Pierre v. Napolitano

Filing 30

OPINION AND ORDER re: 17 MOTION for Summary Judgment on Counts I Through III of the Complaint and for Dismissal of Count IV for Lack of Subject Matter Jurisdiction filed by Janet Napolitano. Accordingly, for all the foregoing reasons, defendant's motion for summary judgment dismissing the complaint in its entirety is granted in all respects. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 7/24/2013) Copies Sent By Chambers. (rsh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
MAURICE PIERRE,

:
Plaintiff,

-against-

:
:

JANET NAPOLITANO as Secretary of
the United States Department of
Homeland Security,
Defendant.

11 Civ. 4935 (HBP)

:

OPINION
AND ORDER

:
:

-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiff, a Special Agent employed by United States
Immigration and Customs Enforcement ("ICE"), commenced this
action for employment discrimination on July 19, 2011, alleging
violations of Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. §§ 2000e et seq., the Americans with Disabilities Act of 1990 ("ADA"),1 42 U.S.C. §§ 12101 et seq. and the Age

1

Plaintiff, an employee of ICE, is a federal employee
within the meaning of the ADA. See 42 U.S.C. § 12111(5)(B)(i);
White v. U.S. Postal Serv., 01 Civ. 499 (RCC)(KNF), 2002 WL
31466767 at *1 (S.D.N.Y. Oct. 31, 2002) (Fox, M.J.). The federal
government, however, does not fall within the definition of an
"employer" for purposes of the ADA; federal employees, therefore,
cannot assert employment discrimination claims under the ADA.
See 42 U.S.C. § 12111(5)(B)(i); Rivera v. Heyman, 157 F.3d 101,
(continued...)

Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§
621 et seq (Complaint, dated July 19, 2011 (Docket Item
1)("Compl.")).

Plaintiff also alleged intentional and negligent

infliction of emotional distress (Compl. ¶ 137).

The parties

have consented to my exercising jurisdiction for all purposes
pursuant to 28 U.S.C. § 636(c).
On November 21, 2012, defendant moved for summary
judgment on plaintiff's employment discrimination claims and for
dismissal of plaintiff's tort claims for lack of subject matter
jurisdiction (Memorandum of Law in Support of Defendant's Motion
for Summary Judgement, dated Nov. 21, 2012 (Docket Item 18)("Def.
Mem.")).

For the reasons set forth below, defendant's motion is

granted in all respects.

II.

Facts

Plaintiff was born on July 12, 1961, and is currently
52 years old (Transcript of Deposition of Maurice Pierre, dated

1

(...continued)
103 (2d Cir. 1998); White v. U.S. Postal Serv., supra, 2002 WL
31466767 at *1. A federal employee's exclusive remedy for
discrimination based on disability falls within the
Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§
701 et seq. Rivera v. Heyman, supra, 157 F.3d at 103; see 42
U.S.C. § 12111(5)(B). I shall, therefore, consider plaintiff's
discrimination claims under the Rehabilitation Act. See Rivera
v. Heyman, supra, 157 F.3d at 103–04; Marinelli v. Chao, 222 F.
Supp. 2d 402, 409 n.3 (S.D.N.Y. 2002) (Marrero, D.J.).
2

May 16, 2011 ("Pl. Dep.") at 6, annexed as Ex. A Declaration of
Rebecca S. Tinio, Esq., dated Nov. 21, 2012 (Docket Item
20)("Tinio Decl.")).

In 1990, plaintiff began working for the

Immigration and Naturalization Service ("INS"), part of the
United States Department of Justice (Pl. Dep. at 13).

In 1996,

plaintiff became a Special Agent with the INS (Pl. Dep. at 15).
From 1996 through June 2010, plaintiff worked in the Manhattan
office of the INS ("SAC NY")(Pl. Dep. at 15).

In 2003, INS was

incorporated into ICE, then newly created, within the Department
of Homeland Security.2

In June 2010, plaintiff transferred to a

field office in Castle Point, New York ("RAC Castle Point") (Pl.
Dep. at 15-16), where he continues to work to the present day
(Affidavit of Maurice Pierre, dated Jan. 16, 2013 ("Pl. Aff.") at
¶ 1, annexed as Ex. A to Memorandum of Law in Opposition to
Defendant's Motion for Summary Judgment, dated Jan. 18, 2013
(Docket Item 25)("Pl. Mem.")).

2

"U.S. Immigration and Customs Enforcement is the principal
investigative arm of the U.S. Department of Homeland Security
(DHS) and the second largest investigative agency in the federal
government. Created in 2003 through a merger of the
investigative and interior enforcement elements of the U.S.
Customs Service and the Immigration and Naturalization Service,
ICE now has more than 20,000 employees in offices in all 50
states and 47 foreign countries." About ICE,
http://www.ice.gov/about/overview/ (last visited June 28, 2013).
3

On May 22, 2008, plaintiff injured his neck and back in
an on-duty automobile accident (Pl. Aff. ¶ 2).3

Plaintiff was

placed on off-duty continuation of pay ("COP") status until July
7, 2008 (Compl. ¶ 21).4
While plaintiff was on COP status, Karen Pace, plaintiff’s group supervisor, informed plaintiff of the potential
consequences of an extended absence from work, including the loss
of his job "series" (Ex. D to Tinio Decl.).

In particular, she

informed plaintiff that his job series required him to meet
certain physical standards, and that if he was on leave for an
extended period, ICE could require him to take a fitness for duty
test to retain his job series (Ex D. to Tinio Decl.).

According

to plaintiff, on July 7, 2008, his last day of COP eligibility,
Karen Pace and Milagros Pabon, a mission support specialist, gave
him a choice of "whether to come back to work or to use [his] own
sick leave or to utilize the Workers' Compensation" (Pl. Dep. at
3

The accident, which involved no other vehicles, occurred
when plaintiff, due to fatigue from having worked two consecutive
shifts, fell asleep at the wheel and hit a rock outcropping (see
Ex. B to Declaration of Louis D. Stober, Esq. ("Stober Decl."),
dated Jan. 18, 2013).
4

"COP is continuation of an employee’s regular pay for up
to 45 calendar days of wage loss due to disability and/or medical
treatment. It is paid by the employer only in connection with a
traumatic injury. Employees with occupational disease claims are
not eligible to receive COP" (see Questions and Answers About the
Federal Employees Compensation Act (FECA), U.S. Department of
Labor, at 16, annexed as Ex. C to Tinio Decl.).
4

60).

Plaintiff elected to receive workers' compensation benefits

(Pl. Dep. at 60).

Plaintiff switched from COP status to leave

without pay ("LWOP") status, and continued to be on LWOP status
until May 2009 (Pl. Dep. at 73).

While on LWOP status, plaintiff

received workers' compensation payments in the amount of
three-fourths of his regular salary (Pl. Dep. at 73; Ex. F to
Tinio Decl.).
On March 11, 2009, plaintiff was examined by Dr. Robert
Mantica, a referee examiner for the United States Department of
Labor ("DOL") (Ex. G to Tinio Decl. at P000914-17).

Dr. Mantica

diagnosed plaintiff with "degenerative disk disease in the lumbar
spine" and stated that plaintiff "still ha[d] the limitation from
working full duty in that he [could not] be put in a situation
where he would be in an altercation because of his work as a
special agent in the violent crime group" (Ex. G to Tinio Decl.
at P000915).

However, Dr. Mantica found that plaintiff could

perform light duty and that "the light duty that [plaintiff]
could assume would be desk work" (Ex. G to Tinio Decl. at
P000915).

Dr. Mantica noted that he expected plaintiff to be

able to "return to his regular duties in approximately one to two
months" (Ex. G to Tinio Decl. at P000915).
On April 3, 2009, Lisa White, a claims examiner for the
DOL's Office of Workers’ Compensation Programs ("OWCP"), relying
5

on Dr. Mantica's findings, informed SAC NY that plaintiff could
return to work with restrictions and recommended that SAC NY make
an offer of light duty to plaintiff (Ex. G to Tinio Decl. at
P000913).
On May 6, 2009, SAC NY extended to plaintiff an offer
of light duty, which entailed working at SAC NY's duty desk and
performing administrative tasks (Ex. H to Tinio Decl. at P00050203).

The offer letter, signed by Peter Smith, Special Agent in

Charge, stated that "the medical documentation provided by Dr.
Mantica is sufficient to support your return to limited duties
for a brief period of time" (Ex. H to Tinio Decl. at P000502-03).
The offer letter also stated as follows:
As a Criminal Investigator you receive Law Enforcement Availability Pay (LEAP). To qualify for
LEAP, 5 U.S.C. § 5545a(d)(2) and 5 C.F.R. § 550.183(a)
require a Criminal Investigator perform a minimum
annual average of 2 hours of unscheduled duty per
regular workday. In order for you to continue to
receive LEAP, you are required to satisfy the foregoing
provisions.
(Ex. H to Tinio Decl. at P000502).
Plaintiff accepted the offer by letter dated May 7,
2009, but stated that he was "going to use Sick Leave, effective
May 11, 2009 in order to complete the injection treatments" (Ex.
H to Tinio Decl. at P000501).

6

On May 13, 2009, plaintiff met with Peter Fox, Assistant Special Agent in Charge, who told plaintiff that while he
was on light duty, he would not receive Law Enforcement Availability Pay ("LEAP") (Pl. Dep. at 111-13).5
of plaintiff's compensation.

LEAP comprised 25%

During a conference call on June

29, 2009, Fox learned from a supervisor that his determination as
to plaintiff's LEAP eligibility was erroneous (Ex. K to Tinio
Decl. at Govt001400-01).

Fox thus rescinded his denial of

plaintiff's LEAP pay, and plaintiff received LEAP retroactively
for the period from May to June 2009 (Ex. K to Tinio Decl. at
Govt001401; Pl. Dep. at 121).
From May 13 through May 15, 2009, plaintiff attended
work.

Plaintiff states that he did not have a service vehicle at

the time and commuted "a total of 2-3 hours each way," which
"caused [his] lower back to suffer from severe stress and pain
and crippled [him] by the time the weekend had come" (Pl. Aff. ¶¶
9-11).

5

According to an ICE Directive entitled "Law Enforcement
Availability Pay for Criminal Investigators," LEAP is "[a]nnual
premium compensation paid to a criminal investigator to ensure
the availability of the investigator for all unscheduled duty in
excess of 8 hours on days that are part of a criminal
investigator's basic 40-hour workweek, as well as unscheduled
duty hours actually worked on days that are not regular workdays,
such as scheduled days off" (Ex. W to Tinio Decl. at P00871-72)
7

On May 18, 2009, plaintiff submitted a request for six
weeks of sick leave "in order to continue treatment and physical
therapy prescribed by my physician," from May 18, 2009 through
June 26, 2009 (Exs. L, M to Tinio Decl.).

Peter Fox asked Karen

Pace to inform plaintiff that federal regulations required him to
submit medical documentation in support of his leave request (Ex.
L to Tinio Decl. at Govt000944).

During this time period, Karen

Pace left plaintiff several voicemail messages stating that if he
did not provide additional documentary support for his sick leave
requests, he would be placed on Absence Without Leave ("AWOL")
status (Exs. N, O to Tinio Decl.).

Pace further stated that

being placed on AWOL status "was not a disciplinary action" (Exs.
N, O to Tinio Decl.).
On May 28, 2009, plaintiff sent an "Excuse Slip"
signed by Dr. Mitchell Rosen to SAC NY (Ex. Q to Tinio Decl.).
The slip stated that plaintiff would be out of work from May 18,
2009 through June 26, 2009 (Ex. Q to Tinio Decl.).

A checkbox

labeled "is unable to return to work at this time because" was
unchecked, and the slip did not explain why plaintiff was unable
to work (Ex. Q to Tinio Decl.).
After submitting the slip to SAC NY, plaintiff was told
by Karen Pace that he needed to provide additional information,
particularly, that the box indicating that he was unable to
8

return to work needed to be checked off and information about his
medical condition and treatment needed to be provided (Pl. Dep.
at 129-30).

On June 1, 2009, plaintiff resubmitted the Excuse

Slip with the above-mentioned box checked and the following
statement:

"lower back pain -- phy therapy + treatment" (Ex. R

to Tinio Decl.).

An e-mail from Peter Fox to Claudette Castillo

indicates that on June 1, 2009, SAC NY again advised plaintiff
that the Excuse Slip "did not contain sufficient information to
justify his request for extended Sick Leave," and was asked to
provide additional information about his alleged back injury,
including whether it was new or related to the prior back injury,
for which he had received clearance to work from the DOL examiner
(Pl. Dep. at 146-47; Ex. S to Tinio Decl.).

Plaintiff responded

that the injury referenced in the Excuse Slip was his pre-existing back injury (Pl. Dep. at 146-47).
Peter Fox again denied plaintiff's sick leave request
(Ex. T to Tinio Decl.).

He offered several reasons for his

denial, including the fact that (1) the DOL examiner had cleared
plaintiff to work, (2) plaintiff had accepted the light duty
assignment, (3) plaintiff could receive up to four hours' leave
each day to attend doctors' appointments and (4) plaintiff had
failed to provide sufficient medical evidence pursuant to applicable guidelines (Ex. T to Tinio Decl.).
9

Plaintiff provided further medical documentation from
his treating physician, Dr. Nicholas Panaro, on June 17, 2009
(Ex. U to Tinio Decl.).

On July 6, 2009, Peter Fox approved

plaintiff's request for six weeks' sick leave, initiated the
process to have any salary plaintiff lost during the time period
restored to him and retracted plaintiff's AWOL status from his
file (Ex. V to Tinio Decl.).

In mid-July 2009, plaintiff re-

ceived a lump sum payment for the period of time in which he had
previously been considered AWOL.

According to plaintiff, "[a]t

that time I received all the money that I was owed" (Pl. Dep. at
159-60).
On September 24, 2009, plaintiff submitted a request to
change his duty location from SAC NY to RAC Castle Point to James
Hayes, Special Agent in Charge (Ex. X to Tinio Decl.).

The

purpose of this transfer, plaintiff stated, was to shorten his
lengthy commute and eliminate "sitting immobile for excessive
periods of time" (Ex. X to Tinio Decl.).
Plaintiff remained on sick leave through October 2009,
finally returning to full, unrestricted duty on October 5, 2009
(Pl. Dep. at 103).

Upon his return, plaintiff learned that his

previous service vehicle, a 2003 Ford Explorer, had been assigned
to a less senior member of SAC NY, Agent Sean Sweeney (Pl. Dep.
at 163-64).

Plaintiff was assigned a different vehicle, a 2002
10

Pontiac Grand Prix, that he states had numerous problems, including the fact that it "did not have four-wheel drive, had bald
tires, an inoperable gas gauge, electrical problems and a dead
battery" (Pl. Aff. ¶ 20).

After complaining, plaintiff was

offered another vehicle by Karen Pace (Pl. Dep. at 168-73).
Plaintiff ultimately had the 2002 Grand Prix for "[n]ot very
long" before he was able to regain the use of the 2003 Ford
Explorer by speaking with Agent Sweeney (Pl. Dep. at 168-73).
Several months later, plaintiff's 2003 Ford Explorer "threw a
rod" and was rendered inoperable (Pl. Dep. at 173).
On October 14, 2009, plaintiff states that "during a
group meeting in front [of] all the agents in the Violent Gang
Unit and myself, ASAC Peter Fox told Agent Erin Corcoran, who was
involved in minor vehicle accident on October 13, 2009:
better not complain of a bad back'" (Pl. Aff. ¶ 25).

'You'd

On October

20, 2009, at an event honoring agents for completing 20 years of
service (one of whom was plaintiff), plaintiff states that Peter
Fox congratulated other agents while ignoring him completely (Pl.
Aff. ¶ 26).

Plaintiff states that this was "purposefully commit-

ted to make [him] feel like an outcast, to belittle [his] accomplishment and [was] purposefully done by ASAC Fox in retaliation
for [his] filing [of] an EEO complaint" (Pl. Aff. ¶ 26).

11

Plain-

tiff also states that he has been given "demeaning" assignments
inappropriate to his level of seniority (Pl. Aff. ¶ 27).
On December 16, 2009, James Hayes denied plaintiff's
request to transfer to RAC Castle Point, stating that there were
no current Special Agent vacancies at RAC Castle Point, but that
he would reconsider plaintiff's request if a vacancy became
available (Ex. Y to Tinio Decl.).

Hayes also offered to enter-

tain any request plaintiff might make for a transfer to another
unit within SAC NY to "better suit [his] medical needs" if
plaintiff desired to make such a request (Ex. Y to Tinio Decl.).
On February 19, 2010, Hayes reassigned plaintiff from
the Violent Gangs Unit of SAC NY to the Narcotics Unit of SAC NY
(Ex. Z to Tinio Decl. at P000328).
On February 23, 2010, Joseph Lestrange, Supervisory
Special Agent, informed plaintiff by e-mail that there were still
no vacancies within RAC Castle Point (Ex. AA to Tinio Decl.).
Lestrange also stated the following concerning plaintiff's recent
transfer to SAC NY's Narcotics Division:
The SAC is hoping that this position will present
intermittent opportunities for you to follow up on
leads and/or investigations that may extend to the
Westchester and northern areas of the SAC/New York area
of responsibility. I will discuss this matter with
your new supervisor and ASAC so that they may accommodate you in this manner when feasible. Although this
is not a permanent solution to your request to be
reassigned to Castle Point, it could afford you the
12

opportunity to better suit your medical needs than your
previous assignment with the Violent Gangs Unit. The
SAC is still open to a reconsideration of your request
if your situation remains the same and if a vacancy
becomes available in the future.
(Ex. AA to Tinio Decl.).
On March 2, 2010, in a letter from plaintiff to Hayes,
plaintiff thanked Hayes "for taking [his] medical needs into
consideration during [the] reassignment," but stated that he
"fear[ed] that such a move would be counter-productive to [his]
recovery" (Ex. BB to Tinio Decl.).

Plaintiff requested to remain

in his then-current position with the Violent Gangs Unit (Ex. BB
to Tinio Decl.).

Plaintiff also stated the following:

In response to my memo requesting to be reassigned
to RAC/Castle Point, you very generously offered me the
option to transfer to another group within SAC/NY that
may better suit my medical needs, granted there was a
vacancy. As it is now, I am able to make my physical
therapy appointments with a minimal impact on my workday and still remain productive and an asset to my
group. It is better for me both medically and physically to remain in my current group, until such a time
that a vacancy opens up at RAC/Castle Point, for which
I would still like to be considered.
(Ex. BB to Tinio Decl.).
Plaintiff was transferred back to the Violent Gangs
Unit "[a]fter being in the Narcotics unit for a month" (Pl. Mem.
at 14), and, in June 2010, plaintiff was assigned to RAC Castle
Point, where he currently remains (Ex. I to Tinio Decl. at 11).

13

Plaintiff contacted an Equal Employment Opportunity
(EEO) counselor on June 3, 2009, and filed an administrative
complaint on July 21, 2009, to which he added additional charges
on October 27, 2009 (Ex. EE, FF, GG to Tinio Decl.).

The allega-

tions underlying plaintiff's complaint, which alleged discrimination based on age and disability as well as a hostile work
environment, were summarized by the investigator as follows:
1.

On July 7, 2008, your supervisor threatened you
with loss of job series, and then loss of job
after you suffered an on-the-job injury.

2.

On May 5, 2009, the Special Agent in Charge offered you a light duty assignment at the Special
Agent in Charge Field Office, Duty Desk, New York,
New York. You assert the job offer "circumvented"
federal sector workers' compensation regulation
and procedure.

3.

On May 12, 2009, you were threatened with charges
of Absent Without Leave (AWOL) if you did not
report to work on May 13, 2009.

4.

On May 13, 2009, you were advised you were not
eligible for LEAP pay [while] on light-duty status.

5.

On May 18, 2009, you requested sick leave for the
period May 18, 2009, to June 26, 2009. The request was initially denied.

6.

On May 29, 2009, the agency advised your medical
documentation dated May 28, 2009 was inadequate.

7.

On June 4, 2009, the agency advised your medical
documentation dated June 1, 2009 was inadequate.

14

8.

On June 26, 2009, you became aware that you were
not paid for the period May 28, 2009, to June 26,
2009. Instead, you were coded as AWOL.

9.

On September 25, 2009, you requested reasonable
accommodation. To date, the Special Agent in
Charge has not responded to the request.

10.

On October 5, 2009, your service vehicle was reassigned to younger employee.

11.

On October 14, 2009, the Assistant Special Agent
in Charge commented to a third-party; "You'd better not complain about a bad back." You aver the
comment mocked your disability status.

(Ex. GG to Tinio Decl.).

Plaintiff commenced the present action

on July 19, 2011, prior to the resolution of his administrative
action.

III.

Analysis

A.

Local Rule 56.1
Submissions

As a threshold matter, defendant argues that "the Court
should deem [its Local Rule 56.1] Statement to be admitted in its
entirety" due to plaintiff's failure to submit a counter-statement of material facts pursuant to Local Rule 56.1 (Reply Memorandum of Law in Further Support of Defendant's Motion for
Summary Judgment, dated Feb. 26, 2013 (Docket Item 28)("Def.
Reply"), at 3-4).

15

Plaintiff's "failure to comply with Local Rule 56.1 is
grounds for deeming admitted the facts contained in defendants'
Rule 56.1 statement" and granting defendants' motion.

Taylor v.

Local 32E Serv. Employees Int'l, Union, 286 F. Supp. 2d 246, 248
n.1 (S.D.N.Y. 2003) (Conner, D.J.) aff'd, 118 F. App'x 526 (2d
Cir. 2004); Watt v. N.Y. Botanical Garden, No. 98 Civ. 1095
(BSJ), 2000 WL 193626 at *1 n.1 (S.D.N.Y. Feb. 16, 2000) (Jones,
D.J.).

"A district court[, however,] has broad discretion to

determine whether to overlook a party's failure to comply with
local court rules," and, thus, "may . . . opt to conduct an
assiduous review of the record" even when a party has not complied with Rule 56.1.

Holtz v. Rockefeller & Co., 258 F.3d 62,

73 (2d Cir. 2001) (internal quotation marks omitted).
Considering that plaintiff is represented by counsel,
his failure to file a counter-statement under Local Rule 56.1 is
inexplicable.

However, given the strong preference in ths

Circuit for resolving cases on the merits, see, e.g., Jamison v.
Fischer, 11 Civ. 4697 (RJS), 2012 WL 4767173 at *6 (S.D.N.Y.
Sept. 27, 2012) (Sullivan, D.J.), I shall overlook the lack of
Rule 56.1 statement and shall review the record independently.
See Am. Med. Ass'n v. United HealthCare Corp., 00 Civ. 2800
(LMM), 2007 WL 1771498 at *3 (S.D.N.Y. June 18, 2007) (McKenna,
D.J.) (conducting review of the record "to fill . . . gaps"
16

resulting from plaintiffs' failure to file a 56.1 counter-statement in response to defendants' 56.1 statement); Citibank N.A. v.
Outdoor Resorts of Am., Inc., No. 91 Civ. 1407 (MBM), 1992 WL
162926 at *4 (S.D.N.Y. June 29, 1992) (Mukasey, D.J.) (declining
to grant summary judgment based on non-moving party's failure to
submit a Rule 56.1 statement).

Ultimately, my decision to

overlook plaintiff's failure to file a Rule 56.1 statement does
not change the outcome; for the reasons that follow, I conclude
that defendants' summary judgment motion should be granted on the
merits.

See Local Union No. 38 v. Hollywood Heating & Cooling,

Inc., 88 F. Supp. 2d 246, 247 n.1 (S.D.N.Y. 2000) (McMahon, D.J.)
(declining to deem movant's Rule 56.1 statement admitted where
non-moving party submitted its Rule 56.1 statement nearly two
months late, because there were other grounds on which to grant
the movant's summary judgment motion).

B.

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
17

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
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.'"
18

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. 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).
The Court of Appeals for the Second Circuit has explained that "in determining whether the moving party has met
[its] burden of showing the absence of a genuine issue for trial,
the district court may not rely solely on the statement of
undisputed facts contained in the moving party's Rule 56.1
statement.

It must be satisfied that the citation to evidence in

the record supports the assertion."

Vt. Teddy Bear Co., Inc. v.

1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also
Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003).
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,
19

93 F.3d 47, 54 (2d Cir. 1996); see Gallo v. Prudential Residential Servs., Ltd. P'ship, supra, 22 F.3d at 1224; Montana v.
First Fed. Sav. & Loan Ass'n, 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.).
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).
20

C.

Application of the
Foregoing Principles

1.

Title VII Claims

The first claim in plaintiff's complaint alleges that
defendant violated Title VII by discriminating against plaintiff
"on the basis of age and disability" (Compl. ¶ 123).

This claim

is somewhat mystifying, because Title VII does not protect
against discrimination on the basis of age or disability.

See 42

U.S.C. § 2000e-2 ("It shall be an unlawful employment practice
for an employer . . . to discriminate against any individual . .
. because of such individual's race, color, religion, sex, or
national origin."); Mabry v. Neighborhood Defender Serv., 769 F.
Supp. 2d 381, 391 (S.D.N.Y. 2011)("Title VII does not encompass
claims for employment discrimination on the basis of age.");
MacEntee v. IBM, 783 F. Supp. 2d 434, 442 (S.D.N.Y. 2011)
(Daniels, D.J.) ("Title VII does not encompass claims for employment discrimination on the basis of disability."), aff'd, 471 F.
App'x 49 (2d Cir. 2012) cert. denied, 133 S. Ct. 985 (2013) reh'g
denied, 133 S. Ct. 1751 (2013).

None of plaintiff's allegations

suggest that he suffered discrimination on any basis of his
membership in any of the classes protected by Title VII, and

21

plaintiff does not even mention Title VII in his memorandum of
law in opposition to the present motion.
Accordingly, since there is nothing in the record on
which plaintiff could predicate a Title VII claim, summary
judgment on plaintiff's Title VII claims is appropriate.

2.

Claims for Discrimination and
Retaliation Under the
Rehabilitation Act and ADEA

Plaintiff also claims that he was the victim of discrimination based on his age and disability in violation of the
ADEA and the Rehabilitation Act.

He argues that the following

actions taken by defendant constituted age and/or disability
discrimination:
1.

Defendant "threatened Plaintiff' position and
threatened to demote him to an administrative
position" if he remained on workers' compensation
(Pl. Mem. at 13).

2.

Defendant's offer of light duty as a "duty dog"
was made in violation of workers' compensation
regulations and was punitive (Pl. Mem. at 15-18).

3.

Defendant threatened to place plaintiff on AWOL
status "if he did not return to work prematurely,"
denied several of his requests for sick leave
"arbitrarily," and ultimately placed him on AWOL
status for ten weeks, during which time he was not
paid (Pl. Mem. at 13).

4.

Defendant improperly denied plaintiff his LEAP pay
while he was on sick leave (Pl. Mem. at 13).

22

5.

Defendant denied plaintiff's request to transfer
from SAC NY to RAC Castle Point (Pl. Mem. at 1112).

6.

Defendant did not reassign plaintiff his original
service vehicle upon his return to full duty (Pl.
Mem. at 13).

7.

A supervisor made a joke to one of plaintiff's coworker's mocking plaintiff's disability (Pl. Mem.
at 21-22).

Plaintiff's claims of age and disability discrimination
in violation of the Rehabilitation Act and the ADEA are properly
analyzed under the now familiar framework first set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Under McDonnell Douglas, plaintiff's claims are assessed by way
of 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. New York City Transit Auth., 417 F.3d 241, 248 (2d Cir.
2005) (explaining that McDonnell Douglas analysis "applies to

23

ADEA claims"); Reg'l Econ. Cmty. Action Program, Inc. v. City of
Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002) (explaining that
McDonnell Douglas analysis applies to both discrimination and
retaliation claims under the Rehabilitation Act); see also Hodges
v. Holder, 12-805-CV, 2013 WL 1859241 at *1 (2d Cir. May 6, 2013)
(summary order) (Rehabilitation Act); Taddeo v. L.M. Berry & Co.,
12-3591-CV, 2013 WL 1943274 at *1 (2d Cir. May 13, 2013) (summary
order) (ADEA).
In order to establish a prima facie case of discrimination under either the ADEA or the Rehabilitation Act, a plaintiff
must demonstrate:

(1) that he is a member of the class protected

by the statute, (2) that he is qualified for the position, (3)
that he suffered some adverse employment action, and (4) that the
circumstances surrounding the adverse employment action give rise
to an inference of discrimination.

See Terry v. Ashcroft, 336

F.3d 128, 137-38 (2d Cir. 2003) (outlining a prima facie case of
discrimination under the ADEA); Kinsella v. Rumsfeld, 320 F.3d
309, 314 (2d Cir. 2003) (outlining a prima facie case of discrimination under the Rehabilitation Act); Garvin v. Potter, 367 F.
Supp. 2d 548, 560 (S.D.N.Y. 2005) (same).
For purposes of this motion, I shall assume that
plaintiff can establish that he is a member of a protected class
for purposes of both the Rehabilitation Act and the ADEA and that
24

he was qualified for the position he held at DHS.

See Gregory v.

Daly, 243 F.3d 687, 696 (2d Cir. 2001) ("To show 'qualification'
. . . the plaintiff need not show perfect performance or even
average performance.

Instead, [he] need only make the minimal

showing that [he] possesses the basic skills necessary for
performance of the job." (inner quotations and citations omitted;
emphasis in original)).

However, even assuming that plaintiff is

able to satisfy the first two elements of a prima facie case of
discrimination under the ADEA or Rehabilitation Act, for the
reasons set forth below, the evidence is insufficient to sustain
a claim of employment discrimination under either statute.

a.

2008 Threats of Job Loss

Plaintiff first alleges that he suffered disability
discrimination when, on July 7, 2008,
[he] received a call from his supervisor Karen Pace who
informed him that if he were to remain out of work for
more than three months he could lose his job series
(1811) if he was found not to be able to perform his
duties consistent with his current position, Special
Agent/Criminal Investigator. She also informed [him]
that he could be terminated if he is out for more than
six (6) months and was found he could not return to
work at all.

(Compl. ¶ 26).

He further states that "a recorded phone message

left by Karen Pace [] substantiates these threats" (Compl. ¶ 27),
25

although plaintiff has offered neither the recording or a transcript in opposition to defendant's motion.
It is clear from plaintiff's description of the message
that Karen Pace was not "threatening" him, but merely conveying
information to him about the implications of his extended leave
of absence, and plaintiff has not argued that the information
Pace was conveying to him was false.

Nevertheless, even if

Pace's message could somehow be interpreted as threatening,
neither of the threatened actions –- loss of job series or
termination –- ever came to fruition, and a threat of termination, without more, is not an adverse employment action.

Bowles

v. New York City Transit Auth., 285 F. App'x 812, 814 (2d Cir.
2008) (no adverse employment action where alleged threat of
termination never "ripened into any further action"); Galabya v.
New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) ("A
plaintiff sustains an adverse employment action if he or she
endures a 'materially adverse change' in the terms and conditions
of employment.").

Thus, plaintiff suffered no adverse employment

action with respect to the threat.
Plaintiff is also unable to demonstrate that the
supposed threat took place under circumstances giving rise to an
inference of discrimination.

In what is presumably an attempt to

demonstrate disparate treatment, he states only that "Pace has
26

not threatened other employees under materially like circumstances in the same manner" (Pl. Mem. at 5), but this bald
statement is not enough to defeat summary judgment.

Plaintiff

identifies no comparators and provides no specifics concerning
the "materially like circumstances" that Pace was willing to
tolerate.

"[A] plaintiff cannot establish a prima facie case

based on 'purely conclusory allegations of discrimination, absent
any concrete particulars.'"

Lioi v. New York City Dep't of

Health & Mental Hygiene, 10 Civ. 6445 (PAE), 2012 WL 6625271 at
*9 (S.D.N.Y. Dec. 19, 2012) (Engelmayer, D.J.).
However, even assuming, arguendo, that plaintiff were
able to make a prima facie showing that Pace's "threat" constituted an adverse employment action that occurred under circumstances giving rise to an inference of discrimination, he is
unable to rebut defendant's legitimate non-discriminatory explanation for the communication, i.e., to "keep [plaintiff] informed
of relevant information that may matter to him" about the physical requirements of his job and how they related to his extended
leave request (Ex. D to Tinio Decl.).

There is simply nothing in

the record to suggest that Pace's message to plaintiff, made in
response to plaintiff's leave request, was a pretext for unlawful
discrimination.

27

Accordingly, no reasonable fact finder could conclude
that Pace's "threat" was the product of illegal discrimination.

b.

2009 Offer of Light Duty

Plaintiff next asserts that the SAC NY's offer of light
duty in May 2009 constituted age and disability discrimination
(Pl. Mem. at 15-18).
Plaintiff first argues that the manner in which the
offer of light duty was transmitted to him violated worker's
compensation policies, because he was given only two days to
decide on whether to accept the offer, denying him the right to
have the offer reviewed by his case worker and his physician (Pl.
Mem. at 16).

He states that, in breach of 20 C.F.R. § 10.516,6

SAC NY failed in its "obligation to send a copy of the light duty

6

20 C.F.R. § 10.516 provides as follows:
OWCP shall advise the employee that it has found
the offered work to be suitable and afford the employee
30 days to accept the job or present any reasons to
counter OWCP's finding of suitability. If the employee
presents such reasons, and OWCP determines that the
reasons are unacceptable, it will notify the employee
of that determination and that he or she has 15 days in
which to accept the offered work without penalty. At
that point in time, OWCP's notification need not state
the reasons for finding that the employee's reasons are
not acceptable.

28

job offer to the OWCP so they could determine the suitability of
that offer" (Pl. Mem. at 16).

However, even assuming that the

manner in which the offer was conveyed to him was contrary to
applicable regulations, plaintiff again fails to address how this
led to any materially adverse change in the terms and conditions
of his employment and, therefore, fails to explain how it constitutes an adverse employment action.

Galabya v. New York City Bd.

of Educ., supra, 202 F.3d at 640.
Plaintiff's argument that the light duty offer was
"punitive" is also unpersuasive.

Plaintiff contends that the

position he was offered at the duty desk, that of a so-called
"duty dog," was undesirable, citing an e-mail from Peter Fox to
other supervisors in which Fox states that "if an agent in this
division violates by blocking or providing no contact info,
he/she will find themselves covering the duty desk for 1 week"
(Ex. L to Tinio Decl.).

Plaintiff also cites to deposition

testimony from Karen Pace, in which Pace states that the duty
desk position was not a desirable post, and that "[m]ost of the
agents don't really like it" (Ex. F at 44-47).
"Courts in the Second Circuit have held that reductions
in workload or inferior or less desirable assignments can constitute adverse employment actions where they impact a plaintiff's
opportunity for professional growth and career advancement."
29

Amato v. Hartnett, 09 Civ. 9511 (ER), 2013 WL 1309733 at *11
(S.D.N.Y. Mar. 30, 2013) (Ramos, D.J.).

However, absent such

detrimental effects, courts have generally found that merely
undesirable work assignments do not constitute adverse employment
actions.

See Nicholls v. Brookdale Univ. Hosp. & Med. Ctr., 205

F. App'x 858, 861 (2d Cir. 2006); Sotomayor v. City of New York,
862 F. Supp. 2d 226, 255-56 (E.D.N.Y. 2012), aff'd, 713 F.3d 163
(2d Cir. 2013); Miller v. City of Ithaca, 914 F. Supp. 2d 242
(N.D.N.Y. 2012); Klein v. New York Univ., 786 F. Supp. 2d 830,
847 (S.D.N.Y. 2011) (Kaplan, D.J.).

The evidence demonstrates

that serving as a "duty dog," while undesirable, was a role that
all SAC NY agents had to perform periodically (Ex. F at 44-47),
belying plaintiff's assertion that it was materially different
from his normal duties or that it would be detrimental to his
career advancement (Pl. Mem. at 13).

The record also indicates

that plaintiff worked at the duty desk for only several days in
May 2009 before his period of renewed sick leave, which lasted
until he returned to full duty in October 2009.

Thus, plain-

tiff's assignment to the duty desk was not a materially adverse
action.
Plaintiff argues that his disparate treatment supports
an inference of discrimination.

See, e.g. Abdul-Hakeem v.

Parkinson, 12-748-CV, 2013 WL 3111300 at *1 (2d Cir. June 21,
30

2013) (summary order) ("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.").
Where a plaintiff is relying on differences in treatment to establish an inference of discrimination, 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.") (internal quotations 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, 2008); Augustin v. Yale
Club of New York City, 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.).
Plaintiff falls well short of establishing that he was "similarly
situated in all material respects[] to the individuals with whom
31

[he] seeks to compare [him]self."
230 F.3d 34, 39 (2d Cir. 2000).

Graham v. Long Island R.R.,

Plaintiff identifies several

individuals who he states "were placed on restricted duty but
were younger than Plaintiff [and] were not assigned to the duty
desk for an extended period of time" (Pl. Mem. at 17-18), but the
information about these individuals, drawn almost entirely from
plaintiff's own affidavit, is exceedingly sparse.

For example,

as to one of the individuals, Special Agent Greg Ramos, plaintiff
states only the following:

"Greg Ramos was out on extended sick

leave with a non-permanent disability, his position was never
threatened and he was not required to provide more than one
doctor's note to justify his extended sick leave" (Pl. Aff. ¶
13).

Other individuals referenced by plaintiff were clearly not

similarly situated to him, such as Special Agents Yvette
Blackmon-Tom and Miguel Herrera, who were on restricted duty
pending disciplinary investigations, not for medical reasons, and
thus would not have had the same medical restrictions (Pl. Aff. ¶
12).
Finally, even if plaintiff were able to make out a
prima facie showing of discrimination predicated on his assignment to the duty desk, he provides no evidence to rebut defendant's proffered legitimate, non-discriminatory reasons for
offering it to him:

(1) it was precisely the type of work
32

recommended by the DOL examiner, who stated that "[t]he light
duty that [plaintiff] could assume would be desk work" (Ex. G to
Tinio Decl. at P000915) and (2) Peter Fox thought that the
position would be more productive than having plaintiff sit at
his own desk, as there would be a lack of work at the latter
position (Ex. K to Tinio Decl. at Govt001400).
Accordingly, no reasonable fact finder could conclude
that plaintiff suffered unlawful discrimination on the basis of
plaintiff's assignment to the duty desk.

c.

2009 AWOL and
Sick Leave Issues

Plaintiff also argues that he suffered discrimination
when, in 2009, (1) he was "threatened" with AWOL status by Karen
Pace during several voicemails, (2) his requests for sick leave
were denied, and (3) he was ultimately determined to be AWOL by
Peter Fox (Pl. Mem. at 13).

These arguments are also unable to

withstand summary judgment.
In contrast to plaintiff's characterization, none of
the voicemails left by Karen Pace even remotely approach the
level of a threat (see Ex. N, O to Tinio Decl.).

Instead, Pace

merely informed plaintiff that unless he either shows up for work
or provides medical documentation in support of his six-week sick

33

leave request, he would be considered AWOL (Ex. N, O to Tinio
Decl.).

Plaintiff's argument that SAC NY's repeated requests for

additional documentation constituted discrimination is also
misplaced, as "[r]equiring an employee to provide medical documentation is not a materially adverse action."

Gentile v.

Potter, 509 F. Supp. 2d 221, 240-41 (E.D.N.Y. 2007); see also
Nicastro v. Runyon, 60 F. Supp. 2d 181, 186 (S.D.N.Y. 1999)
(McMahon, D.J.) ("[M]any of the actions complained of by plaintiff, such as scrutiny from his supervisors that he deemed
excessive, requiring documentation for sick leave, scrutiny of
his wife's sick leave, the unexplained absence of certain documents that he thinks should be in his employment file, or threatening to investigate medical fraud, do not constitute 'adverse
employment actions.'").

Not only was SAC NY entitled, under

applicable regulations,7 to request adequate documentation from

7

See 5 C.F.R. § 630.405(a):
An agency may grant sick leave only when the need
for sick leave is supported by administratively
acceptable evidence. An agency may consider an
employee's self-certification as to the reason for his
or her absence as administratively acceptable evidence,
regardless of the duration of the absence. An agency
may also require a medical certificate or other
administratively acceptable evidence as to the reason
for an absence for any of the purposes described in §
630.401(a) for an absence in excess of 3 workdays, or
for a lesser period when the agency determines it is
(continued...)
34

plaintiff, it had good reason to do so:

plaintiff had recently

been cleared for light duty by the DOL examiner, and his

two

rejected "Excuse Slips" (Ex. Q, R to Tinio Decl.) provided
virtually no information about the nature of his claimed injury.
Moreover, because SAC NY's request for medical documentation was
not an adverse employment action, the placement of plaintiff on
AWOL status, which was the direct result of his failure to
provide such documentation, was also not an adverse employment
action.
Thus, no reasonable jury could conclude that plaintiff
was the victim of illegal discrimination on the basis of Pace's
threat to place plaintiff in AWOL status and her related conduct.

d.

2009 LEAP Denial

Plaintiff's next argues that the May 13, 2009 determination of Peter Fox to deny him LEAP while he was on light duty
was discriminatory (Pl. Mem. at 13, 15-16).

He alleges that

other agents that were placed on restricted duty did not have
their LEAP pay taken away (Pl. Mem. at 17).

However, the tempo-

rary lapse in plaintiff's LEAP does not rise to the level of an
adverse employment action.

According to Fox, his decision to

7

(...continued)
necessary.
35

deny LEAP was based on an erroneous interpretation of the conditions that had to be met before an agent was eligible for LEAP
(Ex. K to Tinio Decl. at Govt001400-01).

The record indicates

that as soon as Fox realized his error he rescinded his denial of
plaintiff's LEAP and promptly took steps to ensure that plaintiff
received what he was owed both retroactively and prospectively
(Ex. K to Tinio Decl. at Govt001401; Pl. Dep. at 121).

Plaintiff

proffers no evidence that the temporary denial of his LEAP
payments were "more disruptive than a mere inconvenience," and
thus fails to demonstrate that he suffered an adverse employment
action.

Galabya v. New York City Bd. of Educ., supra, 202 F.3d

at 640 ("The unspecified inconvenience that appellant endured
because of the relatively minor administrative miscues that
occurred during the reassignment process is not cognizable as an
adverse employment action."); see also Dressler v. New York City
Dep't of Educ., 10 Civ. 3769 (JPO), 2012 WL 1038600 at *8
(S.D.N.Y. Mar. 29, 2012) (Oetken, D.J.) ("A corrected administrative error without attendant deleterious effect does not constitute an adverse employment action.").

e.

2009 Transfer Request

Plaintiff next argues that defendant discriminated
against him based upon his disability by failing to provide him
36

with the reasonable accommodation of a transfer to RAC Castle
Point.8

However, because it is clear from the record that the

only basis on which plaintiff sought this transfer was to shorten
his commute, the denial of the transfer does not rise to the
level of an adverse employment action.

Pimentel v. City of New

York, 00 Civ. 326 (SAS), 2002 WL 977535 (S.D.N.Y. May 14, 2002)
(Scheindlin, D.J.) ("[A] transfer, or denial of a transfer, to a
more or less convenient location does not, by itself, constitute
an adverse employment action."), aff'd, 74 F. App'x 146 (2d Cir.
2003); see also Taylor v. New York City Dep't of Educ.,
11-CV-3582, 2012 WL 5989874 (E.D.N.Y. Nov. 30, 2012), quoting
Antonmarchi v. Consolidated Edison Co., 03 Civ. 7735 (LTS)(KNF),
2008 WL 4444609 at *15 (S.D.N.Y. Sept. 29, 2008) (Swain,
D.J.)("The courts in this Circuit have generally declined to find
that transfers (or denials of transfers) amount to adverse
employment actions . . . where the action results merely in 'an
inconvenience, such as an increased commute or unfavorable

8

Plaintiff references two additional requests to be
transferred to RAC Castle Point, made on July 13, 2007 and
February 7, 2008, both of which were denied (Pl. Mem. at 11-12).
However, neither of these denials were raised in plaintiff's
administrative proceeding (see Ex. GG to Tinio Decl.), and
accordingly, they are unexhausted and will not be addressed. See
29 C.F.R. §§ 1614.105(a)(1), 1614.407. A federal employee must
comply with applicable EEOC procedures to satisfy exhaustion
requirements. Avillan v. Potter, 01 Civ. 1648 (SHS), 2002 WL
252479 at *2 (S.D.N.Y. Feb. 21, 2002) (Stein, D.J.).
37

hours.'").

In addition, plaintiff makes no showing that a

vacancy existed at RAC Castle Point for which he was eligible.
See Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566
(2d Cir. 2000) ("[I]n order to recover under the ADA or the
Rehabilitation Act for a failure to reasonably accommodate by
transfer, a plaintiff bears the burden of establishing that a
vacancy existed into which he or she might have been transferred."); see also Nixon-Tinkelman v. New York City Dep't of
Health & Mental Hygiene, 08 Civ. 4509 (BSJ), 2012 WL 2512017 at
*2-*3 (S.D.N.Y. June 28, 2012) (Jones, D.J.).
Accordingly, no reasonable jury could conclude that the
denial of a transfer to RAC Castle Point constituted illegal
discrimination.

f.

2009 Vehicle Issue

Plaintiff next alleges that he suffered age discrimination when, upon returning to work in October 2009, the

2003 Ford

Explorer that was previously assigned to him was assigned to a
less senior agent (Compl. ¶ 98).

According to plaintiff,

"[a]lthough [he] was the most senior agent and expressed a
preference to have [his] 2003 Ford Explorer returned to [him],
[Karen] Pace did not reassign the vehicle" (Pl. Aff. ¶ 20).
Plaintiff was instead assigned a vehicle that did not have
38

four-wheel drive, had bald tires, an inoperable gas gauge,
electrical problems and a dead battery" (Compl. ¶ 102; Pl. Aff. ¶
20).
Again, an adverse employment action "must be 'more
disruptive than a mere inconvenience'"

Galabya v. New York City

Bd. of Educ., supra, 202 F.3d at 640, quoting Crady v. Liberty
Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993), and
the principal reason offered by plaintiff for needing his original service vehicle is that "he lived in upstate New York and was
concerned with his ability to drive to work during the winter
months under hazardous winter conditions, including snow" (Def.
Mem. at 13).

This is far short of a "'materially adverse change'

in the terms and conditions of [his] employment," Galabya v. New
York City Bd. of Educ., supra, 202 F.3d at 640.

Indeed, the

Court of Appeals has expressly held that decisions concerning the
assignment of vehicles are not adverse employment actions.

See

Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006) (disparate
treatment cannot be premised on vehicle assigned to plaintiff).
In any event, plaintiff is not only unable to show any discriminatory animus on Pace's part, but when plaintiff complained, Pace
offered him a new vehicle (Ex. A 172-73), an offer which plaintiff never needed to accept because he was able to reacquire his

39

2003 Ford Explorer after "not very long" by speaking directly
with Agent Sweeny (Ex. A 173).
Accordingly, plaintiff's temporarily being denied the
use of the Ford Explorer is too trivial a matter to constitute an
adverse employment action.

g.

ASAC Fox's Comment

Plaintiff argues that Peter Fox's October 14, 2009
comment to Agent Erin Corcoran -- "You'd better not complain of a
bad back" –- constituted discrimination against him (Pl. Mem. at
21-22; Compl. ¶ 104-07).

He states that this remark took place

at "a group meeting in front [of] all the agents in the Violent
Gang Unit," elicited laughter, and "humiliated" him (Pl. Aff. ¶
25).

However, merely being humiliated does not, without more,

constitute an adverse employment action, and plaintiff alleges no
other material adverse consequences stemming from this incident.
Valenti v. Massapequa Union Free Sch. Dist., 09-CV-977 JFB ARL,
2012 WL 1038811 (E.D.N.Y. Mar. 28, 2012) ("[Plaintiff] has only
alleged that he felt humiliated when the jokes were made which is
not an adverse employment action.").
Accordingly, to the extent plaintiff is alleging that
ASAC Fox's comment constitutes an act of illegal discrimination,
summary judgment is appropriate.
40

3.

Retaliation Claims

Plaintiff also claims that he was subjected to retaliation because "he made it known that younger agents were being
preferentially treated, because he complained that his position
was threatened if he remained on workers' comp, because he filed
an EEO complaint, and for filing the instant litigation" (Pl.
Mem. at 19).
In order to establish a prima facie case of retaliation
under the Rehabilitation Act and the ADEA, a plaintiff must show:
(1) that he engaged in protected activity, (2) that he suffered
an adverse employment action and (3) that there is a causal
connection between the protected activity and the adverse action.
See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010).
A plaintiff may establish the requisite causal connection between the protected activity and the retaliatory conduct
"(1) indirectly, by showing that the protected activity was
followed closely by discriminatory treatment, or . . . (2)
directly, through evidence of retaliatory animus directed against
the plaintiff by the defendant."

Gordon v. N.Y.C. Bd. of Educ.,

232 F.3d 111, 117 (2d Cir. 2000); White v. Whitman, 99 Civ. 4777
(FM), 2002 WL 776589 at *10 (S.D.N.Y. Apr. 26, 2002) (Maas,

41

M.J.).

Where a plaintiff relies on temporal proximity as circum-

stantial evidence of causation, the "temporal proximity must be
'very close.'"

Little v. Nat'l Broad. Co., 210 F. Supp. 2d 330,

385 (S.D.N.Y. 2002) (Scheindlin, D.J.), quoting Clark Cnty. Sch.
Dist. v. Breeden, supra, 532 U.S. at 273; accord Kaytor v. Elec.
Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010) ("Close temporal
proximity between the plaintiff's protected action and the . . .
adverse action may in itself by sufficient to establish the
requisite causal connection.").

However, 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."

Espinal v. Goord,

558 F.3d 119, 129 (2d Cir. 2009), quoting Gorman-Bakos v. Cornell
Co-op Extension, 252 F.3d 545, 554 (2d Cir. 2001).
Once plaintiff demonstrates a prima facie case, the
burden shifts to defendant to articulate legitimate,
non-retaliatory reasons for its actions.

Once the defendant does

so, the burden shifts back to plaintiff to show that the articulated reasons are pretextual.

Papelino v. Albany Coll. of

Pharmacy of Union Univ., 633 F.3d 81, 92 (2d Cir. 2011).

Al-

though temporal proximity can be sufficient to support an inference of causation at the prima facie stage, it is insufficient to
42

show pretext at the third step.

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."), citing Quinn v. Green Tree Credit Corp., 159
F.3d 759, 770 (2d Cir. 1998); Dixon v. Int'l Fed'n of Accountants, 416 F. App'x 107, 110-11 (2d Cir. 2011).
Plaintiff's memorandum of law in opposition to defendant's motion for summary judgment, which was prepared by counsel, does not clearly delineate the conduct plaintiff deems
retaliatory.

The only putatively retaliatory acts that I can

divine from the complaint are the following:
1.

"[Plaintiff] informed HR his position was threatened in March 2009, that other employees who were
younger were never threatened with AWOL or to have
their LEAP taken away and immediately thereafter
on March 12, 2009 he was forced to turn in his
badge, weapon, and credentials" (Pl. Mem. at 19).

2.

"On October 20, 2009 at a SAC NY awards ceremony
Plaintiff was recognized for having completed
twenty years of service. The agents being honored
were seated in one table. At the conclusion of
the evening, ASAC Fox came to the table and congratulated the other agents for their accomplish43

ment and did not congratulate Plaintiff or acknowledge his presence in front of all of his
peers. Plaintiff felt this was demeaning and purposefully done in retaliation for filing an EEO
complaint" (Pl. Mem. at 22 (internal citations
omitted)).
3.

"Plaintiff was transferred to the Narcotics Unit
[in February 2010] in retaliation for filing a
complaint. . . . Plaintiff felt he was being
transferred out of the [Violent Gangs Unit] because he was being perceived as a problem and
Lestrange wanted Plaintiff removed from the group
so he may accept younger agents to the group" (Pl.
Mem. at 22).

Even assuming, arguendo, that plaintiff engaged in
protected activity, none of the three incidents he describes is
actionable.

With respect to the first instance of alleged

retaliation, the record shows that on March 12, 2009, Karen Pace
requested that plaintiff turn in his badge and credentials "until
such time that he could return to work," and that the items were
being collected "for the purpose of an upcoming inventory" (Ex.
EE to Stober Decl.).

On May 6, 2009, Karen Pace further re-

quested that plaintiff return his raid badge, his body armor and
his radio, again, "for inventory purposes" (Ex. EE to Stober
Decl.).

No document supplied by plaintiff indicates that plain-

tiff ever had to return his gun.

Nevertheless, according to

plaintiff, when he returned on light duty in May 2009, he was
reissued his "badge, weapon, armor and radio" (Pl. Aff. ¶ 5).

44

Plaintiff cites no case in which an adverse employment
action has been found under similar circumstances, nor does he
argue that being temporarily deprived of his badge and credentials while out of work had any negative impact on him.

However,

even I if I assume, without deciding, that plaintiff's having to
turn over the items could constitute an adverse employment action
and that it was sufficiently close in time to his complaint to
give rise to an inference of discrimination, he is still unable
to raise a triable issue of fact because he provides no evidence
whatsoever that the proffered reason offered by defendant for the
collection of the items, i.e., inventory purposes, was
pretextual.

The fact that the items were reissued to plaintiff

in May 2009, approximately two months after they were collected,
further undermines plaintiff's contention that they were collected from him for a retaliatory purpose.
The second incident of alleged retaliation, involving
Peter Fox's failure to congratulate plaintiff, is also not
actionable; "[a]ctions that are 'trivial harms' -- i.e., 'those
petty slights or minor annoyances that often take place at work
and that all employees experience' -- are not materially adverse."

Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d

556, 571 (2d Cir. 2011), quoting Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68 (2006).
45

Indeed, Peter Fox's decision

not to congratulate plaintiff is precisely the type of "snubbing
by [a] supervisor[]" that has been held to be too trivial to
constitute an adverse employment action.

Jantz v. Emblem Health,

10 Civ. 6076 (PKC), 2012 WL 370297 at *15 (S.D.N.Y. Feb. 6, 2012)
(Castel, D.J.), quoting Tepperwien v. Entergy Nuclear Operations,
Inc., supra, 663 F.3d at 571.
Finally, there is nothing that even remotely suggests
that the third incident of alleged retaliation, plaintiff's
February 2010 transfer from the Violent Gangs Unit to the Narcotics Unit, was discriminatory or retaliatory.

With respect to

temporal proximity, the transfer took place in February 2010,
nearly six months after the supposed predicate for the retaliation, plaintiff's EEOC complaint, which was filed on July 21,
2009 (see Ex. EE, FF, GG to Tinio Decl.; Pl. Mem. at 22).

While

the Second Circuit has held that "six weeks [between the employer's awareness of protected conduct and the adverse action]
fits comfortably within any line [the Court] might draw," Nagle
v. Marron, 663 F.3d 100, 110-11 (2d Cir. 2011), "even a four-month interval . . . is insufficient in itself to establish the
causal connection necessary to support a retaliation claim,"
Perry v. NYSARC, Inc., 424 F. App'x 23, 26 (2d Cir. 2011), citing
Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990),
and "action taken twenty months after the protected activity
46

'suggests, by itself, no causality at all.'"

Perry v. NYSARC,

Inc., supra, 424 F. App'x at 26, quoting Clark County School
Dist. v. Breeden, supra, 532 U.S. at 273 see also Murray v.
Visiting Nurse Services of N.Y., 528 F. Supp. 2d 257, 275
(S.D.N.Y. 2007) (Sullivan, D.J.)("[D]istrict courts within the
Second Circuit have consistently held that the passage of two to
three months between the protected activity and the adverse
employment action does not allow for an inference of causation."); Garrett v. Garden City Hotel, Inc., 05-CV-0962
(JFB)(AKT), 2007 WL 1174891 at *21 (E.D.N.Y. Apr. 19, 2007)
(finding interval of two and one-half months between most recent
complaint of racial discrimination and discharge "in the absence
of other evidence of defendant's retaliatory motive, precludes a
finding of a causal connection between the protected activity and
the adverse employment action").

Based on the foregoing cases,

the temporal gap between the allegedly protected conduct and the
allegedly adverse acts is too long to support an inference of
retaliatory animus.
However, even if plaintiff could somehow make out a
prima facie case of retaliation premised on his transfer, he
offers no evidence to rebut defendant's proffered non-discriminatory explanation for the transfer:

to increase plaintiff's

chances of getting assignments closer to his home (see Ex. AA to
47

Tinio Decl.).

Indeed, at the time of the transfer, plaintiff

thanked James Hayes "for taking [his] medical needs into consideration during [the] reassignment," suggesting that he knew the
transfer was for this purpose (Ex. BB to Tinio Decl.).

Finally,

when plaintiff expressed reservations about the transfer in March
2010, he was immediately transferred back to the Violent Gangs
Unit "[a]fter being in the Narcotics unit for a month" (Pl. Mem.
at 14).

Under these circumstances, no reasonable juror could

conclude that plaintiff was subjected to retaliation.
Accordingly, plaintiff's claims of retaliation should
be dismissed.9

4.

Hostile Work
Environment Claims

Plaintiff also asserts that he has been subjected to a
hostile work environment.
"An employee seeking to bring a hostile work environment claim must demonstrate that:

9

(1) [he] is a member of a

I further note that plaintiff does not appear to have
raised any claims of retaliation before the EEOC, meaning that
such claims are unexhausted and subject to dismissal on that
basis as well. See Hodges v. Holder, 12-805-CV, 2013 WL 1859241
at *1 (2d Cir. May 6, 2013); Hoffman v. Williamsville Sch. Dist.,
443 F. App'x 647, 650 (2d Cir. 2011); but see Jenkins v. New York
City Transit Auth., 646 F. Supp. 2d 464, 471-73 (S.D.N.Y. 2009)
(Koeltl, D.J.).
48

protected class; (2) [he] suffered unwelcome harassment; (3) [he]
was harassed because of her membership in a protected class; and
(4) the harassment was sufficiently severe or pervasive to alter
the conditions of employment and create an abusive work environment."

Miller v. McHugh, 814 F. Supp. 2d 299, 314 (S.D.N.Y.

2011) (Scheindlin, D.J.); see also Pa. State Police v. Suders,
542 U.S. 129, 133-34 (2004); Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 270-71 (2001) (per curiam); Patane v. Clark, 508
F.3d 106, 113 (2d Cir. 2007); Demoret v. Zegarelli, 451 F.3d 140,
149 (2d Cir. 2006); Schiano v. Quality Payroll Sys., Inc., 445
F.3d 597, 605 (2d Cir. 2006); Petrosino v. Bell Atl., 385 F.3d
210, 221-22 (2d Cir. 2004); Feingold v. New York, 366 F.3d 138,
149-50 (2d Cir. 2004); Hayut v. State Univ. of N.Y., 352 F.3d
733, 744-45 (2d Cir. 2003); Alfano v. Costello, 294 F.3d 365,
373-74 (2d Cir. 2002); Whidbee v. Garzarelli Food Specialties,
Inc., 223 F.3d 62, 69 (2d Cir. 2000).
A hostile environment claim requires evidence that the
offensive conduct is severe and pervasive; the offensive conduct
need not, however, be intolerable or unendurable.
While the standard for establishing a hostile work
environment is high, we have repeatedly cautioned
against setting the bar too high, noting that
"[w]hile a mild, isolated incident does not make a
work environment hostile, the test is whether 'the
harassment is of such quality or quantity that a
reasonable employee would find the conditions of
49

her employment altered for the worse.'" (alteration and emphasis in the original).
Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)
(quoting Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62, 70 (2d Cir. 2000)). "The environment need
not be 'unendurable' or 'intolerable.'" Id. In brief,
"the fact that the law requires harassment to be severe
or pervasive before it can be actionable does not mean
that employers are free from liability in all but the
most egregious cases." Id. (quoting Whidbee, 223 F.3d
at 70 (internal quotation marks omitted)).
Feingold v. New York, supra, 366 F.3d at 150.
In determining whether the level of workplace misconduct constitutes an actionable "hostile environment," no single
factor is determinative; rather, the court must consider the
totality of the circumstances.

Faragher v. City of Boca Raton,

524 U.S. 775, 787-88 (1998); Raniola v. Bratton, supra, 29 243
F.3d at 617.

See also Hayut v. State Univ. of N.Y., supra, 352

F.3d at 746 (hostile environment claims are "fact-specific and
circumstance-driven").

"Factors that a court might consider in

assessing the totality of the circumstances include:

(1) the

frequency of the discriminatory conduct; (2) its severity; (3)
whether it is threatening and humiliating, or a mere offensive
utterance; and (4) 'whether it unreasonably interferes with the
performance of an employee's work performance.'"

Patane v.

Clark, supra, 508 F.3d at 113, quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993).

50

Simple teasing, offhand comments, or isolated incidents
of offensive conduct (unless extremely serious) will
not support a claim of discriminatory harassment. See
id.; Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d
Cir. 2001). To defeat [defendant's] motion for summary
judgment, [plaintiff] must adduce evidence sufficient
to permit a reasonable jury to conclude that [the]
workplace was "permeated with 'discriminatory intimidation, ridicule, and insult,' that [was] 'sufficiently
severe or pervasive to alter the conditions of [her]
employment.'" Harris v. Forklift Sys., Inc., 510 U.S.
at 21, 114 S.Ct. 367 (quoting Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. at 65, 67, 106 S.Ct. 2399); accord
Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.
2000).
Petrosino v. Bell Atl., 385 F.3d 210, 223-24 (2d Cir. 2004).
Plaintiff cites the following incidents in support of
his hostile work environment claim:
1.

Plaintiff participated in a touch football game at
an agency picnic on September 16, 2010. Thereafter, an anonymous complaint was lodged against him
and he was investigated for workers' compensation
fraud. The charges against plaintiff were ultimately dismissed, but caused plaintiff "extreme
undue stress and grief" (Pl. Mem. at 20-21).

2.

Plaintiff was told by a co-worker that another coworker, Paul Waldron, showed pictures of plaintiff
playing touch football to other agents. When the
agents saw the pictures, they "ridiculed [plaintiff], demeaned and downplayed his back injury,
and called him a fraud and liar." Since learning
of this incident, plaintiff has not attended any
other agency functions (Pl. Mem. at 20-21).

3.

Plaintiff requested a position as a Training Group
Supervisor and was told that the position did not
exist. However, on January 18, 2012, plaintiff
learned that Paul Waldron, the same agent who had
mocked plaintiff and displayed his pictures, was
given the position (Pl. Mem. at 21).
51

4.

"[N]ew vehicles assigned to [Vilolent Gangs Unit]
have been] given to junior agents," despite the
fact that "[t]he pattern and practice of the
agency has always been to allow senior agent the
right to choose whether to keep their original
vehicle or replace it with the new vehicle."
Plaintiff is the most senior agent in the Violent
Gangs Unit (Pl. Mem. at 21).

5.

Defendant has required him to submit a doctor's
note every time he requests to use sick leave,
even if only for a single day (Pl. Mem. at 21).

6.

Peter Fox stated to Erin Corcoran that "[she had]
better not complain of a bad back" after she was
involved in a minor motor vehicle accident. This
incident "humiliated" plaintiff and "trivialized"
his injury (Pl. Mem. at 21-22).

7.

Peter Fox failed to congratulate or acknowledge
plaintiff at a SAC NY awards ceremony (Pl. Mem. at
22).

Defendant argues that all but one of these incidents –Peter Fox's statement to Erin Corcoran –- should not be considered, because they were "neither exhausted [n]or alleged in the
Complaint" (Def. Mem. at 14).

However, it is not necessary make

such a determination because plaintiff's allegations simply do
not rise to the level of a hostile work environment.
At best, many of plaintiff's allegations amount to no
more than "[s]imple teasing, offhand comments, or isolated
incidents of offensive conduct"
385 F.3d at 223.

Petrosino v. Bell Atl., supra,

Concerning Peter Fox's comment to Agent

Corcoran that "[she had] better not complain of a bad back," it
52

is not self-evident that Fox was referring to plaintiff when the
comment was made; indeed, the comment was directed to Agent
Corcoran, not plaintiff.

Moreover, when asked about the incident

at a deposition, plaintiff stated that "the comment was said in
jest" and that "it would be an insignificant comment made in
jest" to those who heard it (Pl. Dep. at 178).

Similarly,

although the alleged comments of other unnamed agents that
plaintiff was a "fraud" and a "liar" were inappropriate, such
comments were made outside of plaintiff's presence and only
during a single incident.

While it is true that a single inci-

dent can be enough to support a hostile work environment claim,
such an incident must be "extraordinarily severe,"

Chukwuka v.

City of New York, 11-3032-CV, 2013 WL 709666 at *1 (2d Cir. Feb.
28, 2013) (summary order), and no reasonable jury could reach
such a conclusion here.

The other conduct that plaintiff de-

scribes, such as being passed over for a promotion, having to
submit doctors' notes to obtain sick leave and not being given
preferential treatment in the selection of new vehicles, do not
evince conduct that is so objectively "severe or pervasive to
alter the conditions of [his] employment and create an abusive
working environment."

Gorzynski v. JetBlue Airways Corp., supra,

596 F.3d at 102 (2d Cir. 2010).

53

Finally, concerning the workers' compensation fraud
investigation, plaintiff does not allege any conduct attributable
to defendant.

The report against him was filed anonymously with

the Office of the Inspector General, an entity separate from DHS.
The subsequent investigation and decision not to charge plaintiff
with workers' compensation fraud was also made by the Office of
the Inspector General (Pl. Aff. ¶ 30).

Despite the fact that

being the subject of an unfounded investigation was likely the
source of considerable consternation for plaintiff (and understandably so), because no conduct surrounding the investigation
is chargeable to defendant, this allegation cannot serve as a
foundation for plaintiff's hostile work environment claim.
Accordingly, for the reasons stated above, defendant is
entitled to summary judgment on plaintiff's hostile work environment claim.

E.

Negligent/Intentional
Infliction of
Emotional Distress

The complaint alleges that defendant's actions "constitute the intentional and negligent infliction of emotional
distress upon Plaintiff" (Compl. ¶¶ 136-137).

Defendant moves to

dismiss these claims pursuant to Fed. R. Civ. P. 12(b)(1) for
lack of subject matter jurisdiction (Def. Mem. at 24-25).
54

Plaintiff's memorandum in opposition to defendant's motion does
not address these claims, but to the extent plaintiff is attempt­
ing to assert claims under the Federal Tort Claims Act ("FTCAII),
it is clear that these claims should be dismissed, as nthe only
proper defendant in an FTCA action is the United States, and not
a federal agency or individual employees of a federal agency."
Spinale v. U.S. Dep't of Agric., 621 F. Supp. 2d 112, 117
(S.D.N.Y. 2009), aff'd, 356 F. App'x 465 (2d Cir. 2009).

IV.

Conclusion

Accordingly, for all the foregoing reasons, defendant's
motion for summary judgment dismissing the complaint in its
entirety is granted in all respects.
Dated:

New York, New York
July 24, 2013

SO ORDERED

HENRY PI MAN
United States Magistrate Judge
Copies transmitted to:
Louis D. Stober, Jr., Esq.
Law Office of Louis D. Stober, Jr. LLC
350 Old Country Road
Suite 205
Garden City, New York 11530

55

Rebecca S. Tinio, Esq.
United States Attorney's Office
Southern District of New York
3rd Floor
86 Chambers Street
New York, New York 10007

56