Ehrhard v. Lahood
Filing
41
ORDER granting in part and denying in part 30 Motion for Summary Judgment; granting in part and denying in part 32 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the defen dant's motion for summary judgment is granted in part and denied in part. Specifically, defendant's motion for summary judgment with respect to plaintiff's claim of discrimination based upon his request for leave on June 27, 2007 is granted. The defendant's motion for summary judgment is denied in all other respects. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/28/2012. (O'Neil, Jacquelyn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-1793 (JFB) (AKT)
_____________________
GARY M. EHRHARD,
Plaintiff,
VERSUS
THE HONORABLE RAYMOND H. LAHOOD, SECRETARY OF THE U.S. DEPARTMENT OF
TRANSPORTATION,
Defendant.
___________________
MEMORANDUM AND ORDER
March 28, 2012
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Gary M. Ehrhard (“Ehrhard” or
“plaintiff”) brought this civil rights action
against his employer, the Honorable
Raymond H. Lahood, the Secretary of the
United States Department of Transportation
(“Lahood,” “Department” or “defendant”)
alleging the following: (1) employment
discrimination on the basis of gender in
violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., as
amended (“Title VII”); and (2) unlawful
retaliation for engaging in activities
protected by the aforementioned statute. In
particular, plaintiff, who is an air traffic
controller, asserts that female air traffic
controllers were entitled to special
arrangements for requesting leave for child
care purposes, and such arrangements were
not made available to him even when he
requested and was denied leave for child
care in June and August 2007. Moreover,
plaintiff contends that, when he complained
about this disparate treatment, he was
retaliated against in a number of ways
including, inter alia, the following: (1) the
denial of leave in August 2007; (2) being
required to provide a medical certificate for
sick leave; (3) being temporarily charged
AWOL in October 2007; (4) having his
annual leave cancelled in November and
December 2007; (5) the failure to investigate
a co-worker’s verbal assault; (6) failure to
investigate plaintiff’s claims of vandalism;
and (7) being sent home for violations of the
dress code (which, according to plaintiff,
was not enforced against other employees).
Plaintiff seeks actual, compensatory and
punitive damages, attorney’s fees and other
costs.
Ehrhard is married with two daughters who,
in 2007, were 8 and 11 years old. (Id. ¶ 5.)
Unless a family member was available,
plaintiff’s wife provided care for the
children. (Id.) Before September 2006,
plaintiff would take annual leave or convert
“credit hours” into annual leave to care for
his daughters when his wife or family
members were not available for child care.
(Id. ¶ 6.) After a New Collective Bargaining
Agreement went into effect in September of
2006, employees could no longer accrue an
unlimited amount of credit hours. (Id. ¶ 7.)
Plaintiff contends that, when he took annual
leave before September 2006, he did not
have to request that the leave was for child
care purposes. (Id. ¶ 6.)
The defendant now moves for summary
judgment. For the reasons set forth below,
the motion is granted in part and denied in
part. Specifically, defendant is entitled to
summary judgment for the gender
discrimination claim based upon the June
27, 2007 denial of leave because such claim
is time-barred and because plaintiff elected
an administrative remedy. However, the
defendant’s motion is denied in all other
respects. Construing the evidence in the
light most favorable to plaintiff, plaintiff has
pointed to sufficient evidence to create a
disputed issue of material fact as to whether
plaintiff
was
subject
to
gender
discrimination in connection with his
August 2007 leave request, and whether he
was subject to retaliation for complaining
about gender discrimination in connection
with leave requests.
I.
On June 25, 2007, plaintiff made a
request to his direct supervisor, Charles
Grandison (“Grandison”), for three hours of
Leave Without Pay (“LWOP”) on June 27,
2007. (Id. ¶ 8.) Defendant contends that
this request was made orally, while plaintiff
states that he made his request both verbally
and in writing. (Id., Def.’s 56.1 Statement
¶ 8.) Plaintiff does not recall if this was his
first request for LWOP. (Pl.’s 56.1 Counter
Statement ¶ 8.) According to plaintiff,
Grandison told him to submit a written
request to John Azzarone (“Azzarone”), the
Operations Manager at the time, while his
similarly situated female co-workers had
their requests for child care routinely
approved without submitting a written
request every time leave was needed. (Id.
¶ 9.) Conversely, defendant states that
Grandison told plaintiff that LWOP requests
could only be approved by the Facility
Manager, David LeCates (“LeCates”), upon
BACKGROUND
A.
The Facts
The facts, construed in the light most
favorable to plaintiff, the non-moving party,
see Capobianco v. City of New York, 422
F.3d 47, 50 (2d Cir. 2005), are as follows:
1. Plaintiff’s Request for Leave on June 27,
2007
Plaintiff is employed by the Federal
Aviation Administration (“FAA”), a
division of the Department of Transportation
(“DOT”), as an air traffic controller at the
New York Center in Ronkonkoma, New
York. (Pl.’s 56.1 Counter Statement ¶ 2.)1
Rule 56.1 statements contain specific citations to the
record to support their statements, the Court has cited
to the Rule 56.1 statements, rather than the
underlying citation to the record, when utilizing the
56.1 statements for purposes of this summary of
facts.
1
Where one party’s 56.1 Statement is cited, the other
party does not dispute the facts alleged, unless
otherwise stated. In addition, although the parties’
2
comments.
¶ 16.)
submission of an advance, written request,
which provided a sufficient reason for the
request.
(Def.’s 56.1 Statement ¶ 9.)
According to plaintiff, defendant failed to
respond to his request for LWOP until he
filed his complaint in this action. (Pl.’s 56.1
Counter Statement ¶ 10.) Moreover, when
plaintiff did not go to work for the three
hours requested, he was charged annual
leave rather than LWOP. (Id.) Plaintiff also
contends that he complained to Grandison
that his requests for leave were either denied
or ignored, while requests by his similarly
situated female co-workers were routinely
granted. (Id.)
(Pl.’s 56.1 Counter Statement
According to the defendant, before 2007,
Acampora, Molloy and Eddy were former
part-time employees. (Def.’s 56.1 Statement
¶ 18.) In April 2007, LeCates eliminated
part-time schedules. (Id.) In order to
accommodate
the
former
part-time
employees’ child care needs, LeCates
permitted the former part-time employees,
and others, to submit to him a single openended request for LWOP for child care
purposes. (Id.) LeCates then approved the
respective requests for open-ended LWOP
in writing and delegated the authority to
approve the requests on a case-by-case basis
to the employees’ direct supervisor. (Id.)
According to plaintiff, his female coworkers were able to verbally request
LWOP for child care without any
documentation to their direct supervisor and
their requests were almost always approved.
(Pl.’s 56.1 Counter Statement ¶ 18.)
On July 14, 2007, plaintiff filed a
grievance. (Id. ¶ 12.) Plaintiff’s grievance
complaint was that 17 days had passed since
he submitted his request to convert the three
hours of leave he used on June 27, 2007
from annual leave to LWOP and he still had
not received a response. (Id.) According to
defendant, plaintiff’s grievance was settled
by a Grievance Settlement Agreement dated
August 14, 2007. (Def.’s 56.1 Statement
¶ 14.) Pursuant to the Grievance Settlement
Agreement, plaintiff’s LWOP request was
approved, and his time and attendance
recorders were amended. (Id.)
2. Plaintiff’s Request for Leave on August
24, 2007
On June 26, 2007, plaintiff made a
written request for annual leave for the week
of August 20 through 24, 2007. (Id. ¶ 21.)
The request was approved for August 20 and
22, but was not approved August 21, 23 and
24. (Id.) On August 8, 2007, plaintiff
requested annual or sick leave under the
FMLA for August 24, 2007 to care for his
children. (Id. ¶ 22.) Grandison denied his
request on August 23, 2007. (Id.) By letter
dated August 28, 2007, plaintiff asked
Grandison to explain why his request for
leave was denied. (Id. ¶ 23.) Plaintiff
explained in his letter that he did not believe
he was receiving equal employment
opportunities since leave under FMLA was
being used on a regular basis by other
controllers. (Id.)
Plaintiff complained to Grandison that
he was treated differently from three
similarly situated female controllers, Tracey
Acampora (“Acampora”), Susan Barrett
(also known as Susan Molloy) (“Molloy” or
“Barrett”) and Elizabeth Eddy (“Eddy”)
because “the females in my area were
getting it [LWOP and FMLA leave]
approved on a regular basis and here I am
asking for three hours and they are giving
me the runaround, they are not answering
me, they are delaying.” (Id. ¶ 15.)
Plaintiff’s belief was based on viewing the
daily staffing sheets and co-worker
3
with the defendant, he never received a letter
like this. (Pl.’s 56.1 Counter Statement
¶ 29.) This requirement was imposed after
plaintiff complained to his supervisors that
he believed he was being treated differently
than his similarly situated female coworkers. (Id.) Plaintiff claims that, at the
September 2007 meeting, he provided
Grandison with medical documents and, out
of the sick leave plaintiff had taken, there
were only two instances when he could not
provide documentation.
(Id. ¶ 30.)
According
to
the
defendant,
the
memorandum did not restrict plaintiff’s use
of leave, but rather the memorandum
provided that he would be charged AWOL
for absences if upon his return he did not
provide medical certificates setting forth the
required information.
(Def.’s 56.1
Statement ¶ 30.) However, plaintiff claims
that,
when
he
provided
medical
documentation for his use of sick leave
while on restriction, he was told that the
documentation was insufficient. (Pl.’s 56.1
Counter
Statement
¶ 30.)
The
memorandum’s
requirements
expired
February 23, 2008. (Def.’s 56.1 Statement
¶ 31.)
Defendant contends that leave was
denied because plaintiff did not claim that
his children required care due to a serious
health condition. (Def.’s 56.1 Statement ¶
24.) Plaintiff, however, claims that his
similarly situated female colleagues did not
need to make a distinction between the
LWOP and FMLA for child care purposes
when making a leave request. (Pl.’s 56.1
Counter Statement ¶ 24.)
3. Alleged Retaliation as to Leave and
Attendance
a.
Temporarily Charged AWOL on
August 24, 2007
According
to
plaintiff,
Ehrhard
requested leave to care for his children on
August 24, 2007, but his request was denied.
(Id. ¶ 27.)
Plaintiff then advised the
supervisor on duty that he had no choice but
to stay home.
(Id.)
Plaintiff was
subsequently charged with AWOL. (Id.)
Being charged with AWOL can result in
loss of pay and/or disciplinary action. (Id.)
The AWOL charge was eventually
converted to another form of leave, but
plaintiff was not paid for said day until a
future pay period. (Id. ¶ 28.)
b.
c. Plaintiff is Temporarily Charged AWOL
on October 29 and 30, 2007
Sick Leave Medical Certificate
Memorandum
According to the defendant, plaintiff was
approved for sick leave on October 29 and
30, 2007, but upon his return failed to
submit the proper documentation as required
by the memorandum. (Id. ¶ 32.) Plaintiff
claims that he did not provide
documentation upon his return because he
believed that the leave had already been
approved and he did not know he had to
provide the documentation. (Pl.’s 56.1
Counter Statement ¶ 32.) Furthermore,
plaintiff states that he could not find
Grandison to give him his documentation
and, when he did find Grandison, Grandison
According to the defendant, at a meeting
on September 10, 2007, Grandison gave
plaintiff a memorandum dated August 23,
2007 (the “memorandum”) which advised
plaintiff that he made questionable use of his
sick leave from August 2006 to August 2007
and that he was directed to provide a
medical certificate for each absence due to
illness or injury to his supervisor of the first
shift upon returning from an absence.
(Def.’s 56.1 Statement ¶ 29.) Plaintiff states
that, in the sixteen years of employment
4
plaintiff did not have an annual balance
leave to cover all three days. (Id.) Plaintiff
did have sufficient credit hours to cover two
of three days, but Grandison said credit
hours could not be used for vacation leave.
(Id.) Plaintiff contends that he had a
sufficient balance of leave and credit hours
combined. (Pl.’s 56.1 Counter Statement
¶ 39.) Plaintiff also alleges that his similarly
situated female co-workers were permitted
to substitute credit hours for vacation leave
and never had their leave cancelled. (Id.)
said the documentation he produced was
insufficient. (Id.) Defendant contends that
on November 10, 2007, plaintiff gave a
medical certificate to Sam Shelton
(“Shelton”), the manager on duty for the
night shift, but the medical certificate given
to Shelton provided no detail. (Def.’s 56.1
Statement ¶ 34.)
According to the
defendant, plaintiff returned to the doctor
and obtained a medical certificate dated
November 16, 2007, and since the certificate
provided adequate information, plaintiff’s
leave was approved and he was paid for the
two days. (Id. ¶ 35.)
4. Alleged Retaliation as to Matters Other
than Leave and Attendance
d. Plaintiff’s Annual Leave for November
4 and 5, 2007 is Cancelled and Then
Reinstated
a. Failure to Investigate a Co-worker’s
Verbal Assault on Plaintiff and to
Reprimand Co-worker
James Dorrance (“Dorrance”), a
supervisor, approved plaintiff’s request for
annual leave on November 4 and 5, 2007.
(Pl.’s 56.1 Counter Statement ¶ 36.)
However, Grandison subsequently cancelled
the approved leave and gave it to Eddy
claiming that she had priority.
(Id.)
Defendant claims that, after the matter was
brought to the attention of Azzarone,
plaintiff’s leave was reinstated. (Def.’s 56.1
Statement ¶ 37.) Plaintiff does not recall if
his leave was reinstated. (Pl.’s 56.1 Counter
Statement ¶ 37.)
On August 7, 2007, plaintiff was
working the midnight shift and walked into
the controller lounge during his break. (Id.
¶ 41.) After plaintiff put a garbage container
by the door to let light in, a co-worker,
Carey Nussbaum, became irate, approached
plaintiff, and started shouting profanities.
(Id.) Plaintiff reported the incident and filed
a workplace violence complaint. (Id. ¶ 42.)
Defendant claims that, because the room
was dark, plaintiff could not see who
witnessed the incident and no one came
forward. (Def.’s 56.1 Statement ¶ 42.)
Plaintiff agrees that the room was dark and
he could not see who was there but Gerry
Henline, a controller, made a statement that
he witnessed the incident.
(Pl.’s 56.1
Counter Statement ¶ 43.) According to
defendant, Azzarone could not determine if
there were any witnesses to the incident and
ended his investigation.
(Def.’s 56.1
Statement ¶ 44.)
e. Grandison Cancelled Plaintiff’s Annual
Leave for December 29 through 31,
2007
Plaintiff scheduled vacation annual leave
for December 29 through 31, 2007. (Id.
¶ 38.) Vacation annual leave is bid 90 days
before the state of the calendar year and
awarded based on seniority. (Id. ¶ 39.) On
December 5, 2007, Grandison cancelled
plaintiff’s vacation leave.
(Def.’s 56.1
Statement ¶ 39.) Defendant claims that
Grandison cancelled the leave because
5
d. Grandison Tells Plaintiff That His Use
of Sick Leave Looked Suspicious
b. Grandson’s Alleged Failure to
Investigate Plaintiff’s Claims of
Vandalism
On March 19, 2009, Grandison told
plaintiff that his use of sick leave on March
14, 2009 looked suspicious. (Id. ¶ 53.)
Plaintiff’s union filed a charge on April 1,
2009 alleging that it was unfair labor
practice for Grandison to initiate this
conversation with plaintiff without giving
him the opportunity to have a union
representative present. (Id.) Plaintiff’s
union subsequently withdrew the charge and
the case was closed. (Id.)
On March 3, 2007, November 19, 2007
and January 31, 2008, plaintiff complained
to Grandison that his name strip was
vandalized by someone drawing red dots on
it and that the microphone from his headset
was taken. (Pl.’s 56.1 Counter Statement
¶ 45.) Grandison took no action although,
according to plaintiff, Azzarone issued a
memorandum, which did not mention any
particular incidents or names, discussing the
need for an environment free of harassment
after similar complaints were filed by Eddy.
(Id.) According to plaintiff, he complained
to Grandison on numerous occasions, but
nothing was ever done.
(Id. ¶ 46.)
Grandison advised plaintiff that he should
secure his belongings in a separate location
to prevent future vandalism; however, no
one else was required to store their
belongings away. (Id.)
5. Procedural History
Plaintiff filed an EEO complaint on
November 7, 2007, and then filed an
amended EEO complaint on January 14,
2008 and obtained a right to sue letter. On
April 30, 2009, plaintiff filed a complaint in
this Court. On August 17, 2009, plaintiff
filed an amended complaint. On March 14,
2011, defendant requested a pre-motion
conference in connection with the
defendant’s motion for summary judgment,
which was held on April 6, 2011. On June
1, 2011, defendant filed the summary
judgment motion. On July 8, 2011, plaintiff
filed his opposition papers. On July 21,
2011, defendant filed his reply. Oral
argument was held on October 18, 2011.
The Court has fully considered the
submissions and arguments of the parties.
c. Plaintiff is Sent Home and Charged with
1.5 Hours for Violations of Dress Code
On May 28, 2008, plaintiff was sent
home and charged with 1.5 hours of annual
leave. (Id. ¶ 50.)
According to the
defendant, the dress code prohibited certain
attire, including jeans, as inappropriate.
(Def.’s 56.1 Statement ¶ 51.) Plaintiff denies
that any other employee was sent home and
charged for wearing jeans to work. (Pl.’s
56.1 Statement ¶ 51.) Plaintiff filed a
grievance dated June 16, 2008 to contest his
loss of leave due to being sent home but it
was denied at steps 1 and 2 and not pursued
further. (Id. ¶ 52.)
II. STANDARD OF REVIEW
The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
6
significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at
249-50, 106 S. Ct. 2505 (citations omitted).
Indeed, “the mere existence of some alleged
factual dispute between the parties” alone
will not defeat a properly supported motion
for summary judgment. Id. at 247-48, 106
S. Ct. 2505 (emphasis in original). Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Group, Inc. v.
Horn & Hardart Co., 751 F.2d 69, 77 (2d
Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “‘merely
to assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986) (summary
judgment is unwarranted if “the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party”).
The Second Circuit has provided
additional guidance regarding summary
judgment motions in discrimination cases:
We have sometimes noted that an
extra measure of caution is merited
in affirming summary judgment in a
discrimination action because direct
evidence of discriminatory intent is
rare and such intent often must be
inferred
from
circumstantial
evidence found in affidavits and
depositions. See, e.g., Gallo v.
Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994).
Nonetheless, “summary judgment
remains available for the dismissal of
discrimination claims in cases
lacking genuine issues of material
fact.” McLee v. Chrysler Corp., 109
F.3d 130, 135 (2d Cir. 1997); see
also Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d
Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d
538 (1986) (emphasis in original)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
7
Before filing a lawsuit in federal court
under Title VII, a plaintiff must first exhaust
his administrative remedies. See, e.g.,
Briones v. Runyon, 101 F.3d 287, 289 (2d
Cir. 1996) (explaining that the exhaustion
requirement applies to both Title VII and
ADEA). For federal employees, the
procedures
for
exhausting
these
administrative remedies are contained in 42
U.S.C. § 2000e–16 and 29 C.F.R. part 1614.
See also 29 C.F.R. § 1614.103 (stating that
complaints under, inter alia, Title VII and
the ADEA, “shall be processed in
accordance with this part”).
Cir. 2001) (“It is now beyond cavil
that summary judgment may be
appropriate even in the fact-intensive
context of discrimination cases.”).
Schiano v. Quality Payroll Sys., 445 F.3d
597, 603 (2d Cir. 2006) (quoting Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d
Cir. 2001)).
III. DISCUSSION
Plaintiff alleges that he has been
discriminated against based on his gender in
violation of Title VII and that he has been
subjected to retaliation in violation of Title
VII for engaging in protected activity.
Defendant argues that the plaintiff’s gender
discrimination claim based upon the request
for leave on June 27, 2007 is untimely and
otherwise barred because plaintiff elected an
administrative remedy. Defendant further
contends that plaintiff’s remaining gender
discrimination and retaliation claims have
no merit.
These procedures require an employee
who believes he or she has been
discriminated against to take certain actions
within specified time limits. Specifically,
the employee must first consult with an EEO
counselor within forty-five days of the
allegedly discriminatory event, see 29
C.F.R. § 1614.105(a)(1), and then file a
formal complaint within fifteen days of
receiving notice that the counselor has failed
to resolve the claim. See 29 C.F.R.
§ 1614.105(d). After the filing of an
administrative complaint, the employee can
bring a federal lawsuit only within (i) ninety
days of receiving notice of a final
administrative decision, or (ii) 180 days of
the filing of the administrative complaint if
there has been no administrative action. 42
U.S.C. § 2000e–16(c); 29 C.F.R.
§ 1614.407; see also, e.g., Gelin v. Snow,
No. 02 Civ. 9641 (BSJ), 2005 WL 2456742,
at *6 (S.D.N.Y. Sept. 30, 2005).
For the reasons set forth below,
defendant’s motion is granted in part and
denied in part. In particular, the motion is
granted as to the leave request for June 27,
2007 and denied in all other respects.
A. The June 27, 2007 Gender Claim
As set forth below, plaintiff failed to
timely exhaust his administrative remedies
for his discrimination claim based on the
June 27, 2007 denial of LWOP, and has
failed to provide a basis for equitable tolling.
Thus, plaintiff’s gender discrimination claim
based on the June 2007 leave request is
time-barred. In any event, that claim is also
barred because plaintiff elected to proceed
through the union’s negotiated grievance
procedure. Accordingly, summary judgment
on this claim is warranted.
However, the 45-day time limit is
subject to equitable tolling. Bruce v. U.S.
Dep’t of Justice, 314 F.3d 71, 74 (2d Cir.
2002); Boos v. Runyon, 201 F.3d 178, 18485 (2d Cir. 2000) (considering whether
equitable tolling should apply to 45–day
time limit for contacting agency EEO
counselor). “When determining whether
8
this argument is unavailing.
Plaintiff
merely states that he contacted the EEO
about the ongoing and continuous
discrimination that plaintiff had been
subjected to, which included his issues with
the request for leave on June 27, 2007.
Apart from this conclusory statement,
plaintiff fails to provide any justification for
why his complaint regarding the June 27,
2007 leave request is timely or should be
equitably tolled. Thus, plaintiff has failed
to demonstrate how “the circumstances are
so extraordinary that the doctrine should
apply.” See Zerilli–Edelglass, 333 F.3d at
80-81.
equitable tolling is applicable, a district
court must consider whether the person
seeking application of the equitable tolling
doctrine (1) has ‘acted with reasonable
diligence during the time period she seeks to
have tolled,’ and (2) has proved that the
circumstances are so extraordinary that the
doctrine should apply.” Zerilli–Edelglass v.
N.Y.C. Transit Auth., 333 F.3d 74, 80-81 (2d
Cir. 2003) (quoting Chapman v. ChoiceCare
Long Island Term Disability Plan, 288 F.3d
506, 512 (2d Cir. 2002)); see also South v.
Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir.
1994) (noting that the principles of equitable
tolling do not extend to what “is at best a
garden variety claim of excusable neglect”
(citation and quotation marks omitted)).
The doctrine is “highly case-specific,” and
the “burden of demonstrating the
appropriateness of equitable tolling . . . lies
with the plaintiff.” Boos, 201 F.3d at 18485; Smith v. Chase Manhattan Bank, No. 97CV-4507 (LMM), 1998 WL 642930, at *3
(S.D.N.Y. Sept. 18, 1998) (“[A] court must
consider the equities of the excuse offered to
explain the delay and may extend the
limitations period if warranted.”).
In any event, even if the claim were not
time-barred, it is barred because he first
asserted it through the union’s negotiated
grievance procedure. It is well settled that a
complainant who files a grievance “may not
thereafter file a[n EEO] complaint on the
same matter under this part 1614
irrespective of whether the agency has
informed the individual of the need to elect
or of whether the grievance has raised an
issue of discrimination.”
29 C.F.R.
§ 1614.301(a); 5 U.S.C. § 7121(d); see also
Fernandez v. Chertoff, 471 F.3d 45, 52 (2d
Cir. 2006) (“By invoking the negotiated
procedure, the employee commits to
resolving his grievance in accordance with
the procedures prescribed in the collective
bargaining agreement between his union and
his employing agency.”); Delaney v.
LaHood, No. 07-CV-471 (JG)(WDW), 2009
WL 3199687, at *12 (E.D.N.Y. Sept. 30,
2009) (“when claims are brought via a
negotiated grievance procedure, plaintiffs
are barred from raising claims pertaining to
the same matter via a ‘statutory procedure’
and thus, from bringing an action under Title
VII”). In the instant case, plaintiff elected to
raise the matter of his LWOP request for
June 27, 2007 under the negotiated
grievance procedures of the 2006 Collective
Ehrhard failed to comply with these
procedural requirements as it relates to his
request for leave on June 27, 2007 and the
time limit is not subject to tolling. Plaintiff
made his request for LWOP for child care
purposes on June 25, 2007, and the matter
was concluded on August 14, 2007 when his
grievance on the matter was settled.
However, plaintiff contacted his EEO
counselor on October 5, 2007, which is
more than 45 days after August 14, 2007.
Thus, plaintiff failed to contact his EEO
counselor within 45 days of the incident as
required and his claim is, therefore,
untimely.
Plaintiff attempts to argue that equitable
tolling should apply in his case. However,
9
the requirements of the FMLA are not
dispositive of this claim. Moreover, when
the evidence is construed in the light most
favorable to plaintiff (including drawing all
reasonable inferences in his favor) under the
McDonnell Douglas framework, plaintiff
has created a disputed issue of material fact
as to whether the denial of his request for
leave on August 24, 2007 was based upon
his gender.
Bargaining Agreement by filing a grievance
on July 13, 2007.
Even though the
grievance did not specifically claim
discrimination, it unquestionably involved
the same matter as his Title VII claim
regarding his June 27, 2007 LWOP request
and, thus, is barred as a matter of law.
In sum, summary judgment is warranted
in defendant’s favor in connection with the
request for leave on June 27, 2007.
1.
B. Ehrhard’s Title VII Claim of Gender
Discrimination
Applicable Law
Title VII prohibits discrimination of an
employee based on his gender. See 42
U.S.C. § 2000e-2(a). Here, plaintiff claims
he has been discriminated against by
defendant on the basis of his gender.
Plaintiff also asserts a claim for gender
discrimination based upon his request for
leave for child care on August 24, 2007
either as annual leave or alternative sick
leave, which was denied. (Am. Compl.
¶¶ 27-29.) Defendant moves for summary
judgment on this claim arguing that FMLA
leave was not available to plaintiff because
the request did not involve the requisite
“serious health condition” of a child, but
rather was based upon the fact that
plaintiff’s wife was unable to care on that
day for plaintiff’s two daughters. See Def.’s
Memorandum of Law, at 9-10 (“Plaintiff’s
claim of discrimination must be dismissed
because DOT had a legitimate, nondiscriminatory reason for denying his
FMLA leave request: plaintiff was not
entitled to FMLA on August 24, 2007 leave
as a matter of law.”). As set forth below, the
Court concludes that the discrimination
claim survives defendant’s summary
judgment motion because the claim is
broader than an FMLA request. In
particular, plaintiff claims that he was also
denied annual leave for his child care needs
in August 2007, and also was not made
aware that female air traffic controllers were
being permitted to use LWOP leave for
child care through their direct supervisor in
an open-ended, special arrangement. Thus,
The “ultimate issue” in any employment
discrimination case is whether the plaintiff
has met his burden of proving that the
adverse employment decision was motivated
at least in part by an “impermissible reason,”
i.e., that there was discriminatory intent. See
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 146 (2000); Fields v. N.Y.
State Office of Mental Retardation & Dev’l
Disabilities, 115 F.3d 116, 119 (2d Cir.
1997). In the absence of direct evidence of
discrimination, a plaintiff in an employment
discrimination case usually relies on the
three-step McDonnell Douglas test. First, a
plaintiff must establish a prima facie case of
unlawful discrimination by showing that (1)
he is a member of a protected class, (2) who
performed his job satisfactorily, (3) but
suffered an adverse employment action, (4)
under circumstances giving rise to an
inference of discrimination (or retaliation).
See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 & n.13 (1973) (noting
that elements of prima facie case vary
depending on factual circumstances); see
also Stratton v. Dep’t for the Aging for the
10
Douglas’s minimal requirements of a prima
facie case” and to put forward “evidence
from which a factfinder could find that the
employer’s explanation . . . was false.”
James, 233 F.3d at 157. Instead, the key is
whether there is sufficient evidence in the
record from which a reasonable trier of fact
could find in favor of plaintiff on the
ultimate issue, that is, whether the record
contains sufficient evidence to support an
inference of discrimination. See id.;
Connell, 109 F. Supp. 2d at 207-08.
City of New York, 132 F.3d 869, 879 (2d
Cir. 1997).
Second, if the plaintiff establishes a
prima facie case, “a rebuttable presumption
of discrimination arises and the burden then
shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the
employment decision.” Stratton, 132 F.3d at
879; see Reeves, 530 U.S. at 142-43. The
purpose of this step is “to force the
defendant to give an explanation for its
conduct, in order to prevent employers from
simply remaining silent while the plaintiff
founders on the difficulty of proving
discriminatory intent.” Fisher v. Vassar
College, 114 F.3d 1332, 1335-36 (2d Cir.
1997) (en banc) abrogated on other grounds
by Reves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000).
As the Second Circuit observed in
James, “the way to tell whether a plaintiff’s
case is sufficient to sustain a verdict is to
analyze the particular evidence to determine
whether it reasonably supports an inference
of the facts plaintiff must prove –
particularly discrimination.” 233 F.3d at
157; see also Norton v. Sam’s Club, 145
F.3d 114, 118 (2d Cir. 1998) (“The thick
accretion of cases interpreting this burdenshifting framework should not obscure the
simple principle that lies at the core of antidiscrimination cases. In these, as in most
other cases, the plaintiff has the ultimate
burden of persuasion.”).
Third, if the employer articulates a
nondiscriminatory reason for its actions, the
presumption of discrimination is rebutted
and it “simply drops out of the picture.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993) (citation omitted); see James
v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d
Cir. 2000). The burden then shifts back to
the plaintiff to show, without the benefit of
any presumptions, that more likely than not
the employer’s decision was motivated, at
least in part, by a discriminatory reason. See
Fields, 115 F.3d at 120-21; Connell v.
Consol. Edison Co., 109 F. Supp. 2d 202,
207 (S.D.N.Y. 2000).
2.
Application
Defendant argues that the plaintiff’s
claim of discrimination based on plaintiff’s
request for FMLA leave on August 24, 2007
must be dismissed because the defendant
had a non-discriminatory reason for denying
plaintiff’s request for leave – namely, that
“[u]nder the CBA, at Article 26, section 4(d)
(Rule 56.1 Statement ¶ 24 and exhibit G),
and under the FLMA, 29 U.S.C.
§ 2612(a)(1)(c), FMLA leave is available
only if a child requires care due to a ‘serious
health condition.’” (Def.’s Memorandum of
Law at 10.) Here, plaintiff did not claim
that his children required care due to a
serious health condition, but rather sought
To meet this burden, the plaintiff may
rely on evidence presented to establish his
prima facie case as well as additional
evidence. Such additional evidence may
include direct or circumstantial evidence of
discrimination. Desert Palace, Inc. v. Costa,
539 U.S. 90, 99-101 (2003). It is not
sufficient, however, for a plaintiff merely to
show that he satisfies “McDonnell
11
leave “[f]or child care due to the fact that
my wife was going to be unable to care for
our two daughters (ages 8 and 11) on Friday
August 24, 2007.” (Def.’s 56.1 Statement
¶ 23, and Def.’s Exhibit M.)
Thus,
defendant contends that any denial of leave
under the FMLA could not be
discriminatory.
whether defendant’s denial of leave in
August 20007 was motivated by gender
discrimination.
As a threshold matter, in its motion
papers, defendant has failed to articulate any
reason for the denial of annual leave on
August 24, 2007.3 In any event, plaintiff
relies on additional evidence in the record to
raise genuine issues of fact as to whether his
request for child care was treated differently
than such requests by female air traffic
controllers.
However,
plaintiff’s
gender
discrimination claim as it relates to the
August 2007 request is not so narrow. As
noted supra, defendant concedes that
plaintiff initially also sought annual leave to
care for his children on August 24, 2011,
and that request was denied. (Def.’s 56.1
Statement ¶¶ 21-22.) Moreover, plaintiff
also alleges that he was not told by his
supervisor, in connection with either his
June 2007 request or August 2007 request
for child care leave, that female air traffic
controllers had a special arrangement that
allowed them to verbally request LWOP
leave for child care without any
documentation.
(Pl.’s 56.1 Counter
Statement ¶ 18.) Thus, defendant’s nondiscriminatory reason for denial of FMLA
claim does not address the other portions of
plaintiff’s gender discrimination claim in
connection with his August 2007 leave
request for child care reasons.2
In particular, plaintiff points to evidence
that he was not permitted to request time off
from his direct supervisor for child care,
while his similarly situated female
colleagues were permitted to do so on a
regular basis and it was routinely approved
without reference to whether it was under
FMLRA or LWOP. (See Pl.’s 56.1 Counter
Statement ¶ 24.) In particular, plaintiff relies
upon evidence that three female air traffic
controllers, who held the exact same job as
plaintiff, had a special arrangement for child
care requests.
(See id. ¶ 15-18, 89.)
Pursuant to this special arrangement, the
three female employees submitted a single
open-ended request for LWOP for child care
purposes to the Facility Manager. (Id. ¶ 18;
Def.’s 56.1 Statement ¶ 18.) The Facility
Manager approved the respective requests
for open-ended LWOP in writing and
delegated the authority to approve the
requests on a case-by-case basis to the
employees’ direct supervisor. (Def.’s 56.1
Statement ¶ 18.) According to plaintiff,
pursuant to this special policy, his female
co-workers were able to verbally request
LWOP for child care without any
documentation to their direct supervisor and
their requests were almost always approved.
Moreover, viewing the evidence in the
light most favorable to plaintiff, the Court
concludes that plaintiff has established a
prima facie case of gender discrimination,
and has met its burden of creating a genuine
issue of disputed facts on the issue of
2
The Court also notes that plaintiff contends that
similarly situated female colleagues with child care
issues were routinely permitted to take leave, without
indicating the reason for their request for child care,
nor did they have to indicate whether they were
taking FMLA or LWOP.
(Pl.’s 56.1 Counter
Statement ¶ 24.) Thus, he also suggested inconsistent
treatment based on gender even in connection with
FMLA request based on child care.
3
Although counsel for defendant argued at oral
argument that such a reason existed, it is not part of
the record before this Court.
12
Although defendants contend that these
employees were not similarly situated to
plaintiff as a matter of law, the Court
disagrees and finds that there is a genuine
issue of disputed fact on this point that
precludes summary judgment. It is wellsettled that a plaintiff can raise an inference
of discrimination by showing disparate
treatment – namely, that a similarly situated
employee outside the protected group
received more favorable treatment. See Int’l
Bhd. of Teamsters v. United States, 431 U.S.
324, 335 n.15 (1977); Mandell v. Cnty. of
Suffolk, 316 F.3d 368, 379 (2d Cir. 2003);
Norville v. Staten Island Univ. Hosp., 196
F.3d 89, 95 (2d Cir. 1999). The law does
not require the employees to be similarly
situated in all respects, but rather requires
that they be similarly situated in all material
respects. See McGuinness v. Lincoln Hall,
263 F.3d 49, 54 (2d Cir. 2001) (“A plaintiff
is not obligated to show disparate treatment
of an identically situated employee.”
(emphasis in original)); accord Shumway v.
United Parcel Serv., Inc., 118 F.3d 60, 64
(2d Cir. 1997). The Second Circuit has
further defined what the term “all material
respects” means in this context:
Pl.’s 56.1 Counter Statement ¶¶ 15-18, 89.)
Plaintiff recalled viewing the daily staffing
sheets at the New York Center and does not
recall any of the three female controllers
ever having their leave requests denied. (Id.
¶¶ 15-16.)
For example, pursuant to this policy, one
of the female air traffic controllers testified
that (1) prior to 2008, when making a
request for LWOP for child care purposes,
she was not required to make a written
request to have her leave granted, and could
request LWOP without submitting any
written documentation; (2) prior to 2008,
she requested, and was granted, LWOP as
often as two to three times per week; (3) she
requested Annual Leave thousands of times
during her career at the New York Center,
and does not recall ever having a previously
granted request for annual leave cancelled or
denied; and (4) when she wanted to
substitute her credit hours for annual leave,
she would simply make the change herself
on the appropriate form, and never had any
issues doing so. (Pl.’s 56.1 Statement
¶¶ 148-57.)
Defendant concedes that these three
female employees were permitted to submit
leave using this special procedure and
plaintiff was not. Moreover, defendant
concedes that the female employees are
employed in full-time air traffic controller
positions that are identical to the plaintiff’s
position. However, defendant contends that
they were not similarly situated to plaintiff
for two reasons. First, defendant asserts that
these female employees had been former
part-time employees and that this special
arrangement regarding leave requests for
child care was made upon their return to
full-time work. Second, defendant notes
that these female employees made a written
request to the Facility Manager for this
special arrangement.
What constitutes “all material
respects”. . . varies somewhat from
case to case and, as we recognized in
Norville, must be judged based on
(1) whether the plaintiff and those he
maintains were similarly situated
were subject to the same workplace
standards and (2) whether the
conduct for which the employer
imposed
discipline
was
of
comparable seriousness . . . . Hence,
the standard for comparing conduct
requires
a
reasonably
close
resemblance of the facts and
circumstances of plaintiff’s and
comparator’s cases, rather than a
showing that both cases are identical
13
In sum, viewing the evidence in the
light most favorable to plaintiff and drawing
all reasonable inferences in his favor, the
Court concludes that sufficient evidence
exists to raise an issue of material fact as to
whether defendant engaged in gender
discrimination in connection with the denial
of leave to plaintiff in August 2007.
Accordingly, summary judgment on the
gender discrimination claim based upon the
denial of the August 2007 leave request is
unwarranted.
. . . . The determination that two acts
are of comparable seriousness
requires – in addition to an
examination of the acts – an
examination of the context and
surrounding circumstances in which
those acts are evaluated.
Graham v. Long Island R.R., 230 F.3d 34,
40 (2d Cir. 2000) (internal citations
omitted). In the instant case, plaintiff is
comparing himself to female employees
with the identical job as plaintiff. Moreover,
as to plaintiff’s failure to make a written
request for the special arrangement, plaintiff
contends that he was unaware of the
availability of such a special arrangement
for male employees, and was never told
about it when he had the two disputes with
his supervisor about leave for child care.
Under these circumstances, the question of
whether these females, who previously had
part-time status, are similarly situated to
plaintiff cannot be resolved on summary
judgment. See Graham, 230 F.3d at 39
(“Whether two employees are similarly
situated ordinarily presents a question of fact
for the jury.”); see also Lizardo v. Denny’s,
Inc., 270 F.3d 94, 101 (2d Cir. 2001)
(same); cf. Curry v. City of Syracuse, 316
F.3d 324, 333 (2d Cir. 2003) (“It is well
established that ‘[c]redibility assessments,
choices between conflicting versions of the
events, and the weighing of evidence are
matters for the jury, not for the court on a
motion for summary judgment.’” (quoting
Fischl v. Armitage, 128 F.3d 50, 55-56 (2d
Cir. 1997))).
C. Ehrhard’s Title VII Claim of Retaliation
Plaintiff also asserts that defendant
retaliated against him after he made
complaints regarding gender discrimination
in connection with his leave requests. In
particular, plaintiff asserts that (1) from June
2007 through October 2007, he complained
to his supervisors that he was being treated
differently than his similarity situated
female colleagues regarding leave requests,
and (2) he filed a formal complaint with the
EEO alleging discrimination and retaliation,
that was amended on or about January 14,
2008. Plaintiff alleges that immediately
following his complaints he was subjected to
a myriad of adverse actions by his
supervisors designed to retaliate against him
for his protected activity. Defendant argues
that summary judgment is warranted on the
retaliation claim because, among other
things, the alleged actions are not materially
adverse actions, and plaintiff could not have
reasonably believed that his requests were
denied due to gender discrimination. As set
forth below, the Court concludes that there
is sufficient evidence in the record, when
construed most favorably to plaintiff, to
preclude summary judgment on the
retaliation claim.
Second, as noted supra, plaintiff also
points to evidence that while he was
required to indicate the type of leave he was
taking and the reason for his request, his
similarly situated female colleagues did not
have to indicate the reason for their request
nor did they have to indicate whether they
were taking FMLA or LWOP.
14
(2d Cir. 1988)). In determining whether a
plaintiff has satisfied this initial burden, the
court’s role in evaluating a summary
judgment request is “to determine only
whether proffered admissible evidence
would be sufficient to permit a rational
finder of fact to infer a retaliatory motive.”
Jute v. Hamilton Sundstrand Corp., 420
F.3d 166, 173 (2d Cir. 2005).
1. Legal Standard
Under Title VII, it is unlawful “for an
employer to discriminate against any of his
employees . . . because [the employee] has
opposed any practice made an unlawful
employment practice by [Title VII].” 42
U.S.C. § 2000e-3(a).
The Court evaluates a Title VII
retaliation claim under the three-step,
burden-shifting framework used for an
adverse employment claim, as established
by McDonnell Douglas Corporation v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L.Ed.2d 668 (1973). First, a plaintiff must
establish a prima facie case of retaliation by
demonstrating that “(1) the employee was
engaged in protected activity; (2) the
employer was aware of that activity; (3) the
employee suffered an adverse employment
action; and (4) there was a causal connection
between the protected activity and the
adverse employment action.” Gregory v.
Daly, 243 F.3d 687, 700 (2d Cir. 2001)
(quoting Reed v. A.W. Lawrence & Co., 95
F.3d 1170, 1178 (2d Cir. 1996)). The term
“protected activity” refers to action taken to
protest or oppose statutorily prohibited
discrimination. See 42 U.S.C. § 2000e-3;
see also Wimmer v. Suffolk County Police
Dep’t, 176 F.3d 125, 134-35 (2d Cir. 1999).
Informal as well as formal complaints
constitute protected activity. See Sumner v.
U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.
1990). Title VII protects not only those
employees who opposed employment
practices made unlawful by the statute but
also those who have “a good faith,
reasonable belief that the underlying
challenged actions of the employer violated
the law” even if those actions did not.
McMenemy v. City of Rochester, 241 F.3d
279, 283 (2d Cir. 2001) (quoting
Manoharan v. Columbia Univ. Coll. of
Physicians & Surgeons, 842 F.2d 590, 593
The burden then shifts to the defendant
to articulate a legitimate, non-discriminatory
reason for the employment action and if he
carries that burden, it shifts back to plaintiff
to demonstrate by competent evidence that
the reasons proffered by defendant were
pretext for retaliatory animus based upon the
protected Title VII activity. See Sista v.
CDC Ixis N. Am., Inc., 445 F.3d 161, 169
(2d Cir. 2006).
The Supreme Court has defined an
“adverse employment action” in the Title
VII retaliation context (distinct from and
broader than the standard in the Title VII
discrimination context) to mean an action
that is “materially adverse” and that “well
might have dissuaded a reasonable worker
from making or supporting a charge of
discrimination.” Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68,
126 S.Ct. 2405 (2006) (internal citations
omitted). In particular, “the significance of
any given act of retaliation will often depend
upon the particular circumstances.” Id. at
69, 126 S.Ct. 2405.
Furthermore, under Richardson v. New
York State Department of Correctional
Service, 180 F.3d 426, 444 (2d Cir. 1999),
abrogated on other grounds by Burlington
Northern, 548 U.S. at 68, 126 S.Ct. 2405,
the Second Circuit held that “unchecked
retaliatory co-worker harassment, if
sufficiently severe, may constitute adverse
employment action so as to satisfy [that
15
closely followed in time by the adverse
action.’”) (quoting Reed v. A.W. Lawrence
& Co., 95 F.3d 1170, 1178 (2d Cir. 1996)
(internal citation omitted)). Although the
Second Circuit “has not drawn a bright line
to define the outer limits beyond which a
temporal relationship is too attenuated to
establish a causal relationship between the
exercise of a federal constitutional right and
an allegedly retaliatory action[,]” GormanBakos v. Cornell Co-op. Extension, 252 F.3d
545, 554 (2d Cir. 2001), some district courts
have generally concluded that “a passage of
two months between the protected activity
and the adverse employment action seems to
be the dividing line.” Cunningham v.
Consol. Edison, Inc., No. 03 Civ.
3522(CPS), 2006 WL 842914, at *19
(E.D.N.Y. Mar. 28, 2006) (collecting cases).
However, because the Second Circuit has
found periods well beyond two months to be
sufficient to suggest a causal relationship
under certain circumstances, courts must
carefully consider the time lapse in light of
the entire record. See, e.g., Grant v.
Bethlehem Steel Corp., 622 F.2d 43, 45-46
(2d Cir. 1980) (holding eight-month gap
between EEOC complaint and retaliatory
action suggested a causal relationship); see
also Richardson, 180 F.3d at 446-47
(holding abusive acts within one month of
receipt of deposition notices may be
retaliation for initiation of lawsuit more than
one year earlier).
prong] of the retaliation prima facie case.”
Id. at 446; see also McWhite v. N.Y. City
Hous. Auth., No. 05 Civ. 0991 (NG)(LB),
2008 WL 1699446, at *11 (E.D.N.Y. Apr.
10, 2008) (applying Richardson to a
retaliatory hostile work environment claim);
Brown v. N.Y. State Dep’t of Corr. Servs.,
583 F. Supp. 2d 404, 421-22 (W.D.N.Y.
2008) (denying summary judgment on Title
VII retaliation claim in part on plaintiff’s
coworkers’ alleged retaliatory acts and
citing Richardson); Nugent v. St.
Luke’s/Roosevelt Hosp. Ctr., No. 05 Civ.
5109 (JCF), 2007 WL 1149979, at *13 (Apr.
18, 2007) (considering a retaliatory hostile
work environment claim).
Regarding the causal connection prong
of the retaliation inquiry, a plaintiff may
establish a causal connection between the
protected activity and the adverse
employment action either through direct
evidence of retaliatory animus, or by
circumstantial evidence. See Sumner v. U.S.
Postal Service, 899 F.2d 203, 209 (2d Cir.
1990) (holding that causal connection may
be
“established
indirectly
with
circumstantial evidence, for example, by
showing that the protected activity was
followed by discriminatory treatment or
through evidence of disparate treatment of
employees who engaged in similar conduct
or directly through evidence of retaliatory
animus”). Where there is no evidence of
retaliatory animus or a showing of disparate
treatment of fellow employees who engaged
in the same conduct, proof of causation may
be shown indirectly, by demonstrating that
the protected activity was followed closely
by retaliatory action. Gordon v. N.Y. City
Bd. of Educ., 232 F.3d 111, 117 (2d Cir.
2000); Cifra v. Gen. Elec. Co., 252 F.3d
205, 217 (2d Cir. 2001) (“[T]he causal
connection needed for proof of a retaliation
claim ‘can be established indirectly by
showing that the protected activity was
2. Application
As a threshold matter, defendant argues
that summary judgment on the retaliation
claim is appropriate because “plaintiff’s
belief that the three women received
unwarranted, preferential treatment was not
based on any information, but solely on
unsupported
speculation.”
(Def.’s
Memorandum of Law at 11.) However, as
discussed supra, the Court has concluded
16
1.5 hours for violation of the dress code.4 If
plaintiff is able to prove these allegations, a
rational jury could certainly conclude that
one or more of these actions were
“materially adverse” in a manner that “well
might have dissuaded a reasonable worker
from making or supporting a charge of
discrimination” Burlington, 548 U.S. at 68,
including by creating a retaliatory, hostile
work environment.5 Accordingly, summary
judgment on this ground is denied.
that the question of whether the three female
employees are similarly situated cannot be
resolved on summary judgment. For the
same reasons, the reasonableness of
plaintiff’s belief of gender discrimination as
it pertains to the elements of retaliation, also
cannot be resolved on summary judgment.
If plaintiff’s version of the evidence is
credited and all reasonable inferences are
drawn in his favor, a rational factfinder
could conclude that his belief that he was the
subject of gender discrimination was
reasonable and in good faith.
Thus,
summary judgment on this ground is
unwarranted.
Finally, the Court concludes that
plaintiff has pointed to evidence, when
construed most favorably to plaintiff, that is
sufficient to raise an inference of retaliation
that precludes summary judgment on this
claim.
Defendant’s argument that the alleged
retaliation is not sufficiently adverse as a
matter of law to constitute an adverse
employment action for purposes of
retaliation, is similarly unavailing. Plaintiff
alleges a whole panoply of adverse actions
that he alleges were retaliatory, including
the following: (1) Azzarone advised
plaintiff’s supervisors, without justification,
to deny any requests plaintiff made for
leave; (2) defendant issued plaintiff a sick
leave abuse letter and put him on sick leave
restriction; (3) Grandison denied plaintiff’s
medical certificate as insufficient and
charged him with AWOL; (4) plaintiff’s
requests for leave and shift swap requests
were denied without justification but granted
for plaintiff’s similarly situated co-workers;
(5) plaintiff’s previously approved shift
swaps and annual leave were cancelled and
denied; (6) plaintiff was prohibited from
using his credit hours towards annual leave
or vacation time while other employees were
permitted to do so; (7) defendant failed to
investigate a co-worker’s verbal assault on
the plaintiff; (8) Grandison failed to
investigate plaintiff’s claims of vandalism;
and (9) plaintiff was sent home and charged
First, many of the adverse actions cited
by plaintiff occurred in close proximity to
his protected activity. For example, plaintiff
states that he made his complaints of gender
discrimination beginning in late June and
July 2007, and within several months, he
4
In addition to the allegations in the amended
complaint, in plaintiff’s memorandum of law in
opposition to defendant’s motion for summary
judgment, plaintiff notes, inter alia, that: (1) plaintiff
was assigned to excessive training for committing an
operational error resulting in a cancelation of three of
his overtime shifts, (2) plaintiff was given the lowest
rating on his Contribution Assessment Decision Aid,
which resulted in plaintiff not receiving a salary
increase based on that assessment, and (3) plaintiff
was denied the opportunity to advance his career by
defendant not permitting him to act as an instructor to
other controllers at New York Center. (Pl.’s Memo.
at 17 (citing Pl.’s 56.1 Counter Statement ¶¶ 140142.))
5
Although defendant claims to lack notice that
plaintiff was asserting a retaliatory, hostile work
environment, such allegations are contained in the
amended complaint. (See, e.g., Am. Compl. ¶ 38 (“As
a result of defendant’s retaliatory animus and on or
about September 10, 2007, Plaintiff was placed on
sick leave restriction. [sic] Demonstrating adverse
action and hostile work environment due to plaintiff’s
formal complaints of gender discrimination as
provide [sic] in plaintiff’s prior EEO activity.”).)
17
was subject to the following alleged adverse
actions: (1) in August 2007, his request for
leave was denied; (2) a memorandum, dated
August 23, 2007, accused plaintiff of
questionable use of sick leave, and required
a medical certificate for each absence (and
such medical certificates were denied as
insufficient); (3) on August 7, 2007,
supervisors failed to investigate a coworker’s verbal assault on plaintiff; (4)
plaintiff was temporarily charged AWOL on
October 29 and 30, 2007;6 and (5) plaintiff’s
annual leave for November 4 and 5, 2007
was cancelled, and reinstated. Further,
plaintiff asserts that, after he filed his EEOC
complaint in on November 7, 2007, he was
subject to the following retaliation within
several months of that formal complaint: (1)
Grandison cancelled plaintiff’s annual leave
for December 29 through 31, 2007; (2)
Grandison failed to investigate plaintiff’s
claims of vandalism on November 19, 2007
and January 31, 2008. Thus, the close
proximity of many of the alleged retaliatory
acts to the protected activity provides an
inference or retaliation.
his approved request for annual leave was
subsequently cancelled or denied which
rarely, if ever, occurred with other
employees. (Pl.’s 56.1 Statement ¶¶ 138-39,
156.)
In sum, having reviewed the record, and
construing the evidence most favorably to
plaintiff, the Court concludes that plaintiff
has put forth sufficient circumstantial
evidence of a causal connection between his
complaints about defendant and the alleged
adverse action to survive summary judgment
on the retaliation claim. Given the short
time period between the protected activity
and the complained of retaliatory action, and
viewing these facts in the light most
favorable to the plaintiff, and drawing all
reasonable inferences therefrom, the Court
declines to rule that no reasonable jury could
determine that plaintiff’s protected activity
and the ensuing acts of alleged retaliation
were not causally connected. Moreover,
viewing the evidence in the light most
favorable to the plaintiff, a reasonable juror
could also find that the alleged acts by
defendant could have dissuaded a reasonable
worker from making or supporting a charge
of discrimination, and that plaintiff’s belief
of gender discrimination was reasonable and
in good faith. Thus, summary judgment on
the retaliation claim is unwarranted.
Second, with respect to many of these
alleged acts, plaintiff points to evidence that
no other employees were subject to this
treatment. For example, plaintiff asserts that
his requests for leave were denied without
justification, while the same requests were
granted for others. (Pl.’s 56.1 Statement
¶¶ 131-34.) In addition, plaintiff contends
that his requests for shift swaps were denied
or cancelled, while almost always granted
for plaintiff’s co-workers.
(Pl.’s 56.1
Statement ¶¶ 15-18, 135-36.)
Plaintiff
further contends that he was prohibited from
using his credit hours towards annual leave
or vacation time, while other employees
were permitted to do the same. (Pl.’s 56.1
Statement ¶ 139.) Plaintiff also claims that
6
Plaintiff claims his complaints of gender
discrimination continued into October 2007.
18
IV. CONCLUSION
For the reasons set forth above,
defendant’s motion for summary judgment
is granted in part and denied in part.
Specifically, defendant’s motion for
summary judgment with respect to
plaintiff’s claim of discrimination based
upon his request for leave on June 27, 2007
is granted. The defendant’s motion for
summary judgment is denied in all other
respects.
SO ORDERED.
_________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 28, 2012
Central Islip, NY
***
Plaintiff is represented by Bruce E. Wingate,
Esq., Kyle T. Pulis, Esq., and Scott M.
Mishkin, Esq., of Scott Michael Mischkin,
PC, One Suffolk Square, Suite 240, Islandia,
New York, 11749. Defendant is represented
by Vincent Lipari, Esq., of the United States
Attorneys Office, Eastern District of New
York , 610 Federal Plaza, 5th Floor, Central
Islip, NY 11722.
19
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