Summary
observing that "where a plaintiff does not explicitly allege retaliation in an administrative complaint, the subsequent investigation of other forms of discrimination cannot reasonably be expected to extend to retaliation"
Summary of this case from Jenkins v. New York City Transit AuthorityOpinion
04 Civ. 7593 (PKC).
January 12, 2006
MEMORANDUM AND ORDER
Plaintiff Brian T. Burke, proceeding pro se, brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., and the Rehabilitation Act, 29 U.S.C. § 701 et. seq., against the United States Department of Commerce, and the Secretary of Commerce, Carlos Gutierrez. Burke alleges that the Census Bureau, an arm of the Commerce Department by which he was employed in 2000, discriminated against him on the basis of his national origin, religion, sex, and disability, and also retaliated against him for filing a complaint with the Bureau's Equal Employment Opportunity Office.
Plaintiff purports to bring claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112- 12117. However, federal employers are not amenable to suit under the ADA. See 42 U.S.C. § 12111(5)(B); Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998). As such, and in light of plaintiff's pro se status, I construe plaintiff's claims of discrimination based on disability as arising under the Rehabilitation Act, which is applicable to federal employees. See, e.g., Alenski v. Potter, 2005 WL 1309043 at *7 n. 11 (E.D.N.Y. May 18, 2005).
The complaint in this action named the Department of Commerce and its then-Secretary Donald Evans as defendants. Pursuant to Fed.R.Civ.P. 25(d), Secretary Gutierrez has been substituted for Secretary Evans in the caption. As the Secretary is the only proper defendant in actions under Title VII and the Rehabilitation Act, all claims against the Commerce Department itself are dismissed. See 42 U.S.C. § 2000e-16(c); Torres v. United States Dept. of Veteran Affairs, 2004 WL 691237 at *2 (S.D.N.Y. Mar. 31, 2004).
Plaintiff was afforded an opportunity to conduct discovery, and the discovery period is now closed.
Defendants have moved for summary judgment, asserting that plaintiff cannot make out a prima facie case of discrimination and/or retaliation under either Title VII or the Rehabilitation Act, and that, even if he could, defendants have offered a legitimate, nondiscriminatory reason for the adverse employment action of which plaintiff complains, which reason plaintiff cannot demonstrate to be a mere pretext. In addressing defendants' motion, I have considered only plaintiff's version of the facts and such other facts as are not disputed by the plaintiff. Where multiple inferences may be drawn from the facts, I have considered only the inference most favorable to plaintiff, the non-movant.
While plaintiff did not include with his opposition papers a statement of material facts in dispute as required under Local Rule 56.1, he did submit an affirmation in which he disputed certain of the facts offered in defendants' Rule 56.1 statement. In light of plaintiff's pro se status, I will excuse his failure to comply with the rules, and treat his affirmation as though it were a counterstatement under Rule 56.1. See, e.g., Holtz v. Rockefeller Co., 258 F.3d 62, 72-73 (2d Cir. 2001) ("A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules.").
For the reasons set forth below, defendants' motion is granted.
Factual Background
Plaintiff is a Caucasian man, of Irish national origin, who considers himself Roman Catholic. (Vassallo Decl. Ex. F) Plaintiff also suffers from photophobia, a visual sensitivity to light, which requires him to wear tinted glasses. (Burke Dep. 212-13)
Plaintiff was hired by the Census Bureau on March 13, 2000 to work as an enumerator for the 2000 census. (Valle Decl. Ex. H) At the time of hire, plaintiff signed a "Temporary Excepted Service Employment Agreement for the 2000 Decennial Census Staff" (the "Agreement"). (Valle Decl. Ex. F; Burke Dep. 71-72) The Agreement provided that the position for which plaintiff was being hired was "strictlytemporary" and that plaintiff might be "released from service" prior to his given "not-to-exceed" date, April 29, 2000, "if work or funds are no longer available." (Valle Decl. Ex. H, Ex. F at 1 (emphasis in original)) The Agreement further provided that the work schedule for plaintiff's position was classified as "intermittent," which was defined to mean that plaintiff would "be employed less than full time and [the position] require[d]irregular work hours which cannot be prescheduled." (Valle Decl. Ex. F at 2 (emphasis in original))
Plaintiff knew that the job for which he had applied was temporary. (Burke Dep. 71) Plaintiff was given an employee handbook upon his hire, which handbook also stated that plaintiff was being hired for a temporary position and that he could be released prior to his "not-to-exceed" date for lack of funds or lack of work. (Valle Decl. Ex. A p. 3-2; Burke Dep. 82) The handbook also stated that the expiration or "not-to-exceed" date of an appointment "does not guarantee the availability of work. . . ." (Valle Decl. Ex. A p. 3-2) Between March 13 and April 1, 2000, plaintiff worked for the Census Bureau — either participating in paid training or engaging in non-training "regular work" — on seven days, for a total of 52 hours. (Valle Decl. Ex. G; Burke Dep. 97-105) On April 18, plaintiff was terminated for lack of work. (Valle Decl. Ex. I)
On May 1, 2000, plaintiff was rehired by the Census Bureau and given a new "not-to-exceed" date of June 24, 2000. (Valle Decl. Ex. J) Between May 1 and May 6, 2000, plaintiff participated in paid training each day, for a total of 29½ hours. (Valle Decl. Ex. G; Burke Dep. 113, 115-18) After May 6, plaintiff did not participate in any paid training or regular work for the Census Bureau. (Burke Dep. 119) On June 24, 2000, plaintiff was officially terminated by the Census Bureau. (Valle Decl. Ex. K) The June 24 "Notice of Personnel Action" form lists "lack of work" as the reason for the termination. (Id.)
On May 26, 2000, plaintiff first contacted the Census Bureau's Equal Employment Opportunity Office regarding his lack of assigned work. (Vassallo Decl. Ex. E at US 0000022; Burke Dep. 222) On July 4, 2000, plaintiff filed an administrative complaint against the Department of Commerce and the Census Bureau, claiming that he had been discriminated against based on his race, color, religion, sex, national origin, age, and disability. (Vassallo Decl. Ex. F; Burke Dep. 132-34) On his administrative complaint form, plaintiff did not mark the box for "retaliation" as a basis for the alleged discrimination. (Vassallo Decl. Ex. F) In his administrative complaint, plaintiff claimed that he was subjected to "[p]urposeful and discriminatory denial of work beginning in mid May [sic], 2000 with the Group Living Enumeration and continuing through today (6/30/00) for Non-response Follow-up." (Id. at 2) He claimed that the officials involved in the discriminatory actions were David Brown and Jeff Lewis. (Id.) He claimed that one other Census employee had been subjected to the same discriminatory job actions, and that one other individual who was similarly situated — a woman who he identified by first name only — was treated more favorably by Messrs. Brown and Lewis. Plaintiff also noted in his complaint that he was unable to point to any statements made by Brown or Lewis that made him believe he was the subject of discrimination. (Id. at 3)
By decision dated January 23, 2004, plaintiff's administrative complaint was denied by an Administrative Judge of the Equal Employment Opportunity Commission ("EEOC"), who found that the Census Bureau did not discriminate against plaintiff on any of the bases alleged. (Vassallo Decl. Ex. G) Plaintiff appealed the decision, and on June 25, 2004, the decision was affirmed by the EEOC, which concluded that "a preponderance of the record evidence does not establish that discrimination occurred." (Vassallo Decl. Ex. H) This action followed.
The Administrative Judge's decision notes that plaintiff had withdrawn his claims based on race and color discrimination, and sought to add claims that defendants retaliated against him for exercising his rights to be free of prohibited discrimination. (Vassallo Decl. Ex. G at 2 n. 2) Plaintiff has not asserted claims of discrimination based on race, color, or age in this action.
Summary Judgment Standard
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, the Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation and quotation marks omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of its claim or defense, demonstrating that it is entitled to relief. The evidence on each material element, if unrebutted, must be sufficient to entitle the movant to relief in its favor, as a matter of law. Vermont Teddy Bear Co. v. 1800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" as to a material fact. Fed.R.Civ.P. 56(e). A fact is material if it "might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Thus, in order to survive summary judgment, plaintiffs must come forth with more than a mere scintilla of evidence in support of their position; they must come forward with evidence "on which the jury could reasonably find for the plaintiff." Id. at 252. "The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998). In the absence of any genuine dispute over a material fact, summary judgment is appropriate.
Courts review pro se pleadings carefully and liberally and interpret such pleadings "to raise the strongest arguments that they suggest." See e.g., Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citations omitted). This is especially true in the summary judgment context, where a pro se plaintiff's claims are subject to a final dismissal. See Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) ("[S]pecial solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment.") (citation omitted). Plaintiff's pro se status, while implicating a more liberal interpretation of his pleadings, does not excuse him from the burden of coming forward with "concrete evidence from which a reasonable juror could return a verdict" in his favor. LaGrande v. Key Bank Nat'l Ass'n, 393 F. Supp. 2d 213, 219 (S.D.N.Y. 2005) (citation and internal quotation marks omitted); see also Miller v. New York City Health Hosp. Corp., 2004 WL 1907310 at *9 (S.D.N.Y. Aug. 25, 2004). In reviewing a motion for summary judgment, the court may conduct a search of the record, and grant or deny summary judgment as the record indicates. See Fed.R.Civ.P. 56(c); New England Health Care Employees Union, District 1199, SEIU AFLCIO v. Mount Sinai Hosp., 65 F.3d 1024, 1030 (2d Cir. 1995); Korea Life Ins. Co. v. Morgan Guar. Trust Co. of New York, 269 F. Supp. 2d 424, 446 (S.D.N.Y. 2003).
Though discrimination cases generally involve issues of intent, which are often ill-suited to resolution at the summary judgment stage, the Second Circuit has gone "out of [its] way to remind district courts that the `impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994)), cert. denied, 540 U.S. 811 (2003); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.) ("summary judgment may be appropriate even in the fact-intensive context of discrimination cases."), cert. denied, 534 U.S. 993 (2001); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994) ("Though caution must be exercised in granting summary judgment where intent is genuinely in issue, summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact.") (citations omitted); Miller v. Taco Bell Corp., 204 F. Supp. 2d 456, 458 (E.D.N.Y. 2002) ("where an employer provides convincing evidence explaining its conduct and the plaintiff's case rests on conclusory allegations of discrimination, the court may properly conclude that there is no genuine issue of material fact and grant summary judgment to the employer") (citations and internal quotation marks omitted).
Discussion
Title VII prohibits federal government agencies from discriminating on the basis of race, color, religion, sex, or national origin in making employment-related decisions. See 42 U.S.C. § 2000e-16(a); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000). It is similarly prohibited for any employer, including the government, to discriminate against an employee "because he has opposed any practice made an unlawful employment practice [under Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a); Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir. 2003). The Rehabilitation Act prohibits discrimination based on disability and applies to federal employers the same standards as are applicable to private employers under the ADA.See 29 U.S.C. § 791(g), 794a; Rivera, 157 F.3d at 103.
Since direct evidence of discrimination, "such as a notation in an employee's personnel file, attesting to a discriminatory intent," Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991), is rarely available, claims of disparate treatment under Title VII are assessed by way of the three-part burden-shifting analysis described in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Initially, the plaintiff has the burden of establishing a prima facie case of discrimination, which requires a showing that: 1) he is a member of a protected class; 2) he was qualified for the position at issue; 3) he suffered adverse employment action; and 4) the circumstances of the adverse employment action give rise to an inference of discrimination. Mandell v. County of Suffolk, 316 F.3d 368, 377-78 (2d Cir. 2003). The burden imposed on plaintiff to establish a prima facie case has been described by the Second Circuit as "minimal" and "de minimis." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005) (internal quotation marks and citation omitted).
If a plaintiff is able to meet his burden of establishing aprima facie case of discrimination, a presumption of unlawful discrimination arises, and the burden is shifted to the defendant, who must then offer a legitimate, nondiscriminatory reason for the adverse employment action. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Woodman, 411 F.3d at 76. If the defendant is able to do so, the presumption of discrimination is erased, and the burden shifts back to the plaintiff to prove that the nondiscriminatory basis for the adverse action is mere pretext, and the defendant's true intent was discriminatory. Reeves, 530 U.S. at 143; Woodman, 411 F.3d at 76.
The same burden-shifting mechanism is applied to claims of retaliation under Title VII, see Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005), and to claims of discrimination based on disability under the Rehabilitation Act.See Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511, 514 (2d Cir. 1991), cert. denied, 506 U.S. 815 (1992).
Plaintiff Has Failed to Make Out a Prima Facie Case of Discrimination Title VII Disparate Treatment Claims
Defendants' motion for summary judgment challenging plaintiff's ability to state prima facie claims of discrimination based on his national origin, religion, and sex, is addressed only to the fourth prong of the inquiry, namely, circumstances giving rise to an inference of discrimination. Though the Second Circuit has noted that "there is no unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision," see Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996), courts have identified certain circumstances which may suffice:
Circumstances contributing to a permissible inference of discriminatory intent may include the employer's continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff's qualifications to fill that position; or 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 discharge; or the timing of the discharge.Chambers, 43 F.3d at 37; see also Chertkova, 92 F.3d at 91.
Though, as noted above, plaintiff's burden in establishing aprima facie case on summary judgment is not a heavy one, he cannot meet it "through reliance on unsupported assertions."Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). That is, a plaintiff cannot defeat summary judgment by relying "simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or upon the mere allegations or denials of the adverse party's pleading." Id. (citations and internal quotation marks omitted). Rather, a plaintiff must "proffer admissible evidence show[ing] circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive."Chambers, 43 F.3d at 38. Courts must "carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999), cert. denied, 530 U.S. 1242 (2000).
Plaintiff here has come forth with nothing beyond the realm of conclusory assertions and speculation to support his claims of discrimination based on national origin, religion, or sex.
Plaintiff claims that he was "constructively terminated" as of May 6, 2000 because he was not assigned any work as a Census Bureau enumerator after that date. His belief that the failure to assign him work was motivated by discriminatory intent on the part of his supervisors is based largely on vague recollections of conversations with third parties and unsupported conclusions drawn from documents produced by defendants. Plaintiff claims that, in conversations with two other enumerators, William Sansom and Anthony Gardiner, and one crew leader, Kim Sweeney, he discussed the possibility that his supervisors, Brown and Lewis, might have denied him work because of his religion, national origin, gender or disability. (Burke Dep. 25-28; 197-98)
With regard to discrimination based on national origin, plaintiff testified that the only circumstances which led him to believe that failure to assign him work might have been motivated by his national origin were these discussions with "other people." (Burke Dep. 164) Plaintiff contends that one of two individuals, either Gardiner or Sweeney, told him that Brown "may have used an epithet for people of Irish background." (Id. 165) At his deposition, he admitted, however, that he never heard either Brown or Lewis make any disparaging comments about Irish people. (Id. 166) Assuming that Brown or Lewis used such an "epithet," it would be insufficient, standing alone, to support an inference of discrimination because "the stray remarks of a decision-maker, without more, cannot prove a claim of employment discrimination." Abdu-Brisson, 239 F.3d at 468 (citing Woroski v. Nashua Corp., 31 F.3d 105, 109-10 (2d Cir. 1994), abrogated on other grounds by Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000)).
Plaintiff claimed in his deposition that he had heard "[o]ne of the people in [his Census Bureau] group," refer to a drunk homeless man either by saying, "Oh, he must be Irish," or by commenting that perhaps the homeless man "needed some more" of the fortified wine product known as "Wild Irish Rose." (Burke Dep. 169-70) Plaintiff denied knowing who had made the remark, and explicitly stated that he did not consider the comment disparaging, nor did he consider it evidence of discrimination against him. In fact, as he testified, "We laughed, it wasn't even anything that I would be bothered by." (Id. 170) Despite this testimony, plaintiff attached to his affirmation an unsworn letter to defendant's counsel dated April 4, 2005, in which he states "upon . . . information and belief" that Mr. Brown is the individual who made the comment in question. (Burke Aff. Ex. 4) Plaintiff may not rely on an affidavit (or, in this case, an affirmation) which contradicts his prior deposition testimony to create an issue of fact precluding summary judgment. See Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997) (plaintiff's errata sheet, contradicting answers given at deposition, insufficient to create issue of fact). In any event, this stray comment, too, would be insufficient to support an inference of discrimination.
Plaintiff claims that Gardiner "said he had some information . . . about . . . why we were being denied work, and that it was for very negative and illegal reasons including . . . that [Brown] basically wanted a certain type of person, he wanted people of certain backgrounds, and he was going to have less people of other backgrounds." (Id. 170-71) However, he was unable to state what "information" Gardiner claimed to have, or to relate Gardiner's statements in any more detailed fashion. (Id. 171-76) Plaintiff contends that his "speculation" as to discriminatory reasons for his not being assigned work was "encouraged" by additional conversations with Sweeney, and with Sansom and someone named Edward Thompson. (Id. 177-82) But plaintiff could not state the basis underlying any suggestion by these individuals that plaintiff's Irish heritage was a contributing factor in his not being assigned work after May 6. Plaintiff attributes his claims of discrimination based on religion to the same conversations. (Id. 198; 206)
Plaintiff's vague recollections of conversations in which third parties are alleged to have made admittedly unsubstantiated suggestions of discriminatory intent are insufficient to meet even the minimal burden imposed on a plaintiff in an employment discrimination. case. Inadmissible hearsay is insufficient to establish a prima facie case of discrimination. See e.g., Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999);Phipps v. Comprehensive Cmty. Dev. Corp., 2005 WL 287413 at *12-*13 (S.D.N.Y. Feb. 4, 2005); Rovtar v. Union Bank of Switzerland, 852 F. Supp. 180, 185 (S.D.N.Y. 1994); cf. Virgo v. Local Union 580, 629 F. Supp. 1204, 1207 (S.D.N.Y. 1986) (Weinfeld, J.) (finding for Title VII defendant after bench trial; "The only evidence offered by plaintiff to sustain his allegation that his membership was not acted upon or delayed because of his race was his own testimony, which largely was based on double hearsay and unreliable recollections of past events and which frequently was inconsistent and contradictory with respect to material matters."). In his deposition, plaintiff himself repeatedly referred to the statements upon which he based his claims of discrimination as "hearsay" or even "triple hearsay." (e.g., Burke Dep. 31-32; 151; 164-65; 172; 175-76) His characterization was correct. Even accepting as true that the statements plaintiff attributes to other Census Bureau employees about potential discrimination were made, they would not constitute admissible evidence bearing on plaintiff's prima facie case.
In addition to the hearsay statements of co-workers, plaintiff attempts to show that similarly situated individuals, who were not members of the same protected groups as plaintiff, were treated differently. See, e.g., Chambers, 43 F.3d at 37. In support of this contention, plaintiff states that he was "told anecdotally that other people were working" after May 6, 2000, and that he saw people walking down the street in his neighborhood carrying bags that said "Census," which indicated that they were engaged in enumeration activities. (Burke Dep. 145-46) However, plaintiff was unable to provide any information as to the national origin or religion of any of the people he claims were given work after May 6. (Id. 146-53; 211-12)
Plaintiff attaches to his affirmation a list of approximately 1000 names which he contends are individuals who were employed as enumerators by the same Local Census Office that he was, Office 2233. (Burke Aff. Ex. 8) The document shows that, as to some substantial portion of the individuals listed, their "not-to-exceed" dates were extended beyond June 24, 2000, which was plaintiff's final "not-to-exceed" date and the day he was officially terminated by the Census Bureau. (Id.) In addition to failing to speak to which, if any, of these individuals actually performed any work after May 6, 2000, the document contains no information whatsoever about their religions or national origins. In the end, plaintiff relies solely upon his own "information and belief" and "life experience," and that of some of his co-workers, for the proposition that others who received work were of different religions or national origins. (Id. 145-54) This is plainly insufficient, and, even crediting plaintiff's contention that some individuals were awarded work when he was not, a reasonable finder of fact could not draw an inference of discrimination.
Plaintiff's claim of sex/gender discrimination fails at theprima facie stage as well. Plaintiff bases his claim of sex discrimination on a Census Bureau "Notice of Visit" that was left at his apartment door. (Vassallo Decl. Ex. D) According to plaintiff, this notice was left by a female enumerator named "Gail" at some point after May 6, 2000. (Burke Dep. 153-54) He contends that the fact that at least one female enumerator was working after May 6 constitutes "anecdotal evidence" that he was discriminated against based on sex. (Id. 153-54) Plaintiff acknowledges that he has no other evidence upon which he bases his claim of sex discrimination. (Id. 201, 206) In order for Gail's post-May 6 enumeration work to support plaintiff's prima facie case of discrimination, plaintiff would have to demonstrate that, other than being female, she was "similarly situated in all material respects" to plaintiff.McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001). Plaintiff need not demonstrate that Gail's employment circumstances were identical to his own, but only that her situation was "sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributable to discrimination." Id; see also Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64-65 (2d Cir. 1997).
With regard to Gail, plaintiff cannot demonstrate that she was similarly situated. Plaintiff admittedly knows little more about Gail than her first name. He testified that he "may have" met someone named Gail at the Census Office, but could not be sure that he ever spoke to Gail. In fact, plaintiff could not even testify with certainty that Gail was female. He did claim to have called the telephone number listed on the "Notice of Visit" form and spoken with someone who he "assume[d] . . . was Gail." Because the person with whom he spoke "sounded like a female," and because plaintiff believed Gail to be a female name, he simply "assumed" Gail was a woman. (Burke Dep. 157-59) Plaintiff does not know who Gail's supervisor was, or to what "crew" she was assigned. (Id. 199-201) Plaintiff has also not submitted any evidence as to Gail's date of hire. As will be discussed in greater detail below, in the context of enumeration work for the Census Bureau, such information is of critical importance in determining whether any other enumerator can properly be considered "similarly situated" to plaintiff. Even crediting plaintiff's assumption that Gail was, in fact, a woman, the mere fact that she was apparently employed as an enumerator, and that she performed some work after May 6, 2000, without more, cannot suffice.
Plaintiff has failed to make out a prima facie case of discrimination based on national origin, religion, or sex.
Rehabilitation Act Claims
"To establish a prima facie case of discriminatory termination in violation of the Rehabilitation Act of 1973, a plaintiff must show (1) that the plaintiff is [disabled] within the meaning of the Act; (2) that the plaintiff is otherwise qualified to perform the job; (3) that the plaintiff was discharged because of his [disability]; and (4) that the employer is a recipient of federal financial assistance." Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2d Cir. 2003) (citation omitted). The Act defines a "disabled individual" as one who "has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment." 29 U.S.C. § 705(20)(B). In order to meet the definition of disabled person, a plaintiff must show that he suffers from a physical or mental impairment, identify a "major life activity . . . of central importance to daily life," and show that his impairment "substantially limits" that major life activity. Weixel v. Board of Educ., 287 F.3d 138, 147 (2d Cir. 2002).
The disability from which plaintiff suffers that he claims forms the basis of defendants' discrimination against him is photophobia, a visual hypersensitivity to light. Defendants do not contest that plaintiff suffers from photophobia, but contend that his photophobia does not render him disabled within the meaning of the Rehabilitation Act, because it does not substantially limit any of his major life activities. They are correct.
The Supreme Court has held that, in considering the question of whether an includividual is disabled under the ADA, courts should take into account corrective measures, including wearing glasses or contact lenses. Sutton v. United Air Lines, 527 U.S. 471, 475 (1999); see also Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999). Plaintiff here has admitted that, when he wears tinted sunglasses as instructed by his doctor, none of his major life activities are impaired; he testified that, when he wears the glasses, "it's an absolute remedy, there's no problems at all on my part. . . ." (Burke Dep. 213-14) As such, no reasonable jury could find that he is disabled within the meaning of the Rehabilitation Act. Cf. Habeebuddin v. City of Chicago, 2003 WL 1720003 at *13-*15 (N.D. Ill. Mar. 31, 2003) (photophobia not a disability under ADA); Ponce v. General Motors Corp., 2002 WL 32783974 at *4-*5 (D. Or. Nov. 13, 2002) (photophobia correctable with tinted glasses does not qualify as disability under Oregon law which defines disability in terms substantially identical to ADA), rep. rec. adopted, 2003 WL 23976718 (D. Or. Jan. 8, 2003), aff'd, 143 Fed. Appx. 755 (9th Cir. 2005).
Since the Rehabilitation Act and the ADA use almost identical definitions of "disabled person," courts look to cases interpreting the ADA for guidance in Rehabilitation Act cases.See Garvin v. Potter, 367 F. Supp. 2d 548, 561 (S.D.N.Y. 2005) (citation omitted).
Plaintiff has failed to make out a prima facie case of disability discrimination under the Rehabilitation Act.
Defendants Have Proffered a Legitimate Nondiscriminatory Reason for Plaintiff's Lack of Work
Even assuming plaintiff were able to make out a prima facie case of discrimination based on national origin, religion, gender or disability, defendants have met their burden of production in coming forward with a legitimate nondiscriminatory reason for plaintiff's failure to get any work after May 6, 2000. Defendants have asserted that the reason plaintiff was not awarded work after May 6 was simply because there was not enough work to go around. In her declaration, Patricia Valle, who has been employed by the Census Bureau for almost 30 years, and who served as the Area Manager for Manhattan during the time period at issue in this action, describes in great detail the methodology and practice of hiring enumerators and distributing work among them during the 2000 Census. Briefly, the Census Bureau engaged in what it calls "frontloading" — hiring more workers in advance than it anticipated would be required to complete the necessary work for the Census. (Valle Decl. ¶ 13; Ex. C at US0000214; US 0000229) This policy, combined with the higher than usual survey response rate in Manhattan, resulted in approximately one-and-a-half to two times as many enumerators being hired as were necessary to complete the required enumeration activities. As such, many individuals who were hired and trained became "spares," and were not needed except as replacements for other enumerators who, for one reason or another, could not complete their duties. (Id. ¶ 14-16)
David Brown, to whose crew plaintiff claims to have been assigned, already had a crew of enumerators in place as of May 2000, when plaintiff completed training for the Non-Response Follow-Up operation. (Brown Decl. ¶ 6) Though Brown does not recall plaintiff at all, he explains that if, in fact, plaintiff was assigned to his crew, and if, in fact, he received no work after being so assigned, this was simply because Brown had enough enumerators already assigned to complete the necessary work, and no problems arose that would require any of them to be replaced. (Id. ¶ 5-6) This was consistent with Brown's adherence to Census Bureau policy of assigning work to enumerators based on the "census block" in which they lived and their availability, and his procedure of assigning work only to as many enumerators as necessary. (Id. ¶ 4) Brown states that he did not assign work on the basis of race, color, religion, sex, disability or national origin. (Id. ¶ 8)
While plaintiff, in his affirmation, takes issue with some of the facts as outlined in the Valle and Brown declarations, his objections merely take the form of suggestions that the sworn statements constitute "purjury [sic]," and that there is "no actual evidence" supporting these statements. (Burke Aff. pp. 1-3) This is, of course, insufficient on a summary judgment motion. See Goenaga, 51 F.3d at 18. Defendants having proffered lack of available work as the legitimate nondiscriminatory reason for plaintiff's lack of assigned work after May 6, 2000, plaintiff would be required to demonstrate that the proffered reason is merely pretextual, and that the true reason for the denial of work was, in fact, discrimination.See, e.g., Reeves, 530 U.S. at 143; Woodman, 411 F.3d at 76. The hearsay statements of plaintiff's co-workers are plainly insufficient to meet this burden, as is the alleged comment made by Mr. Brown regarding the inebriated homeless man. See, e.g., Phipps, 2005 WL 287413 at * 19 (comments about Jamaican people generally were "too isolated, ambiguous and attenuated to the ultimate decision to terminate [plaintiff] so as to establish pretext for discrimination based on race or national origin").
In addition to the list of 1000 enumerators discussed above, which is also insufficient to rebut defendants' legitimate nondiscriminatory reason for the relevant adverse actions, plaintiff attaches to his affirmation a list of Local Census Offices with their closing dates. (Burke Aff. Ex. 11) The document shows that the office to which plaintiff was assigned, Office 2233, closed on September 30, 2000. (Id. at US0000640) He contends that this demonstrates that "there was plenty of work available up through September 30/2000." (Burke Aff. pp. 2-3) As defendants point out, however, the mere fact that the office was not officially closed until September 30 does not establish that there was, in fact, enumeration work available up through that date, and does not provide any evidence of discrimination.
Even if plaintiff could be said to have established a prima facie case of discrimination, he has failed to point to disputed issues of material fact as to the pretextual nature of defendants' contention that he was denied work simply because there was a surplus of enumerators and a dearth of assignments.
Plaintiff Failed to Exhaust Administratively his Claims of Retaliation
In addition to claiming discrimination on the basis of national origin, religion, gender and disability, plaintiff claims that the lack of work assigned to him after May 6, 2000 is attributable to defendants' having retaliated against him for making a complaint to the Census Bureau's Equal Employment Opportunity Office. Defendants contend, and the Court agrees, that such a claim is barred by plaintiff's failure to exhaust it administratively.
Before bringing a Title VII action, a plaintiff must exhaust all administrative remedies available to him. In the case of federal employees, the administrative process entails consulting with an Equal Employment Office counselor and filing a formal written administrative complaint. Only if the matter is not resolved through the administrative process after receipt of a final agency decision may a plaintiff commence a district court suit. See, e.g., Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001). While plaintiffs are generally precluded from raising in a district court action claims not presented in the administrative complaint, there is an exception for claims which are "reasonably related" to those raised in an administrative complaint. Deravin v. Kerik, 335 F.3d 195, 200-01 (2d Cir. 2003). The Second Circuit recognizes three ways in which claims not raised in an administrative complaint may be deemed "reasonably related" to those charged administratively: 1) "if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made;" 2) if the claim alleges retaliation by an employer against an employee for filing an EEOC charge; and 3) where the plaintiff "alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 200-01 and n. 3.
Though plaintiff's claims of retaliation might, on first glance, appear to fall under the second exception, the Second Circuit has made clear that a plaintiff may only claim the benefit of the "retaliation exception" if the alleged retaliation postdates the filing of the administrative complaint. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 687 n. 4 (2d Cir. 2001) ("`[w]e see no reason why a retaliation claim must arise before administrative proceedings terminate in order to be reasonably related. Instead, the rule is that a claim must arise only after the EEOC complaint has been filed.'") (quoting Malarkey v. Texaco, Inc., 983 F.2d 1204, 1209 (2d Cir. 1993)).
In the retaliation setting, the exhaustion requirement is relaxed because (1) there is a close connection between the retaliatory act and both the initial discriminatory conduct and the filing of the charge itself; and (2) the EEOC will already have had the opportunity to investigate and mediate the claims arising from the underlying discriminatory acts alleged. . . . These rationales however, are predicated upon the retaliation occurring after a charge is filed with the EEOC, and not before.Delly v. H.I.R.E. Inc., 2004 WL 2297821 at *4 (E.D.N.Y. Oct. 13, 2004) (emphasis in original); see also Cordoba v. Beau Dietl Assocs., 2003 WL 22927874 at *10 (S.D.N.Y. Dec. 2, 2003); Gross v. National Broad. Co., 232 F. Supp. 2d 58, 73 (S.D.N.Y. 2002).
Here, the retaliatory act of which plaintiff complains is the failure to award him work after May 6, 2000 (and, arguably, his termination on June 24, 2000). Plaintiff's administrative complaint was filed on July 4, 2000, and it is undisputed that plaintiff did not check the box listing retaliation as one of the grounds for his complaint. (Vassallo Decl. Ex. F) Nor is there any allegation of fact in the body of the complaint which would suggest that plaintiff was claiming that he had been retaliated against for any protected EEO activity. (Id.)
Plaintiff did, belatedly, raise the issue of retaliation to the EEOC Administrative Judge by way of an October 23, 2003 letter. (Vassallo Decl. Ex. L; Burke Dep. 255-57) The Administrative Judge noted in his decision that retaliation had "not been investigated," but nevertheless went on to find that plaintiff had failed to establish a prima facie case of retaliation. (Vassallo Decl Ex. G at 5-6) While he chose to address plaintiff's belated allegations of retaliation, first asserted more than three years after the filing of the administrative complaint, additional grounds not asserted in the complaint do not necessarily relate back for exhaustion purposes. See, e.g., Holtz v. Rockefeller Co., 258 F.3d 62, 83 (2d Cir. 2001).
Nor is plaintiff's claim of retaliation "reasonably related" to the discrimination charges that were included in his administrative complaint under the first exception discussed above, that "the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made." Deravin, 335 F.3d at 200-01. Courts in this district have often found that, where a plaintiff does not explicitly allege retaliation in an administrative complaint, the subsequent investigation of other forms of discrimination cannot reasonably be expected to extend to retaliation. See, e.g., Gambrell v. National R.R. Passenger Corp., 2003 WL 282182 at *8 (S.D.N.Y. Feb. 3, 2003) ("Where the EEOC charge alleges discrimination but not retaliation, the reasonable scope of the agency's investigation cannot be expected to encompass allegations of retaliatory motive.") (citation omitted); Cordoba, 2003 WL 22927874 at *10;Moguel v. Covenant House/New York, 2004 WL 2181084 at *8 (S.D.N.Y. Sept. 29, 2004); Bailey v. Colgate-Palmolive Co., 2003 WL 21108325 at *13 (S.D.N.Y. May 14, 2003), aff'd., 93 Fed. Appx. 321 (2d Cir. 2004). As mentioned above, nothing in plaintiff's administrative complaint would have led an investigator to inquire as to any allegedly retaliatory actions taken against plaintiff — plaintiff had been terminated by the time the complaint was filed. That no such component of the investigation would have been likely to arise based on the administrative discrimination complaint was confirmed by the Administrative Judge's noting that retaliation was not, in fact, investigated. (Vassallo Decl. Ex. G at 5)
Finally, plaintiff's retaliation claims cannot be deemed "reasonably related" to the discrimination claims asserted in his administrative complaint under the third test — "further incidents of discrimination carried out in precisely the same manner. . . ." Deravin, 335 F.3d at 201.
As plaintiff failed to allege retaliation in his administrative complaint, his retaliation claims are unexhausted, and defendants are entitled to summary judgment on those claims. See Legnani, 274 F.3d at 678 n. 4.
For avoidance of doubt, were the Court to consider plaintiff's retaliation claims on the merits, summary judgment in favor of defendants would nevertheless be appropriate. In order to make out a prima facie case of retaliation under Title VII, a plaintiff must show: 1) participation in a protected activity known to the defendants; 2) adverse employment action; and 3) a causal connection between the two. See, e.g., Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003). Plaintiff has not shown any causal connection between either the failure to assign him work after May 6, 2000 (a date which preceded any alleged protected EEO activity) or his official termination on June 24, 2000 (which date had been set as his termination date on the day he was rehired, May 1) and his initial contact with the EEO office on May 26. No adverse employment action could have been taken against plaintiff after the filing of his formal administrative complaint, which did not take place until July 4, 2000, after he had been terminated. He has therefore failed to make out aprima facie case of retaliation and defendants are entitled to summary judgment.
Even were a prima facie case somehow to be divined from plaintiff's submissions to the court, the discussion of defendants' legitimate nondiscriminatory basis for their failure to assign plaintiff work after May 6, and plaintiff's failure to demonstrate that such basis was pretextual, see pgs. 17-20,supra, is equally applicable to his retaliation claims.
Conclusion
For the reasons set forth above, defendants' motion for summary judgment is GRANTED. The Clerk is directed to enter a judgment in favor of defendants on all claims.
SO ORDERED.