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holding that an instruction to switch cubicles had only a "trivial effect" on the plaintiff, and " jury could not reasonably conclude that [it] . . . would have dissuaded a reasonable employee from pursuing her discrimination claims"
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04 Civ. 9410 (WHP).
December 27, 2006
Ambrose Wotorson, Esq., Law Offices of Ambrose Wotorson, P.C., Brooklyn, NY, Counsel for Plaintiff.
Brian Marc Feldman, Esq., Assistant United States Attorney, Office of the United States Attorney, Southern District of New York, New York, NY, Counsel for Defendant.
MEMORANDUM AND ORDER
Denise J. Gamble ("Plaintiff" or "Gamble") brings this employment discrimination action against Michael Chertoff ("Defendant" or "Chertoff"), alleging race and gender discrimination, a hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, Defendant's motion is granted.
Although Tom Ridge was named as Defendant in this action, Michael Chertoff succeeded him as Secretary of the Department of Homeland Security ("DHS") and is automatically substituted as Defendant. See Fed.R.Civ.P. 25(d)(1); see also Gallo v. Herman, 205 F.3d 1322 n. 1 (2d Cir. 2000) (Rule 25(d)(1) "mandates that when a public official sued in his official capacity resigns, his successor automatically is substituted as the defendant.").
I. Factual Background
In January 1988, the Immigration and Naturalization Service ("INS") hired Plaintiff, an African-American woman, as a receptionist. (Defendant's Rule 56.1 Statement of Undisputed Material Facts ("Def.'s 56.1 Stmt.") ¶ 2.) In April 2001, DHS promoted Gamble to deportation officer at the Varick Street facility where her responsibilities included handling administrative filings, making court appearances and assessing the status of deportations. (Def.'s 56.1 Stmt. ¶ 1; Affidavit of Ambrose Wotorson, dated Apr. 27, 2006 ("Wotorson Aff.") Ex. 34: Deposition of Denise Gamble ("Gamble Dep.") at 26-28; Ex. 30: Deposition of Paul Picone ("Picone Dep.") at 62.) Deportation officers at the Varick Street facility rotate semiannually to the fourth floor, which houses a detention center for immigrants classified as aggravated felons. (Gamble Dep. at 26, 47; Picone Dep. at 21-22, 36-37, 62-63.)
Under the Homeland Security Act of 2002, DHS subsumed the agency formerly known as the INS. See Pub.L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (Nov. 25, 2002). Therefore, this opinion hereafter uses the term DHS in place of INS.
Gamble points to three separate incidents which form the basis for her claims: (1) a remark about her attire; (2) an instruction to change work stations; and (3) a performance evaluation that she regarded as inaccurate. Each of these incidents is summarized below.
On August 31, 2001, Gamble wore a dress and jacket while working on the eleventh floor. (Affidavit of Denise J. Gamble, dated Apr. 4, 2003 ("Gamble Aff.") ¶ 4.) Supervisory Deportation Officer Paul Picone ("Picone") commented to Gamble that her attire was inappropriate and ordered her to avoid the fourth floor. (Def.'s 56.1 Stmt. ¶ 3.) Understanding that instruction to mean that she should not enter the detention center area, Gamble attended to other matters on the fourth floor. (Gamble Aff. ¶ 10.) When Picone saw Gamble on the fourth floor over closed-circuit video, he summoned her to his office and inquired why she had disobeyed his direct order. (Gamble Dep. at 59; Picone Dep. at 22-24.) Picone said, "You're not gonna learn until they have you back there with your legs cocked wide open while they are gangbanging you." (Def.'s 56.1 Stmt. ¶ 5.) Gamble reported Picone's comment to her direct supervisor, Edward Vasilopoulis, and also to Charlene Moore, the Officer-in-Charge of the Varick Street facility. (Gamble Aff. ¶¶ 14-15.) Moore subsequently confirmed to Gamble that DHS had no policy prohibiting female deportation officers from wearing dresses to work; however, neither Moore nor Vasilopoulis disciplined Picone for his comment. (Gamble Aff. ¶ 15; Wotorson Aff. Exs. 27, 30.)
Then in November 2001, Supervisory Deportation Officer John Tsoukaris ("Tsoukaris") approached Gamble and a group of other African-American employees and said, "Well, would you lookee here, look at all of you huddled in a bunch together." (Gamble Dep. at 81.) While Tsoukaris does not specifically admit using those words, he does acknowledge that approximately a week later on November 28, 2001, he instructed Gamble and another African-American employee to switch cubicles with two white employees. (Gamble Dep. at 85-87.) Despite Tsoukaris' direction, nobody changed cubicles. (Gamble Dep. at 86-87; Wotorson Aff. Ex. 27; Affidavit of Denise J. Gamble, dated Apr. 1, 2003 ("Second Gamble Aff.") ¶ 2; Def.'s 56.1 Stmt. ¶¶ 10-11.)
Subsequently on April 10, 2002, Plaintiff received her annual performance work plan ("PWP") which was prepared by Tsoukaris and reviewed by Picone. (Gamble Dep. at 134-36.) PWP ratings fall in the following spectrum: "Outstanding," "Excellent," "Fully Successful," "Minimally Satisfactory" and "Unacceptable." (Declaration of Brian M. Feldman, dated Mar. 17, 2006 ("Feldman Decl.") Ex. F: Deposition of John Tsoukaris ("Tsoukaris Dep.") at 65-66.) A "Fully Successful" rating signifies average performance. Unlike her prior PWPs, which rated her as "Outstanding" in most categories, the April 10, 2002 PWP rated Plaintiff "Excellent" at establishing and maintaining contacts and preparing correspondence, memos, reports, orders and forms. (Tsoukaris Dep. at 77, 81-82.) It further rated Plaintiff "Fully Successful" at managing her assignments, conducting interviews, handling relief requests, performing escort duties and overseeing bond cases. (Tsoukaris Dep. at 64, 72, 80, 82.) Coincidentally, two weeks later, Gamble transferred to a new DHS position as an immigration inspector at Dulles Airport in northern Virginia. (Gamble Dep. at 134-36.) Because Gamble left the Varick Street facility for Dulles Airport, she served as a deportation officer for only one year. Thus, the PWP that she complains about is the only performance evaluation for her as a deportation officer. (Affidavit of John Tsoukaris, dated Mar. 17, 2003 ("Tsoukaris Aff.") ¶ 2.)
II. Procedural History
While Plaintiff contacted the United States Equal Employment Opportunity Commission ("EEOC") on October 26, 2001, she did not report either the remark about her attire or the direction to change cubicles until December 12, 2001. (Declaration of Judy Maltby, dated Nov. 21, 2005 ("Maltby Decl.") ¶ 8.) On or about October 28, 2002, Plaintiff received a Notice of Right to File a Complaint of Discrimination, and she filed a Formal EEOC Complaint ("EEOC Complaint") on November 8, 2002. (Gamble Aff. ¶ 21.) The EEOC contacted Picone and other employees to investigate each of the allegations discussed above and advised Gamble on or about April 10, 2003 that it would not pursue the matter. (Wotorson Aff. Exs. 18, 33.)
On November 30, 2004, Plaintiff filed this employment discrimination action. On June 7, 2005, this Court authorized Plaintiff to file an amended complaint. Gamble never did. Instead, after the Government moved for summary judgment, Plaintiff advanced an additional allegation of discrimination in her opposition papers, contending that she requested "light duty" status after failing a quarterly shooting exam for deportation officers. While Gamble expected to be able to continue to work without carrying a weapon, Picone informed her that no light duty work was available. (Gamble Dep. at 38-39.) As a consequence, Gamble used her paid leave until it expired and then went on unpaid leave. (Gamble Dep. at 44, 53-57.) She claims that the denial of her request for light duty constituted discrimination because a white male deportation officer was given light duty after he discharged his firearm while inebriated. (Wotorson Aff. Ex. 32.) Gamble pursued her light duty claim under grievance procedures of the collective bargaining agreement between DHS and the American Federation of Government Employees. (Gamble Dep. at 50-56, 171-72.) The grievance was resolved by restoration of Gamble's paid leave; however, she did not receive compensation for her absence on unpaid leave. (Gamble Dep. 53-57.) Gamble neither appealed that grievance nor made any allegation regarding the denial of compensation to the EEOC. (Gamble Dep. 53-57.)
Gamble failed the exam because her hands shook as a symptom of a recently diagnosed hyperthyroidism condition. (Gamble Dep. at 32-38.)
DISCUSSION
Defendant moves for summary judgment on the following grounds: (1) that Plaintiff failed to exhaust her "light duty" allegations before the union grievance panel and in any event, the allegations are absent from the Complaint; (2) that Plaintiff is time barred from asserting discrimination relating to the alleged comments about her dress; (3) that none of the alleged discrimination constitutes an adverse employment action; and (4) that Plaintiff has failed to establish a prima facie case of either a hostile work environment or retaliation.I. Summary Judgment Standard
Summary judgment is appropriate "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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997). In determining whether there is a genuine issue as to any material fact, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Liberty Lobby, 477 U.S. at 255.
"A trial court must be cautious about granting summary judgment to an employer [in a discrimination case] when . . . intent is at issue." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). "[M]ere speculation or conjecture" are also insufficient. W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Rather, a plaintiff "must come forward with evidence that would be sufficient to support a jury verdict in [her] favor." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
II. Procedural Bars
A. Exhaustion Requirement
As a preliminary matter, Gamble failed to plead the denial of her "light duty" request in the Complaint. It is well-settled that parties may not raise claims for the first time in opposition to summary judgment. See Martinez v. City of New York, No. 00 Civ. 7914 (WHP), 2003 WL 2006619, at *4 (S.D.N.Y. Apr. 30, 2003) (holding that plaintiffs cannot rely on matters absent from the pleadings); Beckman v. U.S. Postal Serv., 79 F. Supp. 2d 394, 407-08 (S.D.N.Y. 2000) (same).
Moreover, assuming arguendo that Gamble's claim is properly before the Court, she is precluded from pursuing it based on her failure to exhaust administrative remedies. Where a federal employee is covered by a collective bargaining agreement providing for a union grievance procedure, the employee must choose between this procedure and an EEOC Complaint. See 5 U.S.C. § 7121(d) ("An aggrieved employee affected by a prohibited personnel practice . . . which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated grievance procedure, but not both."); 29 C.F.R. § 1614.301(a). Once the employee pursues the union grievance procedure, she must exhaust this option before pursuing the claim in court. See, e.g., Wright v. Snow, No. 02 Civ. 7615 (TPG), 2004 WL 1907687, at *5-6 (S.D.N.Y. Aug. 25, 2004); O'Dwyer v. Snow, No. 00 Civ. 8918 (LTS), 2004 WL 444534, at *7 (S.D.N.Y. Mar. 10, 2004); Upshur v. Dam, No. 00 Civ. 2061 (DC), 2003 WL 135819, at *7 (S.D.N.Y. Jan. 17, 2003). As part of the exhaustion requirement, an employee must appeal the final result of the union grievance procedure with the EEOC. See 5 U.S.C. § 7121(d); 29 C.F.R. § 1614.401(d) (2000); Fernandez v. Chertoff, 05 Civ. 0426, 2006 WL 3499977, at *7-8 (2d Cir. Dec. 5, 2006) (holding that a plaintiff who pursues a negotiated procedure must exhaust by appealing to the appropriate administrative body before bringing suit based on the grievance).
Gamble grieved Picone's denial of her "light duty" request under union grievance procedures. (Gamble Dep. at 50-56, 171-72.) Her paid leave was restored, but she received no compensation for her absence while on unpaid leave. (Gamble Dep. 53-57.) Gamble concedes that she did not further pursue the latter part of her grievance. (Gamble Dep. 53-57.) She has not contended that she was precluded from proceeding on her grievance as she never advanced her grievance to the final arbitration stage. Compare Fernandez, 2006 WL 3499977, at *3 (dismissal inappropriate where Fernandez pursued his appeal as far as possible). Nor has she claimed that she made any attempt to appeal her grievance or even that she sought guidance from the EEOC regarding whether she could appeal. Compare Fernandez, 2006 WL 3499977, at *3 (dismissal inappropriate where Fernandez attempted to pursue his appeal to the appropriate administrative body). Accordingly, Plaintiff is barred from pursuing claims based on Picone's refusal to assign her to "light duty".
B. Timely Filing
Federal employees "who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must . . . initiate contact with [an EEOC] Counselor within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1); see also Boos v. Runyon, 201 F.3d 178, 184 (2d Cir. 2000). Because Picone's remark about Plaintiff's dress occurred on August 31, 2001, Plaintiff had until October 15, 2001 to report it. (Gamble Aff. ¶ 4.) Plaintiff did not contact the EEOC until October 26, 2001 and did not report the incident until December 12, 2001. She has raised no defenses to overcome these defects. Therefore, the claims based on Picone's remark are time-barred. See Bruce v. U.S. Dep't of Justice, 314 F.3d 71, 74 (2d Cir. 2002); Boos, 201 F.3d at 184-85.
III. Title VII Claims
A. Race and Gender Discrimination
Title VII provides, in pertinent part: "It shall be unlawful for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). A plaintiff bears the burden of establishing a prima facie case of Title VII gender or race discrimination, which requires her to demonstrate that: (1) she is a member of a protected class; (2) she was qualified for the position or satisfactorily performed the duties of her position; (3) she was subjected to an adverse employment action; and (4) the adverse action occurred in circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997).
"A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation omitted); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (only a material change in employment status constitutes an adverse employment action). "To be `materially adverse,' a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya, 202 F.3d at 640 (internal quotation omitted); see also Wright v. Goldman Sachs Co., 387 F. Supp. 2d 314, 327 (S.D.N.Y. 2005) (same). "Examples of materially adverse changes include `termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [and] significantly diminished material responsibilities.'" Fairbrother v. Morrison, 412 F.3d 39, 56 (2d Cir. 2005) (quoting Galabya, 202 F.3d at 640).
Gamble claims that she suffered an adverse employment action. Specifically, Gamble asserts that the workplace reassignment and the performance evaluation amounted to a materially adverse change in her working conditions. Accepting Plaintiff's version of events, the conduct she alleges does not rise to the level of an adverse employment action. With respect to Tsoukaris' order that she switch cubicles, Gamble concedes that she never moved. The instruction did not cause a change, much less a materially adverse one, because nobody followed the instruction. Even had Gamble moved cubicles that would not constitute a materially adverse change absent evidence of an unfavorable change in circumstances. See Galabya, 202 F.3d at 641 (transfer will be adverse only "if it results in a change in responsibilities so significant as to constitute a setback to the plaintiff's career"); Fairbrother, 412 F.3d at 55-56 (finding no materially adverse change where plaintiff was moved from forensics to a "floater" position between units and was prohibited from entering her former unit); Patrolmen's Benevolent Ass'n v. City of New York, 74 F. Supp. 2d 321, 335 (S.D.N.Y. 1999) ("The key inquiry regarding involuntary transfers is whether the transfer constitutes a negative employment action tantamount to a demotion.") (internal quotation omitted).
While Plaintiff claims that Tsoukaris "downgraded" her performance rating from "Outstanding" to "Fully Satisfactory," she fails to take account of the fact that her earlier PWPs assessed her performance as a receptionist, not a deportation officer. Moreover, Plaintiff concedes that her PWP as a deportation officer was not unfavorable. (Gamble Aff. 2 at 2 ("I understand that a rating of Fully Successful is not an adverse rating.")); cf. Lepore v. New York Hotel Trades Council, No. 05 Civ. 6165 (HB), 2005 WL 3030839, at *6 (S.D.N.Y. Nov. 10, 2005) ("Here, not only was there no evidence of detrimental consequences from the criticisms in the plaintiff's evaluation, but the evaluation itself was mostly positive."); Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999) ("The conclusory allegation that she deserved an excellent, rather than an average, performance rating is insufficient to establish that the evaluations constitute adverse or disadvantageous actions.").
Further, "[n]egative evaluations alone, without any accompanying adverse consequence are not adverse employment actions." Pellei v. Int'l Planned Parenthood Fed./W. Hemisphere Region, Inc., No. 96 Civ. 7014 (WHP), 1999 WL 787753, at *12 (S.D.N.Y. Sept. 30, 1999); see also, Fairbrother, 412 F.3d at 56 (finding no adverse employment action where plaintiff "does not assert that the `unsatisfactory' evaluation negatively altered her compensation, benefits, or job title."); Alfano v. Costello, 294 F.3d 365, 376 (2d Cir. 2002) ("Although [plaintiff] cites these disappointing ratings as `abuse' . . . she has pointed to no resulting disadvantage or adverse effect on her job performance."); Lepore, 2005 WL 3030839, at *6; Ash v. State of New York Unified Court Sys., No. 00 Civ. 9849 (LMM), 2005 WL 287416, at *5 (S.D.N.Y. Feb. 2, 2005); Henriquez v. The Times Herald Record, No. 97 Civ. 6176 (SHS), 1997 WL 732444, at *6 (S.D.N.Y. Nov. 25, 1997) (unfair criticism of plaintiff's performance is not the type of employment action that courts find to be materially adverse). Plaintiff has not produced evidence demonstrating that she experienced adverse consequences arising from the 2002 PWP. By the time Plaintiff received the PWP, she had voluntarily accepted another position. (Gamble Dep. at 134-36.) For these reasons, Plaintiff cannot rely on her "Fully Satisfactory" performance rating to demonstrate an adverse employment action. Even considered cumulatively, the incidents alleged by Plaintiff do not demonstrate any materially adverse change in the terms and conditions of her employment. See Bowles v. NYC Transit Auth., No. 00 Civ. 4213 (BSJ) (MHD), 2006 WL 1418602, at *12 n. 26 (S.D.N.Y. May 23, 2006) (combining individually deficient allegations of discrimination does not constitute discrimination without evidence of a significant change in employment conditions). Accordingly, Plaintiff has failed to demonstrate the existence of a genuine issue of material fact concerning her Title VII discrimination claims, and summary judgment on these claims is appropriate.
B. Hostile Work Environment
Title VII extends to complaints of a hostile work environment.See Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993). To prevail under a hostile work environment claim, a plaintiff must establish that "[t]he workplace is permeated with `discriminatory intimidation, ridicule, and insult.'" Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)); see also Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). The court must consider the totality of the circumstances in assessing whether the plaintiff has established a viable hostile work environment claim. See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998). "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Harris, 510 U.S. at 21; see also Alfano, 294 F.3d at 373 ("A hostile work environment claim requires a showing . . . that the harassment was `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'") (internal quotation omitted). "[T]he standard for establishing a hostile work environment is high." Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003).
Here, the misconduct by Plaintiff's supervisors was not "sufficiently severe or pervasive" to create a hostile work environment. See Harris, 510 U.S. at 21. First, the incidents fall short of demonstrating "sufficiently severe" conduct. See New York City Transit Auth., 252 F.3d at 189 ("[C]onduct that is merely offensive" is not sufficiently severe to "rise to the level of hostile work environment.") (internal citation omitted). That Plaintiff's supervisor commented inappropriately about her attire and ordered her to switch cubicles simply do not rise to the level of a hostile work environment. A "Fully Successful" performance review is also not evidence of workplace hostility. Harris, 510 U.S. at 21. Indeed, far stronger evidentiary showings have been deemed insufficient to establish a hostile work environment by the Second Circuit. See, e.g. Quinn, 159 F.3d at 768 (finding insufficient evidence where plaintiff alleged defendant told her "she had been voted the `sleekest ass' in the office" and had "deliberately touched [her] breasts with some papers that he was holding in his hand"); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1185, 1189-90 (2d Cir. 1987) (finding evidence employer made "unchecked ethnic epithets directed towards" plaintiff insufficient to establish a hostile work environment).
Nor do the alleged series of episodic incidents amount to "pervasive" conduct. See Brennan v. Metropolitan Opera Assoc., Inc., 192 F.3d 310, 318 (2d Cir. 1999) ("Isolated, minor acts or occasional episodes do not warrant relief."). The dress remark, "Fully Satisfactory" PWP and cubicle reassignment have no discernable connection sufficient to show a work environment permeated with discrimination. See Patterson v. County of Oneida, 375 F.3d 206, 227 (2d Cir. 2004) (holding that plaintiff failed to "produce evidence that the workplace [was] permeated with discriminatory intimidation, ridicule and insult, that [was] sufficiently severe or pervasive to alter the conditions of the victim's employment") (internal quotation omitted); Alfano, 294 F.3d at 374 (To give rise to a hostile work environment claim, "incidents must . . . be sufficiently continuous and concerned in order to be deemed pervasive.") (internal quotation omitted).
C. Retaliation
The Supreme Court recently decided that Title VII's anti-retaliation and anti-discrimination provisions are "not coterminous". Burlington N. Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2414-15 (2006). As a result, the standards for the substantive offenses of retaliation and discrimination are similar but not the same. Burlington, 126 S.Ct. 2415. Thus, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse," which in the retaliation context, "means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006) (citing 2000e-3(a)); see also Kessler v. Westchester County, 461 F.3d 199, 207 (2d Cir. 2006). A showing of "material adversity" that would dissuade a "reasonable worker" from reporting discrimination requires more than trivial annoyances. White, 126 S.Ct. at 2415. Accordingly, courts "must filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." White, 126 S.Ct. at 2415 (internal quotation omitted).
Unlike White and Kessler where the plaintiffs' responsibilities, functions, or pay changed dramatically as a result of reassignment, there is no evidence that the instruction to switch cubicles had anything other than a trivial effect on Plaintiff. Cf. White, 126 S.Ct. at 2417 (evidence that plaintiff's tasks became dirtier, more arduous, and less prestigious sufficed to support a jury verdict in her favor);Kessler, 461 F.3d at 209 (finding a factual issue existed as to whether a reasonable employee would be deterred from reporting discrimination when a transfer stripped the plaintiff of numerous responsibilities). A jury could not reasonably conclude that an unexecuted instruction to switch cubicles would have dissuaded a reasonable employee from pursuing her discrimination claims. Nor would Gamble's PWP discourage a reasonable employee from reporting discrimination. As stated, Plaintiff concedes that the PWP was not even unfavorable. (Second Gamble Aff. at 2.) In any event, Gamble received the PWP after she decided to leave her position as a deportation officer. (Gamble Dep. at 134-36.) Knowing that she was leaving the position, Gamble had no reason to believe that reporting the alleged discrimination would undermine her career as a deportation officer. Accordingly, no rational fact finder could conclude that Gamble's PWP would have dissuaded a reasonable employee from filing a discrimination charge.
CONCLUSION
Accordingly, this Court grants Defendant's motion for summary judgment and dismisses this action in its entirety. The Clerk of Court is directed to mark this case closed.
SO ORDERED: