Cordaro v. Department of Defense
DECISION AND ORDER granting 47 Motion for Summary Judgment; denying 62 Motion to Compel; denying 64 Motion for Court Intervention; denying 67 Motion for Sanctions. Signed by Hon. Elizabeth A. Wolford on 09/09/2021. (CDH) (A copy of this Decision and Order was mailed to Plaintiff)-CLERK TO FOLLOW UP-
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
DEPARTMENT OF DEFENSE,
Pro se plaintiff Michael Cordaro (“Plaintiff”) commenced the instant action on July
1, 2019, by docketing a petition for review of a decision of the Merit Systems Protection
Board (“MSPB”) with the United States Court of Appeals for the Federal Circuit. (Dkt. 1
at 2). The MSPB had entered a decision on May 21, 2019, rejecting Plaintiff’s appeal of
defendant the Department of Defense’s (“DOD” or “Defendant”) decision to remove him
from his position as “Auditor, GS-12, Field Detachment, North Central Branch Office,
Rochester, New York.” (Id. at 32).
On August 16, 2019, the Federal Circuit issued an order concluding that this was a
“mixed case” in which Plaintiff was both challenging the MSPB’s decision and asserting
an affirmative claim of discrimination and that it accordingly lacked jurisdiction. (Id. at
254-55). In particular, the Federal Circuit noted that Plaintiff had raised the affirmative
defense of gender discrimination before the MSPB. (Id. at 254). The Federal Circuit
ordered that the action be transferred to this District, because “review of a . . . mixed case
must be sought in federal district court.” (Id. at 255).
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Currently pending before the Court is a motion for summary judgment filed by
Defendant. (Dkt. 47). Plaintiff has opposed Defendant’s motion (Dkt. 59) and has filed his
own motions to compel, for court intervention, and for sanctions (Dkt. 62; Dkt. 64; Dkt.
67). For the reasons discussed below, the Court grants Defendant’s motion for summary
judgment and denies Plaintiff’s various motions.
Before setting forth the factual background of this matter, the Court must resolve a
threshold procedural issue. As required by Local Rule of Civil Procedure 56(a)(1),
Defendant submitted with its motion for summary judgment “a separate, short, and concise
statement, in numbered paragraphs, of the material facts as to which the moving party
contends there is no genuine issue to be tried.” L. R. Civ. P. 56(a)(1). Pursuant to Local
Rule 56(a)(2), Plaintiff was required to include with his opposition papers “a response to
each numbered paragraph in the moving party’s statement, in correspondingly numbered
paragraphs and, if necessary, additional paragraphs containing a short and concise
statement of additional material facts as to which it is contended there exists a genuine
issue to be tried.” L. R. Civ. P. 56(a)(2). He did not do so. Instead, he included his own
“Statement of Undisputed Facts and Issues” (Dkt. 59 at 3-21) (“Plaintiff’s Statement”),
which sets forth his version of the relevant events but fails to directly respond to
Defendants’ Local Rule 56(a)(1) Statement of Material Facts Not In Dispute (Dkt. 47-3)
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Local Rule 56(a)(2) further provides that “[e]ach numbered paragraph in the moving
party’s statement of material facts may be deemed admitted for purposes of the motion
unless it is specifically controverted by a correspondingly numbered paragraph in the
opposing statement.” L. R. Civ. P. 56(a)(2) (emphasis added). Although a district court
should not deem unopposed facts to be admitted when those facts are unsupported by the
record, Holtz v. Rockefeller & Co., 258 F.3d 62, 73-74 (2d Cir. 2001), a district court has
discretion to deem facts admitted for lack of compliance with its local rules, see N.Y. State
Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49
(2d Cir. 2005) (it was within district court’s discretion to deem the moving party’s
statement of material facts admitted where the opposing party “offered mostly conclusory
denials” and “failed to include any record citations” contrary to the district’s local rules);
Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (because plaintiff failed to respond
to defendant’s statement of material facts submitted in accordance with local rules, “the
material facts contained in his statement are deemed to be admitted as a matter of law”).
Here, the Court has accepted as true the facts set forth in Defendant’s Statement to the
extent they are (1) supported by the evidence of record and (2) not directly controverted by
Plaintiff’s Statement and the exhibits submitted in support thereof. Where a fact is
disputed, the Court has noted the same.
Plaintiff is male and was born in July of 1984. (Dkt. 47-3 at ¶ 1). He is a Certified
Public Accountant (“CPA”) who obtained his bachelor’s degree in 2006 from St. John
Fisher College and his master’s degree in 2007 from the Rochester Institute of Technology.
(Id. at ¶¶ 1-2).
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Following his graduation from the Rochester Institute of Technology, Plaintiff was
employed by the Internal Revenue Service as a Grade GS-9 Accountant in Washington,
D.C. (Id. at ¶ 3). In August of 2011, Plaintiff took a position as a GS-0511 Auditor, Grade
GS-9, Step 9, in the Rochester Office of the Defense Contract Audit Agency (“DCAA”)
North Central Branch Office (“NCBO”). (Id. at ¶ 4). DCAA is an agency of DOD that
performs contract audit functions. (Id. at ¶ 9). DCAA maintains five regional offices and
over 300 field audit offices. (Id. at ¶ 11). The NCBO is comprised of offices in three
locations: Rochester, New York; Clifton, New Jersey; and Melbourne, Florida. (Id. at
In November of 2015, Plaintiff received an annual performance appraisal rating his
overall performance as “Unacceptable.” (Id. at ¶ 31). The DCAA performance appraisal
system in place at that time employed a five-tiered rating system, with ratings of
“Outstanding,” “Exceeds Fully Successful,” “Fully Successful,” “Minimally Successful,”
and “Unacceptable.” (Id. at ¶¶ 25-26). Plaintiff’s rating supervisor in November of 2015
was Supervisory Auditor Alan Lathrop (“Lathrop”) and the reviewing supervisor was
Branch Manager Michael LaLoggia (“LaLoggia”). (Id. at ¶ 32). In his written appraisal,
Lathrop noted numerous deficiencies in Plaintiff’s performance, including that he
“included inaccurate information in his audits,” “misunderstood the purpose of certain
required audit steps,” and “turned in incomplete work.” (Id. at ¶ 34).
On January 19, 2016, Lathrop placed Plaintiff on a performance improvement plan
(“PIP”), which lasted until May 9, 2016. (Id. at ¶ 39). Plaintiff successfully completed
this PIP by raising his performance to “Minimally Successful.” (Id. at ¶ 40). Plaintiff was
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warned in writing it was anticipated that he would continue to improve to the “Fully
Successful” level. (Id. at ¶ 41).
In his next performance appraisal on May 5, 2017, Plaintiff was rated “Minimally
Successful.” (Id. at ¶ 43). At that time, Plaintiff’s direct supervisor was Edward Rusinko
(“Rusinko”) and the reviewing supervisor was Branch Manager Amanda Cappas. (Id. at
¶ 44). In his written appraisal, Rusinko indicated that Plaintiff “consistently failed to
include appropriate working papers, failed to demonstrate an understanding of the nature,
types, and steps of various audits, provided unclear and inconsistent working papers and
failed to make corrections even after having them pointed out to him.” (Id. at ¶ 46).
On or about September 13, 2017, Plaintiff’s supervisor Agatha Edkin (“Edkin”)
notified Plaintiff in a written progress report that for the three-month period from May
2017 to August 2017, his performance had been deficient in three “Critical Elements” of
his performance plan: “Audit Planning and Approach”; “Audit Performance”; and
“Documenting and Reporting Results.” (Id. at ¶ 49). Edkin advised Plaintiff that he was
failing to meet the core requirements of his position. (Id. at ¶ 51).
In October of 2017, Michele Sholar (“Sholar”) became branch manager of the
NCBO. (Id. at ¶ 53). At the time, the NCBO Rochester Office employed 13 Grade GS-12
Senior Auditors, including Plaintiff. (Id. at ¶ 13). The Grade GS-12 Senior Auditors were
divided into three teams, each of which was supervised by one of three Grade GS-13
Auditor Supervisors: Jessi Essom (“Essom”), Edkin, and Joel Verstraete. (Id.). When she
became Branch Manager, Sholar reorganized the teams and placed Plaintiff on the audit
team supervised by Essom. (Id. at ¶¶ 7, 23, 53).
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Shortly after Plaintiff was placed under Essom’s supervision, she criticized him and
raised the issue of a PIP. (Id. at ¶ 57). Plaintiff claims that he requested a transfer from
Essom’s team in October 2017, only two weeks after being assigned to her supervision.
(See Dkt. 59 at 7). Sholar visited the NCBO Rochester Office in November 2017, at which
time Plaintiff expressed his concern that Essom was going to fire him. (Dkt. 47-3 at ¶ 58).
In December of 2017, Essom arrived at work to find “a small pile of short dark har
stubbles” on her desk next to her keyboard. (Id. at ¶ 95). “A few months later,” she found
a similar pile of hair on her desk, which she believed had been placed intentionally. (Id.).
After the second incident, Essom contacted Sholar. (Id. at ¶ 96). Sholar individually met
with staff to discuss the incident. (Id.).
On or about January 18, 2018, Essom provided Plaintiff with “Performance Notes”
related to a specific audit on which he had been working. (Id. at ¶ 68). Essom advised
Plaintiff that “he had failed to develop well-reasoned audit conclusions, document his
work, exercise skill and judgment, and submit a report that was well written requiring
minimal supervisory revisions.” (Id. at ¶ 69). She further admonished Plaintiff for
spending 67 hours on an audit for which only 20 hours had been budgeted. (Id. at ¶ 70).
In February of 2018, Essom provided Plaintiff with a “Mid-Year Progress Review”
in which she rated his performance as “Unacceptable” and detailed deficiencies in three of
five “Critical Elements” in his performance plan. (Id. at ¶ 71). At this time, DCAA had
implemented a new “Performance Management and Appraisal Program” using only a
three-tiered rating system, with the only available ratings being “Outstanding,” “Fully
Successful,” and “Unacceptable.” (Id. at ¶¶ 25, 29).
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In March of 2018, Plaintiff reported an incident in which a blue substance—which
he describes as a “slime”—was placed on the handle of his desk drawer. (Id. at ¶ 97). Two
or three days after this incident, Essom found another pile of hair on her desk. (Id. at ¶ 98).
Essom placed Plaintiff on a PIP by notice dated April 3, 2018 (the “2018 PIP
Notice”). (Id. at ¶ 72).
The 2018 PIP Notice advised Plaintiff that he had 90 days to
demonstrate “Fully Successful” performance and that during the pendency of the PIP, he
would have weekly meetings with Essom to review his assignments and evaluate his
progress. (Id. at ¶¶ 83-84). The 2018 PIP Notice warned Plaintiff that if he “did not meet
the Fully Successful standard in each deficient Critical Element by the end of the 90-day
PIP period, it would be necessary to initiate a proposal to remove him from his position.”
(Id. at ¶ 87).
On April 18, 2020, Essom contacted DCAA human resources to report concerns
about Plaintiff. (Id. at ¶ 99). Essom stated that she had had a conversation with Plaintiff
in which he stated that his life was “unraveling” and that he felt like he was “driving a car
and [Essom had] a gun to his head.” (Id.). Essom stated that she was concerned that
Plaintiff was becoming unstable. (Id.).
The PIP period was ultimately extended by eight days and ended on July 9, 2018.
(Id. at ¶ 88). During the PIP period, Plaintiff was assigned two audits. (Id. at ¶ 89). He
did not complete either audit assignment and one of the audits was so far past its due date
that it had to be cancelled. (Id. at ¶ 92).
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At the conclusion of the PIP period, Essom determined that Plaintiff had failed to
improve his performance to the “Fully Successful” level. (Id. at ¶ 93). Essom and Edkin
met with Plaintiff to advise him of this outcome. (Id.).
On July 19, 2018, Essom emailed DCAA security regarding Plaintiff. (Id. at ¶ 101).
Essom’s email indicated that she felt that Plaintiff had an inappropriate knowledge of and
interest in her personal life, and implied that she believed he was responsible for leaving
the piles of hair on her desk. (Dkt. 47-5 at 8-10). Essom described Plaintiff’s behavior as
“borderline stalking.” (Id. at 10).
Sholar issued Plaintiff a Proposed Notice of Removal for Unacceptable
Performance (the “Proposed Notice of Removal”) on July 26, 2018. (Dkt. 47-3 at ¶ 102).
On August 1, 2018, Plaintiff sent NCBO Regional Manager Deborah Neville (“Neville”)
a document entitled “Notice of Formal Written Grievances Against Ms. Jessi Essom,
Supervisory Auditor and Ms. Michele Sholar, Branch Manager” (the “Written Grievance”)
(Id. at ¶ 107). In his Written Grievance, Plaintiff claimed that he had been subjected to
prejudice and harassment by Essom and Sholar throughout the fiscal year, that the 2018
PIP allowed for no possible chance of success, and that the “current management team
(female majority)” favored female auditors. (Id. at ¶ 109).
Neville reviewed both the Proposed Notice of Removal and Plaintiff’s Written
Grievance, and independently determined that Plaintiff’s performance was unacceptable,
and that removal was warranted. (Id. at ¶ 110). Neville further independently reviewed
Plaintiff’s working papers prepared during the PIP period in 2018 prior to making her
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determination. (Id. at ¶ 112).
Neville issued a Notice of Decision to Remove for
Unacceptable Performance to Plaintiff on September 4, 2018. (Id. at ¶ 111).
On September 18, 2017, Plaintiff appealed Defendant’s decision to remove him
from his employment to the MSPB. (Dkt. 47-3 at ¶ 151). In his appeal, Plaintiff alleged
that (1) the DCAA had applied the incorrect standards in assessing his performance and (2)
he was illegally discriminated against based on his gender. (Id. at ¶ 152).
Administrative Law Judge (“ALJ”) JoAnn M. Ruggiero held a hearing on Plaintiff’s
appeal on March 4, 2019, after the conclusion of discovery and pre-hearing proceedings.
(Id. at ¶ 153). On May 21, 2019, ALJ Ruggiero issued a decision affirming Plaintiff’s
removal. (Id. at 154).
As previously explained, Plaintiff then commenced the instant action on July 1,
2019, by docketing a petition for review with the Federal Circuit. The Federal Circuit then
transferred the matter to this Court on August 16, 2019. (Dkt. 13).
Discovery in this case closed on November 30, 2020. (Dkt. 33).1 Defendant filed
its motion for summary judgment on February 15, 2021. (Dkt. 47). Plaintiff filed his
response on March 16, 2021. (Dkt. 59).
Plaintiff filed a motion to compel on March 24, 2021. (Dkt. 62). Defendant
responded to this motion on April 5, 2021. (Dkt. 63). Then, on April 13, 2021, Plaintiff
Plaintiff filed a motion for extension of this deadline on November 30, 2020. (Dkt.
44). That motion was denied by Magistrate Judge Mark W. Pedersen, to whom all pretrial, non-dispositive matters had been referred. (Dkt. 58; Dkt. 61).
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filed a “motion to compel addendum and motion for court intervention.” (Dkt. 64).
Defendant filed its reply in further support of its motion for summary judgment on April
16, 2021. (Dkt. 65). Plaintiff filed a further brief in support of his motions to compel and
for court intervention on April 28, 2021. (Dkt. 66).
Plaintiff filed a motion for sanctions on May 5, 2021. (Dkt. 67). Defendant filed a
response to the sanctions motion on June 9, 2021 (Dkt. 68), and Plaintiff filed a reply on
June 16, 2021 (Dkt. 69).
Standard of Review on Motion for Summary Judgment
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 jury 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 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
non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
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(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 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. Concentra Health Servs., Inc.,
781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Specifically, the non-moving party “must come forward with specific
evidence demonstrating the existence of a 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., 477 U.S. 242, 247-48 (1986).
Standard of Review in Mixed Cases
As noted above, this is a so-called “mixed case” in which Plaintiff is both
challenging the MSPB’s decision and asserting an affirmative claim of discrimination. The
Court applies a bifurcated standard of review in such cases. As to Plaintiff’s nondiscrimination-based challenge to the MSPB’s decision, he is “only entitled to judicial
review of the administrative record,” and the MSPB’s decision must be affirmed unless it
was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule or regulation having been
followed; or (3) unsupported by substantial evidence.” Daigle v. Principi, No. 5:00-CV189 FJS DEP, 2005 WL 8165629, at *2 (N.D.N.Y. Mar. 2, 2005) (quoting 5 U.S.C.
§ 7703(c)). However, the Court reviews the discrimination claim de novo, applying the
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standard under the relevant anti-discrimination statute. Murray v. U.S. Dep’t of Just., 821
F. Supp. 94, 101 (E.D.N.Y. 1993), aff’d, 14 F.3d 591 (2d Cir. 1993).
Before considering the merits of Defendant’s motion for summary judgment, the
Court resolves Plaintiff’s various motions. (Dkt. 62; Dkt. 64; Dkt. 67). Plaintiff has filed
the following: (1) a motion to compel in which he contends, pursuant to Federal Rule of
Civil Procedure 56(d), that additional discovery is necessary in order for him to oppose
Defendant’s motion for summary judgment; (2) a “motion to compel addendum and motion
for court intervention” in which he provides additional information regarding his request
for discovery and requests that “the issues of hostile work place, workplace harassment,
and illegal reprisal for discriminatory reasons also be into this case [sic]” (Dkt. 64 at 3);
and (3) a motion for sanctions in which he asks the Court to determine that Defendant has
presented false evidence in an attempt to “unjustifiably influenc[e] the court” (Dkt. 67 at
Motion to Compel
Turning first to Plaintiff’s motion to compel, lack of discovery cannot, in and of
itself, justify denial of a properly supported motion for summary judgment. Although Rule
56(d) permits a party to oppose a motion for summary judgment on the ground that he
needs discovery, any such opposition must demonstrate “by affidavit or declaration that,
for specified reasons, [the party] . . . cannot present facts essential to justify its opposition.”
Whelehan v. Bank of Am. Pension Plan for Legacy Companies-Fleet-Traditional Ben., 5
F. Supp. 3d 410, 420 (W.D.N.Y. 2014), aff’d, 621 F. App’x 70 (2015). “The affidavit must
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explain: ‘[(1)] the nature of the uncompleted discovery; [(2)] how the facts sought are
reasonably expected to create a genuine issue of material fact; [(3)] what efforts the affiant
has made to obtain those facts; and [(4)] why those efforts were unsuccessful.’” Cont’l
Cas. Co. v. Marshall Granger & Co., LLP, 921 F. Supp. 2d 111, 127 (S.D.N.Y. 2013)
(quoting Hoffmann v. Airquip Heating & Air Conditioning, 480 F. App’x 110, 112 (2d Cir.
Here, while Plaintiff has submitted an affidavit as required by Rule 56(d) (see Dkt.
62), he has failed to demonstrate therein that there is uncompleted discovery in this case
that could reasonably be expected to create a genuine issue of material fact. As to
Plaintiff’s requests for examples of his actual work product, documents “validat[ing] the
existence of a CMTL for progress payment type audit assignments in 2018” (Dkt. 62 at
5),” training materials available to Plaintiff during the PIP period, and email exchanges
between Plaintiff and certain of his former supervisors, Defendant has demonstrated in
opposition to Plaintiff’s motion to compel that these documents either do not exist or have
already been produced. (See Dkt. 63).
Plaintiff’s remaining requests seek information that is irrelevant to the resolution of
the pending motion for summary judgment. In particular, Plaintiff seeks information
related to a former co-worker who, as discussed more fully below, is not a valid comparator
for purposes of his discrimination claim. Plaintiff further seeks information regarding
hiring and firing practices at DCAA generally, as well as additional information regarding
his former co-workers’ subjective opinions regarding his work product and relationship
with Essom, but he has failed to adequately explain how such evidence would support the
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particular legal claims he has made in this case. Instead, Plaintiff has focused on the merits
of the MSPB’s determinations regarding his work product. However, as noted above, the
Court’s review of that aspect of the MSPB’s determination is limited to the administrative
record. The additional information sought by Plaintiff simply cannot reasonably be
expected to change the outcome of the instant motion for summary judgment.
Voluminous discovery has occurred in this case, and the discovery deadline has
expired. Plaintiff has failed to demonstrate that a reopening of discovery is warranted
pursuant to Rule 56(d), and so the Court denies his motion to compel.
Motion for Court Intervention
The Court turns next to Plaintiff’s “motion to compel addendum and motion for
court intervention.” Plaintiff does not seek any additional relief related to his motion to
compel, which the Court has already denied for the reasons set forth above.
As to Plaintiff’s request that “the issues of hostile work place, workplace
harassment, and illegal reprisal for discriminatory reasons also be into this case [sic]” (Dkt.
64 at 3), the Court has already issued a Decision and Order denying Plaintiff’s prior request
to amend his pleadings to assert such claims (Dkt. 5). Plaintiff has presented no new
information to call into question the Court’s prior determination in this regard, and so
Plaintiff’s motion is denied.
Motion for Sanctions
Finally, the Court considers Plaintiff’s motion for sanctions.
This motion is
somewhat difficult to parse. As an initial matter, the Court notes that the motion is
addressed to the “Administrative Judge” and that Plaintiff purports to bring his motion
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pursuant to 29 C.F.R. § 1614.109(f)(3), which sets forth procedures for hearings before the
Equal Employment Opportunity Commission. (See Dkt. 67 at 1). This regulation simply
does not apply in this federal court proceeding. Nonetheless, in light of Plaintiff’s pro se
status, the Court has reviewed his filing to see if there is any basis on which to sanction
Defendant pursuant to Federal Rule of Civil Procedure 11 or under any other theory.
The essence of Plaintiff’s sanctions motion appears to be that the factual information
presented by Defendant about his conduct as an employee is false and misleading.
However, at most Plaintiff has established that there is a factual dispute as to how he
interacted with Essom and others during the course of his employment. “With respect to
factual contentions, sanctions may not be imposed unless a particular allegation is utterly
lacking in support.” StreetEasy, Inc. v. Chertok, 752 F.3d 298, 307 (2d Cir. 2014). It is
not the role of this Court on a motion for sanctions to weigh the credibility of Plaintiff’s
and Essom’s respective version of events. Sanctions are not warranted on the instant
record. The Court accordingly denies Plaintiff’s motion.
Plaintiff’s Discrimination Claim
The Court turns now to the merits of Defendant’s motion for summary judgment,
beginning with Plaintiff’s claim that he was discriminated against on the basis of his
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”)
prohibits employers from discriminating on the basis of gender. On a motion for summary
judgment, discrimination claims under Title VII are evaluated under the burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
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Plaintiff must initially establish a prima facie case of discrimination by establishing that:
(1) he was within a protected class; (2) he was qualified for the position; (3) he was subject
to an adverse employment action; and (4) the adverse action occurred under circumstances
giving rise to an inference of discrimination. See Terry v. Ashcroft, 336 F.3d 128, 137-38
(2d Cir. 2003); Sotomayor v. City of New York, 862 F. Supp. 2d 226, 253 (E.D.N.Y. 2012),
aff’d, 713 F.3d 163 (2d Cir. 2013).
If a plaintiff establishes a prima facie case, the burden then shifts to the employer
to articulate “some legitimate nondiscriminatory reason” for the disparate treatment.
McDonnell Douglas, 411 U.S. at 802. If the employer articulates a sufficient reason, the
burden shifts back to the plaintiff to prove that the employer’s reason “was in fact pretext”
for discrimination. Id. at 804; Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83
(2d Cir. 2015). Plaintiff is “not required to show that the employer’s proffered reasons
were false or played no role in the employment decision, but only that they were not the
only reasons and that a prohibited factor was at least one of the ‘motivating’ factors for the
decision.” Smith v. New York and Presbyterian Hosp., 440 F. Supp. 3d 303, 328 (S.D.N.Y.
2020) (internal quotations and citation omitted).
For purposes of the instant motion, Defendant concedes that Plaintiff has satisfied
the first three requirements of a prima facie case of discrimination—that is, he is a member
of a protected class, he met the basic qualifications for his position, and he experienced an
adverse employment action (that is, removal from his position). (See Dkt. 47-1 at 16).
However, Defendant argues that Plaintiff cannot establish that he was removed from his
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employment under circumstances giving rise to an inference of discriminatory intent. The
Court agrees, for the reasons that follow.
As this Court has previously explained:
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
plaintiff’s 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
of events leading to the plaintiff’s 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). Here, Plaintiff has not identified any direct evidence of gender-based
discrimination, such as anti-male comments by the relevant decisionmakers. Instead, he
contends that anti-male bias can be inferred from the totality of the circumstances.
As an initial matter, the Court notes that the mere fact that Plaintiff is male and his
supervisors were female does not, by itself, demonstrate an inference of discrimination.
See, e.g., Johnson v. City of N.Y., 669 F. Supp. 2d 444, 450 (S.D.N.Y. 2009) (citing Yusuf
v. Vassar Coll., 35 F.3d 709, 71 (2d Cir. 1994)); Holdmeyer v. Veneman, 321 F. Supp. 2d
374, 382 (D. Conn. 2004), aff’d sub nom. Holdmeyer v. Dep’t of Agric., 146 F. App’x 535
(2d Cir. 2005). While Plaintiff makes much of the fact that the management team at the
NCBO was majority female, that is not sufficient to maintain his discrimination claim on
a motion for summary judgment.
Separate from the mere fact that his supervisors were female, Plaintiff claims that
the following is evidence of gender-based discrimination: (1) “a high percentage of male
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auditors in the NCBO Rochester office received a Notification of Denial of WIGI [withingrade step increases], including Mr. Darren Mitcham and Mr. Craig Fisher” while “[n]o
female auditors in NCBO were shown to be denied a promotion”; (2) Essom put both male
auditors on her work team (Plaintiff and “Mr. Stanley Jones”) on a PIP; (3) two female
auditors were transferred to Lathrop’s work team, the team to which Plaintiff had requested
a transfer; (4) Essom was highly critical of Plaintiff’s work from the very beginning of her
supervision; (5) Plaintiff’s complaints about the way in which Essom treated him were not
handled properly by the agency; (6) the incident in which blue slime was placed on his
desk was not appropriately investigated; (7) Essom deliberately sabotaged Plaintiff’s work
during the PIP period; and (8) Essom’s email to security in which she accused Plaintiff of
borderline stalking was full of knowingly false information. (Dkt. 59 at 5-21). Plaintiff
also argues at length that his work was not actually of a substandard quality. These
arguments, considered separately and collectively, are not sufficient to defeat Defendant’s
motion for summary judgment.
Plaintiff has neither submitted nor pointed to any admissible evidence to support his
assertion that male auditors in the NCBO Rochester Office were treated more harshly than
their female counterparts. First, while it is true that Essom also put Stanley Jones (“Jones”)
on a PIP (see Dkt. 47-3 at ¶ 136), Jones successfully completed the PIP and continues to
be employed by the NCBO Rochester Office (id. at ¶ 137). Further, Jones testified that
Essom provided him useful and constructive advice and went to “great lengths” to ensure
that he leaned the necessary concepts. (Id. at ¶ 138). Indeed, Jones and several other male
auditors testified that they did not perceive any differences in the way that Essom (or
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Plaintiff’s prior supervisor, Edkin) treated male and female auditors. (Id. at ¶¶ 140-43).
Additionally, during her time as a supervisor, Essom also rated two female auditors less
than “Fully Successful.” (Id. at ¶ 145). One of these female auditors would have been
placed on a PIP, but she retired before this could occur. (Id.).
Second, Craig Fisher (“Fisher”), who was removed from his employment at the
NCBO Rochester Office in 2017, was terminated because his performance was
substandard, including failing to turn his assignments in on time during his PIP period. (Id.
at ¶¶ 131). Further, Fisher was under a completely different management chain than
Plaintiff at the time of his removal—his direct supervisor was Edkin, his Branch Manager
was LaLoggia, and LaLoggia was supervised by Regional Audit Manager Kalle Lepiksaar.
(Id. at ¶ 131). It is undisputed that the auditor under Edkin’s supervision with the highest
performance appraisal rating was a male. (Id. at ¶ 132). There is no evidence that Fisher
was removed from his employment due to his gender, nor that that the same decisionmakers
were involved in Fisher’s case as were involved in Plaintiff’s case. See Saenger v.
Montefiore Med. Ctr., 706 F. Supp. 2d 494, 514 (S.D.N.Y. 2010) (“[V]ague claims of
differential treatment alone do not suggest discrimination, unless those treated differently
are similarly situated in all material respects.” (internal quotation marks omitted)).
Third, Darren Mitcham (“Mitcham”) was also supervised by Edkin and not Essom,
and there is no evidence in the record that Mitcham was ever placed on a PIP or otherwise
treated more harshly than his female colleagues, apart from Plaintiff’s unsupported
A plaintiff’s “unsubstantiated and self-serving testimony is insufficient,
without more, to defeat summary judgment.” New World Sols., Inc. v. NameMedia Inc.,
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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 summary judgment).
Fourth, Defendant has provided the Court with a compilation of the performance
ratings in the NCBO Rochester Office for 2017 and 2018. (Dkt. 47-5 at 14-15). There is
no pattern in this data of lower ratings for male employees versus female employees.
Fifth, Plaintiff has pointed to no admissible evidence establishing that the two
female auditors who were allegedly transferred to Lathrop’s team were similarly situated
to him, nor any admissible evidence whatsoever regarding the circumstances in which such
These vague allegations are not evidence of gender-based
The remainder of the evidence identified by Plaintiff has no relationship whatsoever
to his gender. Plaintiff has certainly come forward with evidence from which a reasonable
jury could conclude that Essom and Sholar had personal animus towards him, but “Title
VII . . . does not set forth a general civility code for the American workplace.” Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation omitted). Accordingly,
“personal animus without evidence of . . . gender bias is insufficient to establish a claim
under Title VII.” Espinosa v. Weill Cornell Med. Coll., No. 18 CIV. 11665 (AT), 2021
WL 1062592, at *9 (S.D.N.Y. Mar. 19, 2021); see also Alfano v. Costello, 294 F.3d 365,
377 (2d Cir. 2002) (“Everyone can be characterized by sex, race, ethnicity, or (real or
perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important
. . . to exclude from consideration personnel decisions that lack a linkage or correlation to
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the claimed ground of discrimination. Otherwise, the federal courts will become a court of
Here, Plaintiff’s own theory is that Essom had a “PERSONAL VENDETTA”
against him because she incorrectly believed that he was responsible for the incidents in
which hair was left on her desk. (Dkt. 59-1 at 26-27 (emphasis in original)). Even if that
is true, it cannot support a Title VII claim. See, e.g., Singh v. Excel Sec. Corp., No. 14
CIV. 10111 (PAC), 2021 WL 1199469, at *6 (S.D.N.Y. Mar. 30, 2021) (“A reasonable
jury could find that [a supervisor] did not like Plaintiff and did not want him working at
the Building, but that does not constitute discrimination prohibited by Title VII, nor is Title
VII an anti-personal vendetta statute.”); Johnson v. City Univ. of N.Y., 14-CV-587 (VEC),
2014 WL 4412475, at *1 (S.D.N.Y. Sept. 8, 2014) (“Bullying and harassment have no
place in the workplace, but unless they are motivated by the victim’s membership in a
protected class, they do not provide the basis for an action under Title VII.”).
Further, to the extent that Plaintiff is asserting that his work was assessed unfairly,
his “subjective disagreement with [his employer’s] assessment of [his] qualifications does
not make [the] decision discriminatory.” Shands v. Lakeland Cent. Sch. Dist., No. 15-CV4260, 2018 WL 3315738, at *13 (S.D.N.Y. July 5, 2018); see also Newsome v. IDB Cap.
Corp., No. 13-CV-6576 (VEC), 2016 WL 1254393, at *22 (S.D.N.Y. Mar. 28, 2016) (“ At
their heart, Plaintiffs’ claims reflect their disagreement with the Defendants’ business
judgments and assessments of the quality of their work or reflect the Plaintiffs’ subjective
feelings and perceptions that they were being discriminated against because of their race,
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religion, ethnicity or gender.
Such claims are, however, insufficient to establish
In sum, on the record before the Court, a reasonable jury could find at most that
Plaintiff was terminated because Essom and Sholar had personal animus towards him and
were unfair in their assessments of his work. That is insufficient as a matter of law to
support the imposition of liability under Title VII, and so Defendant is entitled to summary
judgment on Plaintiff’s discrimination claim.
Plaintiff’s Non-Discrimination-Based Challenge
The Court turns next to Plaintiff’s non-discrimination-based challenge to the
MSPB’s affirmance of his removal. As noted above, the Court’s review of this aspect of
Plaintiff’s claim is limited to the administrative record, and the Court cannot disturb the
MSPB’s determination unless it was “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without procedures required by law,
rule or regulation having been followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c)). “Substantial evidence means more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted).
Here, the Court easily concludes that the MSPB’s decision survives judicial review.
The record is replete with documentation of Plaintiff’s performance issues, which dated
back to 2015 when he was supervised by other males. Such documentation includes the
2018 PIP Notice and the Notice of Removal, both of which set forth detailed information
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regarding Plaintiff’s failure to meet the relevant performance standards and both of which
were appropriately relied upon by the ALJ in making her determination.
Further, it was well within the ALJ’s discretion to assess the credibility of Plaintiff
and of Defendant’s witnesses and to credit the testimony of the latter. See Gale v.
Napolitano, No. 07-CV-5211 DLI MDG, 2011 WL 809499, at *4 (E.D.N.Y. Mar. 2, 2011)
(“An MSPB ALJ’s determinations regarding witness credibility are virtually unreviewable,
since the determination of the credibility of the witnesses is within the discretion of the
presiding official who heard their testimony and saw their demeanor.” (quotation omitted)).
Accordingly, the ALJ’s rejection of Plaintiff’s testimony that he was unable to improve his
performance because of external factors including his reassignment to a new team and his
unhappiness at working under Essom is not a basis for reversal by this Court.
Plaintiff further has not identified any evidence supporting the conclusion that any
procedures required by law, rules, or regulations were not followed by the ALJ. Plaintiff
has focused at length on his disagreement with the ALJ’s conclusions, but the question is
not whether Plaintiff (or even the Court) agrees with the ALJ. Applying the relevant
standard of review, there is nothing before the Court to suggest that the MSPB’s
determination should be overturned. Accordingly, the Court grants Defendant’s motion
for summary judgment as to Plaintiff’s non-discrimination-based challenge to the MSPB’s
For the foregoing reasons, the Court denies Plaintiff’s pending motions to compel,
for court intervention, and for sanctions. (Dkt. 62; Dkt. 64; Dkt. 67). The Court further
Case 6:19-cv-06601-EAW-MJP Document 70 Filed 09/09/21 Page 24 of 24
grants Defendant’s motion for summary judgment (Dkt. 47) in its entirety. The Clerk of
Court is instructed to enter judgment in favor of Defendant and to close the case.
ELIZABETH A. WOLFORD
United States District Court
Dated: September 9, 2021
Rochester, New York
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