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granting summary judgment for Defendant on Plaintiff's failure to promote claim based on the IRS's failure to promote plaintiff in 2001
Summary of this case from Gelin v. GeithnerOpinion
02 Civ. 9641 (BSJ).
September 26, 2005
Opinion and Order
I. Introduction
Yves Gelin ("Plaintiff") brought this employment discrimination action on December 26, 2002 against the Secretary of the Treasury ("Defendant"). Plaintiff's original complaint alleged employment discrimination and unlawful employment practices under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq., alleging that he has been discriminated against by his employer due to his race and national origin (Haitian) and in retaliation for his prior invocation of the Equal Employment Opportunity ("EEO") process.
The Equal Employment Opportunity Commission ("EEOC") defines "national origin broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group." 29 C.F.R. § 1606.1.
II. Procedural History
Plaintiff, a black male of Haitian descent, is employed by the Internal Revenue Service ("IRS") as a Grade 12 Revenue Agent at the White Plains, New York post of duty ("POD"). From June 2000 until February 2002, Thomas Chillemi ("Chillemi") oversaw revenue agents at several POD's, including White Plains, and was Plaintiff's immediate supervisor and Team Manager. Chillemi's responsibilities included overseeing Plaintiff's work, assigning cases to Plaintiff, and conducting annual evaluations of Plaintiff. During the same time period, Chillemi's direct supervisor was Paul Rinaldi ("Rinaldi") who in his capacity as Territory Manager never directly supervised or managed Plaintiff.
From 1988 to 1994, Rinaldi was Plaintiff's Second-Line Manager. Plaintiff brought EEO Complaints against Rinaldi during that time period.
Plaintiff filed two formal EEO Complaints on December 19, 1994 and January 18, 1995, alleging that his Group Manager at the time (1) gave him a memo that contained an allegedly biased statement; (2) had another revenue agent assume one of his cases and document Plaintiff's work performance; (3) transferred cases to Plaintiff that had been previously assigned to another agent; and (4) allegedly harassed Plaintiff in November of 1994 by screaming at him, pointing her fingers at him, and threatening him with disciplinary action. Following Treasury's dismissal of these two Complaints and the Equal Employment Opportunity Commission's ("EEOC") affirmation of that dismissal, the Plaintiff filed suit in district court. See Gelin v. Rubin, 98 Civ. 5170 (CLB). The suit was ultimately resolved in September 1999 through a settlement in which the IRS agreed to pay Plaintiff $5,000 and to expunge a 2-day suspension from his personnel file, and Plaintiff agreed to voluntarily dismiss an appeal of an earlier civil suit, Gelin v. Rubin, 97 Civ. 3800 (JSM), pending in the Second Circuit and to relinquish all claims arising out of the incidents and circumstances giving rise to both suits.
Plaintiff alleges that he became aware that Chillemi, his Team Manager, was not planning to assign him Grade 13 cases necessary for his career development and training in or around July through September of 2000. On December 8, 2000, Plaintiff and his co-worker Osmond Brown ("Brown") filed a complaint of class discrimination alleging in substance that on the basis of race, national origin, and retaliation, Chillemi did not assign them higher graded cases and, as a result, Plaintiff and Brown were denied career development, training, and promotion opportunities. The EEOC denied class certification in a decision issued on March 1, 2001 and included notice that Plaintiff would have 30 days from the date of entry of Treasury's final order to file an appeal. Treasury issued a final order denying class certification on March 26, 2001, also informing Plaintiff of his right to initiate EEO counseling if he wished to file his own individual complaint regarding any claims that could have been pursued on his behalf had the complaint been certified as a class complaint. Plaintiff did not appeal the denial of class certification and did not seek counseling on his claims as an individual.
In November of 2000, Plaintiff made a complaint to the Treasury Inspector General for Tax Administration ("TIGTA") regarding Chillemi's management of one of Plaintiff's cases. Plaintiff alleged that Chillemi had conspired with a taxpayer's representative who was a former revenue agent and overlooked $2,000,000 of unreported income. On April 30, 2002, after a full investigation, TIGTA found that Chillemi had not committed any wrongdoing.
On or about March 27, 2001, after receiving EEO counseling, Plaintiff filed an individual complaint in which he alleged discrimination on the basis of race, national origin, and retaliation based upon the following:
I have being [sic.] harassed based on a complaint that I filed with TIGTA for misconduct/crime regarding group manager Thomas Chillemi and Territory Manager Paul Rinadli. Mr. Chillemi stated, "I observed that you had problems dealing with the case the [sic.] the representative. If you don't call the representative you would be considered in subordinate. [sic.] Mr. Chillemi also stated that I am not a "real agent."
Manager issued a memo regarding 25% reduction on direct exam time I never received a Grade 13 case from Mr. Chillemi. Mr. Chillemi ordered me to meet with him [on January 24, 2001], he stated no leave would be granted that day (or otherwise) [sic.] I was sick that day. I had to take pills to meet with Mr. Chillemi. The meeting was taped. The tape will be available for the investigator. Mr. Chillemi precluded me from listening to other employees.
Mr. Chillemi reopen [sic.] a case closed a year ago by Branch Chief Cohen as part of his reprisal package against me. I applied for a promotion GS 13. Mr. Chillemi told me that he would not allow me to be promoted and that he will give me a departure rating for 3 months. This is in the tape. He failed to submit my narrative to Chicago for promotion. Mr. Chillemi submitted derogatory memos to me (us of the words must [sic.]). Mr. Chillemi is often wrong.
Plaintiff has also alleged that Chillemi's use of the word "must" in various notes and emails sent to Plaintiff between December 12, 2000 and February 1, 2001 was unprofessional.
Memorandum of Law in Support of Defendant's Motion for Summary Judgement ("Def. Mem."), Exh. CC.
Plaintiff later amended his Complaint, on or about May 10, 2001, to include the following additional allegations: Mr. Chillemi accused Plaintiff of making a disclosure violation; Mr. Chillemi did not forward a narrative for the Grade 13 position for which plaintiff had applied; Mr. Chillemi submitted a false Form 4502 (review of current cases assigned to an agent); and at a meeting on January 24, 2001, Mr. Chillemi stated he would fire Plaintiff and would file a lawsuit against him. Plaintiff submitted an affidavit providing more details to his claims on August 1, 2001.
On August 27, 2001, Plaintiff filed another administrative Complaint alleging discrimination based on race, national origin and retaliation, as evidenced by his allegations that Mr. Chillemi had issued an inaccurate evaluation of Plaintiff which prevented Plaintiff from receiving the Grade 13 promotion for which he had applied. Plaintiff stated that he was offered a Grade 13 position in New York City, but had only applied for the White Plains POD. Plaintiff further alleged that Mr. Chillemi failed to timely notify Plaintiff of a meeting being held on June 25, 2001, and, on June 29, 2001, issued Plaintiff a false suspension letter, signed by Paul Rinaldi, without concurrence from the Director of Field Operations, Karen Ammons.
Treasury determined that the allegations in the May 2001 amendments and August 2001 complaint constituted additional evidence to support Plaintiff's existing administrative complaint of March 27, 2001, and, therefore, the complaint would be amended and supplemental investigations would be conducted. Treasury issued a decision on June 25, 2002, finding no discrimination. Plaintiff filed an appeal with the office of Federal Operations ("OFO") at the EEOC on July 11, 2002. The EEOC dismissed the appeal on March 24, 2003, pursuant to 29 C.F.R. § 1614.409, because Plaintiff had raised the same arguments in his District Court Complaint.
On January 17, 2001, Plaintiff sent a memo to Chillemi, which both Chillemi and the IRS perceived to be "threatening behavior" toward Chillemi. Plaintiff's memo to Chillemi read, in part:
I feel that you had a plan and [sic.] still planning to cause serious damages or even creating a criminal record for me. I just recently saw in [sic.] TV, work place violence, happening in Massachusetts, I wonder why, you are very interested to be with me, when I have reservation meeting with you.
Def. Mem. Exh. F at 3; Exh. A at 73. After an investigation, TIGTA recommended suspending Plaintiff and, on July 19, 2001, Rinaldi notified Plaintiff of the proposed 5-day disciplinary suspension due to the memo Plaintiff sent to Chillemi. The notice outlined the procedures by which Plaintiff could request to reply to the proposed suspension. Plaintiff failed to follow these procedures, instead requesting an oral reply by letter addressed to the attention of "Thomas Sims, Acting Director, Field Operations." On September 14, 2001, Paul Rinaldi sent a decision letter to Plaintiff, noting that Plaintiff had not submitted a reply to the proposed suspension and stating that Plaintiff would be suspended for five days. Starting on September 24, 2001, Plaintiff was suspended from work for five days without pay.
On October 29, 2001, Ammons notified Plaintiff that the September 14, 2001 decision letter was rescinded, explaining that she had not received Plaintiff's request for an oral reply because he sent it to the Acting Director of New Jersey, rather than, as directed in the notice letter, to Rinaldi. Plaintiff was given an opportunity for an oral reply, which occurred on November 2, 2001. On January 22, 2001 Rinaldi notified Plaintiff that the suspension was mitigated to three days, because Rinaldi had erroneously considered in his calculations Plaintiff's suspension in 1996, which was rescinded by the settlement agreement of September 1999. Plaintiff was credited pay for the two days he was suspended due to Rinaldi's error.
Plaintiff first sought EEO counseling with respect to some of the events alleged in the Complaint on September 17, 2001, at which time he received a Notice of Rights and Responsibilities. Treasury provided Plaintiff with a Notice of Right to File on January 8, 2002, and Plaintiff filed a formal EEO Complaint on January 19, 2002, in which he alleged discrimination based on race, national origin, and retaliation. Plaintiff further alleged that:
I was falsely suspended for five (5) days 9/25/01 by Paul Rinaldi. I requested an oral reply under IRM 0752, I was denied my rights. Rinaldi violate [sic.] Disclosure rule and a Court order in order to suspend me because I filed EEO in the past subsequently [sic.] to Federal District Court and because I reported Rinaldi and Chillemi's corruption to Treasury Inspector General for Tax Administration.
On April 4, 2002, Gelin filed another individual EEO Complaint in which he alleged that Chillemi had "downgraded [his] annual evaluation" and that Chillemi and Rinaldi intentionally failed to submit [Plaintiff's] application [for promotion] to personnel." Def. Mem., Exh. K; Exh. A at 114-15. Plaintiff submitted a "Statement of Clarification" on April 19, 2002, stating in part that he was "alleging that I have been discriminated against by Mr. Chillemi and Mr. Rinaldi based on my Race (Black), National Origin (Haitian) and Retaliation for my prior EEO activity and TIGTA complaint." In Plaintiff's job evaluation for March 2000 through February 2001, conducted and signed by Chillemi, Plaintiff received an average score in the "Critical Job Elements" of 4.7 on a scale of 5 and a Summary Rating of "Exceeds Fully Successful" (one below the highest mark of "Outstanding"). In Plaintiff's annual review for February 2001 through January 2002, also conducted and signed by Chillemi, Plaintiff received an average score in the "Critical Job Elements" of 4.6 and the highest possible rating of "Outstanding."
On May 8, 2002, Treasury dismissed Plaintiff's Complaint of discrimination for failure to state a claim. Plaintiff appealed the dismissal to the EEOC on May 29, 2002, and the EEOC dismissed the appeal on March 24, 2003 on the ground that Plaintiff had raised similar issues in his District Court Complaint of December 2002.
During the year 2001, Plaintiff applied for two Grade 13 positions, under Promotion Certificates LMB01106 and LMB01107 promotions. On June 5, 2001, Plaintiff was offered a promotion to a Grade 13 position in the Mahattan POD, but Plaintiff turned it down because he wanted to work in the White Plains POD only. On June 17, 2001, IRS sent a memo to Plaintiff informing him that he had not been selected for the promotion because, while he had been identified as "Highly Qualified," he had not been identified as "Best Qualified" for the position. Plaintiff sought EEO counseling on April 17, 2002 and filed an individual Complaint of employment discrimination, alleging that he was denied a promotion to Grade 13 because:
The announcements for the Grade 13 positions stated the available location as Manhattan, New York. On June 11, 2001 ten promotions were made from those applicants who, like Plaintiff, had applied to LMB01106, and all of those employees were assigned to the Manhattan POD. On November 1, 2001, nine more employees were chosen and assigned to the Manhattan POD. No Grade 13 promotions from candidates who had applied to LMB01106 were assigned to the White Plains POD.
Thoms [sic.] Chillemi and Paul Rinaldi secretly removed my name from the applicant list, thereby denied [sic] me a promotion because of prior EEO [sic.] and because I reported Chillemi and Rinaldi to TIGTA for corruption.
Def. Mem., Exh. GG.
Treasury dismissed the Complaint on or about July 17, 2002, because Plaintiff's Complaint was untimely. Plaintiff appealed to the EEOC, and the EEOC dismissed the appeal on March 24, 2003, pursuant to 29 C.F.R. § 1614.409 because Plaintiff had raised the same claims in his District Court Complaint.
On January 22, 2001, Plaintiff filed a Complaint with the United States Office of Special Counsel ("OSC"), stating that actions by Chillemi and Rinaldi occurred against him as a result of his whistleblowing activity. Plaintiff explained that "Mr. Chillemi and Mr. Rinaldi will decrease my evaluation and possible [sic.] suspend me. I will not get a promotion for grade 13 that I just applied for. . . . I will loose [sic.] mandatory performance award that I received every year."
Because Plaintiff was not satisfied with the OSC's investigation of his Complaint, Plaintiff filed a second Complaint with the OSC on September 4, 2001, alleging that he was "denied promotion, propose [sic.] suspension falsely, abuse of authority to cause suspension, [and] the narrative." Def. Mem., Exh. S at 7. Plaintiff further alleged that he "performed [his] responsibilities as an employee of the IRS of the Treasury Department to report misconduct violations of over [$]2,000,000 that Thomas Chillemi Team Manager and Paul Rinaldi Territory Manager gave away to a former agent falsely." Id. at 6. Plaintiff filed a petition for review by the U.S. Merits Systems Protection Board ("MSPB") on June 10, 2002, and the MSPB denied Plaintiff's petition on July 14, 2003.
Treasury issued a final decision finding no discrimination on November 15, 2002. Initially proceeding as a pro se litigant, Plaintiff filed a Complaint in this Court on December 26, 2002. After obtaining counsel, Plaintiff filed an Amended Complaint on February 20, 2003, and the Government timely answered. The Amended Complaint broadly alleges discrimination (based on race and national origin) and retaliation due to previous EEO activity. Plaintiff also appears to make a claim of hostile work environment.
Discussion
III. Standard for Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary judgment should "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). To prevail, the party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact."Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party does so successfully, the non-moving party must present "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c). The court must draw all reasonable inferences and resolve all ambiguities in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-movant cannot rely on "conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jang Gan v. City of New York, 996 F.2d 522, 535 (2d Cir. 1993).
The Second Circuit has warned that district courts should be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, `affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)). That said, a court may grant a defendant's motion for summary judgment in an employment discrimination case where the plaintiff relies "on conclusory allegations of discrimination and the employer provides a legitimate rationale for its conduct." Tojzan v. New York Presbyterian Hosp., No. 00 Civ. 6105 (WHP), 2003 WL 1738993, at *4 (S.D.N.Y. March 31, 2003).
IV. Procedure for Claims Under Title VII
Title VII is the exclusive remedy available to federal employees for allegations of discrimination on the basis of race.See Brown v. General Services Admin., 425 U.S. 820, 832 (1976); Briones v. Runyon, 101 F.3d 287, 289 (2d. Cir. 1996). Title VII requires federal employees to "exhaust available administrative remedies in a timely fashion" as a prerequisite to gaining access to the federal courts. Briones, 101 F.3d at 289;see also Brown, 425 U.S. at 832; Matos v. Hove, 940 F. Supp. 67, 71 (S.D.N.Y. 1996). Timely exhaustion of administrative remedies requires that the employee comply with the statute and applicable EEOC regulations. See 29 C.F.R. § 1614; Martin v. Reno, 96 Civ. 7646, 1999 WL 527932, at *2 (S.D.N.Y. July 22, 1999) ("[f]ederal employees can sue the Government pursuant to Title VII only if they first timely and properly exhaust their administrative remedies, as defined by statute and regulations promulgated thereunder").
Under the EEOC regulations, a federal employee claiming a violation of Title VII must first consult a counselor at his agency's EEO office within 45 days of the alleged discriminatory act. See 29 C.F.R. § 1614.105(a) (1). The 45-day period "functions as a statute of limitations in that discriminatory incidents not timely charged before the EEOC will be time-barred upon the plaintiff's suit in district court." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (citations omitted). This applies to both claims of discrete acts of discrimination and to claims of a hostile work environment, although the analysis is different in each case. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10 (2002). For claims of discrete acts of discrimination to be timely, the entire act must have occurred within the statutory period and no consideration may be paid to any acts prior to that time. Id. at 114-5. For claims of a hostile work environment to be timely, two conditions must be satisfied: (1) the acts about which a plaintiff complains must be part of the same hostile work environment practice, and (2) one of those acts must fall within the filing period. Id. at 121-23.
If after a mandatory counseling period the matter is not resolved, the employee may bring a formal written administrative complaint, which must be filed within 15 days of the receipt of the EEO's notice of right to file a discrimination complaint.See 29 C.F.R. § 1614.106(a) and (b). Under the Title VII statute, after timely filing a formal administrative complaint, the federal employee is authorized to bring a civil action in district court only (i) within 90 days of receiving notice of a final administrative decision, or (ii) if 180 days have passed from the date of filing the administrative complaint and there has been no administrative decision. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(a) and (b). Courts must strictly construe such procedural requirements for gaining access to the federal courts. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94 (1990) (Title VII time limits "must be strictly construed");see also Simmons v. Heyman, 97 Civ. 0434, 2000 WL 520664, at *2 (S.D.N.Y. May 1, 2000) (compliance with the 90-day deadline for filing a civil action "`is a condition of the [government's] waiver of sovereign immunity and must be strictly construed'") (quoting Irwin).
V. Race and National Origin Discrimination Claims
Discrimination suits brought under Title VII follow the familiar burden-shifting regime established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must make out a prima facie case of discrimination by showing that (1) he belongs to a protected class; (2) he suffered an adverse employment action; and (3) the circumstances surrounding the adverse employment action give rise to an inference of discrimination. Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998) (citing McDonnell Douglas). The burden then shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse employment action. If the employer does so, the final burden remains with the plaintiff to show that the nondiscriminatory reason asserted by the employer was pretextual and that the employer discriminated against him. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143-44 (2000).
Although Title VII does not define adverse employment actions "solely in terms of job termination or reduced wages and benefits, and that less flagrant reprisals by employers may indeed be adverse," Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997), "not every unpleasant matter short of [discharge or demotion] creates a cause of action" under the Act.Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994); see also Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999). An employee suffers an adverse employment action if a "materially adverse change" in the terms and conditions of his employment takes place. Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). As the court explained in Monica v. New York City Off-Track Betting Corp., No. 93 Civ. 6371 (RPP), 1995 WL 117879 (S.D.N.Y. 1995), "[a] materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation."Monica, 1995 WL 117879 at *8; see also Davis v. City University of New York, No. 94 Civ. 7277 (SHS), 1996 WL 243256, at *8 (S.D.N.Y. 1996).
Here, Plaintiff relies on a number of incidents occurring over at least a three-year period to support his claim of race and national origin discrimination. Plaintiff alleges that his superiors, Chillemi and Rinaldi, denied Plaintiff opportunities for career development and promotion through discriminatory case assignments, submitted derogatory memos and made derogatory statements to Plaintiff, denied Plaintiff his right to reply to a proposed suspension, failed to promote Plaintiff to or submit his application for Grade 13 status, and downgraded Plaintiff's performance evaluations.
All of Plaintiff's allegations of discrimination suffer from similar defects. Namely, Plaintiff (i) failed to exhaust his administrative remedies, as required for claims under Title VII, (ii) failed to rebut Defendant's evidence of legitimate, non-discriminatory reasons for the acts at issue, and (iii) failed to link the allegedly adverse employment actions to race or national origin discrimination. Accordingly, his discrimination claims are dismissed.
Plaintiff's Failure to Promote Claim
To make out a prima facie case for failure to promote under Title VII, the plaintiff must allege four elements: (1) that he is a member of a protected class; (2) that his job performance was satisfactory; (3) that he applied for and was denied a promotion to a position for which he was qualified; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of plaintiff's qualifications. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000).
Plaintiff, a black, Haitian-born male, is a member of a protected class with a satisfactory job performance, as indicated by the annual evaluations endorsed by Chillemi. Although Plaintiff did apply for a Grade 13 position in the White Plains POD in 2001 and was not given a promotion in that POD, he was offered a Grade 13 position in the Manhattan POD, which he refused. See Def. Mem., Exh. Q. Furthermore, the available Grade 13 positions in Manhattan were filled soon thereafter by two groups of employees, and there is no evidence in the record that any offers for Grade 13 positions at the White Plains POD were extended in or around that time. Plaintiff therefore fails to meet the third and fourth prongs of a prima facie case for failure to promote under Title VII.
In addition, Plaintiff did not administratively exhaust any claims arising out of Defendant's failure to promote him in 2001, because Plaintiff failed to seek EEO counseling within 45 days of his non-selection. Plaintiff knew in June of 2001 that he had not been selected for the Grade 13 promotions to which he had applied, but he did not seek EEO counseling until April 19, 2002. See Plaintiff's EEO Complaint No. 01-3142. Plaintiff's assertion that he was unaware until March or April of 2002 that his name had been removed from the list of applicants does not, for the purposes of a failure to promote claim, alter the evidence that he knew he had not been promoted long before that.
Even if Plaintiff's claim is that his name was "surreptitiously" removed from the list of applicants as an act of discrimination or retaliation, the list that Plaintiff references would only apply to his first application responding to Promotion Certificate LMB 01-1106. If this is Plaintiff's claim, as opposed to a failure to promote claim, he has nevertheless failed to cite any evidence or authority that such a claim would state an adverse employment action, particularly in light of the evidence that Plaintiff was offered, and declined, a comparable position in White Plains. Def. Mem. Exhs. Q A at 144-45.
Even if Plaintiff had met the requirements for a prima facie case and exhausted administrative remedies in a timely fashion, Plaintiff still failed to rebut Defendant's legitimate, nondiscriminatory reasons for not selecting him for a Grade 13 position — specifically, that Plaintiff requested the White Plains POD while the positions available were in the New York City POD. Plaintiff lists five "American-born" applicants that were promoted above him. Pl. Mem. Opp. at 22. The mere fact that Plaintiff falls within a protected group and an individual outside that group was chosen over him does not raise an inference of discrimination. See, e.g., Siano v. Haber, 40 F.Supp.2d 516, 524-25 (S.D.N.Y. 1999). Moreover, there were at least nineteen employees promoted to Grade 13 positions on or around the same dates. Def. Mem. at 13-14.
Therefore, in addition to Plaintiff's failure to demonstrate all of the requirements of a prima facie case and failure to timely exhaust his administrative remedies, the Plaintiff's failure to promote claim must also be dismissed because the circumstances of Plaintiff's non-selection for a Grade 13 promotion do not give rise to an inference of discrimination. SeeNorton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998) ("[A] jury cannot infer discrimination from thin air"). Taken as a whole, the evidence Plaintiff has presented would not permit a rational juror to find race or national origin discrimination because Plaintiff failed to link the non-selection to race or national origin discrimination.
Plaintiff's Suspension
Plaintiff's claim that his suspension in September 2001 was a result of his employer's discrimination based on race and national origin is also dismissed because Plaintiff has failed to rebut Defendant's legitimate, non-discriminatory reasons for suspending Plaintiff. These non-discriminatory reasons include Chillemi's perception, which was confirmed by others, that the memo Plaintiff sent to Chillemi alluding to "workplace violence happening in Massachusetts" had a threatening tone. See Cooney v. Consolidated Edison, 330 F. Supp. 2d 241, 252 (S.D.N.Y. 2002) (finding non-discriminatory reason for plaintiff's suspensions where plaintiff verbally abused and threatened co-workers with violence), aff'd 2003 WL 21105351, at *2 (2d Cir. May 13, 2003) (unpublished).
Plaintiff does not deny that he sent the January 17, 2001 memo to Chillemi. He only disputes that the letter was intended to be a threat of violence. Pl. Opp. at 25.
Likewise, Plaintiff's claims that Chillemi and Rinaldi had TIGTA investigate him and did not allow him to have an oral reply to the notice of suspension also have legitimate non-discriminatory and non-retaliatory explanations. The IRS referred Plaintiff's letter to Chillemi to TIGTA because Chillemi felt threatened by the letter. Second, Plaintiff sent his first request for an oral reply to the wrong person. See Def. Mem. Exh. G H. As soon as the IRS learned of Plaintiff's initial request, Plaintiff was notified that the decision letter would be rescinded and he would have an opportunity for an oral reply.See Def. Mem. Exh. I.
Rinaldi's erroneous incorporation of the Plaintiff's prior suspension in his calculations of the proposed suspension may have been a careless oversight, but cannot support Plaintiff's claims of discrimination and retaliation. Upon realizing the error, Plaintiff's suspension was immediately reduced to three days. See Def. Mem. Exh. J.; Exh. A, at 89-91. The federal employment discrimination laws do not "make employers liable for doing stupid or even wicked things; it makes them liable for discriminating." Norton, 145 F.3d at 120.
Even if the Court were to credit as true Plaintiff's allegations of these actions, he has not provided any evidence linking such behavior to discrimination based on race or national origin. See Satterfield v. United Parcel Service, 00 Ci. 7190, 2003 WL 22251314, at *11 (S.D.N.Y. Sept. 30, 2003) ("[T]he adverse employment action must occur under circumstances giving rise to an inference of unlawful discrimination. When, as here, the motive of the challenged conduct is not demonstratively gender-based, a plaintiff must present some evidence that `similarly situated' male co-workers were treated differently."). At best, Plaintiff has "done little more than cite to [his alleged] mistreatment and ask the [C]ourt to conclude that it must have been related to [his] race." Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001). Because the evidence Plaintiff presents regarding his suspension fails either to give rise to an inference of discrimination or to rebut Defendant's legitimate, non-discriminatory reasons for these actions, Plaintiff's claim is dismissed.
Plaintiff's Other Claims of Discriminatory Acts
The claims that Plaintiff first raised in the class complaint with Brown, i.e., claims of discriminatory case assignments and denial of opportunities for career development and promotion, must be dismissed because Plaintiff failed to timely follow the applicable procedures and exhaust his administrative remedies. Although Plaintiff filed an individual complaint one day after Treasury issued its final order on March 26, 2001, Def. Mem., Exh. CC, the applicable regulations required plaintiff to seek EEO counseling on those claims after the agency issued a final order if Plaintiff wished to individually pursue the claims raised in the class complaint. See 29 C.F.R. § 1614(a)(1). The record is clear that Plaintiff did not initiate EEO counseling within 45 days of Treasury's final order, as required by 29 C.F.R. § 1614(a)(1). Therefore, as a matter of law, Plaintiff is time-barred from pursuing in this action the claims of discriminatory case assignments and denial of opportunities for career development and promotion that were first raised in his class complaint. See Irwin v. Dep't of Veteran Affairs, 498 U.S. 89, 94 (1990) (affirming dismissal of claim of federal employee who failed to seek EEO counseling within 45 days of allegedly discriminatory event); Boos v. Runyon, 201 F.3d 178, 180-81, 184-85 (2d Cir. 2000) (same);Marshall v. Nat'l Assoc. of Letter Carriers, Nos. 00 Civ. 3167, 01 Civ. 3086, 2003 WL 223563, at *8 (S.D.N.Y. Feb. 3, 2003) (same).
For the aforementioned reasons, all of Plaintiff's claims of discrimination based on race and national origin are dismissed.
VI. Retaliation Claims
Title VII further provides that "it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [such employee] has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). A plaintiff making a retaliation claim under Title VII must prove four elements: (1) that he participated in a protected activity; (2) that his employer was aware of the activity; (3) that an adverse employment action occurred; and (4) that there was a causal connection between the protected activity and the adverse employment action. See Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996); Cruz, 202 F.3d at 566. Plaintiff has failed to meet this burden for his claims of retaliation due to his prior EEO activity.
Plaintiff's Performance Appraisal for February 2001 through January 2002 simply does not establish any viable evidence of retaliation because no reasonable factfinder could conclude that Plaintiff was "downgraded" at all. Plaintiff's average score only fell by one-tenth of a point, and his overall evaluation actually increased to the highest possible rating of "Outstanding." Plaintiff specifically takes issues with a narrative Chillemi provided in his evaluation, wherein Chillemi stated that:
[Plaintiff] rarely participates in identifying or solving workgroup issues. He sometimes participates in activities that maintain or improve workgroup efficiencies. [Plaintiff] generally supports for himself a work environment free from harassment and discrimination. He works cooperatively; and willingly shares his knowledge with someone in the group.
Wotorson Aff., Exh. 36. Once again, reading this statement in a light most favorable to the Plaintiff, no reasonable juror could conclude that such a statement constituted a materially adverse employment action. See Simmons v. New York City Health and Hospital Corp., 99 Civ. 3181, 2001 WL 483675, at *7 (E.D.N.Y. March 30, 2001) ("[P]laintiff's subjective perception that she received poorer performance reviews than she deserved does not constitute an adverse employment action for purposes of stating a prima facie case").
Plaintiff's claims of retaliation for EEO complaints filed against Rinaldi in 1994 and 1995 are also dismissed because Plaintiff has failed to show either a temporal or causal connection between his protected activity and any alleged adverse employment action. See McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 2001) ("Title VII protects an employee from any employer . . . who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings."); Davis v. State Univ. Of New York, 802 F.2d 638, 642 (2d Cir. 1986) (stating that proof of a causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action). First, the EEO complaints were filed at least five years before any of the alleged retaliatory adverse employment actions. See Def. Mem. Exhs. O, CC, RR, SS, TT, C, K, N, GG. To establish a causal connection based on temporal proximity, a protected activity must be "closely followed in time by the adverse action." Reed, 95 F.3d at 1178; see also Clark County Sch. Dist., 532 U.S. at 273 (stating that "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close'" and citing cases in which three- and four-month periods were found to be insufficient); Nicastro v. Runyon, 60 F. Supp. 2d 181, 185 (S.D.N.Y. 2001) (finding two-and-a-half year interval between employee's filing of an EEOC charge and adverse employment action). Second, while the Plaintiff may have provided evidence that Chillemi was aware of Plaintiff's prior EEO activity, Pl. Opp. at 26, he has produced no evidence, direct or circumstantial, that the alleged acts were in any way caused or motivated by that knowledge.
In addition, Plaintiff's allegations that he was retaliated against for filing a TIGTA complaint against Chillemi are dismissed because that complaint did not concern an employment practice made unlawful by Title VII. The first prong of inquiry in a retaliation claim is whether the plaintiff "engaged in a protected activity by opposing a practice made unlawful by Title VII." Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998). "[A] Plaintiff need not establish that the conduct she opposed was actually a violation of Title VII, but only that she possessed a `good faith, reasonable belief that the underlying employment practice was unlawful' under that statute." Galdieri-Ambrosini, 136 F.3d at 292 quoting Reed, 95 F.3d at 1178; see also Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). Plaintiff's TIGTA complaint concerned Chillemi's allegedly dishonest management of a case, but it did not relate, even tangentially, to any good faith, reasonable belief that Chillemi was engaged in an employment practice made unlawful by Title VII.See Def. Mem. Exhs. A at 53-4, C, D, E, F, R, S, U, V, CC, GG, SS. Plaintiff's claim of alleged retaliation for filing TIGTA complaint against Chillemi is therefore dismissed.
VII. Hostile Work Environment Claim
Finally, read broadly, Plaintiff's complaint alleges a hostile work environment, relying on the same incidents described above. To prevail on a hostile work environment claim, the complained of conduct must be "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21 (2003). The complained of "incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief." Kotcher v. Rosa Sullivan Appliance Ctr., 957 F.2d 59, 62 (2d Cir. 1992).
In his opposition papers, Plaintiff claims that:
Chillemi submitted many derogatory memos to him, he frequently embarrassed him in front of other agents, he told plaintiff that he was not a real agent and that he was incompetent, and that he caused Grade 13 agents in the White Plain [sic.] office to refuse to work with him, all in a pervasive manner
Pl. Mem. Opp. at 29. The evidence presented by Plaintiff that his supervisors sent allegedly "derogatory" messages, including emails using using the word "must," and requested that his work be more closely monitored simply does not rise to the level of an abusive work environment as a matter of law. See Castro v. Local 1199, 964 F. Supp. 719, 726 (S.D.N.Y. 1997) ("[S]tray remarks in the workplace, by themselves, will not defeat the employer's motion for summary judgment."). Title VII is not "a general civility code." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Indeed, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation and internal quotation marks omitted); see also Harris, 510 U.S. at 21 (stating that the "mere utterance of an . . . epithet which engenders offensive feelings in an employee . . . does not sufficiently affect the conditions of employment to implicate Title VII"). Moreover, Plaintiff again fails to demonstrate that he was subjected to the alleged treatment on account of his membership in a class protected by Title VII. Accordingly, Plaintiff's hostile work environment claim is dismissed.
VIII. Conclusion
For the foregoing reasons, Defendant's motion for summary judgment is granted. The complaint is accordingly dismissed. The Clerk of the Court is directed to close this case.
SO ORDERED: