Ezeh v. McDonald
Filing
207
DECISION AND ORDER denying 183 Motion for Summary Judgment; granting 189 Motion for Summary Judgment; denying 206 Motion. The Clerk of Court is directed to enter judgment in favor of Defendant and close the case. Signed by Hon. Elizabeth A. Wolford on 03/29/2019. (A copy of this Decision and Order was mailed to Plaintiff) (CDH)-CLERK TO FOLLOW UP-
2 9 2019
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DISTRICT ^
CHRISTOPHER EZEH,
DECISION AND ORDER
Plaintiff,
6:I3-CV-6563 EAW
V.
ROBERT WILKIE,' Secretary ofthe
Department of Veterans Affairs,
Defendant.
INTRODUCTION
Pro se plaintiff Christopher Ezeh ("Plaintiff), a former employee ofthe Department
of Veterans Affairs (the "VA"), commenced this employment discrimination action in
October 2013. (Dkt. I). Currently pending before the Court are the parties' competing
motions for summary judgment. (Dkt. 183; Dkt. 189). For the reasons set forth below.
Plaintiffs motion for summary judgment is denied and Defendant's motion for summary
judgment is granted.
FACTUAL AND PROCEDURAL BACKGROUND
1.
Factual Background
Plaintiff is a naturalized citizen of the United States of America who was bom in
Nigeria and is Roman Catholic. (Dkt. 195 at 14). In March 2011, Plaintiff was hired by
the VA Medical Center in Canandaigua, New York (the "Canandaigua VA")as a part-time
Catholic chaplain. {Id. at 15-16; Dkt. 189-4 at 2, II).
'
Defendant Robert Wilkie has been substituted pursuant to Fed. R. Civ. P. 25(d).
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A.
Payroll Issues and Denial of Request for Waiver
Melody Christensen ("Christensen"), a civilian payroll technician at the
Canandaigua VA,testified^ that as a part-time chaplain, Plaintiff was required to sign in on
a time sheet. (Dkt. 189-7 at 16). Christensen testified that this was standard procedure for
all part-time chaplains. {Id.). Similarly, Dawn Crane, an administrative assistant at the
Canandaigua VA,has stated in a sworn affirmation that all part-time chaplains are required
to utilize sign-in sheets. {Id. at 25). Defendant has submitted copies oftime sheets showing
sign-in information for multiple part-time chaplains, including Plaintiff(Dkt. 189-4 at 7576), and has identified at least five other part-time chaplains, including Robert Searle
("Searle"), who were required to track their hours on sign-in sheets (Dkt. 189-7 at 132,
174).
Christensen further testified that when Plaintiffwas initially hired, an error was made
by an unknown employee of the Canandaigua VA, and Plaintiff was incorrectly recorded
as a full-time employee in the payroll system. {Id. at 17). As a result ofthis error. Plaintiff
was underpaying for his health insurance, because full-time employees receive a greater
^
Christensen and several other Canandaigua VA employees provided sworn
testimony in connection with Plaintiffs complaints to Geraldine Clark, an Equal
Employment Office Investigator with the Department of Veterans Affairs Office of
Resolution Management. The information set forth in this sworn testimony could be
presented in an admissible form at trial, and it is therefore proper for the Court to consider
it on the instant motions for summary judgment. See U.S. Underwriters Ins. Co. v. Liberty
Mut. Ins. Co., No. 98 CIV. 8168(MBM),2001 WL 521809, at *2 n.l (S.D.N.Y. May 16,
2001)(certified transcripts of sworn testimony from another proceeding are admissible on
a motion for summary judgment because they have "the same evidentiary value and
safeguards as affidavits provided for in Rule 56(e)"(quoting Shulins v. New England Ins.
Co., 360 F.2d 781,785(2d Cir. 1966))).
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benefit with respect to their health insurance premiums. (Jd.). Plaintiffs federal tax
exemptions were also incorrectly recorded at the time of hire, which resulted in an
underpayment of federal tax withholding. {Id. at 18). A third payroll error resulted in
Plaintiff receiving an overpayment in 2011—a timekeeper at the Canandaigua VA had
incorrectly paid Plaintiff for his lunch break and/or incorrectly recorded him as working
eight hours when he actually worked four hours. {Id. at 20). These payroll errors continued
through December 2011, resulting in a significant overpayment to Plaintiff. (Dkt. 189-4 at
81).
In March 2012,Penny Dawson("Dawson"), an accountant at the Canandaigua VA,
submitted to the VA's Committee on Waivers and Compromises(the "Waiver Committee")
a Referral on Indebtedness requesting that Plaintiffs overpayment be waived. {Id. at
78-81). Christensen assisted with preparing the form and also submitted an email to the
Waiver Committee explaining the situation. {Id.). Christensen had no knowledge of
Plaintiffs religion or national origin. (Dkt. 189-7 at 16).
Nothing in the Referral on
Indebtedness submitted to the Waiver Committee notes Plaintiffs national origin, or
religion. (Dkt. 189-4 at 78-81).
On May 3, 2012, the Waiver Committee denied the request that Plaintiffs
overpayment be waived. {Id. at 83-84). The Waiver Committee explained that it did not
find that Plaintiff was at fault and that the overpayment was the result of administrative
error. {Id. at 84). However, the Waiver Committee found that it was Plaintiffs obligation
to review his earnings statements for accuracy and that he had not done so. {Id.).
Accordingly, the Waiver Committee concluded that it would be "against equity and good
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conscience and not in the best interest ofthe government" to waive Plaintiffs indebtedness.
(Id.).
B.
Plaintiffs Employment at the Canandaigua VA
Shortly after Plaintiff started at the Canandaigua VA, protestant chaplain Pamula
Royal ("Royal") reported an incident in which she asked for Plaintiffs assistance in
covering an invocation and benediction, and Plaintiff yelled at her that she was not his boss
and could not tell him what to do. (Dkt. 189-7 at 159-60).^
In July 2011,Plaintiff was informed that he could not use VA letterhead for personal
correspondence. (Dkt. 189-4 at 19). Plaintiff also used the Canandaigua VA's address to
send copies of a book he authored to officials, including the Vice-President of the United
States (id. at 15, 17), and placed his personal website in his VA signature block (id. at 21).
In November 2011,Plaintiffreceived a performance evaluation in which he was rated "fully
successful," where the choices were outstanding, excellent, fully successful, minimally
satisfactory, and unsatisfactory. (Id. at 86-96).
In January 2012, Searle was promoted to supervisory chaplain at the Canandaigua
VA and became Plaintiffs direct supervisor. (Dkt. 195 at 16). Patricia Lind ("Lind"), the
^
The Court discusses various complaints made against Plaintiff in its assessment of
this case. To be clear, the Court does not treat these complaints as true. Instead, the Court
has noted their existence in order to provide the necessary context in which various
decisions about Plaintiffs VA employment were made. See Lane v. Sotheby Parke Bernet,
Inc., 758 F.2d 71, 72(2d Cir. 1985)(considering the fact that there had been "complaints
about numerous problems people were having with [the plaintiff]" in determining whether
a primafacie discrimination case existed).
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Associate Director of Patient/Nursing Services at the Canandaigua VA, oversaw the
chaplain service and was Searle's direct supervisor after January 29, 2012. {Id.).
In March 2012, Father Martin Smith-Soucier ("Smith-Soucier"), who served as a
full-time Catholic chaplain at the Canandaigua VA,was reassigned to a VA facility in Ohio.
{Id. at 17). The parties dispute what happened next. Defendant maintains that Searle asked
Plaintiff if he would work additional hours while a full-time replacement for Smith-Soucier
was sought (Dkt. 189-7 at 173-74), while Plaintiff contends that he was made a full-time
employee (Dkt. 195 at 17). In support of this contention. Plaintiff points to an email that
he authored on March 28, 2012, in which he set forth his understanding of the duties he
would be taking on in Smith-Soucier's absence. (Dkt. 94-1 at 4-8). However, nothing in
this email states that Plaintiff is going to become a full-time employee, as opposed to
temporarily handling Smith-Soucier's duties. To the contrary. Plaintiff states in the email
that Searle had asked him "temporarily to add [Smith-Soucier's] Thursday, Saturday and
Sunday duty hours to [his] duty hours." {Id. at 8). In other words. Plaintiffs own
documentation contradicts his claim that he was made a permanent, full-time employee
when Smith-Soucier left in March 2012. There is no documentation in the record to support
the claim that Plaintiff became a full-time employee in March 2012.
Donna Crouse ("Crouse"), who was the Canandaigua VA's Human Resources
Manager during the relevant time period, testified that pursuant to VA policy, Smith-
Soucier's position could not simply be filled by Plaintiff. (Dkt. 189-7 at 35). Lind further
explained that before the position could be filled, she first had to get permission from the
VA's resource board to hire a full-time chaplain and that the position then had to be posted.
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{Id. at 135). Christensen also testified that Plaintiff was never made a full-time employee,
but instead agreed to work extra hours to provide additional coverage. {Id. at 17).
In early April 2012, Plaintiff reported to Searle and Lind an incident with a VA
volunteer named Ed Moeller ("Moeller") in which Moeller allegedly stated that he hated
Plaintiff, hated Plaintiffs accent, and hated the way Plaintiff talked, and that he was going
to try to have Plaintiff fired. (Dkt. 189-4 at 99). This incident was investigated by Searle
and Lind, and Searle met with the head of volunteer services to discuss the matter. (Dkt.
189-7 at 136, 180). Searle also met directly with Moeller and told him that he was not
permitted to treat Plaintiff in any kind of a negative fashion. {Id. at 179). Edmund Flick, a
Supervisory Human Resources Specialist at the Canandaigua VA, gave sworn testimony
stating that Searle had consulted with him about the proper manner in which to handle
Plaintiffs complaint regarding Moeller and that Searle had handled the matter
appropriately. {Id. at 104). Contemporaneous email records show that Searle informed
Plaintiff on April 10, 2012, that he spoken to Moeller and that the situation had been
resolved. (Dkt. 189-4 at 98).
Royal reported another incident with Plaintiff on April 8, 2012,in which she locked
her keys inside her office and Plaintiff refused to unlock the door and allow her inside,
forcing her to call the Canandaigua VA Fire Department for assistance. (Dkt. 189-4 at 23;
Dkt. 189-7 at 160). Royal also made a written complaint in which she reported that Plaintiff
had forced a veteran to take communion after the veteran "clearly stated that he didn't feel
well and did not want Communion that day." (Dkt. 189-4 at 29).
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Also in April 2012, Searle received complaints from VA Chaplain Service
volunteers that Plaintiff was trying to collect their keys. {Id. at 25). In a written
memorandum,Searle noted that he had spoken to Plaintiffto ask him about the key situation
and that Plaintiff claimed that Smith-Soucier had told him to collect the keys. {Id.).
However, Searle contacted Smith-Soucier, who denied having given Plaintiff any such
instruction. {Id.). In an email dated May 14, 2012, Smith-Soucier confirmed that he had
not told Plaintiff to collect the keys and further stated that he had "found that you cannot
rely upon [Plaintiff] to be truthful." (Dkt. 189-4 at 27).
On April 29, 2012, VA nurse Shannon Cicero ("Nurse Cicero") made a written
complaint to Searle in which she stated that Plaintiff had become angry with VA staff and
insisted that Catholic veterans only be taken to Catholic mass, even if they requested to
attend protestant services. {Id. at 31). Nurse Cicero stated that "[t]he staff is not treated
with respect or common courtesy by [Plaintiff]." {Id.). In the same time frame, Searle was
informed by many longtime volunteers that they did not want to work with Plaintiff because
he was rude and condescending. (Dkt. 189-7 at 182).
Also at some point in April 2012, Searle met with Father Condon of the Rochester
Catholic diocese, to discuss Plaintiffs performance during his former employment with the
diocese. {Id. at 186). Father Condon told Searle that Plaintiff had performance issues while
employed by the diocese. {Id.).
On May 3,2012,Searle met with Plaintiffto review Plaintiffs responsibilities. (Dkt.
189-4 at 33). Searle's written report of the meeting indicates that he told Plaintiff he had
received some "concerns" about Plaintiff and that Plaintiff became "very angry and
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insubordinate," and refused to attend a scheduled meeting with the union steward the
following day. {Id.). Later that day, Searle sent an email to Plaintiff reiterating that a
meeting had been scheduled for May 4, 2012, at 1:00 p.m., to discuss concerns that had
been presented to him regarding Plaintiff, and informing Plaintiffthat Plaintiffcould choose
whether to have a union steward present. {Id. at 35). Searle's scheduling of the May 4th
meeting was consistent with the VA's standard procedure for handling complaints against
staff. (Dkt. 189-7 at 105-06). Plaintiffsent an email to Searle at 8:28 a.m. on May 4,2012,
in which he stated that he would not be attending the May 4th meeting because he did not
believe he'd been afforded enough time to consult with the union. (Dkt. 189-4 at 35).
Plaintiff was given written notice from Searle and Grouse, among others, that he was
required to attend the meeting. {Id. at 37).
Cathem Boylan("Boylan"), who was then the acting ChiefNurse at the Canandaigua
VA, would sometimes fill in for Lind as supervisor of the chaplains in Lind's absence.
(Dkt. 189-7 at 11). Lind asked Boylan to attend the May 4th meeting in her place. {Id.).
When Plaintiff did not appear at the May 4th meeting, Boylan sought out Plaintiff to ask if
they could reschedule for later in the day. {Id.). In a memorandum dated May 7, 2012,
Boylan recorded that Plaintiff became loud and angry when she spoke with him and that
she therefore ended the exchange. (Dkt. 189-4 at 106).
On May 4, 2012, a posting was made on USAJobs for a full-time Roman Catholic
Staff Chaplain at the Canandaigua VA. {Id. at 39). Plaintiff applied for this position and
was deemed qualified, but it was ultimately decided that the pool of applicants was too
small and that the VA would continue to recruit for the position. (Dkt. 189-7 at 116).
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On May 6, 2012, Plaintiff made a second complaint against Moeller, claiming that
Moeller had grabbed Plaintiffs arm while Plaintiff was attempting to move a veteran in a
wheelchair. {Id. at 187). This complaint was fully investigated, including being referred
to the VA's disruptive behavior committee, and Plaintiffs claim was ultimately determined
to be unfounded. {Id. at 187-88). In an interview with clinical neuropsychologist Claudiu
Dumitrescu ("Dumitrescu"), a member of the disruptive behavior committee. Plaintiff
became agitated to the point that he shouted at Dumitrescu and slapped the desk. (Dkt. 1894 at 60). Plaintiff and Moeller were separated from working together as a result of
Plaintiffs complaints. (Dkt. 189-6 at 52).
On May 10, 2012, Searle sent an email to Andrea Gray in the Canandaigua VA's
human resources department in which he explained that he had received numerous staff
complaints regarding Plaintiffs insistence that Catholic veterans not be allowed to attend
protestant services, even if the veterans asked to do so, and that they be required to attend
Catholic services. (Dkt. 189-4 at 45). Searle noted that there had been an incident in which
Plaintiff had taken a veteran who was a convicted pedophile to a community Mass where
children were present, in direct violation of the veteran's parole conditions. {Id.). Searle
indicated that the staff had voiced reluctance to address the issue directly with Plaintiff
because he "escalates so quickly in his tone[.]" {Id.). Searle noted that he was concerned
that Plaintiff was potentially violating the veterans' right to religious freedom. {Id.).
On May 11,2012, a meeting was held with Lind, Searle, Plaintiff, and other staff, to
discuss the complaints against Plaintiff. {Id. at 47-48). Another meeting with Searle, Lind,
and Plaintiff was held on May 17,2018, at Plaintiffs request. {Id. at 50). In this meeting,
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Plaintiff asserted that it was inappropriate for Searie to supervise him because Searle was
not Catholic and stated that he needed at least a week's notice before any meeting with
Searle. {Id.). In a contemporaneous memorandum, Lind recorded that Plaintiff had used
inflammatory language and been argumentative throughout the meeting, {Id. at 51).
On May 18, 2012, Plaintiff contacted a counselor at the VA's Office of Resolution
Management("ORM")claiming discrimination based on religion and national origin. (Dkt.
189-6 at 16-19).
In early June 2012, Royal reported an incident to Lind and Searle in which a veteran
was upset because Plaintiff had taken a protestant bulletin from him and thrown it in the
trash. (Dkt. 189-4 at 57; Dkt. 189-7 at 160).
On June 21, 2012, Lind directed Plaintiff to attend a meeting and informed him that
he was welcome to bring a union representative. (Dkt. 189-7 at 143). Plaintiff asked to
reschedule the meeting and was told that he was required to attend. {Id.). Boylan, Lind,
Plaintiff, and several union representatives were present at the meeting. {Id.). At the
meeting, Plaintiff was informed that his removal from the VA was being proposed and that
the final determination would be made by Craig Howard ("Howard"), the Director of the
Canandaigua VA. {Id.). Plaintiff was given a written summary of the action being taken
against him and was allowed to respond to the notice of proposed removal in writing. (Dkt.
189-4 at 62-65; Dkt. 189-7 at 96-97). VA police ultimately escorted Plaintiff from this
meeting to gather his keys and personal effects and to leave the facility. (Dkt. 189-7 at
143).
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Plaintiff was placed on paid administrative leave during the review of his proposed
removal, during which time he was paid his regular salary as a part-time chaplain. {Id. at
18). On July 18,2012, Howard issue a written notice ofremoval to Plaintiff, effective July
21, 2012. (Dkt. 189-4 at 72-73).
C.
Post-Termination Events
After Plaintiff was terminated, the New York State Department of Labor (the
"NYSDOL")submitted a form to the Canandaigua VA regarding Plaintiff's application for
unemployment benefits. (Dkt. 189-7 at 108). Flick, who, like Plaintiff, is Catholic,
completed the form, and listed the reasons Plaintiff had been terminated. {Id.). There is no
evidence in the record that the VA was otherwise involved in the processing of Plaintiffs
NYSDOL application for unemployment benefits.
Plaintiff also claims that he was denied continuation of his health insurance benefits,
in violation ofthe Consolidated Omnibus Budget Reconciliation Act of 1988("COBRA").
The Court notes as a threshold matter that, as it has previously instructed Plaintiff, COBRA
does not apply to federal employees. Instead, continuation of health insurance benefits for
federal employees is governed by the Federal Employees Health Benefits Amendments Act,
under which federal employees are entitled to Temporary Continuation of Coverage
("TCC"), which is similar to, but distinct from, the benefits available under COBRA.
Crouse testified that, to her knowledge, she gave Plaintiff all the information he
needed to obtain continuation of his health insurance benefits. {Id. at 38). Sheila Jones
("Jones"), who is now the Director of Human Resources at the Canandaigua VA, has
submitted a sworn affidavit explaining that TCC premiums are not paid for or contributed
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to by the VA and that employees who wish to enroll for TCC must affirmatively complete
an application. {Id. at 126). The VA does not approve or deny requests for TCC; instead,
it merely processes applications received from separating employees. {Id. at 127). Emails
exchanged between Plaintiff and Crouse in August 2012 confirm that Plaintiff was told
what forms he needed to complete if he wished to continue his health insurance benefits.
(Dkt. 189-4 at 112). There is no record that Plaintiffever submitted an application for TCC
benefits to the VA. {Id.).
In September 2012, John Batten ("Batten") sent an email to Plaintiff asking him if
he was still interested in the vacant full-time Catholic chaplain position at the Canandaigua
VA. (Dkt. 183-4 at ^ 211). Batten is employed as a program analyst at the VA National
Chaplain Center in Hampton, Virginia, and was unaware that Plaintiff had filed an
employment discrimination complaint. (Dkt. 189-7 at 2-6). After contacting Plaintiff,
Batten learned that Plaintiffs ecclesiastical endorsement had been cancelled, rendering
Plaintiff ineligible for chaplain positions at the VA. {Id. at 5).
II.
Procedural History
This matter has a long and fairly complicated procedural history, which is
summarized here only to the extent necessaiy.
Plaintiff filed a formal discrimination complaint on August 4, 2012, alleging
discrimination based on national origin and religion, as well as retaliation. (Dkt. 189-6 at
21-43). On July 16, 2013, the VA's Office of Employment Discrimination Complaint
Adjudication ("OEDCA") issued a Final Agency Decision finding that Plaintiff had not
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demonstrated that he was discriminated or retaliated against. {Id. at 46-71).'^ The Final
Agency Decision specifically informed Plaintiff that with respect to Claim 8 (his claim
regarding his removal from the VA), his complaint is a "mixed case" and either an appeal
with the Merit Systems Protection Board or a civil action in the appropriate United States
district court must be filed within 30 days. {Id. at 70). With respect to Plaintiffs other
claims, the Final Agency Decision informed Plaintiff that he could file a civil action within
90 days. {Id. at 69).
Plaintiff commenced the instant action on October 15, 2013. (Dkt. 1). Plaintiff
initially named as defendants a number of individuals and the Canandaigua VA. {Id.). On
September 29, 2014, the Court entered a Decision and Order dismissing several of
Plaintiffs claims and substituting the Secretary of the VA as the sole defendant as to all
remaining claims. (Dkt. 58).
"[T]he Second Circuit has held that the findings of an administrative agency
resulting from an investigation made pursuant to authority granted by law are generally
admissible under the public records exception to the hearsay rule, unless the sources of
information or other circumstances indicate lack of trustworthiness." Lovejoy-Wilson v.
Noco Motor Fuels, Inc., 242 F. Supp. 2d 236, 242(W.D.N.Y. 2003)(quotation omitted).
"The consideration, if any, to be given to [agency] findings is within the sound discretion
ofthe trialjudge." Green v. Harris Publ'ns, Inc., 331 F. Supp. 2d 180,191 (S.D.N.Y. 2004)
(discussing findings made by the Equal Employment Opportunity Commission("EEOC")).
"However,'the EEOC's findings are ordinarily entitled to great weight[.]"' Edmonston v.
MOM Grand Air, Inc., 808 F. Supp 197, 201 (E.D.N.Y. 1992)(quoting Weise v. Syracuse
Univ., 552 F.2d 397,413(2d Cir. 1975)).
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On January 21, 2015,the Court entered a Decision and Order permitting Plaintiff to
file an amended complaint, with certain restrictions. (Dkt. 77). Plaintiffs Amended
Complaint, the operative pleading in this matter, was filed on January 22, 2015. (Dkt. 78).
Discovery in this matter closed on January 30, 2018. (Dkt. 180). Plaintiff filed his
motion for summary judgment on March 23, 2018 (Dkt. 183), and Defendant filed his
opposition to Plaintiffs motion and his own motion for summary judgment on April 27,
2018(Dkt. 189). Plaintiff filed opposition papers on both June 18, 2018, and July 2, 2018.
(Dkt. 194; Dkt. 195; Dkt. 198). Defendant filed reply papers on July 25,2018(Dkt. 200),
and Plaintiff filed sur-reply papers on August 6,2018(Dkt. 201).
On February 25, 2019, Plaintiff filed a motion for "release of court decisions on
motions for summary judgment." (Dkt. 206).
DISCUSSION
I.
Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes "that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). The Court should grant summary judgment if, after considering the evidence in the
light most favorable to the nonmoving party, the court finds that no rational juiy could find
in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007)(citing Matsushita Elec.
Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 586-87(1986)).
"The moving party bears the burden of showing the absence of a genuine dispute as
to any material fact...." Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473,486(2d
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Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party
moving for summary judgment may meet its burden by showing the evidentiary materials
of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial." Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y. 2011)(citing Celotex Corp. v. Catrett, All U.S. 317, 322-23(1986)). Once the
moving party has met its burden, the opposing party "must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation." Robinson v. ConcentraHealth Servs., Inc., 781
F.3d 42, 44(2d Cir. 2015)(quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.
2011)). Specifically, the non-moving party "must come forward with specific evidence
demonstrating the existence ofa genuine dispute of material fact." Brown,654 F.3d at 358.
Indeed, "the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., All U.S.
242, 247-48 (1986).
II.
PlaintifPs Motion for "Release of Court Decisions on Motions for Summary
Judgment"
As an initial matter, the Court notes that on February 25, 2019, Plaintiff fried a
motion for "release of court decisions on motions for summary judgment." (Dkt. 206).
Plaintiff asserts therein that "[n]o Pro Se case has been allowed to stay this long in the
judicial history ofthe United States." {Id. at 1). In light ofPlaintiffs history of repeatedly
asserting wrongdoing on the part ofthe Court and opposing counsel {see, e.g., Dkt. 63; Dkt.
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68; Dkt. 71), the Court finds it appropriate to briefly address Plaintiffs apparent assertion
that his case has been impermissibly or inappropriately delayed.
First, Plaintiffs statement that his is the longest-standing pro se case in the "judicial
history ofthe United States" is false. There are numerouspro se cases pending in this Court
and in district courts across the nation that were commenced prior to Plaintiffs action.
Second, it is Plaintiffs own litigation conduct that has caused this matter to take
longer than a typical case. From the beginning of this matter. Plaintiff has insisted upon
filing "duplicative, voluminous, and meritless motions." (Dkt. 77 at 21;see also Dkt. 87 at
2-3 (noting Plaintiffs "practice of filing seriatim meritless motions")). Plaintiff continued
this behavior throughout the case, in spite of repeated warnings by the Court. Plaintiff
further engaged in discovery misconduct, resulting in the imposition of sanctions against
him {see Dkt. 169) and disobeyed the Court's orders regarding filing seriatim summary
judgment motions {see Dkt. 144; Dkt. 163; Dkt. 174; Dkt. 178). Plaintiff also refused to
accept the Court's repeated explanations that his consent was not required for the matter to
be referred to a magistrate judge for supervision of non-dispositive pre-trial matters. {See
Dkt. 140 at 2). Despite Plaintiffs conduct, at all times the Court has given due and
appropriate consideration to the motions filed by Plaintiff and has issued decisions as
expeditiously as possible in light of the Court's heavy criminal and civil caseload. Any
suggestion by Plaintiff to the contrary is without basis.
To the extent Plaintiff seeks affirmative relief in his motion for "release of court
decisions on motions for summary judgment," his request has been mooted by the instant
Decision and Order, which resolves all outstanding issues in this case. Accordingly,
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Plaintiffs motion for "release of court decisions on motions for summary judgment" is
denied.
III.
Claims Already Dismissed by the Court
The Court notes that Plaintiff purports to seek summary judgment as to claims
already dismissed in prior court orders. In particular, Plaintiff makes numerous arguments
related to his termination from the VA. {See, e.g., Dkt. 183-3 at 7-9). In a Decision and
Order dated September 29, 2014 (Dkt. 58), this Court determined that Plaintiff had failed
to administratively exhaust his wrongful discharge claim within the statutorily required time
frame and dismissed Plaintiffs claim to the extent it was based on his termination {id. at
30-32). To the extent that Plaintiffs summary judgment motion seeks reconsideration of
this ruling, it is denied. Plaintiff has failed to present any admissible evidence calling into
question the Court's prior ruling or to otherwise demonstrate that the Court's ruling should
be revisited. As such, to the extent Plaintiffs motion for summary judgment can be read
as requesting reconsideration ofthe Court's dismissal of his wrongful discharge claim, it is
denied.
Plaintiffs summary judgment motion also appears to challenge the Court's prior
decision denying his request to join the Archdiocese for Military Services as a Defendant
in this matter. {See Dkt. 140). Again, Plaintiff has failed to set forth any plausible reason
that the Court's prior ruling in this regard should be disturbed and any request to that effect
by him is denied.
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IV,
Plaintiffs Title VII Claims
Plaintiff has asserted numerous claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. ("Title VII"). "Title VII prohibits employment-related
discrimination on the basis of race, color, religion, sex, or national origin and retaliation
against employees who complain about discrimination. In 1972, Congress extended Title
VII's protection to employees ofthe federal govemment[.]" Mathirampuzha v. Potter, 548
F.3d 70, 74 (2d Cir. 2008). Title VII is "the exclusive remedy available to federal
employees who allege employment discrimination." Wilder v. U. S. Dep't of Veterans
Affairs, 175 F. Supp. 3d 82, 88(S.D.N.Y. 2016)(quotation omitted).
A.
Failure to Timely Exhaust Administrative Remedies
"Prior to bringing suit under Title VII, a federal government employee must timely
exhaust the administrative remedies at his disposal." Mathirampuzha, 548 F.3d at 74
(quotation and alterations omitted). As one court in this Circuit has recently explained, the
Equal Employment Opportunity Commission's("EEOC")regulations require that prior to
filing a lawsuit a federal employee;
(1) consult with a counselor at the relevant agency's Equal Employment
Office ("EEO") within 45 days of the alleged discriminatory act, and, if the
matter is not resolved after a mandatory counseling period,
(2)file a formal written administrative complaint("EEO complaint") within
15 days of receipt of the EEO counselor's notice of final interview and right
to file a formal complaint("EEO notice").
The employee may then file a civil action (i) within 90 days of notice of a
final agency decision on his or her EEO complaint, or(ii) after 180 days from
the filing ofthe EEO complaint if the agency has not yet rendered a decision.
- 18-
Wilder, 175 F. Supp. 3d at 88-89. An EEO complaint filed more than 45 days after the
alleged discriminatory act is untimely. Id. at 89.
In this case, Plaintiff made initial contact with the VA's Office of Resolution
Management on May 18,2012. (Dkt. 189-6 at 12). As such, for any acts of discrimination
that occurred more than 45 days before May 18, 2012 (that is, before April 3, 2012),
Plaintiff failed to timely exhaust his administrative remedies. Moreover, Plaintiff has not
shown that this deadline should be equitably tolled. See Wilder, 175 F. Supp. 3d at 89-90
(equitable tolling of the 45-day deadline is warranted only in "a limited number of cases"
where "extraordinary circumstances exist," and "the burden of demonstrating the
appropriateness of equitable tolling lies with the plaintiff (quotations and alteration
omitted)).
Accordingly, Plaintiffcaimot pursue any claims based on actions that occurred prior
to April 3,2012. In particular. Plaintiffcannot pursue any claims based on the initial payroll
errors that occurred in 2011 and that were discovered at the latest by February 2012.
Plaintiff also cannot pursue any claims based on his November 2011 performance appraisal.
Defendants' motion for summary judgment is granted with respect to these claims.
B.
Disparate Treatment Claims
Plaintiff has alleged various claims of disparate treatment during the course of his
employment at the Canandaigua VA. In particular, the following claims of discriminatory
disparate treatment remain in this action: (1) Plaintiff claims that he was wrongfully
required to track his work hours on a sign-in sheet;(2)Plaintiff claims that his request for
a waiver of indebtedness was denied for discriminatory reasons;(3)Plaintiff claims that he
- 19-
was overcharged for health benefits between March 2012 and July 2012 because he was a
full-time employee;(4)Plaintiffclaims that he did not received paystubs for approximately
one year and that when he did receive copies some were blank;(5)Plaintiff claims that he
did not receive full-time tuition benefits; (6) Plaintiff claims that he did not receive a
performance evaluation in June 2012;(7) Plaintiff claims that his supervisors interfered
with his performance ofhisjob duties in a variety ofways,including by wrongfully ordering
him to return keys to the facility engineer and taking no action after he reported the incidents
with Moeller;(8)Plaintiff claims that he was wrongfully asked to attend a meeting in May
2012 to discuss his performance issues; (9) Plaintiff claims that he was discriminated
against in not being promoted to a full-time position when Smith-Soucier left the VA in
March 2012 and in subsequently not being hired for the full-time chaplain position in
September 2012;(10)Plaintiff claims that he was discriminated against by being asked to
attend a meeting regarding his proposed removal on June 21, 2012;(11) Plaintiff claims
that Defendant wrongfully interfered in his receipt of unemployment benefits from New
York State;(12) Plaintiff claims that Defendant wrongfully denied him continued health
insurance benefits; and (13)Plaintiff claims that he was discriminated against when Searle
spoke to Father Condon. (5'eeDkt. 183-4). Plaintiff seeks summary judgment with respect
to each of these claims, while Defendant opposes Plaintiffs motion and seeks summary
judgment in his favor.
"At the summary-judgment stage, properly exhausted Title VII claims are ordinarily
analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v.
-20-
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny."
Mathirampuzha, 548 F.3d at 78.
At the first stage of the McDonnell Douglas analysis, the plaintiff bears the
burden of establishing a primafacie case of discrimination by showing that:
1) he belonged to a protected class; 2) he was qualified for the position; 3)
he suffered an adverse employment action; and 4)the adverse employment
action occurred under circumstances giving rise to an inference of
discriminatory intent.
Id. (quotation omitted). Once the plaintiff has established a primafacie case:
[T]he burden of production shifts to the employer to proffer a legitimate,
nondiscriminatory reason for the action. Ifthe employer meets its burden of
production, the inference of discrimination raised by the prima facie case
then drops out and the plaintiff must prove by a preponderance of the
evidence that the employer's proffered reason is merely a pretext for
discrimination.
Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 316-17 (2d Cir. 1999) (citation
omitted).
In this case, there is no dispute that Plaintiff belonged to a protected class. Nor, for
purposes of the instant motions, has Defendant argued that Plaintiff was not qualified for
the position of chaplain. Accordingly, the Court has focused its analysis on (1) whether
Plaintiff experienced an adverse employment action and (2) whether any such adverse
employment action occurred under circumstances giving rise to an inference of
discrimination.
1.
Adverse Employment Actions
Under Title VII, "adverse employment action" is defined as a "materially adverse
change in the terms and conditions of employment" that is "more disruptive than a mere
inconvenience or an alteration of job responsibilities." Sanders v. N.Y.C. Human Res.
-21 -
Admin., 361 F.3d 749, 755 (2d Cir. 2004)(quotations omitted). Examples of an adverse
employment action include "termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities[.]" Id. (quotation omitted). In this case, the majority
of the adverse actions claimed by Plaintiff do not rise to this level. In particular, and for
the reasons discussed below, the Court finds that the only cognizable adverse employment
actions are Plaintiffs claims that his request for a waiver of indebtedness was denied, that
he was not promoted to a full-time chaplain in March 2012,that he was not selected for the
full-time chaplain position in May and September 2012, that he did not receive a
performance evaluation in June 2012, and that he was denied health insurance benefits.
a.
Requirement that Plaintiff Track his Work Hours
Requiring an employee to sign in and out of work is not an adverse employment
action.
See Lee v. N.Y. State Dep't of Health, Nos. 98Civ.5712(RMB)(HBP),
99Civ.4859(RMB)(HBP), 2001 WL 34031217, at *17(S.D.N.Y. Apr. 23, 2001)("[WJith
respect to plaintiffs time sheets, plaintiff has failed to establish how the monitoring of an
employee's hours and their corresponding submissions requesting payment for those hours,
constitutes adverse employment action."). Defendants have submitted, and Plaintiff has
failed to rebut, competent evidence showing that part-time chaplains at the Canandaigua
VA were required to utilize time sheets. This was a standard part ofPlaintiffs employment,
not a deviation from it.
-22-
b.
Claim that Plaintiff did not Receive Pavstubs
Plaintiffs claim that he did not receive paystubs for almost a year and that when he
did receive paystubs some were blank is unsupported by the evidence of record, and a
reasonable jury could not find that this constituted an adverse employment action. Even
accepting Plaintiffs claim that he did not receive a paper copy of his earnings statement(a
fact which is supported only by Plaintiffs own unsubstantiated claims), Christensen
testified, and Plaintiff has failed to point to any evidence to rebut, that Plaintiff had access
to a computerized version of his earnings statements throughout his employment. (Dkt.
189-7 at 19). Not receiving an earnings statement in his preferred form does not constitute
an adverse employment action that materially altered the terms and conditions ofPlaintiffs
employment.
c.
Claim that Plaintiff did not Receive Tuition Benefits and
was Overcharged for Health Benefits
Plaintiffs claims that he was denied tuition benefits and overcharged for health
benefits are unsupported by the record. The crux of these claims is that Plaintiff believes
he became a full-time employee of the VA in March 2012 and was therefore entitled to the
benefits a full-time employee would receive. The record conclusively demonstrates that
Plaintiffs belief is incorrect. Plaintiff did not become a full-time VA employee in March
2012. As Defendant has amply demonstrated, and Plaintiff has failed to rebut, VA policy
did not permit Plaintiffs promotion to a full-time position without first posting the opening
and seeking other potential candidates. Defendant has also produced evidence, unrebutted
23-
by Plaintiff, that it was standard procedure for a part-time employee to take on additional
hours to provide additional coverage.
The only evidence Plaintiff has for his claim that he was made full-time in March
2012 are his own unsubstantiated statements. A plaintiffs "unsubstantiated and self-
serving testimony is insufficient, without more,to defeat summary judgment." New World
Sols., Inc. V. NameMedia Inc., 150 F. Supp. 3d 287, 326 (S.D.N.Y. 2015); see also Ne.
Research, LLC v. One Shipwrecked Vessel, 729 F.3d 197, 213-14 (2d Cir. 2013)
(conclusory, unsubstantiated allegations are insufficient to defeat a motion for summaiy
judgment). A rational jury could not conclude on the record before the Court that Plaintiff
became a full-time VA employee, and therefore also could not conclude that Plaintiff was
wrongly denied the tuition and health insurance benefits to which a full-time employee was
entitled.
d.
Claims Regarding Supervision and Job Duties
Plaintiff has a litany of complaints about the manner in which he was supervised
during his VA employment. In particular. Plaintiff claims that he was required to work
with volunteers who provided services to Catholic patients, that he was required to change
a meeting location from a conference room to his office, that he was requested to turn over
particular keys, that he was asked to attend various meetings regarding his work
performance, that Searle reassigned some of his duties, and that he was not provided
training. {See Dkt. 183-4 at
119-65). None ofthese actions, considered individually or
as a whole, rises to the level of an adverse employment action.
-24
"[E]veryday workplace grievances, disappointments, and setbacks" such as location
changes are not adverse employment actions for purposes of a Title VII discrimination
claim. Cunningham v. N.Y. State Dep't ofLabor^ 326 F. App'x 617, 619 (2d Cir. 2009)
(finding that reassignment of the plaintiffs office space did not constitute an adverse
employment action). Courts have also found that taking away an employee's keys does not
constitute an adverse employment action. See, e.g., Colon v. Fashion Inst. of Tech. (State
Univ. ofN.Y.), 983 F. Supp. 2d 277, 287 (S.D.N.Y. 2013)(taking away an employee's
bathroom keys was not an adverse employment action).^
Plaintiff also does not dispute that it was standard VA practice to utilize volunteers
and has proffered no plausible explanation for how requiring him to work with volunteers
potentially constituted an adverse employment action.
The fact that Plaintiff had
theological differences and disagreements with VA volunteers is the sort of interpersonal
issue that exists in every workplace and does not constitute an adverse employment action.
With respect to the specific issue of Plaintiffs interaction with Moeller, although
Plaintiff makes the unsubstantiated claim that nothing was done about his complaints, the
evidence of record shows that Searle in fact investigated the claim, consulted with Flick,
and spoke to Moeller and told him that his actions were inappropriate. (Dkt. 189-6 at
51-52). Contemporaneous email records show that Searle informed Plaintiff that he had
^
The record in this case does not support the conclusion that Plaintiffs keys were
ever taken from him, as opposed to Plaintiff having been requested to turn over keys and,
when he protested, alternative arrangements having been made. As such. Plaintiffs claim
of an adverse employment action is even weaker than in cases where keys were actually
confiscated.
-25-
spoken to Moeller on April 10, 2012, approximately nine days after the incident originally
occurred, and approximately one week after Moeller's name was given to Searle, and that
the situation had been resolved. (Dkt. 189-4 at 98). Plaintiffs claim that Moeller had
grabbed his arm on May 6, 2012, was also investigated, and Plaintiff and Moeller were
separated from working together as a result. (Dkt. 189-6 at 52). Accordingly, there is no
basis to conclude that Plaintiff was wrongfully forced to work with a volunteer who had
mistreated him, so as to constitute an adverse employment action.
Searle's reassignment of some of Plaintiffs duties to himself in order to ease
Plaintiffs workload also does not constitute an adverse employment action. In order to
sustain this claim. Plaintiff must demonstrate that this reassignment of duties resulted in
"significantly diminished material responsibilities." Abboudv. Cty. ofOnondaga, N.Y,34\
F. Supp. 3d 164, 179(N.D.N.Y. 2018)(quoting Demoret v. Zegarelli, 451 F.3d 140, 151
(2d Cir. 2006)). No evidence to support such a finding exists in the record before the Court.
Turning to Plaintiffs allegation that he was denied training, inadequate training may
constitute an adverse employment action, "but only in circumstances where an employer
denies necessary job training to an employee and the terms and conditions of his
employment are thereby harmed.", Carpenter v. City ofMount Vernon, 198 F. Supp. 3d
272, 279-80 (S.D.N.Y. 2016). Allegations of a denial of training that are "vague and
unsupported" are insufficient to defeat a motion for summary judgment. Rodriguez v. Long
Island Am. Water, Inc., No. 12-cv-2970(JFB)(ARL), 2014 WL 4805021, at *14(E.D.N.Y.
Sept. 26,2014). Moreover,"[wjhen an employee cannot show material harm from a denial
oftraining, such as a failure to promote or a loss ofcareer advancement opportunities,there
-26-
is no adverse employment action." Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 352
(S.D.N.Y. 2006). In this case, the evidence of record shows that Plaintiff received basic
chaplain orientation training and that Plaintiffs request for hospice training was approved
by Searle. (Dkt. 189-7 at 179,190). Plaintiff has failed to produce or identify any evidence
to support the conclusion that he was denied necessary job training.
e.
Claims Regarding Meetings to Discuss Performance
Being required to attend meetings to discuss performance issues is not an adverse
employment action. "Criticism of an employee in the course of evaluating and correcting
her work is not, in itself, a materially adverse employment action." Dimitracopoulos v. City
ofN.Y.,26 F. Supp. 3d 200,214(E.D.N.Y. 2014)(citing Weeks v. N.Y. State Div. ofParole,
273 F.3d 76, 86 (2d Cir. 2001)). "A thin-skinned worker's reaction to criticism by a
supervisor will not support a claim of... discrimination unless it is outside the bounds of
appropriate supervision[.]" Id. Here, it is well-documented that numerous complaints and
performance issues had been raised with respect to Plaintiff, and it was not out of bounds
for Plaintiffs supervisors to attempt to meet with him to discuss these issues. While
Plaintiff may have been offended by his supervisors' attempts to meet with him, those
meetings did not constitute adverse employment actions.
f.
Claim that Searle Met with Father Condon
Searle's meeting with Father Condon of the Catholic diocese of Rochester does not
constitute an adverse employment action.^ Plaintiffs speculation that this meeting was
^
Nor,as Plaintiffseems to assert, does it constitute a violation ofhis First Amendment
rights. There is no evidence in the record that Searle's conversation with Father Condon
-27-
evidence of some conspiracy to remove him from the VA is wholly unsupported by the
record. Searle was Plaintiffs supervisor and was performing due diligence regarding
complaints against Plaintiff. It was a proper part of that supervision for Searle to have a
conversation with a former employer of Plaintiff.
2.
Inference of Discrimination
The Court further finds that Plaintiff has not established that any adverse
employment action in this case occurred under circumstances giving rise to an inference of
discrimination.
Inference of discrimination is a flexible standard that can be satisfied
differently in differing factual scenarios.... An inference of discrimination
can be drawn from circumstances such as the employer's criticism of the
plaintiffs performance in ethnically degrading terms; or its invidious
comments about others in the employee's protected group; or the more
favorable treatment of employees not in the protected group; or the sequence
ofevents leading to the plaintiffs adverse employment action, or by showing
that an employer treated an employee less favorably than a similarly situated
employee outside his protected group.
Brown v. Xerox Corp., 170 F. Supp. 3d 518, 532(W.D.N.Y. 2016)(quotation and original
alterations omitted).
As an initial matter, the Court notes that the mere fact that Plaintiff and the VA
decision makers at issue are of different religions and national origins does not, by itself,
demonstrate an inference of discrimination. See, e.g., Johnson v. City ofN.Y.,669 F. Supp.
had anything to do with Plaintiffs religious beliefs, as opposed to Plaintiffs conduct during
the course of his employment. The evidence of record shows that Searle met with Father
Condon solely to inquire as to Plaintiffs conduct in a prior place of employment and not
for any religiously-based reason. It is not a violation of the First Amendment for a
governmental employer to speak to a former employer.
-28-
2d 444,450(S.D.N.Y. 2009)(citing Yusufv. Vassar Coll., 35 F.3d 709,71(2d Cir. 1994)));
Holdmeyer v. Veneman, 321 F. Supp. 2d 374, 382 (D. Conn. 2004), ajf'd sub nom.
Holdmeyer v. Dep't of Agric., 146 F. App'x 535 (2d Cir. 2005). Plaintiffs repeated
arguments to the contrary are without merit. (See, e.g., Dkt. 183-3 at 17(arguing Plaintiff
has shown discrimination because "[a]11 who discriminated against this Plaintiff are
Protestants and are American bom but Plaintiff is Catholic, an American citizen but not
bom in America"); Dkt. 189-7 at 56-57 (at deposition, when asked why he thought that
Searle and Lind had discriminated against him on the basis of his religion. Plaintiff stated
that it was because they were not Catholic and "you know what goes between Protestants
and Catholics"); id. at 58 (when asked for evidence that Searle and Lind discriminated
against him on the basis of his national origin. Plaintiffstated "[bjecause they were not bom
in Nigeria")).
Nor are there any other circumstances in this case that support an inference of
discrimination. Plaintiff has identified a single interaction during the course of his VA
employment that involved a protected characteristic—^his claim that Moeller told him that
he hated his accent and the way he talked. While this statement is inappropriate and
insensitive, Moeller was not a decision maker at the VA,but was merely a volunteer. There
is no evidence that Moeller had any impact whatsoever on any of the actions Defendant
took with respect to Plaintiffs employment. See Sanderson v. N.Y. State Elec. & Gas
Corp., 560 F. App'x 88, 93 (2d Cir. 2014)(finding no inference of discrimination where
the plaintiff failed to produce any evidence showing that the individuals who harassed her
"played any role in the decision to terminate her employment");Rightnour v. Tijfany & Co.,
-29-
354 F. Supp. 3d 511, 522(S.D.N.Y, 2019)(finding no inference ofreligious discrimination
where there was "no evidence that any of the decision-makers harbored religious animus
... against Catholics"). Moreover, Plaintiff testified at his deposition that he had never
heard Searle or any of the other involved VA decision makers express animosity based on
his religion or national origin. (Dkt. 189-7 at 87-88).
There is also no evidence that Plaintiff was treated differently from similarly situated
employees ofdifferent races,religions, or national origins. The sole concrete claim Plaintiff
makes in this regard is that he was the only chaplain who was required to sign in on a time
sheet. However,this assertion is unsubstantiated and flatly contradicted by the evidence of
record. Multiple VA employees with personal knowledge, including Searle himself,
confirmed that Searle was required to sign in when he was a part time chaplain. (See Dkt.
189-7 at 132, 174). Moreover, Lind identified five other part-time chaplains who were
required to sign in (id. at 132), and Defendant produced sample sign-in sheets corroborating
this testimony(Dkt. 189-4 at 75-76). Plaintiffs mistaken beliefthat he was singled out and
required to track his hours is not evidence of discriminatory conduct.
Considering the specific adverse employment actions alleged by Plaintiff, there is
no evidence whatsoever that the Waiver Committee, which was responsible for the denial
of Plaintiffs request for a waiver of indebtedness, was motivated by any impermissible
consideration. To the contrary, there is no indication that the members of the Waiver
Committee were even aware ofPlaintiffs religion or national origin. Dawson,Christensen,
and Howard, the Canandaigua VA employees who were familiar with Plaintiff, actively
-30
assisted him in trying to get his debt waived. That they were ultimately unsuccessful is not
evidence of discriminatory intent.
There is also no evidence that Plaintiff was not promoted to a full-time position in
March 2012 as a result of discrimination. The evidence of record is clear that the VA's
human resources procedure required that the position be approved and posted and that it
could not simply be given to Plaintiff. (See, e.g., Dkt. 189-7 at 35, 135). The fact that VA
employees complied with standard VA policies in filling the position vacated by SmithSoucier is not evidence of unlawful discrimination.
The decision not to hire Plaintifffor the full-time chaplain position in May 2012 and
the failure to provide a performance evaluation in June 2012 also did not occur under
circumstances giving rise to an inference of discrimination.
There is no evidence
whatsoever in the record suggesting that the decision makers with respect to these decisions
were motivated by Plaintiffs religion or national origin. To the contrary, the record is clear
that Plaintiff was not given a performance evaluation in June 2012 because the decision to
recommend removal had already been set in motion, and performance evaluations were not
given in such circumstances. (See Dkt. 189-7 at 103). It is further clear that Plaintiff was
not hired for the full-time chaplain position in May 2012 because of the numerous
complaints that had been lodged against him and his documented performance issues,
including his refusal to attend the May 4th meeting. Again, Plaintiff has produced no
evidence whatsoever to suggest that these actions were taken as a result of his religion or
national origin.
-31 -
Plaintiff also has not produced evidence from which a rational jury could conclude
that he was denied continuation of health insurance benefits for discriminatory reasons.
Grouse testified that,to her knowledge,she had given Plaintiff all the information he needed
to apply for TCC,and that he was provided contact information if he had further questions.
(Dkt.189-7 at 38). Moreover and more importantly, as Jones explained, the VA does not
approve or deny TCC benefits. It can only process applications and there is no evidence
that Plaintiff ever submitted an application. {Id. at 126-27).
Finally, there is no evidence that Plaintiff was not hired for the full-time chaplain
position in September 2012 as a result of unlawful discrimination. To the contrary, it is
undisputed that at that point in time. Plaintiffs ecclesiastical endorsement had been
cancelled, rendering Plaintiff ineligible for chaplain positions at the VA. {Id. at 5).
In sum,there is no evidence in the record from which a rational jury could conclude
that any adverse employment action against Plaintifftook place under circumstances giving
rise to an inference of discrimination. Plaintiff therefore cannot satisfy the requirements of
a prima facie claim of disparate treatment under Title VII, and Defendant is entitled to
summary judgment with respect to these claims.
C.
Hostile Work Environment Claim
[T]o prevail on a hostile work environment claim under Title VII, a plaintiff
must make a prima facie showing that [his] workplace was permeated with
"discriminatory intimidation, ridicule, and insult .. . sufficiently severe or
pervasive to alter the conditions of the victim's employment and create an
abusive working environment," and show a specific basis for imputing the
conduct that created the hostile work environment to [his] employer.
-32-
McCullough V. Xerox Corp.,942 F, Supp. 2d 380,385(W.D.N.Y. 2013)(quotingi/arm v.
Forklift Sys., Inc.,510 U.S.17,21(1993)). "The test for hostile work environment has both
an objective and a subjective component: A work environment will be considered hostile if
a reasonable person would have found it to be so and if the plaintiff subjectively so
perceived it." Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir. 2004)
(quotation omitted).
Whether a reasonable person would find a given work environment to be
hostile depends on the totality of the circumstances; considerations include:
(1)the frequency of the conduct,(2)the severity of the conduct,(3) whether
the conduct is physically threatening or humiliating, or a mere offensive
utterance, and (4) whether the conduct unreasonably interferes with the
employee's work performance.
Id. (quotation omitted). Summary judgment on a hostile work environment claim is
appropriate if the Court concludes "as a matter oflaw that no rational juror could view [the
defendant's conduct] as...an intolerable alteration of[the plaintiffs] working conditions."
Holtz V. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001)(quotation omitted and
alterations in original).
A hostile work environment claim is "a wholly separate cause of action designed to
address other types of work place behavior [than discriminatory adverse employment
actions], like constant jokes and ridicule or physical intimidation." Hughes v. Xerox Corp.,
37 F. Supp. 3d 629, 648 (W.D.N.Y. 2014)(quotation omitted). Importantly, Title VII is
"not a general civility code," Bickerstaffv. Vassar Coll., 196 F.3d 435,452(2d Cir. 1999),
and "[w]ork environments that are hostile for non-discriminatory reasons do not fall within
-33-
the ambit of Title VII," DeLaurencio v. Brooklyn Children's Ctr., Superintendent, 111 F.
Supp. 3d 239, 248-49(E.D.N.Y. 2015)(quotation omitted).
On the record before the Court in this case, no rational jury could find that Plaintiff
was subjected to a hostile work environment based on a protected characteristic. The sole
factual allegation that has any relationship to any protected characteristic of Plaintiffs is
that on April 1, 2012, Moeller told Plaintiff that he hated his accent and the way he talked.
"Isolated incidents or episodic conduct will not support a hostile work environment claim."
Richardson v. N.Y. State Dep't Corr. Serv., 180 F.3d 426,440(2d Cir. 1999), abrogated on
other grounds by Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
Plaintiffs two interactions with Moeller, only one of which involved the use of
inappropriate language, simply do not rise to the level of a hostile work environment.
None of the other allegedly hostile incidents identified by Plaintiff in this case have
any relation to a protected characteristic. "While facially neutral incidents may be
considered among the totality ofthe circumstances in any hostile work environment claim,
there must be a circumstantial or other basis for inferring that incidents [jneutral on their
face were in fact discriminatory." Cristofaro v. Lake Shore Cent. Sch. Dist., 473 F. App'x
28, 30(2d Cir. 2012)(quotations and original alteration omitted). No such basis exists in
this case. As the Court explained above, when asked to identify evidence for his claims of
discrimination. Plaintiff merely reiterated over and over again that the other employees of
whom he complained were of different races, religions, and national origin than him. This
is not evidence of discriminatory intent. Moreover, the evidence of record shows that
Plaintiffs supervisors investigated and took action with respect to Plaintiffs complaints
-34-
regarding Moeller, again undercutting any inference of discrimination. Accordingly, the
Court finds that Defendant is entitled to summary judgment with respect to Plaintiffs
hostile work environment claim.
D.
Retaliation Claim
Plaintiff also asserts a Title VII retaliation claim.
Title VII contains an anti-
retaliation provision that makes it unlawful'"for an employer to discriminate against any ..
. employee[] or applicant[] . . . because [that individual] opposed any practice' made
unlawful by Title VII or 'made a charge, testified, assisted, or participated in' a Title VII
investigation or proceeding." Hicks v. Baines,593 F.3d 159,164(2d Cir. 2010)(alterations
in original)(quoting 42 U.S.C. § 2000e-2(a)). Retaliation claims are evaluated pursuant to
a three-step burden-shifting analysis. Id. First, the plaintiff must establish a primafacie
case by showing: "(1) participation in a protected activity;(2) that the defendant knew of
the protected activity; (3) an adverse employment action; and (4) a causal connection
between the protected activity and the adverse employment action." Id. "The plaintiffs
burden in this regard is de minimis, and the court's role in evaluating a summary judgment
request is to determine only whether proffered admissible evidence would be sufficient to
permit a rational finder offact to infer a retaliatory motive." Id. (quotation omitted).
If the plaintiff sustains his initial burden, a presumption of retaliation arises and the
defendant must then "articulate a legitimate, non-retaliatory reason for the adverse
employment action." Id. (quotation omitted). Ifthe defendant can do so,"the presumption
of retaliation dissipates and the employee must show that retaliation was a substantial
reason for the adverse employment action." Id.(quotation omitted). "A plaintiffcan sustain
-35 -
[that] burden by proving that a retaliatory motive played a part in the adverse employment
actions even if it was not the sole cause[.]" Id. (quotation omitted).
Actions are "materially adverse" for purposes of a retaliation claim if they are
"harmful to the point that they could well dissuade a reasonable worker from making or
supporting a charge of discrimination." Id. at 165 (quoting Burlington, 548 U.S. at 57).
The Second Circuit has held that "petty slights or minor annoyances" are not materially
adverse for purposes of a Title VII retaliation claim. Rivera v. Rochester Genesee Reg'l
Transp. Auth., 743 F.3d 11, 24-25 (2d Cir. 2014). When deciding a summary judgment
motion as to a Title VII retaliation claim, in addition to considering alleged acts of
retaliation on their own,courts must consider them in the aggregate,"as even minor acts of
retaliation can be sufficiently 'substantial in gross' as to be actionable." Bowen-Hooks v.
City ofNew York, 13 F. Supp. 3d 179, 225 (E.D.N.Y. 2014)(quoting Hicks, 593 F.3d at
165).
In this case. Plaintiff has identified the following actions as purportedly having been
undertaken in retaliation for his filing of an EEO complaint on May 8, 2012:(1)denial of
Plaintiffs application for the full-time chaplain position in May 2012; (2) Plaintiffs
termination; and (3) the purported failure to provide Plaintiff with information regarding
continuation of his health insurance. (Dkt. 183-3 at 20-22). As a threshold matter, the
Court notes that it has already dismissed Plaintiffs claims related to his termination for
failure to administratively exhaust, which encompasses any claim that Plaintiffs
termination was retaliatory. Accordingly, Plaintiffs retaliation claim cannot proceed on
the theory that he was terminated as a result of his discrimination complaint.
-36-
With respect to the other allegedly retaliatory actions taken by Defendant,the Court
finds that there is no support in the record for Plaintiffs assertion that he was wrongfully
denied the opportunity to continue his health insurance benefits after his termination. As
discussed above,the evidence ofrecord shows that Plaintiff was given the forms he needed
to complete and that he failed to submit an application. Defendant cannot be faulted for not
processing a TCC application that was never submitted. Accordingly,Plaintiffcannot show
any causal relationship between his protected activity and his alleged failure to obtain TCC
benefits.
Finally, there is no evidence that Plaintiffs application for the full-time chaplain
position made in May 2012 was denied for retaliatory reasons. Even assuming that Plaintiff
could state a prima facie case of retaliation with respect to this failure to promote him.
Defendant has amply identified the legitimate, non-discriminatory reasons that Plaintiffwas
not hired. In particular, the numerous complaints that had been lodged against Plaintiff and
his insubordination (specifically, in refusing to attend the May 4th meeting) are more than
adequate rationale for the determination not to promote Plaintiff in May 2012. See Diello
V. Potter, 697 F. Supp. 2d 410, 414 (W.D.N.Y. 2010), aff'd, 413 F. App'x 344 (2d Cir.
2011)(finding legitimate, non-discriminatory reasons for non-promotion where the plaintiff
had an inadequate interview and reports of poor performance). Nothing in the record
suggests that these concerns were pretextual; to the contrary,they are well-documented and
arose from a variety ofsources. Moreover,the concerns in question in significant part pre
dated Plaintiffs protected activity, and many ofthose involved were unaware that Plaintiff
had filed a discrimination complaint. Under these circumstances, no rational jury could
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find that Defendant retaliated against Plaintiff. Accordingly, the Court grants summary
judgment to Defendant on Plaintiffs retaliation claim.
CONCLUSION
For all the foregoing reasons, Plaintiffs motion for summary judgment(Dkt. 183)
is denied and Defendant's motion for summary judgment(Dkt. 189)is granted. Plaintiffs
motion for "release of court decisions on motions for summary judgment" (Dkt. 206) is
denied as moot. The Clerk of Court is directed to enterjudgment in favor ofDefendant and
to close the case.
SO ORDERED.
District Judge
Dated: March 29, 2019
Rochester, New York
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