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finding application of preexisting disciplinary policies reasonable where they were uniformly applied
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07-CV-4201 (ENV)(LB)
02-22-2011
RENEE HURT, Plaintiff, v. PATRICK R. DONAHOE, as Postmaster General, Defendant.
MEMORANDUM & ORDER VITALIANO, D.J.
Pro se plaintiff Renee Hurt, an employee of the United States Postal Service ("USPS"), commenced this action against the Postmaster General, alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII") and the American with Disabilities Act, 42 U.S.C. § 12111 et seq. and 42 U.S.C. §§ 12201-04 and 12210 ("ADA"). Defendant now moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6), or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court concludes that summary judgment in favor of defendant is warranted.
Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Patrick R. Donahoe for John E. Potter as defendant in this action since Donahoe has succeeded Potter as Postmaster General of the United States.
I. BACKGROUND
A. Relevant Facts
The following facts are drawn from the complaint and the submissions of the parties on defendant's motion, including defendant's statement of undisputed material facts made pursuant to Local Civil Rule 56.1. The facts are construed, as they must be in the summary judgment context, in the light most favorable to the nonmoving party. See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir. 2007).
Defendant complied with Local Rule 56.2 (Notice to Pro Se Litigant who Opposes Summary Judgment), and Hurt, in response, provided an unsworn affidavit along with a transcript of her deposition testimony. Hurt's response fails to comply procedurally with Local Rule 56.1 and contains no citations to admissible evidence. Having failed to file any meaningful opposition to Defendant's Local Civil Rule 56.1 Statement, the Court deems admitted, where supported by evidence, the facts set forth in the 56.1 Statement. See Giannulo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003). In that regard, the Court also considers the sworn deposition testimony Hurt has submitted.
These facts show that Hurt has been employed by USPS as a career clerk since 1986. (See Campbell Decl., ¶ 3.) She has been on leave without pay since June 23, 2008, and has expressed a desire not to return to work. (Id. ¶ 6-7.) Her initial complaint alleged that USPS discriminated against her in violation of the ADA. She later amended her complaint to allege discriminatory and retaliatory treatment on the basis of race, gender, and disability.
References to "Campbell Decl." denote the declaration of Benton J. Campbell in support of defendant's motion for summary judgment.
Hurt injured her left knee in April 1997. (Id. ¶ 8.) The Office of Workers' Compensation Programs ("OWCP") granted her application for workers' compensation related to that injury, but subsequently denied her application for recurrence-based workers' compensation. (Id. ¶¶ 9-10.) Plaintiff testified at her deposition that she reinjured her left knee in September 1999 but OWCP denied her workers' compensation claim stemming from that incident. (Id. ¶¶ 11-12.)
In February 2002, plaintiff requested a "light duty" assignment and submitted the requisite medical documentation to support her request. (Id. ¶ 14.) Light duty assignments are available to USPS employees suffering from illnesses or injuries unrelated to their job and who satisfy standard requirements, including providing medical documentation. (Id. ¶ 15.) Full-time employees assigned light duty are not guaranteed to work eight hours a day and may be dismissed early depending on the needs of USPS. (Id. ¶ 19.) Plaintiff's request for light duty assignment was granted by USPS and she was assigned to "the Nixie section" where she was responsible for returning mail to customers who had not applied sufficient postage or who had included incorrect or incomplete addresses. (Id. ¶ 21.) This was known as a "tabletop" assignment because it could be completed from one's desk. (Id. ¶ 22.) Hurt continued to work in the Nixie section for five years and remained physically capable of performing the duties of the position during those years. (Id. ¶ 23.) In addition to her assignment to the Nixie section, plaintiff's light duty tasks also included spending approximately one or two hours per shift at "the 150 operation," sorting letter-sized mail. (Id. ¶ 24.) On March 18, 2006, prompted by a decrease in the volume of mail, the start time for all light duty employees on Hurt's shift was changed from 10:50pm to 1:00am. (Id. ¶¶ 25, 28.)
On July 4, 2006, USPS issued a warning to plaintiff for absenteeism; Hurt had been absent for at least 120 hours, both unscheduled and undocumented, many of the absences for multiple days at a time. (Id. ¶ 29-30.) Other USPS employees, both light duty and otherwise, also received warnings for absenteeism at the same time. (Id. ¶ 32.) Plaintiff refused to sign the warning letter and claims that it was "expunged" from her record because she suffered no direct consequences as a result of it. (Id. ¶ 33.) B. Procedural History
On July 18, 2006, plaintiff requested pre-complaint counseling from the Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 34.) After receiving notification of her right to file, Hurt submitted a formal EEOC complaint in October 2006, alleging discrimination based solely on physical disability, (id. ¶ 39), and specifically founded on the following acts: (1) a notice of removal in 1998; (2) a threat of removal in 1999 after sustaining an injury; (3) the change in schedule from 10:30pm to 1:00am in 2006; (4) the receipt of a letter of warning; (5) injury compensation forms being falsified by the Medical Officer; (6) a threat that if plaintiff injured herself in a specific area she would be left there; and (7) a reduction in work hours from eight hours to six hours per day. (Id. ¶ 47.) On November 22, 2006, the EEOC informed Hurt that it had only accepted two of her claims for investigation: those regarding the reduction in her hours and the receipt of the warning letter. (Id. ¶¶ 49-50.) The EEOC explained that Hurt's 1998 and 1999 claims were time-barred as EEOC regulations require employees to obtain pre-complaint counseling within 45 days of discrete discriminatory acts. (Id. ¶ 51.) The remaining claims were dismissed for other reasons to which plaintiff objected in writing. (Id. ¶¶ 55-57, 59.)
On August 16, 2007, an EEOC administrative judge entered a judgment in favor of USPS, finding that Hurt had failed to establish a prima facie case of discrimination. (Id. ¶ 62.) A "right to sue" letter was issued on August 21, 2007. (Id. ¶ 63-64.) Plaintiff subsequently filed the instant action on October 5, 2007, alleging employment discrimination under the ADA, citing her left knee as her disability. (See Compl. at 1,3.) On February 8, 2008, Hurt amended her complaint to add allegations of employment discrimination in violation of Title VII based on race, gender, and disability or perceived disability. (Am. Compl. at 1.)
II. DISCUSSION
A. Summary Judgment Standard
The Court's responsibility in assessing the merits of a summary judgment motion is not to try issues of fact, but rather to "determine whether there are issues of fact to be tried." Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995) (internal quotation marks omitted) (emphasis in original). The moving party bears the burden of demonstrating that there is no genuine issue as to any material fact, see, e.g., Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005), and the Court will resolve all ambiguities and draw all permissible factual inferences in favor of the party opposing the motion. See, e.g., Sec. Ins. Co. of Hartford v. Old Dominion Freight Line. Inc., 391 F.3d 77, 83 (2d Cir. 2004); Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997) ("If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.").
If the moving party meets its initial burden of demonstrating the absence of a disputed issue of material fact, the burden shifts to the nonmoving party. See Fed. R. Civ. P. 56(e). The nonmoving party may not rely solely on "conclusory allegations or unsubstantiated speculation" in order to defeat a motion for summary judgment. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must "make a showing sufficient to establish the existence of [each] element to that party's case . . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986). If the evidence favoring the nonmoving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511 (1986) (internal citations omitted).
When, as here, a party is proceeding pro se, a court must read that party's supporting papers "liberally . . . and interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1998); accord Soto v. Walker, 44 F.3d 169 (2d Cir. 1995). B. Claims not Raised in Hurt's EEOC Complaint
Plaintiff's amended complaint alleges discrimination in violation of Title VII based on a melange of impermissible considerations, namely (1) race, (2) gender, (3) disability or perceived disability, and (4) retaliation. However, Hurt failed to raise some of these claims in her EEOC complaint and she is now time-barred from filing another EEOC charge regarding them. It is well-established that exhaustion of administrative remedies "is a pre-condition to bringing a Title VII claim in federal court." Chandler v. AMR Am. Eagle Airlines, 251 F. Supp. 2d 1173, 1178 (E.D.N.Y. 2003) (quoting Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000)). "A Title VII plaintiff typically may raise only those claims that are either contained in a prior EEOC charge or are 'reasonably related' to allegations raised therein." Chandler, 251 F. Supp. 2d at 1178 (quoting Holtz v. Rockefeller & Co., 258 F.3d 82-83 (2d Cir. 2001)).
In her Amended Complaint, Hurt checked off the box for retaliation. But, there is nothing in the facts alleged in her complaint that could even liberally be construed as supporting a retaliation claim. Hurt has not identified a change in circumstances after the filing of her EEOC complaint.
Under EEOC regulations, a claimant who believes she has been discriminated against must consult a counselor at the agency's EEO office within 45 days of the alleged discriminatory act. 29 C.F.R. § 1614.105(a)(1). If the matter is not resolved after a mandatory counseling period, the employee may then file a formal written administrative complaint with the EEOC, within 15 days of the EEO counsel's final interview with the employee. 29 C.F.R § 1614.106(a) and (b). The employee may then file a civil action (i) within 90 days of notice of a final agency decision on the EEOC complaint, or (ii) after 180 days from the filing of the EEOC complaint if the agency has not yet rendered a decision. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.408 (a), (b).
The Second Circuit has recognized three situations in which a plaintiff may assert in district court a claim that was not specifically pleaded in an EEOC complaint because it is "reasonably related" to the claims in the EEOC complaint: (1) claims within the scope of the EEOC investigation likely to result from the EEOC complaint; (2) claims of retaliation for filing the EEOC complaint; and (3) further incidents that occur after the filing of the EEOC charge that are carried out in precisely the same manner alleged in the EEOC charge. See Butts v. N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993); see also Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 n.1 (2d Cir. 2006). When determining whether claims are reasonably related, the focus should be "on the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which plaintiff is grieving." Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (quoting Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir. 2002)). "[I]t is the substance of the charge and not its label that controls," Deravin, 335 F.3d at 201 (quoting Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 458 (S.D.N.Y. 1998)), and both pre-charge and post-charge conduct may be reasonably related, see Francis v. City of New York, 235 F.3d 763, 766 & n.1 (2d Cir. 2000). The central question is whether the charge filed with the EEOC gave the agency "adequate notice to investigate discrimination on both bases." Williams, 458 F.3d at 70.
Hurt's EEOC charge specifically stated that she was "filing a Formal Complaint over the Illegal Discrimination against the Physical Disability of [her] left knee." (EEOC Complaint, October 25, 2006, Exhibit K to Defendants Motion to Dismiss, or, in the alternative, for Summary Judgment.) Hurt also only checked the EEOC complaint box for disability while leaving the remaining boxes blank, including boxes for race, gender, and retaliation. Her complaint went on to describe events related to her injury, including references to accident reports and medical documentation. Pointedly, the focus of Hurt's EEOC charge was to allege discrimination based on disability and nothing else. The charge is devoid of any reference to race discrimination, gender discrimination, or retaliation, or any facts that could be construed as raising those issues. Moreover, these claims are not "reasonably related" to the claims that Hurt did raise in the charge, and were not within the scope of the EEOC's investigations of her administrative complaint. As there is no theory by which Hurt's race discrimination, gender discrimination, or retaliation claims could be deemed "reasonably related" to her prior EEOC complaint, see Butts, 990 F.2d at 1402-03 (2d Cir. 1993), these second generation claims are barred by her failure to exhaust administrative remedies, and, consequently, are dismissed with prejudice. C. Claims Raised in Hurt's October 2006 EEOC Complaint
Hurt's remaining claim is discrimination based on disability. In October 2006, Hurt filed a formal complaint with the EEOC alleging discrimination based on the following: (1) a notice of removal in 1998; (2) a threat of removal in 1999 after sustaining an injury; (3) the change in schedule from 10:30pm to 1:00am in 2006; (4) the receipt of a letter of warning; (5) injury compensation forms being falsified by the Medical Officer; (6) a threat that if plaintiff injured herself in a specific area she would be left there; and (7) a reduction in work hours from eight hours to six hours per day. By letter dated November 22, 2006, the EEOC only accepted for investigation claims of discrimination based on the reduction in Hurt's hours and the letter of warning issued to Hurt for her absenteeism (numbered four and seven above). (Campbell Decl., ¶¶ 46-50.) After conducting its investigation, the EEOC concluded that the reduction in hours and the issuance of a warning letter did not amount to discrimination against Hurt based on physical disability because she had failed to establish a prima facie case of discrimination and defendant had a legitimate, nondiscriminatory reason for its actions. (Id. at 62.) Obviously dissatisfied, plaintiff brought the instant action to vindicate her claims.
1. Claims Accepted by the EEOC
The claims that the EEOC accepted for investigation and ultimately decided are clearly exhausted and properly before the Court. As a preliminary matter, Hurt has no remedy for employment discrimination under the ADA. See 42 U.S.C. § 12111(5)(B). Nevertheless, the Court will liberally construe her complaint and evaluate her claim under the Rehabilitation Act as claims are generally analyzed in an identical manner under both the ADA and the Rehabilitation Act. See Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (claims "under either the ADA or the Rehabilitation Act . . . are identical for [analytical] purposes"); Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) ("[T]he standards adopted by Title II of the ADA . . . are generally the same as those required under section 504 [of the Rehabilitation Act]."); Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146-49 (2d Cir. 2002) (conflating analysis of ADA and Rehabilitation Act claims).
The Rehabilitation Act is the sole avenue of relief for federal employees bringing disability discrimination claims against a federal employer like USPS. See Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998) ("Section 501 of the Rehabilitation Act establishes a program within the federal government to encourage the employment of individuals with disabilities, and applies to 'each department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch.'") (quoting 29 U.S.C. § 791(b)).
The Rehabilitation Act provides in relevant part that:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.29 U.S.C. § 794(a). The McDonnell Douglas three-step burden-shifting analysis traditionally applied in Title VII cases is also applied to cases brought under the Rehabilitation Act, This framework first requires a plaintiff to establish a prima facie case, which means, under the Rehabilitation Act that "a plaintiff must show: (1) he is handicapped or disabled under the Act; (2) he is otherwise qualified to perform his job; (3) he suffered an adverse employment action solely due to his disability; and (4) the employer is a recipient of Federal financial assistance." Gentile v. Potter, 509 F. Supp. 2d 221, 235 (E.D.N.Y. 2007) (citing Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994); Burke v. Evans, 06-CV-1917, 2007 U.S. App. LEXIS 13561, at *3 (2d Cir. June 8, 2007)).
The Postmaster General argues that plaintiff has failed to satisfy the third prong of her prima facie disability showing. To that end, defendant first contends that the letter of warning was not an adverse employment action because Hurt suffered no consequences and testified that the letter was "expunged" from her record. Defendant also contends that the reduction in Hurt's hours was a risk she assumed when she requested a light duty assignment because light duty employees are not guaranteed to work eight hours a day and may be sent home before the end of their shift.
It is almost tautological that 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). "An 'adverse employment action' is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities." Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006) (internal citations omitted). "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, significantly diminished material responsibilities, or other indices unique to a particular situation." Id. Critically, the Second Circuit has held that "an employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner." Id. at 91. Per force, the application of a pre-existing nondisciplinary policy in a reasonable manner is not actionable either.
USPS did, it is unchallenged, issue Hurt a letter of warning on July 4, 2006 for her absenteeism. (Letter of Warning, July 4, 2006, Exhibit H to Soloveichik Decl.) Hurt had been absent for a total of at least 120 hours between March 2, 2006 and June 16, 2006. (Id.) These absences were all unscheduled and undocumented, and failed to comply with the provisions of the Employee and Labor Relations Manual. (Campbell Decl., at ¶¶ 30-31.) Additionally, at the same time Hurt was issued a warning letter, other employees (both light duty and non-light duty) also received similar letters of warning for absenteeism. (Id. at ¶ 32.) Consequently, the Court finds that the warning letter was simply an application of USPS's pre-existing disciplinary policies, and without more, it does not constitute an adverse employment action. More to the point, there are no allegations of fact that would suggest otherwise. The undisputed facts show the warning letter was sent in accord with a reasonable policy uniformly applied.
References to "Soloveichik Decl." denote the declaration of Layaliza K. Soloveichik in support of defendant's motion for summary judgment.
It is also dispositive that in order to successfully make out the third prong of her prima facie case, Hurt must show that any adverse employment action was made solely due to her disability; she must establish "(a) that there was a 'causal connection' between that disability and the employment decision, and (b) that the disability was the only cause of the decision." Sedor v. Frank, 42 F.3d 741, 746 (2d Cir. 1994) (internal citations omitted). "[O]nly if the only reason for the conduct was the disability could the employee be said to have been discharged "solely" by reason of his disability," Id. Here, Hurt undoubtedly cannot make such a showing. The record is clear that nondisabled employees with similar records of absenteeism also received warning letters.
The reduction in Hurt's hours is similarly not an adverse employment action. While generally a reduction in hours can constitute a materially adverse employment action, here, the reduction in hours was not actually a change at all. First off, under the terms of employment, full-time light duty employees are not guaranteed to work eight hours a day. (Campbell Decl., at ¶ 19.) On a day-to-day basis, they may be sent home before the end of their shift due to lack of work, depending on the light duty needs of USPS. (Id.) Moreover, there is no material dispute demonstrated by the record about the fact that the change in Hurt's schedule was not due to her disability, but was dictated by the independent business needs of USPS. (Letter from Wayne Burton, March 17, 2006, Exhibit G to Soloveichik Decl.) There is no dispute of material fact that the reduction in hours was temporary and "due to the availability of work." (Id.) The relevant start time, as a matter of undisputed fact, was adjusted for all light duty employees on Hurt's shift at that facility and not just for Hurt. (Campbell Decl., at ¶ 26.) Because of her disability, Hurt sought a light duty assignment, which, it is further undisputed, was subject across the board to reduced hours. There are no allegations that these pre-existing nondisciplinary work rules were not uniformly applied, which resulted in a reduction of Hurt's hours, as plaintiff had to know beforehand could happen. With such material facts undisputed, the Court finds that the reduction in Hurt's hours was neither a materially adverse employment action, nor "solely" caused by her disability, sufficient to meet the third prong of a prima facie case under the Rehabilitation Act.
In any event, even if Hurt could make the requisite prima facie showing of disability discrimination, her claim would still fail. Under the second step of the McDonnell Douglas burden-shifting analysis, after a plaintiff establishes a prima facie case, "the onus falls on the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action." Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). The Postmaster General has adequately articulated such legitimate, nondiscriminatory reasons for the employment actions Hurt challenges. With regard to the warning letter, the caution was prompted by Hurt's absenteeism. It is uncontested that Hurt was absent on nine occasions for 120 hours without any notice or documentation. Hurt had previously complied with the requirement of documenting her absences and was therefore well aware of it. As discussed above, there is also a legitimate, nondiscriminatory reason for the reduction in hours. All light duty employees, including Hurt, were notified that their hours could be reduced at any time depending on USPS's business needs. Ultimately, plaintiff has not provided any basis for the Court to infer that "the proffered reason[s] [were] not the true reason[s] for the employment decision." Marks v. National Communs. Ass'n, 72 F. Supp. 2d 322, 332 (S.D.N.Y. 1999) (internal quotations and citation omitted). There being no material fact in dispute, defendant succeeds on prong three of the prima facie case, or, in the alternative, under the second and third steps of the Mc-Donnell Douglas analysis. As a result, summary judgment for defendant is appropriate.
2. Claims Rejected by the EEOC
The EEOC also dismissed five of the seven incidents of discrimination raised in Hurt's complaint. Defendant argues that these claims were not exhausted because the EEOC did not accept them for administrative review. The Court agrees that some of the claims were not exhausted, but not merely because the EEOC chose not to accept them for investigation.
First off, the incidents occurring in 1998, 1999, and 2006 were dismissed because they were discrete acts occurring well beyond the 45-day limit for bringing alleged discriminatory acts to the EEOC's attention. Since these incidents were dismissed by the EEOC as time-barred, they were not adequately exhausted by Hurt and cannot be reviewed by the Court. It is well-established that an employee must make initial contact with an EEOC counselor within 45 days of the alleged discriminatory conduct and any complaint that fails to comply with that time limit must be dismissed. See 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(b). Since Hurt's claims about incidents occurring in 1998, 1999, and 2006 were not brought to the EEOC's attention in a timely fashion, they are dismissed for failure to exhaust administrative remedies.
Second, Hurt's claim that forms were falsified by a medical officer (as part of the workers' compensation process) was dismissed as it was considered a collateral attack on another forum's proceedings and therefore not appropriately before the EEOC. As discussed in Part II.D, such a claim is also not appropriate for judicial review and is also dismissed. See supra Part II.D.
Finally, Hurt's claim that a supervisor told her on an unspecified date that if she walked through a specific area and injured herself she would be left there, was dismissed by the EEOC because it resulted in no personal loss to plaintiff. Since Hurt did not specify when this incident occurred, it is impossible to determine whether it was brought to the EEOC's attention within 45 days. However, even if the Court treats it as exhausted, it nonetheless fails because it is not an adverse employment action under the Rehabilitation Act. The fleeting statement alleged, even if taken as true, is not a change in the terms and conditions of Hurt's employment. It is correct that an "adverse employment action" is not defined "solely in terms of job termination or reduced wages and benefits" and "less flagrant reprisals by employers may indeed be adverse." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). However, "not every unpleasant matter . . . creates a cause of action," Id. This allegation is simply not actionable under the Rehabilitation Act as an adverse employment action. D. Workers' Compensation Denials
Plaintiff's amended complaint also appears to allege wrongdoing on the part of USPS and OWCP in denying her various workers' compensation claims over the years. Much of her complaint offers a discussion of her failure to obtain workers' compensation and to be classified as a "limited duty" employee despite the fact that her injuries were allegedly work-related. (Am. Compl., at 3.) According to Hurt, unlike light duty employees, limited duty employees are "compensated for every recurrence of their injury" and are "paid for eight hours even if their doctor only allows them to work less." (Id.) She contends that defendant contributed to her worker's compensation denials because her applications were "controverted by the Postal Service." (Id. at 2.)
Even construing Hurt's complaint liberally, these allegations are not actionable. Judicial review of administrative decisions by OWCP denying workers' compensation claims is expressly barred under the Federal Employees Compensation Act ("FECA"). 5 U.S.C. § 8116(c). See also Shaw v. United States Postal Serv., 09 Civ. 6617, 2010 U.S. Dist. LEXIS 101322, at *22 (S.D.N.Y. Aug. 16, 2010) ("FECA provides the exclusive remedy for federal employees seeking compensation for work-related injuries.") As a postal employee, Hurt is limited to her FECA remedies. Stated simply, "[t]he Secretary of Labor, and not the Postal Service, ultimately determines the compensability of the employee's injury under FECA," and this determination "is not subject to judicial review by federal courts." Id. Despite this framework, some courts have exercised limited judicial review when the administrative agency has "exceeded the scope of its delegated authority, or where the claims assert violations of a clear statutory mandate." Id. But, where, as here, the complainant merely challenges discretionary actions on the part of OWCP denying certain workers' compensation benefits and the bases for those actions, the Court clearly does not have jurisdiction and this claim must also be dismissed.
III. CONCLUSION
For the reasons discussed above, defendant's motion for summary judgment is granted in its entirety.
The Clerk of the Court is directed to enter judgment for defendant and to close this case.
SO ORDERED. Dated: Brooklyn, New York
February 22, 2011
/s/_________
ERIC N. VITALIANO
United States District Judge