Lewis v. Snow

Full title: NATHANIEL LEWIS, Plaintiff, — against — JOHN SNOW, Secretary of the…

Court: United States District Court, S.D. New York

Date published: Sep 8, 2003

01 Civ. 7785 (CBM) (S.D.N.Y. Sep. 8, 2003)

Opinion

01 Civ. 7785 (CBM)

September 8, 2003

K. C. Okoli, New York, NY, for the plaintiff

James B. Comey, Ramon E. Reyes, Jr., for defendant John Snow,

Alan E. Wolin, Wolin Wolin, Esqs., New York, NY, for defendant Anthony Como

OPINION

CONSTANCE MOTLEY, Senior District Judge

Plaintiff Nathaniel W. Lewis ("plaintiff" or "Lewis"), an employee of the United States Customs Service (the "USCS" or "Customs") brings this action against defendants John Snow, Secretary of the Treasury of the United States ("Secretary Snow")¹ and Anthony Como, a Customs Inspector ("Como") (collectively "defendants"), alleging violations of his rights in connection with an insensitive and offensive workplace incident. Plaintiff brings claims of hostile work environment and retaliation based on race pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); a claim of retaliation under 42 U.S.C. § 1981 ("Section 1981"); a claim of retaliation in violation of the First Amendment to the Federal Constitution; and claims of discrimination, retaliation, and hostile work environment under New York State Human Rights Law § 296. In addition, plaintiff brings a claim against defendants under New York tort law for intentional infliction of emotional distress. Finally, plaintiff brings a claim of abuse of process against defendant Como in connection with a state court defamation suit which Como previously filed against plaintiff.

1 Pursuant to Fed.R.Civ.P. 25(d)(1), John Snow replaced John O'Neill as a defendant in this action when Snow became Acting Secretary of the Treasury upon O'Neill's resignation from that office.

Defendants have moved to dismiss the Amended Complaint in its entirety pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and/or for summary judgment pursuant to Rule 56 of the Federal Rule of Civil Procedure. For the reasons stated in the opinion below, defendants' motions are hereby GRANTED.

I. BACKGROUND

A. Plaintiff's Allegations

Plaintiff, an African-American male, has been an employee of the USCS since 1983. He has served at USCS over the years in various positions, working as a customs aide, a field national import specialist, and as an EEO counselor. From at least January 1999 until the terrorist attack on lower Manhattan on September 11, 2001, plaintiff worked on the fourth floor of the Customhouse located at 6 World Trade Center ("6 WTC").

On or around September 27, 1999, Gregory Riley ("Riley"), an African-American Customs employee reported to some of his co-workers that a statuette resembling the former N.B.A. basketball phenomenon Michael Jordan, an African-American male, was displayed hanging from a noose in the work area occupied by defendant Como, a white male Customs Inspector (the "Noose Incident"). Riley disseminated this information regarding the Noose Incident via Customs' "cc:mail" email system ("cc:mail"), addressing the email to Como's supervisor and other black employees at the USCS.² Plaintiff did not personally view the offensive statue which Como placed in his cubicle, but learned about it through Riley's cc:mail message and a conversation he had with Riley subsequent to the incident. After receiving Riley's cc:mail message regarding the Noose Incident, he forwarded it to other African-American Customs employees via the cc:mail system. Plaintiff claims that in September 1999 and February 2000 he wrote letters to the highest ranking official at USCS, complaining of the Noose Incident. He claims that he did not receive a response to these letters.

2 On January 9, 2000, Como filed a defamation suit against plaintiff, Riley, and another Customs employee in New York State court, alleging defamation in connection with their dissemination of messages to Customs employees via cc:mail regarding Como's responsibility for the Noose Incident.

Plaintiff claims that following the Noose Incident Como "continued to visit the official work area to which plaintiff and other African American customs employees were assigned despite the fact that this was not Como's assigned work area." Am. Complt., ¶ 29. Plaintiff claims that Como sought to intimidate him at the workplace, after the incident and through Customs' issuance of a final report on its internal investigation of Como's conduct, by making regular and inherently menacing visits to plaintiff's office area at 6 WTC and bringing a defamation lawsuit against plaintiff. He claims that Como carried a weapon with him when he made these intimidating visits to his work area.

Plaintiff claims that on or about January 11, 2000, the Supervisory Import Specialist for the New York/Newark Area sent a letter to Riley which "implied or suggested that, in using the e-mail to share information concerning Como's conduct, Mr. Riley and his African American coworkers, including the plaintiff . . . did something wrong."Id., ¶ 34.

On January 12, 2000, Customs Director of Field Operations John J. Martuge ("Martuge") issued an Information Notice to all employees at Customs on the subject of "Cc:Mail Usage." Id., ¶ 35. The Information Notice reminded "all employees that cc:mail is to be used for official purposes only" and that "[u]se of cc:mail for personal reasons could result in appropriate administrative or disciplinary action." Def. Rule 56.1 Statement, ¶ 26. Plaintiff believes that, though the Information Notice was addressed to all employees, it did not identify or single out plaintiff in any way, and made no mention of plaintiff's use of cc:mail in connection with dissemination of information about the Noose Incident, the issuance of the Information Notice constituted an act of retaliation against him.

B. Plaintiffs EEO Activity

On or about September 6, 2000, plaintiff submitted a letter to Customs' EEO office which was styled as a "formal charge, [sic] of unlawful harassment and intimidation based on race and color . . ." Def. Rule 56.1 Statement, at ¶ 39. Customs rejected this "formal charge," informing plaintiff that he had to seek informal EEO counseling before filing a formal EEO complaint. Id., ¶ 42. Plaintiff first sought EEO counseling on October 4, 2000 and was interviewed telephonically by an EEO counselor on October 20, 2000. Id., ¶ 43. Customs' EEO office conducted an investigation into plaintiff's allegations of discrimination and retaliation. On January 22, 2001, Customs informed plaintiff via telephone that while his allegations did not constitute a hostile work environment, Customs had hired an outside consultant specializing in diversity and conflict resolution to discuss the matter with employees connected to the Noose Incident. Id., ¶ 48. The outside consultant conducted a workshop and a counseling session with the relevant employees. Id., 49.

Still dissatisfied, however, plaintiff decided to file a formal complaint of discrimination. On January 23, 2001, plaintiff mailed a formal discrimination complaint to Customs' EEO Chicago Complaint Center. In his formal complaint, plaintiff alleged the Noose Incident, the Information Notice, Como's intimidation, and the private lawsuit which Como filed against him as the facts on which his hostile work environment and retaliation claims are based.

On March 6, 2001, Jay Neirick, EEO Specialist at Customs, sent plaintiff a letter informing him that the issues raised in his formal complaint might not be timely. Id., ¶ 58. Accordingly, Customs requested that plaintiff explain why he failed to seek EEO counseling within 45 days of the alleged discrimination and retaliation, or to provide information Customs ought to consider in determining whether to extend the 45 day period. Georges Decl. at Exhibit B. Plaintiff responded on May 12, 2001, noting that "[t]he [USCS] reaction makes me believe that I sought counseling in a timely manner and the situation is continuing." Id. at Exhibit C.

On March 23, 2001, Customs sent plaintiff a final agency decision denying his formal complaint. Id., ¶ 60. The letter, signed by Dorian M. Morley, notes that plaintiff's response to its March 6, 2001 inquiry did not explain why he waited more than eight months to contact an EEO counselor. The letter states that an extension of the 45-day time limit would be appropriate if plaintiff "were not reasonably aware of the alleged discriminatory action(s) at the time the incident(s) occurred or if [plaintiff] were unaware of the 45-day time limit to seek counseling." Georges Decl. at Exhibit D. The letter notes that the facts suggest that plaintiff was aware of the alleged discriminatory actions. Id. The letter notes that plaintiff was particularly well-situated to be aware of the 45-day time period. Indeed, plaintiff had been an EEO counselor and, accordingly, had received EEO counselor training which provided information regarding the 45-day time limit for seeking counseling. Thus, pursuant to 29 C.F.R. § 1614.107(a)(2), plaintiff's formal complaint was dismissed for untimely contact with an EEO counselor. Id. The final agency decision informed plaintiff of his right to appeal if he was dissatisfied with the agency's decision. In addition, the decision informed plaintiff of his right to file a civil action in the appropriate United States District Court "within 90 days" after receiving the final decision (emphasis in original).Id. C. Customs' Response to the Noose Incident

According to defendant Secretary Snow, Customs' initial response to the Noose Incident was to take Como's weapon from him on September 29, 1999 and to reassign him to the Records Section located at the basement level of 6 WTC on October 4, 1999. Def, Rule 56.1 Statement, at ¶ 13.³ This conflicts with plaintiff's assertion that Como continued to carry a weapon when he made his intimidating visits to plaintiffs work area at 6 WTC.See Am. Complt., ¶ 29. On May 11, 2000, Customs issued an interim decision regarding Como's involvement in the Noose Incident.See Reyes Decl., Exhibit F. Customs reassigned Como to the International Mail Facility in New Jersey. Id. Defendant Snow notes that it was necessary to relocate Como because, in addition to the Noose Incident, there had been "a series of disruptive incidents between him and other employees located on the [basement] level" at 6 WTC. Def. Rule 56.1 Statement, ¶ 20. None of these incidents, however, involved plaintiff. Indeed, plaintiff never spoke to Como about the Noose Incident or any other disruptive incidents at 6 WTC. On February 20, 2001, Customs issued a final decision regarding Como's involvement in the noose incident. See Reyes Decl. Exhibit G. The letter, signed by Kathleen Haage ("Haage"), noted that no further disciplinary action would be taken against Como. Haage informed Como that he was permitted to enter the Customhouse at 6 WTC for official business only. Haage further informed Como that he had to notify his supervisor prior to traveling to 6 WTC. Moreover, Como was not permitted to enter any work area without the authorization of Customs' management. Finally, until an additional and unrelated allegation against Como was investigated and resolved, Como was not permitted to carry a weapon. Id. II. SUMMARY JUDGMENT ⁴

3 Vincent Chan, a Supervisory Customs Inspector for the United States Bureau of Customs and Border Protection (formerly the USCS for the Newark/New York Area), claims that he secured Como's firearm on September 29, 1999 pursuant to a directive given by Area Director Kathleen M. Haage. Chan claims that Como surrendered his credentials to carry a firearm to him on or about September 30, 1999. See Def. Rule 56.1 Statement, Chan Decl.

4 Defendants move for judgment on the pleadings under Rule 12(c) and summary judgment under Rule 56. They rely, however, on evidence outside the pleadings. Thus, the court will treat defendants' motion as one for summary judgment. See Fed.R.Civ.P. 12(c) ("If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . .").

According to Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith" if it is shown that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material fact exists, a plaintiff "may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In this vein, the Second Circuit has noted that "conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63.71 (2d Cir. 1996).

In assessing the record to determine whether genuine issues of material fact are in dispute, courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, if the moving party meets its initial burden, the non-moving party may not rely on conclusory allegations or speculation to create factual disputes. Instead, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment maybe granted." Scotto Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).

III. DISCUSSION

A. Title VII Claims

First, the court notes that defendant Como is not a proper party to a Title VII action. It is well-settled that under Title VII only the "head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16(c). Como is not the head of a department, agency, or unit pursuant to Title VII. Accordingly, the proper defendant in plaintiff's case is John Snow, the Secretary of the Treasury. See Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) (dismissing individually named defendants in Title VII case), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Lara v. City of New York, 1999 WL 459803, at *4 (S.D.N.Y. June 29, 1999) (same). Defendant's motion to dismiss plaintiff's Title VII claims as to defendants Como is GRANTED.

Title VII provides that employees shall be free from any discrimination based on race, color, religion, sex, or national origin. It is the exclusive remedy available to federal employees for allegations of discrimination based upon race. Sec Brown v. General Services Admin., 425 U.S. 820, 832 (1976); Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996).

An aggrieved federal employee who brings claims under Title VII must "exhaust available administrative remedies in a timely fashion" pursuant to properly filing an action in federal court. Briones, 101 F.3d at 289; Brown, 425 U.S. at 832; Matos v. Hove, 940 F. Supp. 67, 71 (S.D.N.Y. 1996). If a federal employee fails to avail herself of her administrative remedies, or fails to avail herself of them in a timely manner, a federal court lacks subject matter jurisdiction to hear that employee's claim. Dillard v. Runyon, 928 F. Supp. 1316, 1323 (S.D.N.Y. 1996).

Timely exhaustion of administrative remedies requires that the employee comply with the statute and applicable Equal Employment Opportunity Commission ("EEOC") regulations. See 29 C.F.R. § 1614;Dillard, 928 F. Supp. at 1323: Martin v. Reno, 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"). An aggrieved federal employee suing under Title VII "must initiate contact with a[n] [EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory."See 29 C.F.R. § 1614.105(a)(1). If "a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred." Butts v. N.Y.C. Dep't of Housing Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993); see Parola v. IRS, 1999 WL 1215557, at *5 (E.D.N.Y. Dec. 15, 1999) (dismissing Title VII claims for failing to meet the 45-day requirement). Under Title VII, after timely filing a formal administrative complaint, the aggrieved federal employee may bring a civil action in federal district court only (1) within 90 days of receiving notice of a final administrative decision, or (2) if, after 180 days from the date of filing the administrative complaint, there has been no administrative decision. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(a) and (b). These procedural requirements "are not to be disregarded by courts out of a vague sympathy for particular litigants." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1994); see also Martin, 1999 WL 527932, at *3;Dillard. 928 F. Supp. at 1323.

Plaintiff did not satisfy the procedural prerequisites to filing suit in federal court. First, plaintiff failed to contact an EEO counselor within 45 days of the alleged events which led to his hostile work environment and retaliation claims. According to plaintiff, the hostile work environment at Customs commenced on or about September 24, 1999, when the Noose Incident occurred. Plaintiff alleges that the hostile work environment persisted thereafter inasmuch as Como continued to appear at his work area and intimidate him. Plaintiff did not, however, seek EEO counseling in connection with this allegedly hostile, retaliatory, or discriminatory conduct until September 6, 2000, nearly eight months after the last allegedly discriminatory or retaliatory action occurred.

Although he does not dispute that he did not contact an EEO counselor within 45 days of the alleged violations, plaintiff argues that he made timely contact with the EEO. The EEOC has held that in order to "initiate contact" an employee must (1) contact an agency official logically connected with the EEO process, even if that official is not an EEO counselor; (2) exhibit and intent to initiate the EEO process; and (3) allege that an incident in question is based on discrimination. See Pauling v. Secretary of Dep't of the Interior, 960 F. Supp. 793, 803 (S.D.N.Y. 1997), vacated on other grounds, 160 F.3d 133 (2d Cir. 1998) (citing cases). Plaintiff's September 28, 1999 letter to Raymond W. Kelly, Commissioner of the USCS, does not constitute initiating contact with an EEO counselor. In his letter, plaintiff notes that he wants to discuss an "Integrity Promotion Program" with Commissioner Kelly.See Lewis Decl., Exhibit A. He notes in the letter that "some of the other employees were offended" by the Noose Incident (emphasis in original). Plaintiff notes in the letter that he is "bringing this to [Kelly's] attention, because [he] feel[s] [Kelly] should know."Id. Plaintiff indicates that he does not feel that he can "leave this situation up to Customs/New York because the attitude presented by your office to me [when plaintiff tried but failed to make an appointment to meet with Kelly] indicates a lack of integrity at the top level" of the USCS. Id. In his letter, plaintiff does not allege that the incident was based on discrimination. Plaintiff does not argue now that Commissioner Kelly was an official logically connected with the EEO process.

Plaintiff argues that defendants should be equitably estopped from asserting the untimeliness defense, and that defendants waived the untimeliness defense. These arguments fail. Equitable estoppel "is not available against the government except in the most serious circumstances, and is applied with the utmost care and restraint."Rojas-Reyes v. INS, 235 F.3d 115, 126 (2d Cir. 2000) (citations omitted). "We apply estoppel to the Government only in those limited cases where the party can establish both that the Government made a misrepresentation upon which the party reasonably and detrimentally relied and that the Government engaged in affirmative misconduct." City of New York v. Shalala, 34 F.3d 1161, 1168 (2d Cir. 1993). Plaintiff has failed to make such a showing.

Plaintiff argues that defendants ought to be estopped from asserting the untimeliness defense because Customs' Director of Field Operations, John J. Martuge, and other non-EEO officials did not affirmatively tell him that he had to contact an EEO counselor within the 45 day time period. See PL's Br. at 16-16. Plaintiff has not, however, alleged any affirmative misconduct on the part of defendant Snow or any of his agents. Martuge's failure to advise plaintiff that he must contact an EEO counselor does not constitute affirmative misconduct sufficient to justify equitable relief from Title VII's administrative requirements.See, e.g., Dillard, 928 F. Supp. at 1327 (supervisor's failure to advise employee to contact EEO counselor did not constitute affirmative misconduct warranting tolling of 45 day period), aff'd, 108 F.3d 1369 (2d Cir. 1997).

In addition, plaintiff argues that defendant Snow "waived his right to insist on failure to contact an EEO counselor within 45 days when it accepted the complaint, processed it fully, and issued a notice to plaintiff to pursue a formal complaint in Chicago." Pl.'s Br. at 17. "[G]overnment `agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint.'"Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir. 2001) (quotingBowden v. United States. 106 F.3d 433, 438 (D.C. Cir. 1997));see also Briones v. Runyon, 101 F.3d 287. 291 (2d Cir. 1996) (waiver found only where agency failed to appeal express EEOC finding that administrative complaint was timely filed). "An agency waives a timeliness objection by making an express finding that the complaint was timely or failing to appeal an EEOC determination of timeliness."Bruce v. United States Department of Justice, 314 F.3d 71, 74 (2d Cir. 2002) (per curiam). In the instant case, there was no finding by defendant Snow that plaintiff's complaint was timely. There was no EEOC finding of timeliness from which to appeal. Defendant did not waive the untimeliness defense.

Accordingly, plaintiff's Title VII claims must be dismissed as time-barred.

Even assuming arguendo that plaintiff had contacted an EEO counselor within 45 days of the acts of which he complains, his Title VII claims would still have to be dismissed. As the court notes supra, under Title VII, an aggrieved party must file in federal court within 90 days of receiving the final agency decision. Customs sent the final agency decision denying plaintiffs hostile work environment and retaliation claims on March 23, 2001, to plaintiff's house, by certified mail, return receipt requested. Def.'s Rule 56.1 Statement, ¶¶ 60-61. Plaintiff signed and returned the receipt card, indicating that he had received the final agency decision. Customs received plaintiff's signed receipt card on March 30, 2001. Plaintiff did not file his claim with this court until August 20, 2001, more than 90 days after he received Customs' final agency decision.

Moreover, assuming arguendo that plaintiff filed in federal court within 90 days,⁵ the court notes that plaintiff does not appear to state viable claims for retaliation or hostile work environment under Title VII. In order to establish a case of retaliation violative of Title VII, a plaintiff must show that: (1) he or she was engaged in protected activity; (2) the employer was aware of the activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Plaintiff fails to set forth a cognizable claim inasmuch as he did not suffer an adverse employment action. An adverse employment action is a "materially adverse change" in the conditions of employment. Galabya v. Board of Education, 202 F.3d 636, 640 (2d Cir. 2000). Circumstances that constitute a "materially adverse change" include "`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 . . . unique to a particular situation.'" Id. (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)).

5 Plaintiff disputes that he did not file within the 90 day period. He asserts that the evidence submitted by defendants that he received the final agency decision on March 30, 2001 is flawed and insufficient inasmuch as the United States Postal Service (USPS) affixed the green return receipt card which he signed with a stamp which lists the date of delivery as March 27, 2000 rather than March 27, 2001. Whereas Customs sent the decision on March 23, 2001, and received the signed, green receipt card on March 30, 2001, it seems likely that the USPS simply mistakenly used a stamp bearing the wrong year.

The Information Notice which was sent out to all Customs employees does not qualify as a materially adverse change in the terms and conditions of plaintiff's employment. The Notice reminded all employees, not just plaintiff, of its policy prohibiting use of its computer systems, including the cc:mail system, for other than official purposes. The Notice did not have any material effect on the terms and conditions of plaintiff's employment. Rather, it merely reminded all employees of said policy and warned all employees, and no one in particular, that future violations by any employee could be met with disciplinary action. "Disciplinary notices, threats of disciplinary action and excessive scrutiny do not constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation." Lumhoo v. The Home Depot USA. Inc., 229 F. Supp.2d 212, 150 (E.D.N.Y. 2002).See also Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 248 (S.D.N.Y. 2001) (reprimands and threats of disciplinary action do not constitute adverse employment actions). Plaintiff does not and cannot point to any evidence of a material adverse change in the terms and conditions of this employment related to the issuance of the Information Notice. In addition, plaintiff cannot establish a causal connection between the issuance of the Notice and his alleged protected activity — his act of discussing the Noose Incident with putatively interested co-workers via cc:mail. Pursuant to establishing a causal connection, a plaintiff must be able to provide either direct evidence of retaliatory animus or make an indirect showing that a protected activity "was followed closely by [retaliatory] treatment." Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (citing De Cintio v. Westchester County Med. Ctr., 821 F.2d 111 (2d Cir 1987), cert. denied, 484 U.S. 965 (1987)). In the instant case, the Information Notice was issued more than three months after plaintiff's alleged protected activity. Plaintiff fails to make a showing of protected activity which was "followed closely by" the alleged retaliatory treatment. See Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (finding no causal connection where three months intervened between the alleged discrimination and the protected activity); Stringfellow v. Wyckoff Heights Med. Ctr., 1998 WL 760286, at *6 (E.D.N.Y. Sept. 9, 1998) (plaintiff did not satisfy causal connection prong of the alleged retaliatory treatment which occurred more than four months after he filed a complaint with the EEOC).

In Harris v. Forklift Systems, 510 U.S. 17 (1993), a sexual harassment case, the Supreme Court held that a Title VII hostile environment claim will succeed only if the conduct at issue is so "severe or pervasive" as to create an "`objectively' hostile or abusive work environment," and where the victim "subjectively perceive[s] the environment to be abusive." Id. at 21-22. Because there is no dispute that plaintiff subjectively perceived the work environment at Customs to be hostile, the court must inquire as to whether the environment was "objectively" hostile. Plaintiff's allegations "should thus be evaluated to determine whether a reasonable person who is the target of discrimination would find the working conditions so severe as to alter the terms and conditions of employment for the worse."Richardson v. New York State Dep't of Correctional Service, 180 F.3d 426, 436 (2d Cir. 1999) (citing Harris at 21). In order to avoid summary judgement on a hostile work environment claim, a plaintiff must establish that (1) he was subjected to harassment that was so severe and pervasive as to alter the conditions of his employment; and (2) there is a specific basis for imputing the conduct to defendants. See Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62-63 (2d Cir. 1992).

Plaintiff's hostile work environment claim would fail as a matter of law because there is no basis for imputing Como's conduct to defendant Snow. When a co-worker like Como is alleged to have created a hostile work environment, the employer will not be liable VII unless the plaintiff can prove that "the employer either provided no reasonable avenue of complaint or knew of the harassment and did nothing about it." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (citingTomka, 66 F.3d at 1305). The record shows that Customs provided and continues to provide a reasonable avenue for complaints regarding hostile work environment. Pursuant to Customs' EEO program, employees can seek EEO counseling regarding allegations of discrimination, retaliation, and hostile work environment. The record indicates that in the instant case, Customs took corrective action in response to the Noose Incident. Customs conducted an investigation, transferred Como to a different work area, took away his weapon, and issued notices warning him that future misconduct would result in disciplinary action. The court cannot say that Customs' response to the incident was inappropriate.

In order to sustain a claim for a hostile work environment based on race, a plaintiff must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that are sufficiently severe or pervasive to alter the conditions of the victim's employment and create and abusive working environment." Harris, 510 U.S. at 21. Isolated acts, like the issuance of a notice, unless very serious, do not meet the threshold for severity or pervasiveness. Sec Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999):see also Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) ("We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment"). The seemingly anodyne issuance of the Information Notice does not come close to constituting a hostile work environment under this standard.

B. Section 1981 Claim

Plaintiff's hostile work environment and retaliation claims are pleaded as a violation of both Title VII and of 42 U.S.C. § 1981. The latter statute, however, provides no basis for the relief which plaintiff seeks. "Title VII is the exclusive remedy for [employment] discrimination by the federal government on the basis of race, religion, sex, or national origin." Briones, 101 F.3d at 289 (quotingBoyd v. United States Postal Serv., 752 F.2d 410, 413-14 (9th Cir. 1985)). In addition, Section 1981, by its own terms, explicitly protects equal contract rights "against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c). The plain language of the statute "very plainly does not include actions taken under color of federal law." Graham v. U.S. Postmaster General, 2001 WL 118591, at *3 (N.D.N.Y. Feb. 2, 2001). Moreover, the plain language of the statute retains the sovereign immunity of the United States from such claims. See Callis v. Shannon, 1994 WL 116007, at *2 (S.D.N.Y. Mar. 28, 1994) ("Plaintiff's claims under Section 1981 . . . are barred because the United States has not consented to be sued under 42 U.S.C. § 1981"). The claim that defendants' actions violated Section 1981 is dismissed. C. First Amendment Claim

Plaintiff alleges that the issuance of the Information Notice on January 12, 2000 constitutes retaliation in violation of his free speech rights inasmuch as it "threatened plaintiff with disciplinary action for sharing the kind of information via the e:mail [sic] which he and others had shared with coworkers prior to September 1999." Am. Complt., ¶ 51. Plaintiff alleges that Customs issued the Notice in an attempt to prevent him from exercising his First Amendment right to free speech.

In Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961 (1976), the Supreme Court held that Section 717 of Title VII, 42 U.S.C. § 2000e-16, is the exclusive remedy for claims of discrimination in federal employment. Defendant Snow asserts that, as with other claims in the instant action, Title VII precludes plaintiff's First Amendment claim.

While ultimately successful in the instant case, the preemption argument is not as clear cut as defendants suggest with respect tot he First Amendment claim. Brown held that Title VII preempted a federal employee's Section 1981 challenge to the government's failure to promote him. Under Brown, Title VII preempts other remedies for discrimination in federal employment "only when the federal employee is challenging action directly and singularly related to discrimination in the terms and conditions of his or her employment." Rochon v. Federal Bureau of lnvestigation, 691 F. Supp. 1548, 1555 (D.D.C. 1988). Courts have acknowledged that while Section 717 is the exclusive judicial remedy for discrimination against federal employees, "Title VII does not preclude separate remedies for unconstitutional action other than discrimination based on race, sex, religion, or national origin."Rottman v. U.S. Coast Guard Academy, 630 F. Supp. 1123, 1125 (D.Conn. 1986) (quoting White v. GSA, 652 F.2d 913, 917 (9th Cir. 1981)). "Nothing in [Title VII's legislative] history even remotely suggests that Congress intended to prevent federal employees from suing their employers for constitutional violations which Title VII provides no protection at all." Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d 1405 (D.C. Cir. 1985). Accordingly, a plaintiff's "non-Title VII claims would stand if they were based on other than the discriminatory actions against which Title VII provides protection." Rottman, 630 F. Supp. at 1125.⁶

6 At least one court in the Southern District of New York has characterized Rottman as standing for the proposition that "non-Title VII claims remain if based on actions other than the discriminatory actions which Title VII prohibits." Jackson v. Thomas. 1989 WL 46595, at *1 (S.D.N.Y. April 25, 1989) (parenthetically summarizing the relevant portion of Rottman).

Defendant Snow argues that because plaintiff's First Amendment claim is predicated on the same factual allegations as those asserted in support of his Title VII claims, it must be dismissed as preempted by the exclusive remedy provided in Title VII. Secretary Snow asserts that plaintiff's First Amendment claim is inexorably linked to his claims brought under Title VII.

Plaintiff offers no response to defendant's preemption argument.

Even assuming that plaintiff's First Amendment claim was factually distinct from discriminatory actions which Title VII is intended to address, plaintiff has made no indication whatsoever of how he intends to, or how he is entitled to, bring his First Amendment action. He does not, and indeed cannot, bring his First Amendment claim pursuant to 42 U.S.C. § 1983, as plaintiff does not allege that defendants were acting under color of state law. See Am. Mfrs. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), the Supreme Court recognized an individual's right to recover damages from federal officials for violations of constitutional rights. The Court observed, though, that not all constitutional infractions would be included in what has become known as aBivens action. The court specifically noted that a damages action would fail if either of two conditions were met. First, aBivens action might be unavailable "when special factors counsel [ ] hesitation in the absence of affirmative action by Congress."Id. at 396, 91 S.Ct. at 2005. Second, Congress might have provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution which it viewed as equally effective. Id. at 397, 91 S.Ct. at 2005.

Plaintiff has not alleged a cause of action under Bivens. He has not styled this as a Bivens cause of action in any respect. It is not necessary, though, to determine whether plaintiff could state a cause of action under Bivens and its progeny. The court agrees that plaintiff's First Amendment cause of action is based on alleged discriminatory actions which plaintiff challenges pursuant to the framework of Title VII. Accordingly, plaintiff's putative First Amendment claim is dismissed.

Even if plaintiff's putative First Amendment claim were considered to be separate and apart from his Title VII claim, and the court had subject matter jurisdiction to hear the claim, the court notes that it cannot imagine how such a claim could succeed. A "public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Connick v. Myers. 461 U.S. 138, 140, 103 S.Ct. 1684 (1983); accord Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994). Thus, a public employee may sue his employer for retaliation against him for exercising rights guaranteed under the First Amendment. The Supreme Court has held that adverse employment action taken because of speech on matters of public concern is actionable under the First Amendment. Id. Plaintiff utterly fails, though, to show that the issuance of the Information Notice constituted an adverse action of any kind.

D. New York Executive Law § 296

Plaintiff has brought claims against defendants alleging that their actions violated New York Executive Law § 296. As the court explained above, Title VII provides the sole remedy for federal employees alleging employment discrimination. Sec Brown v. General Servs. Admin., 425 U.S. 820, 96 S.Ct. 1961 (1976);Colon v. U.S. Postal Service, 95 F. Supp.2d 85, 87 (D.Conn. 1999) ("The Second Circuit has interpreted Brown as precluding state law employment discrimination claims against other federal employers."). Allowing plaintiff's state human rights law claim to proceed against Como in his individual capacity would allow him to evade the holding in Brown. This the court cannot countenance.Sec Rivera v. Heyman. 157 F.3d 101, 105 (2d Cir. 1998);Marshall v. National Association of Letter Carriers B.R. 36. 2003 WL 223563, at *6 (S.D.N.Y. Feb 3, 2003) (dismissing statutory and common law claims against individual defendants, noting that they are "precluded by the exclusivity of the Title VII remedy"). Accordingly, plaintiff's New York State Law § 296 claim is dismissed.

E. Intentional Infliction of Emotional Distress

Plaintiff's claim against defendants for intentional infliction of emotional distress is rife with problems. This claim is based solely on the alleged workplace discrimination underlying the previous causes of action. The court notes again that Title VII provides the sole remedy for federal employees alleging employment discrimination. See Brown, 425 U.S. 820. "[A]lthough state tort claims are often appended to Title VII suits against private employers, that cannot be done by a federal employee." Mannion v. Attorney General, 2000 WL 1610761, *1 (D.Conn. Oct 3, 2000). "[W]here the challenged actions fall within the purview of Title VII's remedial framework, federal employees may not seek an end-run around Title VII's administrative requirements by masquerading their discrimination claims as tort claims." Courts have refused to permit the invocation of state law remedies to circumvent the exclusivity of Title VII as a remedy for discrimination in federal employment. See King v. United States Postal Service, 2002 WL 1067825, at *4 (S.D.N.Y. May 29, 2002); Rivera v. Heyman, 157 F.3d 101, 105 (2d Cir. 1988) (state discrimination law);DiPompo v. West Point Military Academy, 708 F. Supp. 540, 547 (S.D.N.Y. 1989) (intentional infliction of emotional distress);Mannion, at *1 (intentional infliction of emotional distress and conspiracy); Gerentine v. United States, 2001 WL 876831 (S.D.N.Y. August 2, 2001) (intentional infliction of emotional distress).

In addition, the court notes that the sole waiver of sovereign immunity for tort claims against the United States and its agencies is the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671-2680. Plaintiff does not allege a claim under this Act. He does not allege that he has fulfilled the statutory prerequisites for bringing such a suit, such as filing an administrative claim. 28 U.S.C. § 2675(a). Accordingly, the claim cannot be brought against Snow in his official capacity or against the USCS. Moreover, the intentional infliction of emotional distress claim cannot be brought against Como or Snow in his individual capacity. Snow is not alleged to have personally participated in any way in the alleged mistreatment of plaintiff.

Accordingly, plaintiff's intentional infliction of emotional distress claim is dismissed.⁷ F. Abuse of Process

7 The court notes that the one-year statute of limitations set forth in CPLR § 215(3) for intentional torts is applicable to intentional infliction of emotional distress claims. See Mariani v. Consolidated Edison Co. of NY, 982 F. Supp. 267, 273 (S.D.N.Y. 1997). Plaintiff commenced this action on August 20, 2001.

Plaintiffs claim for common law abuse of process against Como is time-barred. Under New York law, the statute of limitations for abuse of process is one year. See N.Y.C.P.L.R. § 215(3) (2001);Heinfling v. Colapinto, 946 F. Supp. 260, 266 (S.D.N.Y. 1996). Plaintiff filed this action on August 20, 2001. Thus, the abuse of process claim is time-barred.

Even if it were timely, plaintiff's abuse of process claim would fail as a matter of law. In order to prevail on a New York common law claim for abuse of process, a party must allege "three essential elements: (1) regularly issued process, either civil or criminal; (2) an intent to do harm without excuse or justification; and (3) use of process in a perverted manner to obtain a collateral objective." New York Stock Exchange, Inc. v. Gahary. 196 F. Supp.2d 401, 4l5 (S.D.N.Y. 2002) (quoting Curiano v. Suozzi 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (N.Y. 1984)). Plaintiff fails to make a prima facie showing these three elements. As to the first and third elements, the mere "institution of a civil action by summons and complaint is not legally considered process capable of being abused." Curiano, 63 N.Y.2d at 116. See also P.S.I. Metals, Inc. v. Fireman's Ins. Co. of Newark, New Jersey, 839 F.2d 42, 44 (2d Cir. 1988). This appears to be the only process to which plaintiff refers in his complaint as being abusive. Plaintiff's showing as to these elements must be deemed insufficient as a matter of law. See New York Stock Exchange. Inc., 196 F. Supp.2d 415. Furthermore, with respect to the second element, plaintiff makes the vague and conclusory allegation that Como commenced a lawsuit for libel "for the sole purpose of intimidating plaintiff and causing plaintiff to cease from protesting his unjustifiable conduct. . . ." Complt., ¶ 62. Plaintiff has not alleged the "gist of the action for abuse of process, which is the improper use of process after it is issued." Curiano, 63 N.Y.2d at 1326 (internal quotations and citations omitted). Plaintiff suggests that Como had a malicious motive in bringing his cause of action, but "[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process." Id. at 27 (internal quotations and citations omitted). This claim is dismissed.

IV. Conclusion

Defendants' motions for summary judgment are GRANTED. Plaintiffs complaint is dismissed in its entirety.

SO ORDERED.