Watson v. Geithner
Filing
59
OPINION AND ORDER re: (28 in 1:10-cv-07282-HBP, 29 in 1:10-cv-03948-HBP, 41 in 1:09-cv-06624-HBP) MOTION for Summary Judgment. filed by Timothy F. Geithner, Department of the Treasury, Department of Treasury, (56 in 1:09-cv-06624-HBP, 43 in 1:10-cv-0 7282-HBP, 44 in 1:10-cv-03948-HBP) MOTION to Dismiss Pursuant to 28 U.S.C. 1915(e)(2). MOTION to Dismiss Pursuant to 28 U.S.C. 1915(e)(2). filed by Timothy F. Geithner, Department of the Treasury, Department of Treasury. For all the f oregoing reasons, I grant defendant's motion for summary judgment and dismiss the complaints in the Consolidated Actions in their entirety. The Clerk of the Court is directed to close (1) Docket Items 41 and 56 in 09 Civ. 6624;(2) Docket Items 2 9 and 44 in 10 Civ. 3948 and (3) Docket Items 28 and 43 in 10 Civ. 7282, and to mark all three matters closed. (Signed by Magistrate Judge Henry B. Pitman on 9/27/2013) Filed In Associated Cases: 1:09-cv-06624-HBP, 1:10-cv-03948-HBP, 1:10-cv-07282-HBP Copies Mailed and Sent By Chambers. (djc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
ROSETTA WATSON,
:
Plaintiff,
-against-
:
09 Civ. 6624 (HBP)
:
TIMOTHY F. GEITHNER, Secretary,
Department of the Treasury,
:
:
Defendant.
:
-----------------------------------X
ROSETTA WATSON,
:
Plaintiff,
-against-
:
10 Civ. 3948 (HBP)
:
TIMOTHY F. GEITHNER, Secretary,
Department of the Treasury,
:
:
Defendant.
:
-----------------------------------X
ROSETTA WATSON,
:
Plaintiff,
-against-
:
10 Civ. 7282 (HBP)
:
TIMOTHY F. GEITHNER, Secretary,
Department of the Treasury,
:
OPINION
& ORDER
:
Defendant.
:
-----------------------------------X
PITMAN, United States Magistrate Judge:
I.
Introduction
In these three actions, plaintiff alleges that she was
discriminated against on the basis of her race, gender, age and
disability.
She also alleges that she has been the victim of
illegal retaliation and subjected to a number of adverse employment actions as a result of the discrimination, including disparate treatment and harassment.
Defendant moves for an Order
granting him summary judgment pursuant to Fed.R.Civ.P. 56 on the
grounds that (1) there is no evidence to establish certain of the
elements of a prima facie case of discrimination or retaliation,
and (2) defendant had legitimate, non-discriminatory and nonretaliatory reasons for the putatively adverse employment actions
(Docket Item 411).
Defendant also moves for an Order dismissing
the complaint pursuant to 28 U.S.C. § 1915(e)(2)(A) on the ground
that plaintiff has falsely claimed poverty in order to be granted
leave to proceed in forma pauperis (Docket Item 56).
The parties have consented to my exercising plenary
jurisdiction over the consolidated actions pursuant to 28 U.S.C.
¶ 636(c).
For the reasons set forth below, defendant's motion
for summary judgment dismissing plaintiff's complaints is granted
1
Unless otherwise stated, all Docket Items cited herein
refer to the lead case, 09 Civ. 6624.
2
on the grounds that:
(1) there is no evidence to establish at
least one element of a prima facie case of either discrimination
or retaliation and (2) plaintiff has failed to rebut the legitimate, non-retaliatory and non-discriminatory reasons proffered by
defendant for the allegedly adverse employment actions.
II.
Facts2
A.
Background
Plaintiff is an African-American woman, 65 years of
age, who has worked for the Internal Revenue Service ("IRS")
since February 1988 (Transcript of Deposition of Rosetta Watson,
conducted on July 7 and July 14, 2011 ("Consol. Actions Dep."),
at 24-25, 45, annexed as Exhibit A to the Declaration of AUSA
Bertrand Madsen, dated June 1, 2012 (Docket Item 45)).
At the
time of the events in issue, plaintiff worked as a secretary at
the IRS's Wage and Investment Operating Division in Manhattan;
among other things, she typed, prepared materials for mailings,
answered the telephone and filed taxpayer forms (see Consol.
Actions Dep. at 30-31, 51-52, 463-64).
2
Because I find it unnecessary to address defendant's contention that plaintiff misrepresented her financial status in
order to be granted leave to proceed in forma pauperis, I omit
all facts concerning that argument.
3
During her tenure with the IRS, plaintiff has filed
approximately twenty-one complaints with the agency's Equal
Employment Opportunity ("EEO") office and has commenced five
discrimination actions against the IRS in this Court (Watson v.
Paulson, 04 Civ. 5909 (VM)(HBP) ("Watson I"); Watson v. Geithner,
09 Civ. 6624 (HBP) ("Watson II"); Watson v. Geithner, 10 Civ.
3948 (HBP) ("Watson III"); Watson v. Geithner, 10 Civ. 7282 (HBP)
("Watson IV"); Watson v. Geithner, 11 Civ. 9527 (AJN)(HBP)
("Watson V")).
The Honorable Victor Marrero, United States
District Judge, granted the IRS's motion for summary judgment and
dismissed the complaint in Watson I.
Watson v. Paulson, 578 F.
Supp. 2d 554 (S.D.N.Y. 2008), aff'd, 355 F. App'x 482 (2d Cir.
2009).
On August 8, 2013, I issued a Report and Recommendation
to the Honorable Alison J. Nathan, United States District Judge,
recommending that defendant's motion for summary judgment be
granted and that the complaint in Watson V be dismissed (Docket
Item 28 in 11 Civ. 9527).3
Watson II, Watson III and Watson IV
have been consolidated and are the subjects of the motion considered herein ("Consolidated Actions").
According to plaintiff, the relevant acts of illegal
discrimination and retaliation started in 2002 (see Watson III
3
Plaintiff filed her objections to my report and recommendation on August 28, 2013 (Docket Item 31 in 11 Civ. 9527).
4
Amended Complaint ¶ 3).
Although plaintiff alleges illegal
discrimination, at her deposition, she has consistently maintained that she has been treated unfairly because her superiors
have conspired with outside attorneys and unidentified thirdparty "operatives" who are out to retaliate against her as a
result of her efforts to bring to light the illegal activities of
the attorneys.
Specifically, plaintiff claims that the conspir-
acy resulted from her attempts to expose the fraudulent conduct
of two attorneys, one of whom represented her in 1993 in connection with an automobile accident (Consol. Actions Dep. at 59).
According to plaintiff, after her personal injury action was
concluded, the attorney who represented her in that action, Alan
S. Ripka, along with another attorney named Seth R. Rotter, "used
[plaintiff's] name and medical records to sue Waldbaums and
Wyckoff Supermarkets fraudulently in a personal injury case that
developed from an actual car accident that occurred while [plaintiff] was a passenger" (Consol. Actions Dep. at 65).
Plaintiff
claims that Ripka "used [plaintiff's] name fraudulently to
receive a million dollars off the books [and] used [plaintiff's]
medical records, [her] name and sued [the] two supermarkets
. . ." (Consol. Actions Dep. at 65).
Plaintiff claims that she
discovered the alleged fraud when she reviewed certain unidentified court records while serving as a juror in New York State
5
Supreme Court, Kings County, sometime in 1995, 1996 or 1997 (see
Consol. Actions Dep. at 65-66, 70, 75).
Plaintiff further claims
that she reported Ripka and Rotter's allegedly fraudulent conduct
and their failure to pay taxes on their allegedly ill-gotten gain
to the IRS, and the IRS retaliated against her for reporting the
crime (Consol. Actions Dep. at 73).
According to plaintiff,
after she reported the conduct to the IRS, suspicious vehicles
began to park outside her house and workplace, and unknown
individuals began to follow her (see Consol. Actions Dep. at 7578).
Plaintiff believes that she continues to be followed
(Consol. Actions Dep. at 79).
Specifically, plaintiff claims that in addition to
their own efforts to intimidate her, the lawyers have bribed a
number of IRS employees so that they will not investigate Ripka's
wrongdoing and will join in the program to intimidate plaintiff4
(see Consol. Actions Dep. at 85-86, 90-92, 161, 364-67); she
further claims that these activities have continued up to the
date of the events giving rise to this action.
The conspirators
allegedly paid off plaintiff's superior -- Ann Jones-Moffatte --
4
In addition to "buying off" certain employees of the IRS,
plaintiff believes that the third-party operatives are bribing
employees of the U.S. Postal Service, certain family members, her
dentist, her medical doctor and certain neighbors to join in the
conspiracy against her (see Consol. Actions Dep. at 80, 84, 85,
180).
6
by buying cars for Jones-Moffatte and her daughter, giving cash
to her family members and helping her son get into college -- all
in an effort to persuade Jones-Moffatte to participate in the
conspiracy to intimidate plaintiff (see Consol. Actions Dep. at
100-04).
Among other things, plaintiff believes the conspirators
have broken into her home and stolen clothing and kitchen supplies, filled a bathtub above her apartment with cement, tampered
with her mail, tried to run her over and dug a hole in plaintiff's backyard, into which she has fallen (see Consol. Actions
Dep. at 106-07, 182, 285).
Plaintiff also believes that the
conspirators have bribed Judge Marrero and myself to issue
decisions adverse to her (see Consol. Actions Dep. at 111-12).
Plaintiff has repeatedly testified that the participation of her superiors in the alleged conspiracy is the sole
motivating factor for the allegedly adverse actions she claims to
have suffered in these Consolidated Actions.
For example,
plaintiff testified as follows:
Q.
And that's not just for one of your complaints,
but you mean for all three of the complaints that
are consolidated in this action, Ann JonesMoffatte, you allege, is responsible for the adverse actions that were taken against you?
A.
Yes.
Q.
We discussed your theory as to why Ann JonesMoffatte and others are taking these adverse actions against you, correct?
7
A.
Yes.
Q.
And to summarize -- and correct me if I'm wrong -it's because outside operatives are paying them
monies or giving them other benefits to take adverse actions against you?
A.
Yes.
*
*
*
Q.
And your allegation is that those attorneys attempted to use your personal information to initiate another lawsuit unrelated to you?
A.
Yes.
Q.
Then you reported that use of your personal information to the IRS?
A.
Yes.
Q.
And after that, these two attorneys started paying
off people at the IRS, apparently paying them not
to respond to the allegations you made?
A.
I believe that, yes.
Q.
And your theory is that in return for the payments
they were receiving, folks at the IRS were receiving, they started doing these bad things to you?
A.
Yes.
Q.
As you sit here today, are you aware of other
reasons, unrelated to these payoffs, why people at
the IRS have taken these adverse actions against
you?
A.
That's the only reason. Because I was in the IRS
prior to my being sabotaged and harassed approximately 14 years, and I didn't have that problem.
It all began whenever I submitted documentation to
TIGTA -- well, they were called "Inspection" then,
and that's when the problems began. I was fol-
That was Alan S. Ripka and Seth R. Rotter.
8
lowed, my home was broken into on more than one
occasion, items were stolen, items were left.
*
*
*
Q.
Let me ask you one more time. When it comes to
Ann Jones-Moffatte, is there any other reason you
think she's taking adverse actions against you
other than the fact that she's being paid off?
A.
I don't believe that she would have taken any
adverse reactions against me other than she had an
incentive, and the incentive is money, amenities,
and she's benefitting. And I've told her that to
her face on more than one occasion and she's never
denied it.
(Consol. Actions Dep. at 363-67 (emphasis added)).
Plaintiff further testified that she has filed her
lawsuits to put an end to the alleged conspiracy:
Q.
Is that one of the things that you want to get out
of this case, is to make these conspirators leave
you alone?
A.
Yes. That’s more important than anything else.
That’s why I said if that happens, I would drop
everything and I wouldn’t even want monetary paybacks.
(Consol. Actions Dep. at 298) (emphasis added).
9
B.
The Bases for
the Present Actions
The present actions arise out of the following allegations.5
Plaintiff does not identify which alleged incidents she
believes were discriminatory and which were retaliatory.
(1) Throughout 2002, plaintiff's leave and earnings
statements were withheld by the IRS (Watson III Amended
Complaint ¶ 3).
(2) In January 2003, the IRS cancelled plaintiff's
government-issued credit card after another employee used it
to purchase office supplies without plaintiff's permission
(Watson III Amended Complaint ¶ 4).
(3) Also in 2003, Jones-Moffatte failed to provide
plaintiff with an executed version of a 2002 annual performance appraisal (Watson III Amended Complaint ¶ 1).
(4) Plaintiff reported to the Treasury Inspector General for Tax Administration ("TIGTA") on March 24, 2003,
that "large square boxes" were appearing on her computer
5
I do not address defendant's contention that the administrative judges assigned to plaintiff's EEO cases were bribed by
the IRS and "outside operatives" to dismiss her claims (Watson
III Amended Complaint ¶¶ 16-17). The Honorable Loretta A.
Preska, United States District Judge, previously dismissed this
contention in an Order dated May 12, 2010 on the basis of the
doctrine of judicial immunity (Docket Item 3 in 10 Civ. 3948).
10
screen, indicating to plaintiff that someone had tampered
with the computer (Watson III Amended Complaint ¶ 2).
(5) In April 2003, plaintiff discovered that her employee personnel folder was missing and TIGTA refused to
investigate the incident (Watson III Amended Complaint ¶ 5).
(6) Plaintiff discovered in 2003 that her insurance
policy had been cancelled by the IRS (Watson III Amended
Complaint ¶ 15).
(7) In 2003 or 2004, plaintiff was informed that she
would be reassigned to a different location (Watson III
Amended Complaint ¶ 6).
(8) From 2003 to 2004, the IRS withheld plaintiff's
annual performance appraisal checks from her (Watson III
Amended Complaint ¶ 16).
(9) In June 2004, plaintiff failed to receive a refund
check in the amount of $52.11 from the IRS (Watson III
Amended Complaint ¶ 7).
(10) Plaintiff received approval for an order of office
supplies that was later reduced by the IRS in June 2004, and
the task of ordering supplies using an automated tracking
system was re-assigned to a Caucasian employee (Watson III
Amended Complaint ¶¶ 8-11).
11
(11) In December 2004, Jones-Moffatte withheld plaintiff's official personnel folder from her (Watson III Amended Complaint ¶ 12).
(12) Also in December 2004, plaintiff requested a copy
of her 2000 tax return from the IRS and the IRS failed to
provide it (Watson III Amended Complaint ¶ 13).
(13) In June 2005, the IRS delayed sending plaintiff an
award settlement check in the amount of $81.75 (Watson III
Amended Complaint ¶ 14).
(14) Sometime in 2006, Jones-Moffatte assigned additional tasks to plaintiff that plaintiff believed fell
outside the scope of her expected work duties (see Consol.
Actions Dep. at 148).
(15) Plaintiff did not receive an annual performance
appraisal until June 2007, which was approximately six
months late (Watson II Complaint ¶ E).
(16) In April 2007, plaintiff discovered that supplies
were missing from her cabinet; she confronted Jones-Moffatte
about this, and Jones-Moffatte retaliated against plaintiff
by falsely accusing plaintiff of hoarding taxpayer documents
in her file cabinet (Consol. Actions Dep. at 131-32; Watson
II Complaint ¶ E).
12
(17) Plaintiff requested that TIGTA file criminal
charges against Jones-Moffatte in 2008 for falsely accusing
plaintiff of keeping taxpayer documents in her cabinet, and
TIGTA refused to do so (Watson II Complaint ¶ E).
(18) Plaintiff was unfairly reprimanded for failing to
record her work time in 2008 (Dep't of Treas. Final Agency
Decision (TD No. IRS-08-0381-F) ("Treas. Decision"), dated
Feb. 10, 2009, at 6-7, annexed to the Watson II Complaint).
(19) In 2009, the IRS informed plaintiff that her
printer in her workstation would be removed, which caused
her blood pressure to rise (Watson IV Complaint ¶ E).
III.
Analysis
A.
Summary Judgment Standards
The standards applicable to a motion for summary
judgment are well-settled and require only brief review.
Summary judgment may be granted only where there
is no genuine issue as to any material fact and the
moving party . . . is entitled to a judgment as a
matter of law. Fed.R.Civ.P. 56(c). In ruling on a
motion for summary judgment, a court must resolve all
ambiguities and draw all factual inferences in favor of
the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). To grant the motion, the court must determine
that there is no genuine issue of material fact to be
tried. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine
13
factual issue derives from the "evidence [being] such
that a reasonable jury could return a verdict for the
nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct.
2505. The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), or by a factual
argument based on "conjecture or surmise," Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The Supreme Court teaches that "all that is required [from a
nonmoving party] is that sufficient evidence supporting
the claimed factual dispute be shown to require a jury
or judge to resolve the parties' differing versions of
the truth at trial." First Nat'l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575,
20 L.Ed.2d 569 (1968); see also Hunt v. Cromartie, 526
U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999).
It is a settled rule 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."
Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006); accord Hill
v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011); Jeffreys v. City
of New York, 426 F.3d 549, 553-54 (2d Cir. 2005); Powell v. Nat'l
Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004).
"Material facts are those which 'might affect the outcome of the suit under the governing law,' and a dispute is
'genuine' if 'the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'"
Coppola v. Bear
Stearns & Co., Inc., 499 F.3d 144, 148 (2d Cir. 2007), quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.
14
2007).
"'[I]n ruling on a motion for summary judgment, a judge
must ask himself not whether he thinks the evidence unmistakably
favors one side or the other but whether a fair-minded jury could
return a verdict for the [non-movant] on the evidence presented[.]'"
Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778,
788 (2d Cir. 2007), quoting Readco, Inc. v. Marine Midland Bank,
81 F.3d 295, 298 (2d Cir. 1996).
Summary judgment is "ordinarily inappropriate" in
employment discrimination cases where the employer's intent and
state of mind are in dispute.
Carlton v. Mystic Transp., Inc.,
202 F.3d 129, 134 (2d Cir. 2000); Cifarelli v. Vill. of Babylon,
93 F.3d 47, 54 (2d Cir. 1996); see Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994);
Montana v. First Fed. Sav. & Loan Ass'n of Rochester, 869 F.2d
100, 103 (2d Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 998 (2d
Cir. 1985).
Moreover, in discrimination cases,
summary judgment may not be granted simply because the
court believes that the plaintiff will be unable to
meet his or her burden of persuasion at trial . . . .
There must either be a lack of evidence in support of
the plaintiff's position, . . . or the evidence must be
so overwhelmingly tilted in one direction that any
contrary finding would constitute clear error.
Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998)
(footnote and citations omitted).
See Risco v. McHugh, 868 F.
Supp. 2d 75, 98 (S.D.N.Y. 2012) (Ramos, D.J.).
15
When deciding whether summary judgment should be
granted in a discrimination case, we must take additional considerations into account. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir.
1994). "A trial court must be cautious about granting
summary judgment to an employer when, as here, its
intent is at issue." Id. "[A]ffidavits and depositions must be carefully scrutinized for circumstantial
proof which, if believed, would show discrimination."
Id. Summary judgment remains appropriate in discrimination cases, as "the salutary purposes of summary
judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases
than to . . . other areas of litigation." Weinstock,
224 F.3d at 41 (internal quotation marks omitted); see
also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d
456, 466 (2d Cir. 2001) ("It is now beyond cavil that
summary judgment may be appropriate even in the
fact-intensive context of discrimination cases.").
Desir v. City of New York, 453 F. App'x 30, 33 (2d Cir. 2011)
(alteration in original).
B.
Application of the
Foregoing Principles
Claims of discrimination on the basis of race, gender,
age and disability are properly analyzed under the now familiar
framework first set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973).
E.g., Men of Color Helping All Soc.,
Inc. v. City of Buffalo, 12–3067–CV, 2013 WL 3285208 at *3 (2d
Cir. July 1, 2013) (race discrimination); Ben-Levy v. Bloomberg,
L.P., 518 F. App'x 17, 18-19 (2d Cir. 2013) (age and disability
discrimination); McMillan v. City of New York, 711 F.3d 120, 125
16
(2d Cir. 2013) (disability discrimination); Bir v. Pfizer, Inc.,
510 F. App'x 29, 30 (2d Cir. 2013) (gender discrimination);
Rubinow v. Boehringer Ingelheim Pharms., Inc., 496 F. App'x 117,
118 (2d Cir. 2012) (age discrimination).
Under the McDonnell Douglas framework, plaintiff's
claims are assessed through a three-part, burden-shifting analysis:
[T]he initial burden rests with the plaintiff to establish a prima facie case of discrimination. "A plaintiff's establishment of a prima facie case gives rise
to a presumption of unlawful discrimination" that then
"shifts the burden of production to the defendant, who
must proffer a 'legitimate, nondiscriminatory reason'
for the challenged employment action." Woodman v.
WWOR-TV, Inc., 411 F.3d [69, 76 (2d Cir. 2005),] quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d
87, 91 (2d Cir. 2001)[]. If the defendant satisfies
this burden, "the presumption of discrimination drops
out" of the case, and the plaintiff must prove that a
defendant's proffered reasons were not the true reasons
for its actions but a pretext for discrimination. Roge
v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.
2001).
Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005).
In order to meet her burden with respect to a prima
facie case of discrimination, plaintiff must offer evidence
sufficient to give rise to an issue of fact as to four elements:
(1) she is a member of a protected class; (2) she was qualified
for the position; (3) she was subjected to an adverse employment
action and (4) the adverse employment action occurred in circum-
17
stances giving rise to an inference of discrimination based on
her membership in a protected class.
Dawson v. Bumble & Bumble,
398 F.3d 211, 216 (2d Cir. 2005); Collins v. N.Y.C. Transit
Auth., 305 F.3d 113, 118 (2d Cir. 2002); Brennan v. Metro. Opera
Ass'n Inc., 192 F.3d 310, 316 (2d Cir. 1999); Norville v. Staten
Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999); Hills v. City
of New York, 03 Civ. 4265 (WHP), 2005 WL 591130 at *3 (S.D.N.Y.
Mar. 15, 2005) (Pauley, D.J.); Beckmann v. Darden, 351 F. Supp.
2d 139, 146 (S.D.N.Y. 2004) (Robinson, D.J.); Williams v. Salvation Army, 108 F. Supp. 2d 303, 308 (S.D.N.Y. 2000) (Berman,
D.J.), citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 252-53 (1981).
A retaliation claim is subject to the same burdenshifting analysis although the elements of a prima facie case are
slightly different.
Kaytor v. Electric Boat Corp., 609 F.3d 537,
552 (2d Cir. 2010); Jute v. Hamilton Sundstrand Corp., 420 F.3d
166, 173 (2d Cir. 2005).
To establish a prima facie case of
retaliation, a plaintiff must offer evidence sufficient to support a finding that:
(1) she engaged in protected activity; (2)
the employer was aware of this activity; (3) she suffered a
materially adverse employment action and (4) a causal connection
exists between the protected activity and the materially adverse
action, i.e., that a retaliatory motive played a part in the
18
adverse employment action.
Obinabo v. Radioshack Corp., No.
12–2476, 2013 WL 2450544 at *1 (2d Cir. June 7, 2013); Rivera v.
Rochester Genesee Reg'l Transp. Auth., 702 F.3d 685, 698 (2d Cir.
2012); Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 177 (2d Cir.
2006); Constance v. Pepsi Bottling Co. of N.Y., 03-CV-5009
(CBA)(MDG), 2007 WL 2460688 at *34 (E.D.N.Y. Aug. 24, 2007).
The
term "protected activity" refers to "action taken to protest or
oppose statutorily prohibited discrimination."
Benn v. City of
New York, 482 F. App'x 637, 638 (2d Cir. 2012) (citation omitted); see also Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 59 (2006) ("Title VII's antiretaliation provision
forbids employer actions that discriminate against an employee
(or job applicant) because he has opposed a practice that Title
VII forbids or has made a charge, testified, assisted, or participated in a Title VII investigation, proceeding, or hearing."
(inner quotations and citations omitted)).
1.
Plaintiff's Discrimination Claims
Defendant does not take issue with plaintiff's ability
to meet the first two requirements of a prima facie case of
discrimination.6
6
See generally Gregory v. Daly, 243 F.3d 687,
Although defendant does not take issue with plaintiff's
(continued...)
19
696 (2d Cir. 2001) ("To show 'qualification' . . . the plaintiff
need not show perfect performance or even average performance.
Instead, she need only make the minimal showing that she possesses the basic skills necessary for performance of the job.'"
(inner quotations and citations omitted; emphasis in original)).
Defendant does, however, contend that there is no evidence that
plaintiff suffered adverse employment actions or that the purportedly adverse employment actions occurred under circumstances
that give rise to an inference of discrimination.
Defendant
further argues that, even if plaintiff could establish a prima
facie case of discrimination, plaintiff has not discharged her
burden at the third step of the McDonnell Douglas analysis,
namely she has not offered evidence sufficient to support a
6
(...continued)
ability to meet the first two elements of a prima facie case of
discrimination, I note that plaintiff has not provided any
evidence showing that she was "disabled" within the meaning of
the American with Disabilities Act of 1990 ("ADA") in connection
with her claim of disability discrimination. See Mastrolillo v.
Connecticut, 352 F. App'x 472, 474 (2d Cir. 2009); Falso v. SPG
Direct, 353 F. App'x 662, 664 (2d Cir. 2009). In any event, even
assuming that plaintiff was "disabled" within the meaning of the
statute, as discussed further below, plaintiff failed to establish a prima facie case of discrimination because she did not
offer evidence that she suffered an adverse employment action on
the basis of such disability. See Falso v. SPG Direct, supra,
353 F. App'x at 664.
20
finding that the non-discriminatory reasons proffered by defendant are really pretexts for illegal discrimination.
a.
Plaintiff's Own Testimony
Does Not Claim Illegal
Discriminatory Animus
Plaintiff has offered no admissible evidence suggesting
that the putatively adverse employment actions occurred under
circumstances that would support an inference of discrimination
and her own testimony abandons any claim of illegal discrimination.
Although there can be no doubt that workplace discrimination is often subtle and that individuals who engage in discrimination rarely expressly state their illegal motivation, a
plaintiff alleging illegal discrimination must, nevertheless,
offer more than a subjective belief that she has been the victim
of illegal discrimination.
A plaintiff's "belief, based on no
evidence other than gut instinct that [her supervisor] treated
her with hostility because of her race, [gender, age or disability] cannot justifiably support an inference of discrimination
when nothing in the record remotely links [the supervisor's]
treatment of [plaintiff] to her race[, gender, age or disability]."
Taylor v. Records, 94 Civ. 7689 (CSH), 1999 WL 124456 at
*16 (S.D.N.Y. Mar. 8, 1999) (Haight, D.J.) (emphasis in origi21
nal); accord Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)
(summary judgment motion cannot be defeated "on the basis of
conjecture or surmise"); Lioi v. N.Y.C. Dep't of Health & Mental
Hygiene, 914 F. Supp. 2d 567, 583 (S.D.N.Y. 2012) (Engelmayer,
D.J.) ("[A] plaintiff cannot establish a prima facie case based
on 'purely conclusory allegations of discrimination, absent any
concrete particulars.'" (citation omitted)); Shabat v. Blue Cross
Blue Shield, 925 F. Supp. 977, 988 (W.D.N.Y. 1996) ("'It is more
than well-settled that an employee's subjective belief that he
suffered an adverse employment action as a result of discrimination, without more, is not enough to survive a summary judgment
motion, in the face of proof showing an adequate
non-discriminatory reason.'" (citation omitted)).
To the extent plaintiff testified that defendant acted
for discriminatory reasons on the basis of plaintiff's race,
gender, age and disability (see Consol. Actions Dep. at 464-93),
her testimony was entirely conclusory, subjective and unsupported
by any evidence of facts that could support an inference of
discrimination.
Moreover, by plaintiff's own admission, defen-
dant and his agents carried out the purportedly adverse actions
against plaintiff solely to receive benefits from third-party
operatives who are purportedly conspiring against her for her
efforts to disclose criminal activities (see Consol. Actions Dep.
22
at 363-67).
Plaintiff expressly testified that, but for the
monetary incentives, defendant and his agents would not have
committed any of the adverse acts (see Consol. Actions Dep. at
367).
Plaintiff testified repeatedly that the alleged bribes
were defendant's "only reason" for committing the allegedly
adverse acts (see, e.g., Consol. Actions Dep. at 101-02, 365,
367, 370).
That assertion by plaintiff herself, is fatal to her
discrimination claim.7
The only arguably admissible evidence in the record
that might support an inference of discrimination is plaintiff's
testimony that she was treated less favorably than two other
individuals because of her race (see Consol. Actions Dep. at 46574).
7
In plaintiff's amended complaint in Watson III, plaintiff
makes the conclusory statement that her employer discriminated
against her on the basis of her race, gender, age and disability
(Watson III Amended Complaint at 1). In addition to being
entirely conclusory, these statements contradict plaintiff's
aforementioned sworn deposition testimony. They are, therefore,
insufficient to create a genuine issue of fact. In re Fosamax
Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013) (The "sham
issue of fact" doctrine "prohibits a party from defeating summary
judgment simply by submitting an affidavit that contradicts the
party's previous sworn testimony." (citation omitted)); Mack v.
United States, 814 F.2d 120, 124 (2d Cir. 1987) ("It is well
settled in this circuit that a party's affidavit which
contradicts his own prior deposition testimony should be
disregarded on a motion for summary judgment." (citations
omitted)).
23
A showing of disparate treatment -- that is, a showing
that an employer treated plaintiff 'less favorably than
a similarly situated employee outside his protected
group' -- is a recognized method of raising an inference of discrimination for the purposes of making out a
prima facie case." Mandell v. County of Suffolk, 316
F.3d 368, 379 (2d Cir. 2003). An employee is similarly
situated to co-employees if they were (1) "subject to
the same performance evaluation and discipline standards" and (2) "engaged in comparable conduct." Graham
v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000).
"[T]he 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." Id. In
other words, the comparator must be similarly situated
to the plaintiff "in all material respects." Shumway
v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.
1997).
Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493-94 (2d Cir. 2010);
accord Zuk v. Onondaga Cnty., 471 F. App'x 70, 71 (2d Cir. 2012).
The plaintiff bears the burden of demonstrating that a
putative comparator is similarly situated in all material respects.
Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.
2000) ("When considering whether a plaintiff has raised an
inference of discrimination by showing that she was subjected to
disparate treatment, we have said that the plaintiff must show
she was 'similarly situated in all material respects' to the
individuals with whom she seeks to compare herself." (citation
omitted)); accord Bennett v. Verizon Wireless, 04-CV-6314 (CJS),
2008 WL 216073 at *2 (W.D.N.Y. Jan. 24, 2008); White v. Home
Depot Inc., 04-CV-401, 2008 WL 189865 at *6 (E.D.N.Y. Jan. 17,
24
2008); Augustin v. Yale Club, 03 Civ. 1924 (KMK), 2006 WL 2690289
at *25 (S.D.N.Y. Sept. 15, 2006) (Karas, D.J.); Conway v. Microsoft Corp., 414 F. Supp. 2d 450, 459 (S.D.N.Y. 2006) (Holwell,
D.J.).
Whether employees are similarly situated is ordinarily a
question of fact; however, "if there are many distinguishing
factors between plaintiff and the comparators, the court may
conclude as a matter of law that they are not similarly situated."
Nurse v. Lutheran Med. Ctr., 854 F. Supp. 2d 300, 312
(E.D.N.Y. 2012), citing McGuinness v. Lincoln Hall, 263 F.3d 49,
54 (2d Cir. 2001) and Harlen Assocs. v. Inc. Vill. of Mineola,
273 F.3d 494, 499 n.2 (2d Cir. 2001).
Plaintiff testified concerning two putative Caucasian
comparators:
Gail Sussman and Bernard Klinosky (see Consol.
Actions Dep. at 465-74).
Both comparators, however, were em-
ployed by the IRS as Individual Taxpayer Advisory Specialists
("ITAS"), whereas, at all relevant times, plaintiff was employed
as a secretary (see Consol. Actions Dep. at 470).
While plain-
tiff testified that she had assumed some of Klinosky's clerical
duties after he retired, she also testified that an ITAS is
mainly responsible for preparing taxes and resolving tax issues,
while a secretary's principal duties are answering calls, typing
forms and reserving rooms (Consol. Actions Dep. at 471).
Fur-
ther, there is no evidence that Sussman or Klinosky engaged in
25
conduct similar to the conduct cited by defendant as having led
to some of the allegedly adverse actions, i.e., disobeying the
directions of a supervisor, failing to cooperate with the employer's procedures, etc.
Given these differences, Sussman and
Klinosky were not similarly situated to plaintiff, and, thus,
even if they were treated differently than plaintiff, such
differences cannot provide a basis for an inference of discrimination.
The record presents no admissible evidence from which a
reasonable jury could infer that any of the allegedly adverse
employment actions occurred under circumstances giving rise to an
inference of discrimination on the basis of race, gender, age or
disability.
Accordingly, there is insufficient evidence to
generate an issue of fact with respect to an essential element of
a prima facie case, and defendant's motion for summary judgment
is granted as to the claim of discrimination.
b.
Legitimate,
Non-Discriminatory Reason
Even if plaintiff had discharged her burden of establishing a prima facie case of discrimination, defendant would
still be entitled to summary judgment on plaintiff's discrimination claims because plaintiff has not discharged her burden of
26
offering evidence sufficient to support a finding that the nondiscriminatory reasons proffered by defendant are really a
pretext for illegal discrimination.
As set forth in the annexed Appendix, defendant has
either proffered legitimate, non-discriminatory reasons for the
purportedly adverse employment actions cited by plaintiff or
explained how plaintiff's own evidence belies her claim of
discrimination.
Defendant attributes some of plaintiff's com-
plaints to plaintiff's own failures to comply with her supervisor's orders and plaintiff's issues with her mail delivery.
Plaintiff does not dispute that she refused to comply with
certain procedures and that she frequently had issues receiving
mail.8
Additionally, defendant provided numerous declarations,
which set forth legitimate, non-discriminatory reasons for the
remaining allegedly adverse actions.
These explanations are
"clear and specific," Meiri v. Dacon, supra, 759 F.2d at 997, and
are summarized in the Appendix, annexed hereto.
8
Plaintiff testified several times regarding her issues with
the post office near her home. She believes that the post office
has been compromised by conspirators, and that the third-party
operatives tamper with and withhold her mail (see Consol. Actions
Dep. at 180). Plaintiff even requested that defendant deliver
paychecks to her using an overnight express courier, bi-weekly,
in order to place her mail beyond the reach of the conspirators
(see Pl.'s Aff., Ex. SJ-100).
27
Although a "'court must[, at the pretext stage,]
resolve all ambiguities and draw all reasonable inferences in
favor of the party against whom summary judgment is sought, with
the burden on the moving party to demonstrate the absence of any
material issue genuinely in dispute,'"
Meiri v. Dacon, supra,
759 F.2d at 997 (citation omitted), at the third step of the
McDonnell Douglas analysis, there must be sufficient evidence in
the record to create an issue of fact as to the existence of
discriminatory animus.
The defendant has met his burden at the
second step of the analysis by supporting his motion for summary
judgment with plaintiff's own deposition testimony and numerous
declarations, which set forth undisputed examples of plaintiff's
inappropriate behavior, and which establish legitimate, nondiscriminatory reasons for the allegedly adverse actions.
Hence,
defendant's proffered reasons are more than sufficient to satisfy
his burden at this stage.
See McDonnell Douglas Corp. v. Green,
supra, 411 U.S. at 802-03.
Plaintiff has failed to offer evidence to show either
that defendant's stated reasons were in fact pretexts for illegal
discrimination or that discriminatory reasons more likely motivated the defendant.
Here, "[t]he fact that the defendant did
not merely articulate -- but substantially established -- legitimate, nondiscriminatory reasons for [the purportedly adverse
28
actions] rendered more difficult [plaintiff's] task of proving
pretext."
Meiri v. Dacon, supra, 759 F.2d at 997.
Yet, plain-
tiff's opposition brief is little more than a re-statement of her
complaints in the Consolidated Actions, and consists of conclusory statements that lack evidentiary support (Docket Item 54).
"[S]uch conclusory allegations of discrimination are insufficient
to satisfy the requirements of Fed.R.Civ.P. 56(e)."
See Meiri v.
Dacon, supra, 759 F.2d at 998 (citations omitted).
Further, plaintiff affirmatively stated at her deposition that the "only reason" her superiors committed the allegedly
adverse actions against her was their receipt of monetary payments and other consideration from third-party "operatives"
(Consol. Actions Dep. 365).
This admission is fatal to plain-
tiff's discrimination claim because it excludes illegal discriminatory animus from being a factor giving rise to any of the
allegedly adverse employment actions.
Plaintiff has presented no admissible evidence from
which a reasonable fact finder could infer that the neutral
reasons proffered by defendant were pretexts for illegal discrimination.
Defendant is, therefore, also entitled to summary
judgment with respect to plaintiff's discrimination claims on
this ground.
29
2.
Retaliation Claim
With respect to plaintiff's claim of retaliation,
defendant contends that plaintiff cannot show that she was
subjected to any materially adverse employment actions and, even
if plaintiff could make such a showing, defendant argues that
plaintiff has not offered evidence to rebut his legitimate, nonretaliatory reasons for those actions.
a.
Materially Adverse
Employment Action
"The antiretaliation provision protects an individual
not from all retaliation, but from retaliation that produces an
injury or harm."
Burlington N. & Santa Fe Ry Co. v. White,
supra, 548 U.S. at 67.
In assessing the level of harm that is
necessary to satisfy this element, the Supreme Court has instructed that "a plaintiff [asserting a retaliation claim] must
show that a reasonable employee would have found the challenged
action materially adverse, 'which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'"
Burlington N. & Santa Fe Ry
Co. v. White, supra, 548 U.S. at 68 (citation omitted).
Hence,
"trivial harms," which include "petty slights, minor annoyances,
and simple lack of good manners," do not create an actionable
30
retaliation claim, whereas, significant harms do.
Burlington N.
& Santa Fe Ry Co. v. White, supra, 548 U.S. at 68 (citation
omitted).
Courts should be "mindful that material adversity is
to be determined objectively, based on the reactions of a reasonable employee."
Rivera v. Rochester Genesee Reg'l Transp. Auth.,
supra, 702 F.3d at 698-99 (citation omitted; emphasis added).
However, "[c]ontext matters, as some actions may take on more or
less significance depending on the context.”
Rivera v. Rochester
Genesee Reg'l Transp. Auth., supra, 702 F.3d at 699 (inner
quotations and citation omitted; alteration in original).
The harms plaintiff alleges cannot qualify as materially adverse actions.
For example, although plaintiff alleges
she suffered as a result of being told that her workstation might
be relocated and her printer removed, plaintiff concedes that
these events never came to pass (see Consol. Actions Dep. at 237,
329).
These statements -- which never amounted to anything -- do
not rise to the level of injury required by a materially adverse
employment action.
See Tepperwien v. Entergy Nuclear Operations,
Inc., 663 F.3d 556, 571 (2d Cir. 2011) (empty verbal threats were
"trivial harms," and thus, were not materially adverse employment
actions); Delaney v. LaHood, 07-CV-471 (JG)(WDW), 2009 WL 3199687
at *19 (E.D.N.Y. Sept. 30, 2009) (listing cases in this Circuit
wherein "unrealized threats" did not meet the material adversity
31
requirement).
Likewise, plaintiff's allegations that her com-
puter temporarily malfunctioned or that the IRS's procedures
resulted in delays and misplaced folders are precisely the kinds
of "minor annoyances that often take place at work and that all
employees experience," and thus, do not constitute materially
adverse actions.
Burlington N. & Santa Fe Ry Co. v. White,
supra, 548 U.S. at 68 (citation omitted).
Similarly, plaintiff's
concession that "[her] job remained the same" (Consol. Actions
Dep. at 265), even though she could no longer utilize the IRS’s
automated tracking system to purchase supplies or use a
government-issued credit card, demonstrates that her duties were
not sufficiently altered so as to constitute a materially adverse
employment action.
See Caban v. Richline Grp., 10 Civ. 559
(ALC), 2012 WL 2861377 at *13 (S.D.N.Y. July 10, 2012) (Carter,
D.J.) (Plaintiff's claim that defendant "gave her less work to
do" did not rise to the level of "significantly diminished
material responsibilities.").
Similarly, plaintiff's allegations relating to disciplinary matters are insufficient to create an issue of fact as to
the existence of an adverse employment action.
that:
Plaintiff alleges
(1) in 2003, plaintiff's government-issued purchase card
was cancelled after she refused to complete an "unauthorized
procurement" document with respect to an unauthorized purchase
32
made on plaintiff's card by another employee; (2) in 2004,
plaintiff's duties were amended after she refused to amend a
supply order to reflect the correct price listings; (3) she
received a letter of reprimand from Jones-Moffatte in 2007 for
hoarding taxpayer files in a cabinet9 and (4) in 2008, JonesMoffatte noted in an Employee Performance Folder Record, also
known as a Form 6067, that plaintiff failed to input her time for
a week (see Treas. Decision at 6-7; Watson II Complaint ¶ E;
Watson III Amended Complaint ¶¶ 4, 8, 9).
Plaintiff has failed to present any evidence establishing that these incidents produced an injury or harm that might
have dissuaded a reasonable employee from engaging in a protected
activity.
See Burlington N. & Santa Fe Ry Co. v. White, supra,
9
Plaintiff further alleges in her complaint that she received a lower employee rating in 2008 as a result of this
incident (Watson II Complaint ¶ E). However, during her deposition, plaintiff testified that her performance rating was lowered
"for some other reason," unrelated to the files found in her
cabinet (Consol. Actions Dep. at 139-40). In light of plaintiff's deposition testimony, I do not consider the allegation in
the complaint that she received a lower performance rating as a
result of this incident. See AB ex rel. EF v. Rhinebeck Cent.
Sch. Dist., 361 F. Supp. 2d 312, 316 (S.D.N.Y. 2005) (Robinson,
D.J.) ("Faced with deposition testimony that contradicts an
affidavit and a complaint, this court must accept [plaintiff's]
sworn testimony."). Moreover, even if the two events had been
related, as discussed in further detail below, plaintiff has
failed to present evidence that would permit a reasonable juror
to infer that defendant's legitimate, non-retaliatory reason for
the lower rating was pretextual.
33
548 U.S. at 68.
While there may be instances where a formal
letter of reprimand issued by an employer could constitute a
materially adverse employment action, see Millea v. Metro-N. R.R.
Co., 658 F.3d 154, 165 (2d Cir. 2011), if the context wherein the
employee is disciplined does not "reflect[] anything other than
[the employer's] enforce[ment] [of] its preexisting disciplinary
policies in a reasonable manner," then no reasonable juror could
conclude that the disciplinary actions "represented a departure
from [the employer's] disciplinary practices, such that they
might [] dissuade[] a reasonable worker from making or supporting
a charge of discrimination," Rivera v. Rochester Genesee Reg'l
Transp. Auth., supra, 702 F.3d at 699-700 (inner quotation marks
and citations omitted).
As to the first incident, plaintiff admitted that she
refused to comply with her supervisor's directive to sign a
document concerning an unauthorized procurement (Consol. Actions
Dep. at 216).
Although the defendant did subsequently cancel her
government-issued credit card, the record, including plaintiff's
testimony, shows that he had a legitimate reason to, in light of
plaintiff's refusal to cooperate with certain procedures (see
Declaration of Christine Monroe, dated May 30, 2012 ("Monroe
Decl."), ¶ 18; Consol. Actions Dep. at 216).
Moreover, plaintiff
admitted during her deposition that she was not disciplined in
34
connection to this incident (Consol. Actions Dep. at 217).
Plaintiff also did not allege, nor does the record establish,
that any part of this incident represented a departure from
defendant's normal practices.
See Rivera v. Rochester Genesee
Reg'l Transp. Auth., supra, 702 F.3d at 699-700.
Likewise, as to the second and third incidents, the
record supports that defendant had good reasons for such discipline, namely to account for mis-allocated funds and purchases,
and to ensure the proper maintenance of taxpayer files (see
Declaration of Almetya Brown, dated May 30, 2012 ("Brown Decl."),
¶¶ 7-14; Declaration of Ann Jones-Moffatte, dated May 31, 2012
("Jones-Moffatte Decl."), ¶¶ 75-83).
Here, too, the procedures
did not depart from defendant's normal course of business, such
that a reasonable employee might have found it to be materially
adverse.
Rivera v. Rochester Genesee Reg'l Transp. Auth., supra,
702 F.3d at 699-700.
Moreover, plaintiff admitted that she was
not disciplined in connection to the taxpayer files found in her
cabinet, and that the letter she had received from Jones-Moffatte
was merely a "warning" (Consol. Actions Dep. at 138-39).
The record also establishes that the fourth incident
was not a materially adverse action.
Defendant argues that a
Form 6067 is not a formal letter of reprimand.
Indeed, the form
is entitled "Employee Performance Folder Record" and contains an
35
evaluation section with options to record either positive or
negative information about an employee (see Pl.'s Aff., Exs. SJ60, SJ-62; Jones-Moffatte Decl. ¶ 96).
To the extent that a form
with negative information was placed into plaintiff's folder, it
establishes, at most, that plaintiff was criticized for her work
performance, which is not a materially adverse employment action.
See Tepperwien v. Entergy Nuclear Operations, Inc., supra, 663
F.3d at 570 (The "criticism 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" for
purposes of a retaliation claim.).
Plaintiff does not offer any
evidence suggesting that she suffered a diminution in pay or
duties, or lost an opportunity for a promotion as a result of the
form.
In light of all the circumstances and evidence, including plaintiff's admissions, I conclude that no reasonable factfinder could find that the disciplinary-related incidents plaintiff complained of would have dissuaded a reasonable employee
from engaging in a protected activity.
See Tepperwien v. Entergy
Nuclear Operations, Inc., supra, 663 F.3d at 568-70 (Three
investigations into employee's conduct that occurred over eight
months and for "good reason," and that did not result in disci-
36
plinary action, were not materially adverse employment actions,
and, thus, could not support a claim of retaliation.).
Plaintiff also contends that her insurance was cancelled in retaliation for her EEO complaints (see Watson III Amended
Complaint ¶ 15).
An "actual termination of health benefits and
coverage can meet the Burlington Northern standard when such
actions could induce an employee to refrain from participating in
protected activity."
Delaney v. LaHood, supra, 2009 WL 3199687
at *20 (citation omitted).
Here, however, plaintiff has not
adduced evidence sufficient to create a genuine issue of fact
that her health insurance was actually cancelled.
Notwithstand-
ing plaintiff's conclusory statements to the contrary, the record
demonstrates that plaintiff enrolled in a new insurance plan in
2003, which resulted in the cancellation of her former plan (see
Pl.'s Aff., Ex. SJ-8710).
In any event, plaintiff concedes that
her former insurance plan was "restored" (Consol. Actions Dep. at
295), and the evidence shows that an employee from an IRS resource center attempted to assist plaintiff, left her voice
10
Exhibit SJ-87 is an e-mail from Rosetta Watson to her
employer, dated May 23, 2003, in which she states "[t]he matter
of my GHI Plan being switched to GHI/HMO has to be corrected
expeditiously . . . . I need to know exactly when my old GHI
Plan will be activated. . . . I certify that I did not change my
previous GHI Nationwide plan, but I do want it restored back to
the GHI status that it was in before pay period 7."
37
mails, and informed her that her original insurance plan would be
effective as of the putative cancellation date (see Pl.'s Aff.,
Ex. SJ-90).
Even resolving all ambiguities in plaintiff's favor,
the only rational inference that one could draw from these facts
is that the cancellation resulted from an oversight, either by
plaintiff or the defendant, that was subsequently corrected
retroactively.
Such an oversight, coupled with the eventual
restoration of plaintiff's insurance, could not lead a reasonable
employee to infer retaliation, and is, thus, not a materially
adverse action.
See Messer v. Bd. of Educ., 01-CV-6129
(JFB)(CLP), 2007 WL 136027 at *13 (E.D.N.Y. Jan. 16, 2007) ("[I]n
the instant case, plaintiffs' COBRA health benefits were reinstated shortly after they complained, retroactive to the benefit
termination date.
Because plaintiffs were not actually denied
health care coverage during the relevant time period, they are
unable to demonstrate that the first health benefit termination
constituted a materially adverse employment action.").
Last, plaintiff's general complaints of her interpersonal conflicts with Jones-Moffatte, her supervisor, appear to be
no more than personality clashes, which are not actionable.
See
Burlington N. & Santa Fe Ry Co. v. White, supra, 548 U.S. at 68
("[P]ersonality conflicts at work that generate antipathy and
snubbing by supervisors and co-workers are not actionable."
38
(inner quotations and citation omitted)); Tepperwien v. Entergy
Nuclear Operations, Inc., supra, 663 F.3d at 571.
Because I find that there is no evidence in the record
from which a reasonable fact-finder could conclude that the
challenged actions were materially adverse, I determine that
plaintiff has failed to meet a required element of the retaliation claim.
Defendant's motion for summary judgment, therefore,
is granted as to the claim of retaliation as well.
b.
Legitimate,
Non-Retaliatory Reason
Assuming for purposes of argument that plaintiff had
discharged her burden of establishing a prima facie claim of
retaliation, defendant would still be entitled to summary judgment on this claim because plaintiff has not offered evidence
showing that the non-retaliatory reasons proffered by defendant
are really pretexts for illegal retaliation.
As set forth in the Appendix, annexed hereto, defendant
has articulated legitimate, non-retaliatory reasons for the
purportedly adverse incidents alleged in the Consolidated Actions.
For example, plaintiff alleges that her leave and earn-
ings statements were withheld as retaliation for her EEO complaints (Consol. Actions Dep. at 206-07).
39
Defendant explains
that the statements were delayed because plaintiff's earnings
were subject to garnishment proceedings, and that fact prevented
the IRS's automated payroll system from generating statements
(see Declaration of Teresa A. Carter, dated May 30, 2012 ("Carter
Decl."), ¶ 2; Pl.'s Aff., Exs. SJ-11, SJ-24, SJ-30).
Plaintiff's
Exhibit SJ-30 shows that plaintiff continued to receive the same
information, as she would have received on the statement, through
a separate form, which was mailed to her by certified mail each
pay period (Pl.'s Aff., Ex. SJ-30).
There is no evidence estab-
lishing that this legitimate explanation for the delays is a
pretext.
Defendant also explained that the delays plaintiff
complained about were not caused by defendant but by plaintiff's
issues with her post office (see Consol. Actions Dep. at 302-04;
Carter Decl. ¶ 18; Jones-Moffatte Decl. ¶ 57; Monroe Decl. ¶¶ 3740).
Plaintiff herself conceded to these issues, and testified
that she filed several complaints with the post office as a
result (see Consol. Actions Dep. at 374-75).
Defendant's reasons
suffice to satisfy his burden at this stage.
See McDonnell
Douglas Corp. v. Green, supra, 411 U.S. at 802-03.
Except for her broad, conclusory statements, plaintiff
has not responded to these neutral reasons (Docket Item 54), and
the record does not contain any evidence impugning defendant's
proffered reasons or suggesting the existence of retaliatory
40
animus.
Plaintiff has not demonstrated any temporal proximity
between any of her EEO complaints and the allegedly adverse
actions.
See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933
(2d Cir. 2010) (per curiam) ("The temporal proximity of events
may give rise to an inference of retaliation for the purposes of
establishing a prima facie case of retaliation under Title VII,
but without more, such temporal proximity is insufficient to
satisfy appellant's burden to bring forward some evidence of
pretext . . . .
Indeed, a plaintiff must come forward with some
evidence of pretext in order to raise a triable issue of fact."
(citations omitted)).
In addition, plaintiff conceded that,
though several employees at the IRS were aware of her prior EEO
filings, none had ever made comments to her about them, other
than to acknowledge their awareness of the filings (Consol.
Actions Dep. at 494); cf. Amin v. Akzo Nobel Chems., Inc., 282 F.
App'x 958, 962 (2d Cir. 2008) (testimony that plaintiff was
repeatedly instructed to stop making complaints about discrimination in the workplace, among other things, sufficiently rebutted
defendant's proffered non-retaliatory reason for discharging
plaintiff).
Even plaintiff's subjective beliefs as to why defendant
committed the putatively adverse actions are inconsistent.
Despite plaintiff's conclusory remarks that defendant committed
41
the allegedly adverse acts to retaliate against her for filing
EEO complaints, plaintiff repeatedly and affirmatively testified
that Jones-Moffatte, who allegedly carried out the majority of
the purportedly adverse actions (Consol. Actions Dep. at 360-61),
was motivated solely by the bribes she was receiving from thirdparty "operatives" (Consol. Actions Dep. at 363-67).
For exam-
ple, plaintiff stated during her deposition that she believed
Jones-Moffatte lied about finding taxpayer files in plaintiff's
cabinet because the conspirators bought her off (Consol. Actions
Dep. at 141-42).
Plaintiff also affirmatively testified that it
was the "operatives" who sought to discourage plaintiff from
filing EEO complaints because they did not want information
regarding their conspiracy to become public (see Consol. Actions
Dep. at 498-500).
This is clearly not the "causal connection"
that satisfies or is contemplated by Title VII, the ADA or the
Age Discrimination in Employment Act.
Having failed to present any evidence of retaliatory
animus to rebut defendant's neutral reasons for his actions,
plaintiff's claim of retaliation cannot survive defendant's
motion for summary judgment.
See Jackson v. N.Y.C. Transit, 348
F. App'x 666, 669 (2d Cir. 2009) ("[Plaintiff] offered no evidence that would permit a reasonable fact-finder to infer that
the [defendant's] stated reason was pretextual.
42
Accordingly, the
district court properly granted the defendants' summary judgment
on this claim.").
3.
Plaintiff's Remaining Claims
Plaintiff sets forth a laundry list of additional
grounds for relief.
The allegations include:
harassment, unfair
work employment practices, false accusation, stress, duress and
reprisal (see Watson II Complaint at 3; Watson III Amended
Complaint at 3; Watson IV Complaint at 3).
However, none of
these claims, if they even are claims, arise out of federal law,
and diversity of citizenship is not asserted.
Thus, assuming,
without deciding, that these other theories do state claims, I
dismiss them, as a matter of discretion.
28 U.S.C. § 1367(c)(3);
see also Oneida Indian Nation of N.Y. v. Madison Cnty., 665 F.3d
408, 436-37 (2d Cir. 2011) ("[I]f a plaintiff's federal claims
are dismissed before trial, the state law claims should be
dismissed as well." (inner quotation marks and citations omitted)).
IV.
Conclusion
For all the foregoing reasons, I grant defendant's
motion for summary judgment and dismiss the complaints in the
Consolidated Actions in their entirety.
43
The Clerk of the Court
is directed to close (1) Docket Items 41 and 56 in 09 Civ.
66~4i
(2) Docket Items 29 and 44 in 10 Civ. 3948 and (3) Docket Items
28 and 43 in 10 Civ. 7282, and to mark all three matters closed.
Dated:
New York, New York
September 27, 2013
SO ORDERED
H2f;:r~~
United States Magistrate Judge
Copies mailed to:
Ms. Rosetta Watson
358 Fourth Street
Brooklyn New York 11215
l
Copies transmitted to:
Sarah S. Normand, Esq.
Assistant United States Attorney
Southern District of New York
86 Chambers Street Third Floor
New York, New York 10007
l
44
APPENDIX
Alleged Adverse
Employment Actions
Defendant's Response Or Deficiency
In Allegations Based On The Record
1. In 2002, the IRS
withheld plaintiff's
leave and earnings statements from her without
explanation (Consol.
Actions Dep. at 206-07;
Watson III Amended Complaint ¶ 3).
Defendant was required to deduct
and remit 10% of plaintiff's wages
on behalf of a judgment creditor,
pursuant to a notice of levy
(Carter Decl. ¶¶ 2-3). Plaintiff's checks were, therefore,
processed manually. The IRS system could not generate leave and
earnings statements for employees
who were paid manually. Plaintiff
received the same information
through a separate form, as she
would have received on the statement; these were mailed to her via
certified mail each pay period
(Pl.'s Aff., Ex. SJ-30).
Plaintiff's Ex. SJ-30 is a memorandum from the IRS to plaintiff,
explaining the garnishment of her
earnings. When asked what evidence plaintiff possessed in support of her belief that the incident was retaliatory, she stated,
"I didn't receive my leave and
earning[s] statements . . . .
That's all the evidence I need"
(Consol. Actions Dep. at 209).
APPENDIX
2. In January 2003,
plaintiff's governmentissued credit card was
cancelled after another
employee used it without
plaintiff’s authorization
(Watson III Amended Complaint ¶¶ 4, 9; Consol.
Actions Dep. at 213).
The credit card was cancelled because plaintiff had refused to
sign an "unauthorized procurement
document" and furnish a copy of a
receipt; this information was necessary for the defendant to reconcile the unauthorized purchase
(Monroe Decl. ¶ 18). Plaintiff
stopped ordering office supplies
as a result of this incident, but
continued to prepare the list that
contained the order for office
supplies; she concedes this was
not a disciplinary action (see
Consol. Actions Dep. at 217, 220).
3. In 2003, JonesMoffatte failed to provide plaintiff with an
executed copy of an annual performance appraisal plaintiff requested for an application for an internal
promotion; instead,
Jones-Moffatte wrote the
words "for promotion
only" over the original
signature line on the
copy that was provided
to plaintiff (Watson III
Amended Complaint ¶ 1).
A first line manager, such as
Jones-Moffatte, could sign an appraisal "for promotion only" and
IRS personnel would accept it as
valid without the need for another
signature from a second level manager (Jones-Moffatte Decl. ¶ 17).
Jones-Moffatte sought to obviate
the need for a second signature
when she provided plaintiff with a
copy of the appraisal with the
words "for promotion only" on it
(Jones-Moffatte Decl. ¶ 17).
Plaintiff testified that thirdparty operatives provided JonesMoffatte with bribes in exchange
for sabotaging plaintiff's promotion application (Consol. Actions
Dep. at 196-98).
2
APPENDIX
4. While filling out
the same promotion application, plaintiff
observed that "large
square boxes" appeared
on her computer screen,
which was evidence to
her that her computer
had been deliberately
tampered with (Watson
III Amended Complaint
¶ 2).
The technical issues were "routine
user assistance problems," and the
IRS's technology services department quickly resolved them (Declaration of Rebecca Cummings, dated
May 31, 2012, ¶ 4; see JonesMoffatte Decl. ¶ 21).
5. Plaintiff's employee
personnel folder was
stolen in April 2003
(see Watson III Amended
Complaint ¶ 5). Plaintiff reported the incident to the Treasury
Inspector General for
Tax Administration
("TIGTA"), but TIGTA
refused to investigate
the alleged theft (Watson III Amended Complaint ¶ 5).
The folder was ordinarily kept in
Jones-Moffatte's office in a cabinet (Consol. Actions Dep. at 233).
Plaintiff discovered that her
folder was not in the cabinet in
April 2003, which led her to conclude that it had been stolen
(Consol. Actions Dep. at 233).
Plaintiff believes that JonesMoffatte stole the folder, and
that she stole the folder because
the conspirators paid her to do so
(Consol. Actions Dep. at 229-30).
Plaintiff testified that thirdparty operatives conspired with an
IRS employee to tamper with her
computer in order to sabotage her
promotion application (Consol.
Actions Dep. at 203; Watson III
Amended Complaint ¶ 2).
TIGTA informed plaintiff that duplicates of the documents contained in the missing folder were
available from other sources
(see Declaration of Robert
Breunig, dated May 31, 2012, ¶ 5;
Pl.'s Aff., Ex. SJ-14).
Plaintiff eventually found the
documents she believed had been
stolen (Jones-Moffatte Decl. ¶ 29;
Consol. Actions Dep. at 226).
3
APPENDIX
6. The IRS cancelled
plaintiff's GHI insurance policy for approximately one year in 2003
(Watson III Amended Complaint ¶ 15).
Plaintiff's Ex. SJ-87 suggests
that plaintiff enrolled into a
different insurance plan in 2003,
which resulted in the cancellation
of the former plan. Plaintiff's
Ex. SJ-90 shows that an employee
from an IRS resource center attempted to assist plaintiff, left
her voice mails, and informed her
that her original insurance would
be restored retroactive to the
alleged cancellation date (Pl.'s
Aff., Ex. SJ-90; see Consol. Actions Dep. at 295 (plaintiff conceding her insurance was eventually restored)).
Plaintiff believes that this event
is another example of the conspiracy that third-party operatives
are orchestrating against her (see
Consol. Actions Dep. at 297-98,
374).
7. In 2003 or 2004, an
IRS employee informed
plaintiff that she would
be relocated, and if she
did not, that she would
"be punished" (Watson
III Amended Complaint
¶ 6).
Plaintiff does not offer any evidence that this statement occurred
or that it occurred for discriminatory or retaliatory reasons.
Plaintiff admits she was not actually relocated (Consol. Actions
Dep. at 237).
8. Also in 2003 or
2004, the IRS failed to
send performance appraisal checks to plaintiff in a timely fashion
(Watson III Amended Complaint ¶ 16; Consol.
Actions Dep. at 302-04).
Plaintiff had opted out of direct
deposit and requested that she be
issued traditional paper checks
(Monroe Decl. ¶¶ 37-40; JonesMoffatte Decl. ¶ 57). Plaintiff
concedes that she did eventually
receive the checks (Consol. Actions Dep. at 305).
4
APPENDIX
9. In 2004, the City of
New York sent a refund
check in the amount of
$52.11 to the IRS in
plaintiff's name for an
overpayment from her
garnished earnings (Watson III Amended Complaint ¶ 7). Plaintiff
still has not received
this check (Watson III
Amended Complaint ¶ 7).
Defendant attempted to mail the
refund check to plaintiff's home
address on two separate occasions
and, each time, the check was returned as "unclaimed" (Carter
Decl. ¶ 14).
Defendant then attempted to personally deliver the
check to plaintiff (Declaration of
Richard L. Rodriguez, dated May
31, 2012 ("Rodriguez Decl."),
¶ 10), but plaintiff refused to
accept it (Consol. Actions Dep. at
243). It was plaintiff's belief
that checks had to be dated within
ten days in order to be cashed;
thus, she refused to accept what
she believed was an "expired"
check (Consol. Actions Dep. at
243).
Defendant then contacted the marshal’s office and requested that
it re-issue a check and mail it
directly to plaintiff’s home
(Carter Decl. ¶ 17; Consol. Actions Dep. at 243). The marshal's
office has not responded to the
request (Carter Decl. ¶ 18;
Consol. Actions Dep. at 243-44).
5
APPENDIX
10. In June 2004,
plaintiff received approval for an order of
office supplies in the
amount of $691.17, which
was subsequently reduced
to $246.22 "for whatever
reason" (Consol. Actions
Dep. at 249-50; see Watson III Amended Complaint ¶ 8). Plaintiff
was asked to amend the
order downward, which
she refused to do
(Consol. Actions Dep. at
250, 252). The task of
ordering supplies using
an automated tracking
system ("RTS") was subsequently re-assigned to
a caucasian employee
(Watson III Amended Complaint ¶ 10; Rodriguez
Decl. ¶ 6; Monroe Decl.
¶ 30).
The order was reduced because an
employee learned that the prices
quoted by plaintiff on the initial
order request form were incorrect
and higher than the actual prices
of the requested supplies (Brown
Decl. ¶ 7). Plaintiff was asked
to "amend the requisition downward" to match the correct price
listing (Brown Decl. ¶ 11).
Defendant transferred plaintiff's
RTS duties to a different employee
due to plaintiff's lack of cooperation (Monroe Decl. ¶ 30).
Plaintiff conceded that, other
than her inability to use the RTS,
her job duties remained the same,
i.e., she continued to create the
supply requests and receive the
supplies as they came in (Consol.
Actions Dep. at 265).
6
APPENDIX
11. In December 2004,
plaintiff requested to
see her official personnel folder, as she did
every year, in order to
verify that its contents
were accurate (Consol.
Actions Dep. at 275-76).
Jones-Moffatte deliberately withheld her folder from her for two
weeks (Watson III Amended Complaint ¶ 12;
Consol. Actions Dep. at
277).
The delay resulted from oversight
and was not a deliberate act (see
Jones-Moffatte Decl. ¶ 45).
Plaintiff testified that she
reached her conclusion after observing a Fed-Ex envelope sitting
on Jones-Moffatte’s desk for two
weeks before receiving the same
envelope, which contained her personnel folder (Consol. Actions
Dep. at 277-78).
12. In approximately
late 2004, plaintiff
requested a copy of her
2000 tax return (Watson
III Amended Complaint
¶ 13; Consol. Actions
Dep. at 283). Plaintiff's own copy had been
stolen from her home by
operatives who are conspiring with the IRS
(Consol. Actions Dep. at
284-85). The Taxpayer
Advocate Office's inability to retrieve her
document was deliberate
(Consol. Actions Dep. at
287).
The Taxpayer Advocate Office -"an independent organization within the IRS that provides assistance to taxpayers" -- did provide
plaintiff with her 2000 tax documents but was unable to furnish a
copy of the W-2 because plaintiff
had not attached that form when
she filed her tax return (JonesMoffatte Decl. ¶¶ 49-50). Plaintiff's Ex. SJ-18 shows that a
transcript of the 2000 tax return
was sent to her in 2004 (Pl.'s
Aff, Ex. SJ-18).
Plaintiff did not actually need
her personnel folder during the
two weeks (Consol. Actions Dep. at
280) and does not claim any identifiable adverse consequence as a
result of the delay.
Plaintiff believes the documents
were withheld from her in furtherance of the conspiracy (Consol.
Actions Dep. at 287-88).
7
APPENDIX
13. Plaintiff's union
reached a settlement
with the IRS in June
2005 in an unrelated
matter (Watson III
Amended Complaint ¶ 14).
Plaintiff was owed a
settlement check of
$81.75; she did not receive it until October
and the envelope had
been tampered with (Watson III Amended Complaint ¶ 14).
The union, and not the IRS, was
the party ultimately responsible
for distributing the settlement
check to plaintiff (Monroe Decl.
¶ 35).
14. In 2006, JonesMoffatte assigned plaintiff certain tasks that
fell outside the scope
of her expected work
duties (Consol. Actions
Dep. at 147-48; Watson
II Complaint ¶ E).
The additional duties of preparing
and filing tax forms were assigned
to plaintiff after another employee left, and were consistent
with plaintiff's position description; the IRS's position description of the secretarial position
includes "preparing forms and filing" (Jones-Moffatte Decl. ¶¶ 6064).
15. Plaintiff received
her 2006 annual performance appraisal approximately six months late
(Consol. Actions Dep. at
102-03; Watson
II Complaint ¶ E).
Both parties concede that plaintiff was out of the office from
January to April 2007 (Watson
II Complaint ¶ E), which was the
cause for the delay (JonesMoffatte Decl. ¶ 84).
Plaintiff testified that thirdparty operatives had "bought off"
some unknown individual to deliberately delay her receipt of the
check (Consol. Actions Dep. at
289).
8
APPENDIX
16. When plaintiff returned to the office
after a prolonged leave
in 2007, she discovered
that some of her office
supplies were missing
(Consol. Actions Dep. at
131-32). Plaintiff approached Jones-Moffatte
about this, and JonesMoffatte retaliated by
drafting a "phony" letter of reprimand, falsely accusing plaintiff of
hoarding hundreds of
taxpayer documents in a
cabinet that she was
supposed to have filed
(Consol. Actions Dep. at
100-01, 143; Watson
II Complaint ¶ E).
In early 2008, JonesMoffatte lowered plaintiff's annual performance rating on the basis of this false accusation (Watson II Complaint ¶ E).
In early 2007, Jones-Moffatte's
office had been cited by the IRS
for having failed to file certain
taxpayer forms, which fell within
plaintiff's responsibilities (see
Jones-Moffatte Decl. ¶ 75).
Jones-Moffatte then discovered, on
at least three separate occasions,
bundles of the same taxpayer forms
in plaintiff's filing cabinet;
these comprised 800 forms in total
(see Jones-Moffatte Decl. ¶¶ 7679). In April 2007, JonesMoffatte issued a memorandum to
plaintiff, informing her that her
failure to file the forms was "totally unacceptable" and reminding
her of the need to file the forms
(Jones-Moffatte Decl. ¶¶ 81, 82;
Pl.'s Aff., Ex. SJ-39).
Plaintiff concedes that she was
not disciplined and that the letter was just a "warning" (Consol.
Actions Dep. at 139). Plaintiff
testified that Jones-Moffatte committed these acts in exchange for
payments from third- party operatives, and for no other reason
(Consol. Actions Dep. at 101-02).
9
APPENDIX
17. Plaintiff requested
that TIGTA file criminal
charges against JonesMoffatte in March 2008
for falsely accusing
plaintiff of keeping
taxpayer documents in
her cabinet, but TIGTA
refused (Watson
II Complaint ¶ E).
The TIGTA special agent explained
to plaintiff that criminal charges
could not be filed against JonesMoffatte "because [plaintiff's]
complaint dealt with personnel and
labor relations issues" (Declaration of Grimaldi Alvarez, dated
May 31, 2012, ¶¶ 5-9). When asked
what injuries plaintiff incurred
as a result of TIGTA's refusal,
plaintiff testified that "it was
frustrating" (Consol. Actions Dep.
at 149).
18. In 2008, Jones
Moffatte prepared an
Employee Performance
Folder Record, also
known as a Form 6067,
stating that plaintiff
failed to record her
hours worked (Treas.
Decision at 6-7).
Jones-Moffatte's use of a Form
6067 was not a reprimand; rather,
the form is used "to record both
positive and negative information
about an employee's performance"
(Jones-Moffatte Decl. ¶ 96; see
Treas. Decision at 6-7). In that
particular instance, JonesMoffatte issued plaintiff a Form
6067 for failing to record her
time for a week, as Jones-Moffatte
had done with at least five other
employees (Jones-Moffatte Decl.
¶¶ 97, 98).
Plaintiff's exhibits show that her
employee record contained two Form
6067's in 2008 -- one reflecting
positive information, and the
other, negative (Pl.'s Aff., Exs.
SJ-60, SJ-62).
10
APPENDIX
19. In 2009, plaintiff
was informed that the
printer in her workstation would be removed
and that she would have
to use a shared printer,
which caused her blood
pressure to rise (Watson
IV Complaint ¶ E).
Plaintiff believes
Jones-Moffatte tried to
move her printer because
plaintiff was disabled
(see Consol. Actions
Dep. at 490).
Defendant intended to remove the
printer because plaintiff did not
need a stand alone printer, and
plaintiff already had access to a
network printer, which the other
employees in Jones-Moffatte's
group were already using (JonesMoffatte Decl. ¶ 100). Plaintiff
testified that the majority of
employees in her division used
shared printers (Consol. Actions
Dep. at 321).
Plaintiff concedes that the printer was not ever removed from her
workstation (Consol. Actions Dep.
at 329; Jones-Moffatte Decl.
¶ 11), and believes that JonesMoffatte issued the threat in the
first place because she was being
"paid off" by third-party operatives to harass plaintiff (Consol.
Actions Dep. at 344).
11
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