F.3d
93, 106 (2d Cir. 2010) (citing Gross v. FBL Fin. Servs., 557 U.S. 167, 180 (2009)).

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B. Denial of Promotion and Early Termination of Temporary Detail
Plaintiff claims that Defendants discriminated against him when he applied for but was
denied the position of manager of customer services at the Fresh Meadows station and when his
temporary detail at the Forest Hills station was terminated earlier than scheduled. (See Compl. 5;
Pl.’s 56.1 Statement 2.) Defendants argue that Plaintiff has not adduced facts that raise an
inference of discrimination sufficient to survive dismissal of these claims. (Def.’s Mem. Supp.
10-14.) The Court agrees.
1. Denial of Promotion
Here, with respect to Plaintiff’s claim that he was wrongfully denied the position of
manager of customer services at the Fresh Meadows station, Plaintiff offers no direct evidence of
discrimination. Plaintiff fails, for example, to demonstrate that Defendants made any
inflammatory or discriminatory comments regarding Plaintiff’s membership in any protected
class in denying him the promotion. Cf. Delia v. Donahoe, 862 F. Supp. 2d 196, 219-20
(E.D.N.Y. 2012) (granting defendant’s motion for summary judgment on discrimination claim
where Plaintiff “ha[d] not pointed to any direct evidence of discrimination, such as disparaging
comments”). Instead, Plaintiff seemingly premises his claims on indirect evidence of disparate
treatment. Plaintiff particularly relies on the charge that Botman, the individual who ultimately
received the promotion, was Jewish. (Pl.’s 56.1 Statement 4.) However, when relying on
evidence of disparate treatment to raise an inference of discrimination, a plaintiff must show that
he was similarly situated “in all material respects” to the individuals with whom he seeks to
compare himself. Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (quoting
Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).

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A plaintiff and his comparators are not similarly situated where, for example, they differ
in experience, tenure, or other factors that typically affect an employee’s pay rate. See Simpson
v. Metro-North Commuter R.R., No. 04-cv-2565, 2006 WL 2056366, at *7 (S.D.N.Y. July 20,
2006) (“[T]o be ‘similarly situated,’ employees must be substantially similar as to specific work
duties, education, seniority, and performance history, all of which affect an employee’s rate of
pay.”) (citing DeJesus v. Starr Technical Risks Agency, Inc., No. 03-cv-1298, 2004 WL
2181403, at *9 (S.D.N.Y. Sept. 27, 2004)). Fatal to Plaintiff’s claim, Botman had previously
worked at a different station than Plaintiff and at a higher pay grade. (See Defs.’ 56.1 Statement
¶ 27.) As such, Plaintiff’s purported comparator was not similarly situated to him. Accordingly,
Defendants’ choice to hire Botman rather than Plaintiff for the position at the Fresh Meadows
station cannot support an inference of discrimination. See Leacock v. Nassau Health Care Corp.,
No. 08-cv-2401, 2013 WL 4899723, at *7 (E.D.N.Y. Sept. 11, 2013) (finding that plaintiff did
not raise genuine issue of fact as to disparate treatment where comparator held a different
position than plaintiff and had significantly more experience than plaintiff).
Moreover, even if Botman were a suitable comparator, Defendants have provided
evidence—and Plaintiff does not dispute—that Botman received the position noncompetitively
pursuant to USPS policy. (Defs.’ 56.1 Statement ¶¶ 27-28.) The application of neutral company
policies is “by definition” a legitimate, non-discriminatory reason for a particular action. See
Raytheon Co. v. Hernandez, 540 U.S. 44, 51 (2003); Sethi v. Narod, 12 F. Supp. 3d 505, 547-548
(E.D.N.Y. 2014) (finding that allotting plaintiff paid vacation time in a manner consistent with a
neutrally applied company policy was a legitimate, non-discriminatory reason for denying’s
plaintiff request for additional vacation days).

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Plaintiff has offered no evidence to suggest that compliance with the policies at issue here
was not neutral. Plaintiff simply offers unsupported allegations that the decision to award the
position pursuant to USPS policy was retaliation for Plaintiff’s prior EEO activity. (See Pl.’s
56.1 Statement 4-5.) Plaintiff has also failed to establish that adherence to the USPS policy was
a mere pretext for discrimination. Thus, these claims also fail at the third stage of the McDonnell
framework. See Raytheon, 540 U.S. at 51-52 (finding that plaintiff could not survive summary
judgment absent evidence that company’s policy against rehiring employees that had violated
company rules was a pretext for discrimination). Defendants’ motion for summary judgment as
to this claim is granted.
2. Early Termination of Plaintiff’s Temporary Detail
Plaintiff also contends that Defendants discriminated against him when Defendants
terminated his temporary detail to the Forest Hills station before it was set to expire, resulting in
a decrease in pay. (See Defs.’ 56.1 Statement ¶¶ 3, 5, 26; Pl.’s 56.1 Statement 2.) It is true that a
demotion evidenced by a decrease in wage or salary is an adverse employment action. See
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (listing examples of
adverse employment actions). Even if the Court construes the early termination of Plaintiff’s
temporary position as it would a demotion, however, there is no evidence that would raise an
inference that the demotion was motivated by discrimination.
Defendants provide a legitimate, non-discriminatory reason for terminating Plaintiff’s
higher-level detail. Defendants argue that Plaintiff’s temporary detail was terminated early
because of “significant concerns” by management regarding Plaintiff’s decisions, as well as
complaints by other employees at the Forest Hills station. (Defs.’ Mem. Supp. 21-22.) The
record supports this argument. Stremel affirmed in an EEO affidavit that he and Roggenkamp

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had decided to remove Plaintiff from his higher-level detail based upon several factors. (See
Singh Decl. Ex. D, at 3, ECF No. 36-1.) For example, Plaintiff: (1) allowed a lower-level
employee to represent management at certain meetings instead of doing so himself, which was
Plaintiff’s own responsibility; (2) failed to investigate an alleged assault of an employee by one
of his subordinates; (3) informed Roggenkamp and Stremel that he was going to conduct
surveillance of an employee who was out on extended sick leave; (4) did not follow accepted
procedures for posting the USPS holiday schedule, which purportedly put the USPS in jeopardy
for monetary losses; and (5) employees complained that Plaintiff and his coworker Zapata were
fostering a hostile work environment and that the employees were afraid of possible violence in
the workplace. (See id.) These considerations provide legitimate, non-discriminatory reasons
for terminating Plaintiff’s temporary detail, defeating an inference of discrimination. See Beshty
v. General Motors, 144 F. App’x 196, 196 (2d Cir. 2005) (finding that plaintiff’s confrontational
management style and failure to mentor and lead the group he was hired to supervise provided
legitimate, non-discriminatory rationale for his termination). This is especially true where, as
here, Plaintiff has not provided any evidence demonstrating pretext. See Joseph v. Owens &
Minor Distrib., Inc., 5 F. Supp. 3d 295, 313-14 (E.D.N.Y. 2014) (concluding that plaintiff failed
to establish prima facie case of discrimination where defendant articulated non-discriminatory
reason for termination, including complaints from customers, but plaintiff did not provide
evidence of pretext).
Furthermore, an inference against discrimination exists where the person who
participated in the allegedly adverse decision is also a member of the same protected class as a
plaintiff. Chan, 63 F. Supp. 3d at 294 (quoting Drummond v. IPC Int’l, Inc., 400 F. Supp. 2d
521, 532 (E.D.N.Y. 2005)); see Williams v. Brooklyn Union Gas Co., 819 F. Supp. 214, 225

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(E.D.N.Y.1993) (dismissing age discrimination claims where the employees responsible for
plaintiff’s termination were older than plaintiff or approximately the same age). Plaintiff was
removed from his temporary detail by Stremel and Roggenkamp. (See Singh Decl. Ex. D, at
00091.) Notably, Roggenkamp belongs to all of the same protected classes as Plaintiff: he is a
white, Caucasian, Catholic, American male and is two years older than Plaintiff. (See Singh
Decl. Ex. E, at 1, ECF No. 36-1.) Stremel belongs to all of the same protected classes as
Plaintiff, except for his age: Stremel is a white, Caucasian, Catholic, American male who is now
forty years old—and was therefore just outside of the protected age class at the time of the
alleged discrimination against Plaintiff. (See Singh Decl. Ex. D, at 1.) As to the difference in
age between Stremel and Plaintiff, there is no evidence that age was the “but-for” cause in
Stremel’s decision to terminate Plaintiff’s temporary detail, as is required to establish a prima
facie case under the ADEA. See Gorzynski, 596 F.3d at 106. Plaintiff has fallen far short of
establishing that his temporary detail was terminated for discriminatory reasons. As such, the
Court grants summary judgment in favor of Defendants as to this claim.
C. Plaintiff’s Other Discrimination Claims Do Not Involve Adverse Employment
Actions
Plaintiff alleges that he was discriminated against when Defendants: (1) denied his
request to temporarily work a modified schedule; (2) denied his request to have a particular
acting supervisor assigned to his station; (3) humiliated him at weekly staff meetings; and (4)
subjected him to a “witch hunt” after other employees complained that Plaintiff contributed to a
hostile work environment at the Forest Hills station. (See Compl. 5.) Defendants correctly argue
that none of these actions constitute adverse employment actions. “A plaintiff sustains an
adverse employment action if he or she endures a materially adverse change in the terms and
conditions of employment.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir.
15

2015). Such a change “must be more disruptive than a mere inconvenience.” Sanders v. New
York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (quoting Terry v. Ashcroft, 336
F.3d 128, 138 (2d Cir. 2003)). None of the alleged acts against Plaintiff meet this standard. See
Antonmarchi v. Consol. Edison Co. of New York, No. 03-cv-7735, 2008 WL 4444609, at *14
(S.D.N.Y. Sept. 29, 2008), aff’d, 514 F. App’x 33 (2d Cir. 2013) (denial of preferred schedule
did not constitute adverse action under Title VII); Galabya v. New York City Bd. of Educ., 202
F.3d 636, 640 (2d Cir. 2000) (definition of adverse employment action is a change of terms and
conditions of plaintiff’s own employment); Texas Dep’t of Community Affairs v. Burdine, 450
U.S. 248, 249 (1981) (an employer has discretion to choose among equally qualified candidates,
provided the decision is not based on unlawful criteria); Tepperwien v. Entergy Nuclear
Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011) (“[C]riticism of an employee (which is part of
training and necessary to allow employees to develop, improve and avoid discipline) is not an
adverse employment action.”); Tepperwien, 663 F.3d at 568-70 (distinguishing “materially
adverse” actions from “trivial slights” and determining that an investigation regarding plaintiff
that did not result in discipline was the latter).
III.

Hostile Work Environment
To prevail on a hostile work environment claim, a plaintiff must show that severe

“discriminatory intimidation, ridicule, and insult” permeated his workplace, altering the
conditions of his employment and creating an abusive work environment. Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir. 2000) (quoting Harris v. Forklift Sys., 510 U.S. 17, 21
(1993)). A plaintiff must generally identify more than episodic incidents and demonstrate that
the complained-of conduct was pervasive, continuous, and concerted. Alfano v. Costello, 294
F.3d 365, 374 (2d Cir. 2002). Isolated incidents, unless very serious, do not meet the threshold

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of severity or pervasiveness. Id. Complaints about ordinary managerial decisions will not
satisfy this standard. Crawford-Bey v. N.Y. & Presbyterian Hosp., No. 08-cv-5454, 2011 WL
4530193, at *8 (S.D.N.Y. Sept. 30, 2011). In addition, it is axiomatic that a plaintiff must
demonstrate that the conduct occurred because of his membership in a protected class. Alfano,
294 F.3d at 374 (citing Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)) (finding of
hostile work environment in gender discrimination context required demonstration that conduct
occurred because of plaintiff’s sex); accord Vito v. Bausch & Lomb Inc., 403 F. App’x 593, 595
(2d Cir. 2010).
Plaintiff maintains that he was the victim of a “campaign of harassment” beginning on
June 6, 2011. (Pl.’s 56.1 Statement 1.) Plaintiff testified that this “campaign” included “negative
responses” and comments that his work was “crap.” (See Singh Decl. Ex. U, at 49:10-17, 54:1315.) This conduct does not rise to the level of discriminatory intimidation, ridicule, or insult
actionable under hostile work environment claims. See Crawford-Bey, 2011 WL 4530193, at *8
(dismissing plaintiff’s hostile work environment claim where she failed to show that any
purportedly hostile remarks were intended to intimidate her and where she otherwise complained
of conduct that amounted to “ordinary management decisions”). Further, there is simply no
evidence that any of the conduct that Plaintiff argues gave rise to a hostile work environment was
at all related to his membership in any protected class. Accordingly, the Court grants summary
judgment as to Plaintiff’s hostile work environment claim.
IV.

Retaliation
Plaintiff claims that Defendants retaliated against him for his previous EEO-related

activity by: (1) terminating his temporary detail in Forest Hills early; (2) denying him the
promotion to the Fresh Meadows station, which Botman ultimately received; (3) conducting
investigations into Plaintiff’s character in Forest Hills; (4) denying Plaintiff a modified schedule
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in August 2011; and (5) declining to give the position of acting supervisor to Plaintiff’s first
choice candidate. (See Pl.’s 56.1 Statement 1-2, 4-5.)
To establish a prima facie case of retaliation under Title VII, a plaintiff must show: (1)
participation in a protected activity; (2) defendant’s knowledge of the same activity; and (3) an
adverse employment action (4) causally connected to the protected activity. Weber v. City of
N.Y., 973 F. Supp. 2d 227, 266 (E.D.N.Y. 2013) (citing Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam)). There can be no dispute
that Plaintiff engaged in protected EEO activity and that Defendants were aware of such activity.
However, the Court has already determined that the investigations, denied schedule modification,
and failure to select Plaintiff’s first choice candidate for the position of acting supervisor are not
adverse employment actions as a matter of law. Hence, the only actions at issue are the denied
promotion and the early termination of Plaintiff’s temporary detail. The remaining question is
whether those actions were causally linked to Plaintiff’s protected activity.
A plaintiff may establish a causal connection between protected activity and an adverse
employment action either through direct evidence of retaliatory animus or indirectly through
circumstantial evidence. Butler v. Potter, No. 06-cv-3828, 2009 WL 804722, at *11 (E.D.N.Y.
Mar. 26, 2009). The record is devoid of any direct evidence of retaliatory animus. For example,
there is no evidence that Defendants threatened Plaintiff or made comments that would indicate
that Defendants had any retaliatory motive. Cf. Mandell v. County of Suffolk, 316 F.3d 368, 383
(2d Cir. 2003) (direct evidence of retaliatory animus found where termination letter stated that
plaintiff was being moved for having “branded the entire department as racists and antisemites”); Douglas v. Hip Centralized Laboratory Services, Inc., No. 03-cv-205, 2005 WL
1074959, at *3 (E.D.N.Y. Apr. 29, 2005) (collecting cases and finding no direct evidence of

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retaliatory animus where plaintiff did not adduce evidence of retaliatory statements); cf.; Risna v.
American Broadcasting Companies, Inc., 219 F. Supp. 2d 568, 571, 573 (S.D.N.Y. 2002)
(finding direct evidence of retaliatory animus where email stated that plaintiff was being
removed from project because she had filed an EEOC charge against the company).
Where there is no direct evidence of retaliatory animus, proof of causation may be shown
indirectly by demonstrating that the protected activity was followed closely by a retaliatory
action. Butler, 2009 WL 804722, at *11 (citing Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d
Cir. 2001)). The Second Circuit has not defined a “bright line” setting the outer limits beyond
which a temporal relationship is too attenuated to establish a causal relationship. Frazier v. City
of N.Y. Dep’t of Correction, No. 14-cv-1224, 2016 WL 4444775, at *4 (E.D.N.Y. Aug. 23, 2016)
(citing Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d
Cir. 2001)). However, district courts in this Circuit have “consistently held that a passage of
more than two months between the protected activity and the adverse employment action does
not allow for an inference of causation.” Id. (collecting cases); see also Clark County School
District v. Breeden, 532 U.S. 268, 273-74 (2001) (citing with approval cases dismissing
retaliation claims where there was a three- to four-month gap between protected activity and
adverse employment action); Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d 552, 562
(S.D.N.Y. 2005) (“Three months is on the outer edge of what courts in this circuit recognize as
sufficiently proximate to admit of an inference of causation.”).
Here, Plaintiff filed two EEO complaints preceding this action on August 10, 2009, and
February 18, 2011. (See Defs.’ 56.1 Statement ¶¶ 71, 73.) Plaintiff’s temporary detail was
terminated on July 8, 2011, nearly five months after his last protected activity. (See id. ¶ 26.)
Plaintiff was denied the promotion to the Fresh Meadows station on March 7, 2012, more than

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one year after his last protected activity. (See Singh Decl. Ex. K, ECF No. 36-1.) The intervals
between Plaintiff’s EEO complaints and the adverse employment actions at issue are simply too
attenuated to support an inference of causation. Because Plaintiff has failed to establish a causal
connection between his EEO activity and the adverse employment actions, his retaliation claims
are dismissed.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is granted in its
entirety, and Plaintiff’s claims are dismissed, with prejudice.

SO ORDERED:
/s/ LDH
LASHANN DEARCY HALL
United States District Judge

Dated: Brooklyn, New York
March 31, 2017

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