Opinion
6:19-CV-06789 EAW
2022-08-30
Linda PAOLA, Plaintiff, v. Louis DEJOY, Postmaster General, United States Postal Service, Defendant.
Ryan C. Woodworth, The Russell Friedman Law Group, LLP, Rochester, NY, for Plaintiff. Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
Ryan C. Woodworth, The Russell Friedman Law Group, LLP, Rochester, NY, for Plaintiff. Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Plaintiff Linda Paola ("Plaintiff") brings this action against Louis DeJoy, Postmaster General (hereinafter, "Defendant"), asserting hostile work environment and retaliation claims pursuant to Title VII of the 1964 Civil Rights Act ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and disability discrimination and retaliation claims pursuant to the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701, et seq. (Dkt. 1). Presently before the Court is Defendant's Motion for Summary Judgment. (Dkt. 23). For the following reasons, Defendant's motion is granted.
Plaintiff originally commenced this action against Megan J. Brennan, Postmaster General. (Dkt. 1). On May 6, 2020, Louis DeJoy was appointed Postmaster General. Pursuant to Rule 26 of the Federal Rules of Civil Procedure, Postmaster DeJoy is substituted as the defendant in this action. The Clerk of Court is directed to terminate Ms. Brennan as a party and correct the caption in this regard.
BACKGROUND
I. Procedural Background
Plaintiff filed her complaint on October 26, 2019, asserting the following claims: (1) hostile work environment, in violation of Title VII; (2) failure to accommodate, in violation of the Rehabilitation Act; (3) retaliation, in violation of Title VII; and (4) retaliation, in violation of the Rehabilitation Act. (Dkt. 1 at 3-6). Defendant answered the complaint on March 17, 2020 (Dkt. 5), and the case was referred to the Honorable Marian W. Payson, United States Magistrate Judge, for supervision of discovery. (Dkt. 6).
On September 20, 2021, Defendant filed a motion for summary judgment. (Dkt. 23). The Court set a scheduling order (Dkt. 24), and Plaintiff filed her response on January 17, 2022 (Dkt. 28). Defendant filed a reply on January 31, 2022. (Dkt. 29).
II. Factual Background
The following facts are taken from Defendant's Statement of Material Facts (Dkt. 23-1), Plaintiff's response thereto (Dkt. 28-1; Dkt. 28-2), and the exhibits submitted in support of and in opposition to Defendant's Motion for Summary Judgment.
A. Plaintiff's Background and Employment at the United States Postal Service
Plaintiff began working for the United States Postal Service ("the Postal Service") as a "City Carrier Assistant 1" on June 24, 2017. (Dkt. 23-1 at ¶ 2; Dkt. 28-1 at ¶ 2). Plaintiff was informed that the position involved "[h]eavy lifting, carrying mail, [and] driving." (Dkt. 23-1 at ¶ 5; Dkt. 28-1 at ¶ 5). Plaintiff underwent two weeks of initial training and was assigned to the Rochester Irondequoit Station ("the Irondequoit Station"). (Dkt. 23-1 at ¶ 6; Dkt. 28-1 at ¶ 6). The Irondequoit Station employs approximately 80 city carriers, who sort and deliver mail house-to-house, to roadside mailboxes, and to large buildings such as offices or apartments, and are responsible for delivering mail to approximately 30,000 delivery addresses. (Dkt. 23-1 at ¶ 7; Dkt. 28-1 at ¶ 7). City carriers typically spend one-to-two hours in the morning sorting mail for delivery and the remainder of the day delivering mail. (Dkt. 23-1 at ¶ 8; Dkt. 28-1 at ¶ 8). The Irondequoit Station also employs approximately ten postal clerks who provide retail services, such as selling stamps and money orders, weighing packages to determine postage, and checking that packages are in satisfactory condition for mailing. (Dkt. 23-1 at ¶ 9; Dkt. 28-1 at ¶ 9). Plaintiff did not have a set schedule in her position, but she worked seven days per week and would generally begin her workday at 7:00 to 7:30 a.m., and work until she was done for the day. (Dkt. 23-1 at ¶ 18; Dkt. 28-1 at ¶ 18). Shawna Albright was Plaintiff's supervisor, and she supervised Plaintiff's training and conducted her evaluation and probational report. (Dkt. 23-1 at ¶ 12; Dkt. 28-1 at ¶ 12). Ms. Albright considered Plaintiff to be a good and dependable worker, and wanted Plaintiff to continue working at the Irondequoit Station. (Dkt. 23-1 at ¶ 14; Dkt. 28-1 at ¶ 14).
Plaintiff contends that she had another supervisor, Michael Bickel. (Dkt. 28-2 at ¶¶ 7-8). Defendant contends that Bickel was employed as a Supervisor of Customer Services at the Irondequoit Station and, in that role, he supervised the station's retail services and the clerks who staffed the retail counter, and was responsible for closing the Irondequoit Station at the end of the day. (Dkt. 23-1 at ¶¶ 20-21). Part of Bickel's role was confirming that the city carriers had completed their deliveries by the end of the day, and he would, from time-to-time, contact Plaintiff by cell phone to determine her status with regard to completing her deliveries. (Id. at ¶ 22). Defendant contends that Bickel was not Plaintiff's supervisor, while Plaintiff argues that he was, given that he controlled her schedule, had authority to transfer her, and had the authority to inquire as to her medical leave and return-to-work status. (Dkt. 23-1 at ¶¶ 12, 22; Dkt. 28-3 (hereinafter, "Plaintiff's Declaration") at ¶ 11). Bickel began taking sick leave on September 1, 2018, through his retirement date of October 31, 2018, and never returned to the Irondequoit Station. (Dkt. 23-1 at ¶ 25). Bickel died unexpectedly on February 14, 2021. (Dkt. 23-1 at ¶ 26; Dkt. 28-1 at ¶ 26).
Prior to joining the Postal Service, Plaintiff had a history of medical issues involving her hands and arms, including that in 2015, she was diagnosed with carpal tunnel syndrome in her right hand, for which she had surgery. (Dkt. 23-1 at ¶ 15; Dkt. 28-1 at ¶ 15). Shortly thereafter, Plaintiff began experiencing difficulties with her left hand, which also required surgery in 2015; however, the surgery was not completely successful, and Plaintiff developed "trigger finger," which caused immobility in her finger. (Dkt. 23-1 at ¶¶ 16-17; Dkt. 28-1 at ¶¶ 16-17).
In September of 2017, shortly after she began working for the Postal Service, Plaintiff was diagnosed with cubital tunnel syndrome (a nerve entrapment in her elbow) on her left arm, and she was advised that she required a third surgery to address the trigger finger and her elbow. (Dkt. 23-1 at ¶ 27; Dkt. 28-1 at ¶ 27). After four months working for the Postal Service, Plaintiff went on extended medical leave in October 2017 to undergo surgery, and she expected that she would be out of work for six-to-eight weeks, perhaps longer. (Dkt. 23-1 at ¶ 28; Dkt. 28-1 at ¶ 28). While on leave, Plaintiff was not paid sick leave, but rather was on "leave without pay" status, and she received workers' compensation benefits, which were paid by her previous employer. (Dkt. 23-1 at ¶ 29; Dkt. 28-1 at ¶ 29). Plaintiff never returned to work with the Postal Service. (Dkt. 23-1 at ¶ 30; Dkt. 28-1 at ¶ 30).
B. Alleged Harassment by Bickel
Plaintiff alleges she was sexually harassed by Bickel who, as explained above, was the Supervisor of Customer Services at the Irondequoit Station. (Dkt. 23-1 at ¶ 19; Dkt. 28-1 at ¶ 19). On October 23, 2017, the evening before her scheduled arm surgery, Plaintiff and Bickel met at a bar for chicken wings. (Dkt. 23-1 at ¶ 34). Plaintiff contends that Bickel "tricked" her into a date at the bar, under the guise of a work-related event. (Dkt. 28-2 at ¶ 17). According to Plaintiff, Bickel told her that co-workers from the Irondequoit Station were getting together at a bar that evening; however, when Plaintiff arrived, only Bickel was at the bar. (Dkt. 23-1 at ¶¶ 35-36; Dkt. 28-1 at ¶¶ 35-36). Plaintiff and Bickel ate and then left; Bickel did not touch Plaintiff or say anything inappropriate. (Dkt. 23-1 at ¶ 36; Dkt. 28-1 at ¶ 36). Plaintiff contends that she felt uncomfortable and objected to Bickel's behavior. (Dkt. 28-2 at ¶ 17).
Defendant contends that Plaintiff and Bickel began exchanging text messages after their meeting on October 23, 2017, including about Plaintiff's recovery from surgery, the weather, shopping, yard work, offers for coffee, errands, and dinner plans. (Dkt. 23-1 at ¶¶ 37-38). Plaintiff and Bickel met for drinks at Applebee's while she was on medical leave. (Id. at ¶ 39). Plaintiff testified that her decision to go to Applebee's with Mr. Bickel was voluntary, and she went because she "considered him a friend." (Dkt. 23-1 at ¶ 40; Dkt. 28-1 at ¶ 40). At one of their Applebee's outings, Plaintiff and Bickel ran into Plaintiff's niece, and Plaintiff introduced Bickel as her boss. (Dkt. 23-1 at ¶ 41; Dkt. 28-1 at ¶ 41). Bickel was upset that Plaintiff referred to him as her boss, and Plaintiff responded by reminding Bickel that because he was her boss they could be friends, but nothing more. (Dkt. 23-1 at ¶ 41; Dkt. 28-1 at ¶ 41). Bickel told Plaintiff on one of their "dates" that if anything happened between them, he "could always have you transferred," and Plaintiff responded by reminding Mr. Bickel that they were just friends. (Dkt. 23-1 at ¶ 42; Dkt. 28-1 at ¶ 42; see also Dkt. 23-12 at 13, 45:4-12). Bickel did not touch Plaintiff at these meetings, and he was not derogatory towards her based on her gender. (Dkt. 23-1 at ¶ 43; Dkt. 28-1 at ¶ 43). During this timeframe, Bickel would from time-to-time plow Plaintiff's driveway. (Dkt. 23-1 at ¶ 44; Dkt. 28-1 at ¶ 44). Plaintiff testified that she did not know where Bickel lived, and she did not introduce him to her mother or adult son. (Dkt. 23-1 at ¶ 45; Dkt. 28-1 at ¶ 45). Plaintiff acknowledges that she socialized with Bickel on several other occasions, but made it clear to him that they would "only be friends, nothing more." (Dkt. 28-2 at ¶ 18).
Bickel's adult daughter, Melissa Bickel Farrell, with whom Bickel lived during this time period, reported that Plaintiff and Bickel would meet at the Irondequoit Applebee's and go to each other's homes for dinner, and she recalled seeing Plaintiff's car in Bickel's driveway. (Dkt. 23-1 at ¶ 47). She further recalled watching a football game with Bickel and Plaintiff on two occasions, as well as attending the Lighting of the Lights festival with them in early December 2017. (Id. at ¶¶ 48-49). Ms. Farrell also described her father's phone conversations with Plaintiff, which took place "often," as normal and pleasant. (Id. at ¶ 50). Ms. Farrell also observed Bickel driving Plaintiff's car, which he was taking to be repaired. (Id. at ¶ 51).
Plaintiff met Bickel at a Dunkin Donuts for coffee at the end of December 2017, at which time she informed him that she did not want a relationship with him and their friendship was over. (Dkt. 23-1 at ¶ 53; Dkt. 28-1 at ¶ 53). Plaintiff did not see Bickel again after their meeting, but Bickel continued send her text messages and leave voicemail messages into January 2018. (Dkt. 23-1 at ¶ 53; Dkt. 28-1 at ¶ 53). Plaintiff reported that Bickel's actions were akin to "stalking," including that he went to her home in the middle of the night (Dkt. 28-2 at ¶ 20), and that her rejections of his advances culminated into him threatening to have her transferred (id. at ¶ 22).
Plaintiff responded to Bickel's text messages with one-or two-word replies, and she deleted the voicemails. (Dkt. 23-1 at ¶ 53; Dkt. 28-1 at ¶ 53). On Sunday, January 21, 2018, Bickel called Plaintiff thirty-six times and left multiple voicemails. (Dkt. 23-1 at ¶ 54; Dkt. 28-1 at ¶ 54). On January 22, 2018, Bickel texted Plaintiff, "if we can't make this work I would never ever make you feel uncomfortable if you came back to work here." (Dkt. 23-1 at ¶ 57; Dkt. 28-1 at ¶ 57). He also texted Plaintiff that day that she needed to provide a doctor's note in support of her medical leave. (Dkt. 23-1 at ¶ 57; Dkt. 28-1 at ¶ 57).
Bickel continued texting Plaintiff. At 5:48 a.m. on January 23, 2018, Bickel texted Plaintiff, "I can't defend myself with the stupid thing I pulled on Sunday" and explaining, "I [n]ever not get a text back from you when I say good morning." Plaintiff responded, "Right now I really don't feel like talking to you after what you did[.]" Bickel also wrote that day, "Sorry to ask you again but need the note they're having us send out a 'where are you' letter." (Dkt. 23-1 at ¶ 58; Dkt. 28-1 at ¶ 58). On January 25, 2018, Bickel sent Plaintiff a number of texts, including, "Did I screw up that bad with you," "I miss texting you throughout the day," "All I wanna know is are we done . . . cause if we are done I just want [to] stop bothering you and try to heal this hurt I'm feeling for you," and "You're [a] beautiful and strong woman." (Dkt. 23-1 at ¶ 59; Dkt. 28-1 at ¶ 59).
On January 26, 2018, Bickel texted, "Do you have any kind of answer for me," and Plaintiff responded, "No plz stop." (Dkt. 23-1 at ¶ 60; Dkt. 28-1 at ¶ 60). On January 30, 2018, Bickel texted, "I hope you don't mind I cleaned your car and driveway up today," and Plaintiff responded, "No plz do not go to my house," to which Bickel responded, "Ok." (Dkt. 23-1 at ¶ 61; Dkt. 28-1 at ¶ 61). After January 22, 2018, Bickel's interactions with Plaintiff were limited to sending her text messages and plowing her driveway once, during which he did not attempt to see her. (Dkt. 23-1 at ¶ 63; Dkt. 28-1 at ¶ 63). On January 31, 2018, and February 1, 2, and 3, 2018, Bickel exchanged text messages with Plaintiff regarding her leave status and the need for medical documentation. (Dkt. 23-1 at ¶ 64). Bickel sent Plaintiff only two other text messages, on her birthday and on Valentine's Day, and after February 17, 2018, Plaintiff does not recall that Bickel came to her house or called her again. (Dkt. 23-1 at ¶ 65; Dkt. 28-1 at ¶ 65).
Plaintiff felt she might be in danger from Bickel, and although she considered calling the police, she instead reported the matter to the Postal Service Equal Employment Opportunity ("EEO") office. (Dkt. 23-1 at ¶¶ 62, 154; Dkt. 28-1 at ¶¶ 62, 154). On February 1, 2018, Plaintiff reported she was harassed by Bickel beginning on November 11, 2017, and that he contacted her on a daily basis to pressure her into an intimate relationship, made inappropriate comments based on her gender, and created a hostile work environment. (Dkt. 23-1 at ¶¶ 70, 154; Dkt. 28-1 at ¶¶ 70, 154). Plaintiff also reported that she opposed Bickel's gender discrimination and that he retaliated against her due to her complaints. (Dkt. 23-1 at ¶ 154; Dkt. 28-1 at ¶ 154). Finally, Plaintiff reported that she went on medical leave in October 2017 due to a disability, and that the Postal Service failed to return her to work or to accommodate her disability, and that Bickel refused to accept medical documentation. (Dkt. 23-1 at ¶ 154; Dkt. 28-1 at ¶ 154). Plaintiff did not report the alleged discrimination to her supervisor, Ms. Albright, nor did she report it to Arthur Curazzato, the Irondequoit Station Operations Manager. (Dkt. 23-1 at ¶ 71; Dkt. 28-1 at ¶ 71).
Mary Tarzia, the Postal Service District Human Resources Manager, directed Annette Caporiccio, an investigator employed by the Postal Service, to conduct an Initial Management Inquiry Process ("IMIP") of Plaintiff's harassment complaint. (Dkt. 23-1 at ¶ 72; Dkt. 28-1 at ¶ 72). Bickel acknowledged to Ms. Caporiccio that on January 21, 2018, he had been drinking alcohol excessively and repeatedly attempted to contact Plaintiff on that day. (Dkt. 23-1 at ¶ 74; Dkt. 28-1 at ¶ 74). During her interview, Plaintiff acknowledged that Bickel never bothered her at work. (Dkt. 23-1 at ¶ 77; Dkt. 28-1 at ¶ 77). Based on the interviews, Ms. Caporiccio concluded that Plaintiff and Bickel had socialized outside of work over the course of several months prior to January 2018, including going out for wings, coffee, and dinner, and concluded that Plaintiff voluntarily engaged in these non-work interactions. (Dkt. 23-1 at ¶ 73). Ms. Caporiccio recommended that Bickel be transferred to another facility if Plaintiff returned to work at the Irondequoit Station before Bickel's anticipated retirement later in the year. (Dkt. 23-1 at ¶ 78; Dkt. 28-1 at ¶ 78).
Plaintiff filed a formal complaint with the Postal Service EEO on May 14, 2018. (Dkt. 23-1 at ¶ 155). The Postal Service EEO issued a Final Agency Decision on July 30, 2019, closing Plaintiff's EEO complaint with a finding of no discrimination. (Dkt. 23-1 at ¶ 156; Dkt. 28-1 at ¶ 156; see also Def. Exh. 53). Plaintiff does not dispute that the Postal Service maintains policies prohibiting workplace harassment (Dkt. 23-1 at ¶ 66; Dkt. 28-1 at ¶ 66) and, according to Plaintiff's computerized training records, she received No FEAR Act training regarding avoiding workplace harassment on June 26, 2017, and May 9, 2018 (Dkt. 23-1 at ¶ 69; Dkt. 28-1 at ¶ 69).
C. Plaintiff's Disability Status
Section 513.363 of the Postal Service Employee and Labor Relations Manual ("ELM") requires employees on sick leave for extended periods "to submit at appropriate intervals, but not more frequently than once every 30 days, satisfactory evidence of continued incapacity for work or need to care for a family member unless some responsible supervisor has knowledge of the employee's continuing situation." (Dkt. 23-1 at ¶ 79; Dkt. 28-1 at ¶ 79). The documentation must "provide an explanation of the nature of the employee's illness or injury sufficient to indicate to management that the employee was (or will be) unable to perform his or her normal duties for the period of absence." (Dkt. 23-1 at ¶ 80; Dkt. 28-1 at ¶ 80). Plaintiff was aware that she was required to send doctor's notes and keep the Postal Service appraised of her progress. (Dkt. 23-1 at ¶ 82; Dkt. 28-1 at ¶ 82).
In connection with her surgery on October 24, 2017, Plaintiff submitted documentation to the Postal Service Occupational Health Office located in Buffalo, New York, from her health care provider dated October 27, 2017, taking her out of work on October 24, 2017, and noting that she would be reevaluated on November 3, 2017. (Dkt. 23-1 at ¶ 84; Dkt. 28-1 at ¶ 84). Bickel emailed this provider note to Sylvia Terpstra, a Customer Service Support supervisor in Rochester, and the Irondequoit Station general email. (Dkt. 23-1 at ¶ 85; Dkt. 28-1 at ¶ 85).
Following her October 2017 surgery, Plaintiff's elbow did not improve, and her surgeon informed her that she may have nerve damage and would require further surgery. (Dkt. 23-1 at ¶ 86; Dkt. 28-1 at ¶ 86). Plaintiff was limited to lifting ten pounds and could not brush or blow-dry her hair, nor could she perform other daily activities such as housekeeping, laundry, carry a purse or groceries, or go to the gym. (Dkt. 23-1 at ¶ 86; Dkt. 28-1 at ¶ 86). Plaintiff submitted documentation from her health care provider dated November 3, 2017, stating that she was "100% disabled at this time" and keeping her out of work until December 17, 2017. (Dkt. 23-1 at ¶ 87; Dkt. 28-1 at ¶ 87).
Defendant contends that on November 20, 2017, Rosemary Ludwig, a Customer Service Operations manager in Rochester, emailed the Irondequoit Station for clarification of Plaintiff's work status because no timekeeping records were being submitted to track her work status. (Dkt. 23-1 at ¶ 88). Thereafter, Plaintiff submitted medical documentation dated December 18, 2017, to the Occupational Health Office in Buffalo, which cleared her to return to work on January 16, 2018, with a restriction of "lifting no more than 10 pounds or heavy pushing/pulling until further notice." (Dkt. 23-1 at ¶ 89; Dkt. 28-1 at ¶ 89). Plaintiff testified that she did not plan to return to work in January because Bickel and Terpstra informed her that she could not return to work unless she was "100%" recovered from her surgery. (Dkt. 23-1 at ¶ 90; Dkt. 28-1 at ¶ 90). On January 15, 2018, Plaintiff's medical provider issued a note stating that Plaintiff was 100% disabled, but the note did not provide information about Plaintiff's return-to-work date. (Dkt. 23-1 at ¶ 92; Dkt. 28-1 at ¶ 92).
On January 19, 2018, Ludwig emailed the Irondequoit Station, copying Martin Siminski, the Postmaster for Buffalo and Rochester, and Terpstra, informing them that someone needed to contact Plaintiff for updated medical information, as she only had documentation taking her out of work until December 18, 2017. (Dkt. 23-1 at ¶ 93). On January 20, 2018, Albright informed Terpstra that Plaintiff had been contacted and said she would submit medical documentation once obtained from her doctor. (Id. at ¶ 94). On January 22, 2018, Ludwig again emailed the Irondequoit Station, stating that if Plaintiff did not bring in documentation by the next day, they would need to send a "where are you" letter. (Id. at ¶ 95). On January 23, 2018, Terpstra asked the Irondequoit Station for a status report on Plaintiff, and Spencer Jessmer, another supervisor at the Irondequoit Station, replied that, "[s]he was supposed to come in yesterday which never happened" and indicated the "where are you" letter would be delivered that day. (Id. at ¶ 96). Jessmer sent correspondence to Plaintiff on January 23, 2018, stating that she had been absent from work since October 2017, and that she was directed to contact Jessmer immediately to discuss her status and to provide documentation. (Id. at ¶¶ 97-98). Plaintiff does not recall receiving this letter. (Dkt. 23-1 at ¶ 99; Dkt. 28-1 at ¶ 99).
On January 31, 2018, Curazzato emailed that Bickel was able to reach Plaintiff, received her medical documentation, and set it to Terpstra, but Terpstra responded that the documentation was not "ELM compliant," and Terpstra sent Plaintiff another letter, directing her to resubmit her medical documentation with an end date. (Dkt. 23-1 at ¶¶ 101-03). On February 1, 2018, Bickel emailed Terpstra, "Next DR appointment is 2/15." (Id. at ¶ 104). After receiving this information, Ludwig emailed Bickel and Terpstra, stating that Plaintiff had "to provide updated medical that meets ELM requirements, which she didn't. She hasn't had any documentation that has her out of work since 12/18/17. She is basically AWOL . . . until she provides updated medical. We are not going to wait until 2/15/18 for documentation." (Id.).
On February 15, 2018, Terpstra emailed the Irondequoit Station and Ludwig, stating that Plaintiff had submitted medical that was not ELM compliant and put her out of work through February 15, 2018, and if nothing was received by the next day, a Pre-Disciplinary interview meeting letter should be sent, directing that Plaintiff come in for a meeting to discuss her attendance. (Id. at ¶ 107). Plaintiff subsequently provided notes from her medical providers dated February 19, 2018, March 21, 2018, May 7, 2018, and June 19, 2018, all of which stated that she was 100% disabled and unable to return to work as a carrier. (Dkt. 23-1 at ¶ 108; Dkt. 28-1 at ¶ 108). The June 19, 2018, note did not contain any anticipated return to work date, but stated that Plaintiff would "never be 100%" and "not accommodatable—needs to be 100%." (Dkt. 23-1 at ¶ 108; Dkt. 28-1 at ¶ 108).
On March 27, 2018, Curazzato, at Terpstra's direction, sent Plaintiff further correspondence stating, "The purpose of this letter is to determine your current duty status," and "You are directed to contact me immediately[.]" (Dkt. 23-1 at ¶¶ 110-11). Again, Plaintiff does not recall receiving this correspondence. (Dkt. 23-1 at ¶ 112; Dkt. 28-1 at ¶ 112). On April 24, 2018, Terpstra sent correspondence to Plaintiff advising her that her recent medical documentation was received and reviewed but could not be considered further due to lack of nature of the illness and dates of absence, and pending updated medical documentation, she would be expected to be available for work. (Dkt. 23-1 at ¶ 113; Dkt. 28-1 at ¶ 113). Following further communication regarding the lack of an end date and confusion about Plaintiff's status (see Dkt. 23-1 at ¶¶ 115-18), on June 12, 2018, Plaintiff was sent an additional letter, directing her to contact Stephen Barbas, the Irondequoit Station Operations Manager, but Plaintiff failed to do so (id. at ¶¶ 119-20).
Barbas replaced Curazzato as the Operations Manager for the Irondequoit Station in May 2018. (See Dkt. 23-2 at 6).
Defendant contends that thereafter, on June 15, 2018, Plaintiff posted to her Facebook Account, "Became a Certified Phlebotomist today so cheers to that!" and "I'm officially done with school . . . Passed my board exam . . . Whew!" (Id. at ¶ 121). Plaintiff disputes that she became a certified phlebotomist on that date, or that she posted the same on social media. (See Plaintiff's Decl. at ¶ 8).
On June 20, 2018, Barbas sent Plaintiff correspondence stating: "You have been absent from work since 10/27/2017. Your most recent medical lists your dates of absence as ending on June 19, 2018 . . . ." (Dkt. 23-1 at ¶ 123). The correspondence instructed Plaintiff to report to work at the Irondequoit Station on Monday, June 25, 2018, at 8:00 a.m., and noted that " If you are unable to report, you are directed to contact me immediately [.]" (Id.). Plaintiff did not respond to the June 20 correspondence, and on June 23, 2018, she was automatically converted to a "career" postal carrier on the one-year anniversary of her employment. (Id. at ¶¶ 124-25). On July 5, 2018, Barbas was directed to send another return-to-work letter to Plaintiff. (Id. at ¶ 128). Plaintiff did not report or respond to the July 5, 2018 letter. (Id.).
On July 6, 2018, Timothy Northem, the District Labor Relations Manager ("Northem"), sent correspondence to Plaintiff inviting her to provide relevant information regarding a referral for a reasonable accommodation, enclosing a Reasonable Accommodation Request form and a Medical Information and Restriction Assessment to be completed by her medical provider. (Dkt. 23-1 at ¶ 129; Dkt. 28-1 at ¶ 129). On July 17, 2018, the Postal Service received a Medical Information and Restriction Assessment from Tim O'Connor, M.D., stating that Plaintiff suffered a permanent impairment due to carpal tunnel syndrome, trigger finger in her left thumb, and cubital tunnel syndrome in her left elbow, and was limited to pushing, pulling, lifting, and carrying less than twenty pounds. (Dkt. 23-1 at ¶ 130; Dkt. 28-1 at ¶ 130). Plaintiff also submitted a Reasonable Accommodation Request stating that her physical impairments limited her from carrying, lifting, grocery shopping, pushing, pulling, grasping, vacuuming, and doing yard work. Plaintiff requested an accommodation of "any job" that did not require her to engage in heavy lifting of amounts over twenty pounds. (Dkt. 23-1 at ¶ 131; Dkt. 28-1 at ¶ 131). At her deposition, Plaintiff testified that she thought the Postal Service could accommodate her disability by making her a retail clerk selling stamps, but Plaintiff never inquired as to whether that was possible. (Dkt. 23-1 at ¶ 140, Dkt. 28-1 at ¶ 140).
According to Defendant, Northem sent Plaintiff correspondence scheduling a meeting with the District Reasonable Accommodation Committee ("DRAC") on August 2, 2018, at the Irondequoit Station (Dkt. 23-1 at ¶ 132; Dkt. 28-1 at ¶ 132); however, on August 1, 2018, Plaintiff canceled the meeting, requesting that it be rescheduled to an alternative location because she did not want to encounter Bickel (Dkt. 23-1 at ¶ 133; Dkt. 28-1 at ¶ 133). The meeting was rescheduled for September 17, 2018, at the Lexington Post Office, but the meeting was subsequently relocated to the Irondequoit Station because Bickel was no longer working there. (Dkt. 23-1 at ¶¶ 134, 137). Mary Connolly, the District Occupational Health Nurse, emailed that she had received a return-to-duty form for Plaintiff, providing that Plaintiff could perform light duty beginning on May 3, 2018, through September 11, 2018, but did not state what level of work Plaintiff could perform beginning on September 12, 2018. (Id.at ¶ 135). Nurse Connolly attached a light duty form Plaintiff could use to establish her current duty status. (Id.). However, Plaintiff did not attend the September 17, 2018 DRAC meeting. (Id.at ¶ 138).
Plaintiff disputes this version of events. According to Plaintiff, after months of attempting to return to work, she was terminated by the Postal Service due to apparent unavailability. (Dkt. 28-2 at ¶ 14). She maintains that she "continually cooperated with the [Postal Service] and responded to every request for medical information per the Employee and Labor Relations Manual." (Id.). She further maintains that the Postal Service acknowledged on multiple occasions receipt of this medical documentation, yet continued to request the same information. (Id.). Plaintiff further states that, during her medical leave, she was misled by the Postal Service to believe she could not return to work unless she was 100 percent fit to work, with no restrictions. (Id. at ¶ 15).
Plaintiff contends that she complied with the July 6, 2018, request for accommodation information on July 17, 2018, and that an accommodation meeting was scheduled for August 2, 2018 at the Irondequoit Station. (Id. at ¶¶ 25-27). Thereafter, the Postal Service agreed that the accommodation meeting would be rescheduled for September 16, 2018, at the Lexington Post office, given that Bickel was assigned to the Irondequoit Station. (Id. at ¶¶ 28-29). According to Plaintiff, on September 16, 2018, the Postal Service "reneged on its offer" to relocate the accommodation meeting to the Lexington Post office and canceled the meeting, and therefore the Postal Service never engaged in the good-faith process of attempting to accommodate Plaintiff's disability and her return to work. (Id. at ¶ 30). Five days later, Plaintiff was terminated. (Id. at ¶ 31). Plaintiff believes that she was terminated in retaliation for opposing Bickel's harassment, and that Bickel, Curazzato, and Siminski orchestrated her removal in retaliation for filing a complaint with the EEO. (Dkt. 23-1 at ¶¶ 150-51; Dkt. 28-1 at ¶¶ 150-51).
Plaintiff was initially terminated on September 21, 2018, based on "unavailability," but that termination was rescinded because the date of termination was after her probationary period expired, and therefore she was entitled to an additional notice and removal process by the Postal Service before termination. (Dkt. 23-1 at ¶¶ 143-44, 146-47). Accordingly, on November 1, 2018, the Postal Service notified Plaintiff that the letter of termination dated September 21, 2018, was rescinded. (Dkt. 23-1 at ¶ 147; Dkt. 28-1 at ¶ 147). Plaintiff was instructed to report for duty at the Irondequoit Station on November 6, 2018, at 8:00 a.m., and if she was not able to report, to contact Barbas. (Id.). Plaintiff contacted Barbas by telephone after receiving the November 1, 2018 correspondence and told him, in effect, "Hi Steven, this is Linda Paola calling you to let you know that since I had been terminated, I had to find another job so I will not be reporting on Tuesday the 6th per Marty." (Dkt. 23-1 at ¶ 148; Dkt. 28-1 at ¶ 148). On November 7, 2019, Barbas sent Plaintiff correspondence, directing her that based on that information, they would "conclude you are resigning from the Postal Service. If we do not hear from you within three business days of receipt of this letter, we will process your resignation." (Dkt. 23-1 at ¶ 149).
On or about September 30, 2018, Plaintiff began working for the University of Rochester at Strong Memorial Hospital as a phlebotomist earning $13.79 an hour, and she continues to work in that position on a part-time basis. (Dkt. 23-1 at ¶ 145; Dkt. 28-1 at ¶ 145).
DISCUSSION
I. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec., 475 U.S. at 586-87, 106 S.Ct. 1348). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "In the context of employment discrimination lawsuits, courts must be 'especially cautious' in granting summary judgment 'because the employer's intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination.' " Anderson v. N.Y.C. Health & Hosps. Corp., No. 16-CV-1051(GBD)(KFP), 2020 WL 2866960, at *10 (S.D.N.Y. Mar. 2, 2020) (quoting Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999)), adopted, 2020 WL 1528101 (S.D.N.Y. Mar. 31, 2020).
II. Title VII Hostile Work Environment Claim
The Court turns first to Plaintiff's claim that she was subject to a hostile work environment, in violation of Title VII. Defendant argues that she is entitled to summary judgment on Plaintiff's hostile work environment claim, including because Plaintiff has failed to establish that Bickel's actions were unwelcome, she did not experience workplace discrimination based on her gender, and she has not established a hostile work environment or that Bickel's actions were severe or pervasive. (Dkt. 23-2 at 16-21). Defendant also argues that Plaintiff has failed to establish that Bickel's actions should be imputed to the Postal Service. (Id. at 21-23).
In order to succeed on a claim for a hostile work environment, a plaintiff must prove "(1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment; and (2) that a specific basis exists for imputing the conduct that created the hostile work environment to the employer." Chenette v. Kenneth Cole Prods., 345 F. Appx 615, 619-20 (2d Cir. 2009) (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996)). "This test has objective and subjective elements: the misconduct shown must be 'severe or pervasive enough to create an objectively hostile or abusive work environment,' and the victim must also subjectively perceive that environment to be abusive." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). "A work environment will be considered hostile if a reasonable person would have found it to be so and if the plaintiff subjectively so perceived it. A plaintiff must also demonstrate that she was subjected to the hostility because of her membership in a protected class." Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999).
"Isolated incidents typically do not rise to the level of a hostile work environment unless they are 'of sufficient severity' to 'alter the terms and conditions of employment as to create such an environment.' " Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) (quoting Patterson v. Cnty. of Oneida, 375 F.3d 206, 227 (2d Cir. 2004)). When evaluating a hostile work environment claim, the Court must not "view individual incidents in isolation," or "view the record in piecemeal fashion," but should consider "the totality of the circumstances, viewed from the perspective . . . of a reasonable person in the plaintiff's position, considering all the circumstances [including] the social context in which particular behavior occurs and is experienced by its target." Redd v. N.Y. Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012) (internal quotations and citations omitted) (alteration in original). Courts consider "the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with the plaintiff's work performance." Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019) (alterations and citation omitted).
Defendant first argues that Plaintiff cannot maintain a claim for a hostile work environment because she cannot establish that Bickel's conduct was unwelcome. While the evidence demonstrates that Plaintiff initially maintained a voluntary friendship with Bickel (see Plaintiff's Decl. at ¶ 21 ("Although I socialized with Bickel on several other occasions, I made it clear that Bickel and I would only be friends, nothing more.")), undisputed evidence in the record supports that Plaintiff told Bickel that she was not interested in a romantic relationship and, in fact, in December 2017, Plaintiff informed Bickel in no uncertain terms that she was ending their relationship all together, after which time Bickel continued to send her unwanted text messages and phone calls, and went to her house. (See, e.g., Dkt. 23-1 at ¶¶ 41-42, 53-61; Dkt. 28-1 at ¶¶ 41-42, 53-61). In other words, Bickel continued to pursue a relationship with Plaintiff, despite her clearly communicating that his advances were unwelcome. Accordingly, Defendant is not entitled to dismissal on the basis that Bickel's actions were not "unwelcome."
The Court reaches a different conclusion with respect to Defendant's argument that Plaintiff cannot establish a hostile work environment because Bickel did not engage in objectionable behavior in the workplace. (See Dkt. 23-2 at 18). As further explained below, because there is no issue of material fact—and in fact, it is undisputed—that the alleged harassment by Bickel occurred outside the workplace and after Plaintiff went on extended medical leave, the Court concludes that Defendant is entitled to summary judgment on Plaintiff's hostile work environment claim.
While a court may consider conduct alleged to have occurred outside the work environment as part of the "totality of the circumstances" when assessing a hostile work environment claim, such actions "cannot, in themselves, give rise to such a claim; what matters in the end is plaintiff's work environment." Whipple v. Reed Eye Assocs., 524 F. Supp. 3d 76, 90-91 (W.D.N.Y. 2021). Accordingly, "[c]onduct wholly outside of the workplace has been held insufficient to form the basis of a hostile work environment claim." Whipple, 524 F. Supp. 3d at 90 (quoting Vereen v. City of New Haven Pub. Works Dep't, No. 17-cv-1509, 2018 WL 950117, at *2 (D. Conn. Feb. 20, 2018)); see also Devlin v. Teachers' Ins. & Annuity Ass'n of Am., No. 02 CIV. 3228, 2003 WL 1738969, at *2 (S.D.N.Y. Apr. 2, 2003) ("As a general rule, employers are not responsible under Title VII for hostile sexual acts resulting from nonwork-related, off-duty interactions between co-workers, because those actions are not part of the work environment" (quotations and citation omitted)).
In Anderson v. Rochester City Sch. Dist., the Second Circuit affirmed the district court's granting summary judgment in favor of the defendant on the plaintiff's hostile work environment claim, where alleged harassment and stalking of a teacher by a student occurred outside of school. 481 F. Appx 628, 630 (2d Cir. 2012). The court concluded that "[t]he summary judgment record would not permit a reasonable jury to find that M.R.'s allegedly sex-based harassment of Andersen outside of the school created an objectively hostile or abusive work environment." Id. The court explained:
Although M.R. was enrolled as a student at the school where Andersen taught, he was never Andersen's student, and nothing in the record indicates that he and Andersen ever interacted at the school. Although M.R.'s presence in the school building may have been distressing to Andersen, no reasonable jury could find that his entirely out-of-school conduct had the effect of permeating Andersen's workplace with discriminatory intimidation, ridicule, and insult.Id. The court further noted that "[t]hose courts that have concluded that harassment occurring outside the workplace can support a hostile work environment claim have insisted on a greater connection between the harassment and the work environment." Id.
Here, it is undisputed that the harassment alleged by Plaintiff took place outside the workplace. (See Dkt. 23-1 at ¶ 77; Dkt. 28-1 at ¶ 77 (Plaintiff acknowledged that Bickel never bothered her at work)). It is likewise undisputed that Plaintiff's contact with Bickel—including any alleged harassment—occurred only after Plaintiff went on extended medical leave, and after which she did not return to the workplace. (Dkt. 23-1 at ¶ 33; Dkt. 28-1 at ¶ 33 (Between the time Plaintiff began working at the Irondequoit Station in early July 2017, and the time she went on medical leave in October 2017, Plaintiff did not have any contact with Bickel outside of the workplace)). See Vereen, 2018 WL 950117, at *2 ("conduct that occurs while an employee is out on medical leave has been found insufficient to form the basis of a hostile work environment claim in light of the fact that, since the employee is absent from work, such conduct cannot affect an employee's working conditions"). There is no evidence in the record that any harassment by Bickel occurred at the workplace or otherwise carried over into the workplace, much less that Bickel's conduct "permeated" Plaintiff's workplace with discriminatory intimidation, ridicule, and insult.
Although Plaintiff does not raise the argument, there are "special . . . circumstances, where the nature of the employer's business requires off-duty interactions, or a supervisor uses his authority to compel the victim of harassment to meet outside the office, the harassing acts might be imputed to the employer." Devlin, 2003 WL 1738969, at *2 (quotations and citations omitted). Putting aside the issue of whether Bickel was Plaintiff's supervisor—a fact which the parties dispute—the evidence before the Court does not support that the Postal Service required or encouraged Plaintiff to interact with Bickel outside of the workplace, nor does Plaintiff offer specific evidence "from which a reasonable fact-finder could infer anything remotely approaching compulsion" by Bickel for Plaintiff to socialize with him. Id.; see also Plaintiff Decl. at ¶ 21 (acknowledging that she socialized with Bickel on several occasions).
Further, although Plaintiff contends that Bickel "tricked" her into going to the bar on October 24, 2017, by telling her that others from work would be in attendance, and that she felt uncomfortable being there with him, she stated that Bickel did not say or do anything inappropriate, he did not touch her, nor did he say anything derogatory based on her gender. (See Dkt. 32-12 at 10, 36:12-23). In other words, even if Bickel's actions on October 24, 2017, could be imputed to the Postal Service, they do not rise to the level of creating a hostile work environment.
Although Plaintiff testified at her deposition that she perceived Bickel's comment as a threat that, if a romantic relationship developed between them, he could "have her transferred," (Dkt. 23-12 at 19, 70:13-14), Plaintiff has neither asserted a quid pro quo gender discrimination claim nor could a reasonable jury conclude that this comment constituted severe or pervasive conduct so as to constitute a hostile work environment.
Plaintiff cites two out-of-circuit cases—Lapka v. Chertoff, 517 F.3d 974 (7th Cir. 2008) and Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991)—which she contends supports her argument that Bickel's out-of-work conduct created a hostile work environment. (Dkt. 28 at 10). In Lapka, the plaintiff, a DHS employee, alleged that she was raped, after hours and in a private hotel room, by a co-worker while she was attending mandatory training sessions at the Federal Law Enforcement Training Center ("FLETC"). 517 F.3d at 978, 983. The court found that, under the circumstances presented by the case, that "harassment does not have to take place within the physical confines of the workplace to be actionable; it need only have consequences in the workplace," focusing specifically on that fact that the bar at which the plaintiff and co-worker met that evening was on the FLETC campus and therefore the event "gr[ew] out of the workplace environment," and also that the plaintiff and co-worker were required to be at the FLETC facility for official training. Id. at 983. Thereafter, the plaintiff began to lose weight and miss work, and was diagnosed with posttraumatic stress disorder, from which the court concluded that the environment was severe or pervasive enough to create an abusive working environment. Id. Here, the alleged harassment has no connection to Plaintiff's workplace; that is, it did not occur at a work-related event, nor did Plaintiff subsequently experience the effects of any alleged harassment while in the workplace.
In Ellison, the plaintiff received harassing notes from a co-worker while in her office and while she was at training. 924 F.2d at 873-74. The co-worker was initially transferred to another office for six months, but thereafter was permitted to transfer back to the office at which the plaintiff worked. Id. at 874. In response to the plaintiff's argument that the six-month cooling off period was not sufficient, the court agreed that "in some cases the mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile working environment," and noted that "[t]o avoid liability under Title VII for failing to remedy a hostile environment, employers may even have to remove employees from the workplace if their mere presence would render the working environment hostile." Id. at 883. Like Lapka, Ellison is also not instructive on this point because here, Plaintiff was not harassed while at work, and she did not return to work, such that Bickel's mere presence created a hostile work environment. Further, it is undisputed that, following an investigation into Plaintiff's complaints, the Postal Service investigator concluded that if Plaintiff returned to work at the Irondequoit Station before Bickel's anticipated retirement, Bickel should be transferred to another facility. (See Dkt. 23-1 at ¶ 78; Dkt. 28-1 at ¶ 78).
Accordingly, because Plaintiff cannot establish that Bickel's conduct created a hostile work environment, Plaintiff's Title VII hostile work environment claim is dismissed, and the Court need not reach the remaining arguments raised by Defendant in connection with this claim.
III. Plaintiff's Retaliation Claims
The Court turns next to Plaintiff's claim that she experienced retaliation in violation of Title VII and the Rehabilitation Act, for filing a complaint based on Bickel's harassment and the Postal Service's failure to accommodate her disability. At summary judgment, those claims "are analyzed according to the . . . burden-shifting approach applicable to other discrimination claims under McDonnell Douglas Corp. v. Green . . . ." Kalarickal v. McDonough, No. 20cv10249 (DLC), 211cv1043 (DLC), 2022 WL 2292735, at *2 (S.D.N.Y. June 24, 2022) (citing Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013)); see also Sears-Barnett v. Syracuse Cmty. Health Ctr., Inc., 531 F. Supp. 3d 522, 543 (N.D.N.Y. 2021) (analyzing retaliation claims under Title VII and Rehabilitation Act pursuant to burden-shifting framework). To establish a prima facie case of retaliation, Plaintiff must show: "(1) she engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action." Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (citation omitted).
If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a non-retaliatory rationale for the adverse action and, if the employer is able articulate any such rationale, the employee may prevail by demonstrating that the stated rationale is a pretext for retaliation. Zann Kwan, 737 F.3d at 845.
Plaintiff's Title VII retaliation claims are subject to a but-for causation test. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013)). "A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action." Zann Kwan, 737 F.3d at 846.
For Plaintiff's Rehabilitation Act retaliation claim, "[a]lthough the law in this Circuit is unsettled as to the causation standard imposed in . . . Rehabilitation Act retaliation claims, most courts have nevertheless imported the but-for causation standard to these claims as well for the same reasons." Sears-Barnett, 531 F. Supp. 3d at 543; see also Monsour v. N.Y.S. Office for People with Developmental Disabilities, No. 1:13-cv-00336 (BKS/CFH), 2018 WL 3349233, at *11 n.17 (N.D.N.Y. July 9, 2018) (while causation standard remains unsettled in Second Circuit, the Supreme Court has held that a plaintiff must prove but-for causation in employment retaliation cases under Title VII, which contains similar language). The Court acknowledges that the Second Circuit has not explicitly adopted the but-for causation standard in retaliation cases under the Rehabilitation Act outside of non-precedential summary orders. See Knope v. Garland, 20-3274-cv, 2021 WL 5183536, at *4 (2d Cir. Nov. 9, 2021).
Defendant concedes that Plaintiff engaged in protected activity of which she was aware when Plaintiff contacted the EEO in February 2018. (Dkt. 23-2 at 28). Plaintiff's filing a formal complaint with the EEO in May 2018 (see Dkt. 23-5 at 252) also qualifies as protected activity. In addition, Defendant does not argue that Plaintiff has failed to satisfy the third element of a prima facie case of suffering a materially adverse action.
Defendant's arguments for dismissal focus on the fourth element—that Plaintiff cannot establish a causal connection between the protected activity and her termination, because Postal Service administrators were already concerned about Plaintiff's attendance in the months prior to her engaging in protected activity. (Dkt. 23-2 at 28). In addition, Defendant contends that Plaintiff has failed to establish the but-for causation standard required for a retaliation claim, because she was terminated due to prolonged absence, inability to physically perform the essential functions of her job, and failure to communicate with Postal Service administrators. (Id. at 29). In response, Plaintiff argues that she may establish causation by showing that the protected activity was closely followed in time by the adverse employment action. (See Dkt. 28 at 13). Plaintiff further argues that "but-for" causation does not require proof that retaliation was the only cause of the employer's action, and "the weaknesses, implausibilities, inconsistencies, and/or contradictions in USPS's proffered legitimate, nonretaliatory reasons for plaintiff's termination," would allow a reasonable juror to concluded that Defendant's explanations (i.e., that Plaintiff was terminated due to prolonged absence, inability to physically perform the essential functions of her job, and failure to communicate with Postal Service administrators) were a pretext for unlawful retaliation. (Id. at 14).
Plaintiff argues that Defendant failed to discuss her Rehabilitation Act retaliation claim in her motion for summary judgment (see Dkt. 28 at 15), and therefore Plaintiff does not offer any meaningful argument in support of this claim. However, Defendant's argument in support of dismissal of Plaintiff's retaliation claims is directed toward both her Title VII and Rehabilitation Act claims. (See Dkt. 23-2 at 27).
In connection with her argument that her filing of a formal complaint was close in time to her termination date, Plaintiff contends that she filed a formal complaint on June 30, 2018. (See Dkt. 28 at 13). However, the evidence before the Court demonstrates that Plaintiff filed a formal complaint of discrimination in May 2018—not in June 2018. (See, e.g., Dkt. 23-5 at 252 (complaint of discrimination, signed on May 11, 2018)). Further, in her complaint, Plaintiff alleges that she "filed a formal charge of unlawful employment discrimination based on gender and disability, and unlawful retaliation for pursuing protected activi[ty] against USPS with the EEO office in violation of Title VII and the Rehabilitation Act," on May 14, 2018. (See Dkt. 1 at ¶ 10).
Plaintiff's burden of proof at this first step "has been characterized as 'minimal' and 'de minimis.' " Zann Kwan, 737 F.3d at 844 (citation omitted). As to the causation element of the prima facie case, "even without direct evidence of causation, a plaintiff can indirectly establish a causal connection to support a . . . retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action." Id. at 845 (alterations and citation omitted). Although the Second Circuit "has not drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond which a temporal relationship is too attenuated to establish causation," it has "previously held that five months is not too long to find the causal relationship." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). "[T]he but-for causation standard does not alter the plaintiff's ability to demonstrate causation at the prima facie stage on summary judgment or at trial indirectly through temporal proximity." Zann Kwan, 737 F.3d at 845.
Plaintiff filed her formal complaint of discrimination in May 2018, and she was initially terminated four months later in September 2018. While four months would ordinarily be sufficiently temporal to establish a causal connection, in this case, the record before the Court demonstrates that Postal Service administrators were concerned about Plaintiff's attendance in December 2017, and there were efforts to determine her work status well before Plaintiff filed her discrimination complaint. "Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001); see also Hazelwood v. Highland Hosp., 763 F. Appx 60, 63 (2d Cir. 2019) (same, and finding there was no causal connection between the plaintiff's complaint and her termination, both because temporal nexus of ten months was insufficient, and also because her "supervisors began calling performance deficiencies to her attention months before she complained to management . . . .").
For example, on November 20, 2017, Ludwig emailed the Irondequoit Station for clarification of Plaintiff's work status because no timekeeping records were being submitted to track her work status. (Dkt. 23-1 at ¶ 88; Defendant's Exhibit ("Def. Exh.") 24). On January 19, 2018, Ludwig again emailed the Irondequoit Station, stating that "someone needs to contact Linda today and tell her to provide updated medical," because "she only has documentation taking her out of work until 12/18/17," and noting that "I asked you guys a month ago if there was current documentation and no one did anything about it. We are just letting an employee stay out of work and never following up. I expect follow up from someone today after Linda is contacted." (Dkt. 23-1 at ¶ 93; Def. Exh. 24). On January 22, 2018, Ludwig again emailed the Irondequoit Station, stating that "if Plaintiff does not bring in documentation by tomorrow morning, we need to send a 'where are you' letter. This employee has been absent since 12/18/17 with no supporting documentation." (Dkt. 23-1 at ¶ 95; Def. Exh. 24). Thereafter, on January 23, 2018, Terpstra asked the Irondequoit Station for a status report on Plaintiff, and Jessmer replied that, "she was supposed to come in yesterday which never happened" and indicated the "where are you" letter would be delivered that day. (Dkt. 23-1 at ¶ 96; Def. Exh. 24). Jessmer sent correspondence to Plaintiff on January 23, 2018, advising her that she had been absent from work since October 2017, that she had not reported for work, nor had she furnished evidence of her incapacity for work per the Employee and Labor Relations Manual. (Dkt. 23-1 at ¶ 97; Def. Exh. 28). The correspondence also provided that "[f]ailure to comply with the above may result in your being charged as being absent without official leave (AWOL) and appropriate disciplinary action, which could include removal from the Postal Service, will be taken." (Def. Exh. 28).
Plaintiff objects to the following email communications as "inadmissible hearsay." (See Dkt. 28-1). A party "cannot rely on inadmissible hearsay in opposing a motion for summary judgment . . . absent a showing that admissible evidence will be available at trial." Abdel-Karim v. EgyptAir Airlines, 116 F. Supp. 3d 389, 409 (S.D.N.Y. 2015) (citation omitted). In response, Defendant contends that these documents are not submitted for the truth of the statements asserted in them, but rather are admissible as evidence that Plaintiff's medical leave was managed in compliance with Postal Service policies and that Postal Service administrators were focused on returning Plaintiff to work. (Dkt. 29 at 5). The Court agrees that it may consider the emails for these reasons. Furthermore, there are other potential grounds for admitting these emails even if offered for the truth, including Federal Rule of Evidence 803(6).
All of these actions by Defendant to address Plaintiff's absence occurred prior to any protected activity. Given this evidence, no reasonable jury could conclude that Postal Service administrators targeted Plaintiff because she filed a formal complaint; rather, the record evidence demonstrates that Plaintiff's termination was a culmination of her failure to communicate with the Postal Service regarding her work status, including by submitting proper documentation taking her out of work. See, e.g., Stryker v. HSBC Securities (USA), No. 16-cv-9424 (JGK), 2020 WL 5127461, at *13 (S.D.N.Y. Aug. 31, 2020) ("While the plaintiff's termination was different in kind from prior actions involving the plaintiff, it was in direct response to his failure to abide by the final warning, which was itself the culmination of measures which had begun before the plaintiff complained about alleged discrimination.").
Moreover, even assuming Plaintiff could establish a prima facie causal connection between her EEO complaints and her termination, the burden would then shift to Defendant to articulate a non-retaliatory rationale for Plaintiff's termination. Here, Defendant has offered a non-retaliatory rationale—that is, Plaintiff was terminated due to prolonged absence, inability to physically perform the essential functions of her job, and failure to communicate with Postal Service administrators, and the undisputed evidence in the record supports these non-retaliatory rationales. For example, it is undisputed that Plaintiff was informed at the time she accepted her position as a city carrier assistant that the position involved heavy lifting and carrying mail, and following her surgery, her medical providers stated she was limited to lifting, pushing, or pulling no more than 10 to 20 pounds, and on multiple occasions opined she was "100 percent" disabled. (See, e.g., Dkt. 23-1 at ¶¶ 5, 86-87, 89, 92, 108, 130; Dkt. 28-1 at ¶¶ 5, 86-87, 89, 92, 108, 130). Medical documentation dated June 19, 2018, did not contain an anticipated return to work date and stated that Plaintiff "will never be 100%". (Dkt. 23-1 at ¶ 108; Dkt. 28-1 at ¶ 108). Plaintiff also testified that following her surgery she could not brush or blow dry her hair, and she could not perform daily activities such as housekeeping and laundry, and she was unable to carry a purse or groceries. (See, e.g., Dkt. 23-1 at ¶ 86; Dkt. 28-1 at ¶ 86).
Other evidence before the Court, including email communications between various Postal Service administrators, demonstrate that following her October 2017 surgery, Plaintiff did not adequately communicate with Postal Service administrators with respect to her work status. Plaintiff acknowledged that while on medical leave, she was required to "send doctor's notes and let them know my progress." (Dkt. 23-1 at ¶ 82; Dkt. 28-1 at ¶ 82). However, various email communications demonstrate that Postal Service administrators were concerned about Plaintiff's attendance because she repeatedly failed to submit proper medical documentation in compliance with the ELM. (See, e.g., Dkt. 23-1 at ¶¶ 93, 95-98, 102-07, 110-24). Many of these communications pre-date Plaintiff's EEO complaints, which strongly suggests that concerns surrounding Plaintiff's attendance were not motivated by her EEO complaints made in February and May 2018. While Plaintiff asserts, in conclusory fashion, that she "continually cooperated with USPS and responded to every request for medical information" (see Dkt. 28-2 at ¶ 14)—she offers no evidence specifically contradicting Defendant's non-retaliatory rationales, and her conclusory assertion is not sufficient at this stage of the litigation. Accordingly, the burden shifts back to Plaintiff to demonstrate that the rationales offered by Defendant were a pretext for unlawful retaliation.
As explained above, "to succeed on a retaliation claim after a defendant has established a legitimate, non-discriminatory reason for the adverse action, the plaintiff must present evidence that retaliation was the 'but-for' cause of the action." Varno v. Canfield, 664 F. Appx 63, 66 (2d Cir. 2016). At this stage, "[t]emporal proximity alone is insufficient to defeat summary judgment," but "a plaintiff may rely on evidence comprising her prima facie case, including temporal proximity, together with other evidence such as inconsistent employer explanations, to defeat summary judgment . . . ." Zann Kwan, 737 F.3d at 847 (citation omitted). "Pretext may also be shown by way of 'weaknesses, implausibilities, inconsistencies, or contradictions in Defendant's proffered legitimate, nonretaliatory reasons for Defendant's action . . . from such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason." Siuzdak v. Sessions, 295 F. Supp. 3d 77, 105 (D. Conn. 2018) (alterations omitted) (quoting Zann Kwan, 737 F.3d at 846).
Plaintiff relies on the following "weaknesses, implausibilities, inconsistencies, and/or contradictions" to demonstrate pretext:
Effective September 21, 2018, plaintiff was terminated from her employment "during [her] 90-day probation period . . . based on [her] unavailability." However, plaintiff began work on June 24, 2017 and was assigned to the Rochester Irondequoit Station located at 425 East Ridge Road in Irondequoit, New York. Of noted. plaintiff was only subject to a 90-day probationary period per USPS policies and procedures. Thus, effective September 22, 2017, plaintiff was no longer on probation status. Indeed, it is further undisputed that on June 23, 2018, upon her one-year anniversary as a USPS employee, plaintiff was automatically converted to a career employee. Moreover, on November 1, 2018, USPS attempted to rescind plaintiff's termination because plaintiff indeed completed her probationary period. As instructed, plaintiff contacted USPS and advised that she had found other employment during the interim. USPS then unilaterally concluded that plaintiff had resigned from her position.(Dkt. 28 at 14-15).
This does not demonstrate pretext. While Postal Service administrators may have had issues documenting Plaintiff's employment status following her surgery, there is nothing in the record suggesting that this was because they harbored any retaliatory intent towards Plaintiff for engaging in protected activity. To the contrary, as explained above, the record reflects that Postal Service administrators were concerned about Plaintiff's attendance prior to the time she filed her EEO complaints.
Further, the fact that Plaintiff was initially terminated based on a showing of unavailability during her probationary period—but subsequently was reinstated because she had in fact fulfilled her probationary period—does not demonstrate retaliatory intent, nor does it amount to a "discrepancy" or "inconsistency" from which a reasonable juror could conclude that it was a pretext for a prohibited reason. See, e.g., Robinson v. Zurich N. Am. Ins. Co., 892 F. Supp. 2d 409, 430 (E.D.N.Y. 2012) ("The question in this Title VII case is not whether defendants' decision to terminate plaintiff was correct but whether it was discriminatory."). Rather, once a Postal Service Separation Team member recognized the error with respect to the timing of the expiration of Plaintiff's probationary period (see Dkt. 23-1 at ¶ 146), the Postal Service took steps to reinstate Plaintiff, and it is undisputed that on November 1, 2018, the Postal Service notified Plaintiff that the letter of termination dated September 21, 2018, was rescinded, and she was instructed to report for duty at the Irondequoit Station on November 6, 2018 or, if she was unable to report, to contact Barbas. (Dkt. 23-1 at ¶ 147; Dkt. 28-1 at ¶ 147). Plaintiff subsequently contacted Barbas and informed him that she found another job and would not be reporting on November 6, 2018. (Dkt. 23-1 at ¶ 148; Dkt. 28-1 at ¶ 148). In other words, the fact that Plaintiff had to be re-hired because she was not properly terminated given her employee status is not inconsistent with Defendant's reasons for terminating her—that is, due to her lack of attendance and inability to perform the position given her physical limitations, and Plaintiff has offered no meaningful argument as to why the Postal Service's actions were inconsistent or implausible in this context.
Finally, Plaintiff contends, in conclusory fashion, that Bickel retaliated against her for contacting the EEO. Specifically, Plaintiff testified that Bickel texted her to inform her that administrators needed medical documentation that included a return-to-work date (see Dkt. 23-12 at 18, 66:6-17), and also that he told her in December 2017 that he would not take her doctor's note because she "had to be a hundred percent" (see id. at 25, 94:2-11). To the extent Plaintiff contends that the reasons offered by Defendant were pretext for Bickel's personal vendetta against her, Plaintiff has offered no evidence that Bickel had the authority to determine whether she could return to work or whether her medical documentation was ELM-compliant and, in fact, the record presently before the Court demonstrates that it was Ludwig and Terpstra who managed Plaintiff's medical documentation. There is also no evidence in the record that either of those individuals were aware of Plaintiff's EEO complaints.
Plaintiff can offer only temporal proximity in support of her claim of pretext and, as explained above, that is insufficient to defeat summary judgment. Accordingly, there is no issue of material fact with respect to Plaintiff's retaliation claims, and therefore the Court grants Defendant's motion in this respect, and Plaintiff's retaliation claims brought pursuant to the Title VII and the Rehabilitation Act are dismissed.
IV. Rehabilitation Act Failure to Accommodate Claim
The Rehabilitation Act protects a "qualified individual with a disability" from being excluded from participation in, denied the benefit of, or subjected to discrimination "under any program or activity receiving Federal financial assistance," because of the individual's disability. 29 U.S.C. § 794(a). An employer violates the Rehabilitation Act "when it fails to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the employer can establish that the accommodations would impose an undue hardship." Jackan v. N.Y.S. Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000) (alterations, quotations, and citations omitted). Like Plaintiff's Title VII claims, Plaintiff's failure to accommodate claim is governed by the McDonnell Douglas burden-shifting framework. Kaganovich v. McDonough, 547 F. Supp. 3d 248, 262-63 (E.D.N.Y. 2021).
"To establish a prima facie case of discrimination based on a failure to reasonably accommodate a disability, plaintiff must establish '(1) that [s]he is an individual who has a disability within the meaning of the statute, (2) that an employer covered by the statute had notice of h[er] disability, (3) that with reasonable accommodation, [s]he could perform the essential functions of the position sought, and (4) that the employer has refused to make such accommodations.' " Id. at 263 (quoting Stone v. City of Mt. Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997)).
"If [plaintiff] meets that initial burden, the defendant must counter her showing by demonstrating a legitimate, nondiscriminatory reason for the adverse action the plaintiff complains of. Should the defendant also succeed in making that showing, the burden shifts back to the plaintiff for a final time to provide evidence that the employer's legitimate reason was mere pretext." Sears-Barnett, 531 F. Supp. 3d at 541 (citations omitted).
Defendant concedes that the Postal Service is subject to the Rehabilitation Act, and that Plaintiff was a person with a disability during the relevant time period; namely, she had a medical condition involving trigger finger and cubital tunnel syndrome, which limited her ability to lift, push, and pull. (Dkt. 23-2 at 23). Defendant's argument focuses on the third and fourth elements—that Plaintiff has failed to establish that she was "otherwise qualified" to perform the duties of a city carrier assistant, or that with a reasonable accommodation, she could perform the essential functions of her job and that the Postal Service failed to make those accommodations. (Id. at 24-27). Plaintiff does not meaningfully respond to this argument, stating only that "[h]ere, plaintiff has established both her third and fourth prima facie requirement. See Pl Stmt of Facts, ¶¶ 25-31." (Dkt. 28 at 12).
An accommodation is reasonable "only if its costs are not clearly disproportionate to the benefits that it will produce." Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995). "The Second Circuit has cautioned that 'though "reasonable accommodation" may include such adjustments as modification of physical facilities, work schedules, or equipment, or some job restructuring, "reasonable accommodation" does not mean elimination of any of the job's essential functions.' " Carter v. Potter, No. 06-CV-3854 (JG)(LB), 2008 WL 1848639, at *5 (E.D.N.Y. Apr. 23, 2008) (quoting Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991)); see also Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) ("A reasonable accommodation can never involve the elimination of an essential function of a job.").
The paragraphs identified by Plaintiff in her statement of facts which she contends establish her prima facie case (paragraphs 25 through 31) state that an accommodation meeting was scheduled between Plaintiff and the Irondequoit Station; the meeting was rescheduled and the location was changed because Plaintiff expected to encounter Bickel at the Irondequoit Station; and Plaintiff's allegation that the Postal Service "reneged on its offer to relocate the accommodation meeting to the Lexington Post Office and cancelled the meeting all together," and therefore did not "engage[ ] in the good-faith process of attempting to accommodate plaintiff's disability and her return to work." (Dkt. 28-2 at ¶ 30). None of these statements amounts to evidence that, with reasonable accommodation, Plaintiff could perform the essential functions of her position.
Plaintiff bears the burden at the summary judgment stage of establishing a prima facie case of discrimination under the Rehabilitation Act, and mere allegations, without supporting evidence, will not suffice. Here, Plaintiff has offered no evidence supporting that, with reasonable accommodation, she could work as a city carrier. In fact, Plaintiff does not dispute that her position required heavy lifting (see Dkt. 23-12 at 5, 15:15-17 (Plaintiff's deposition testimony that she was told the position involved "heavy lifting, carrying mail, driving")), nor does she dispute that following her surgery she had significant lifting, pushing, and pulling restrictions (see, e.g., Dkt. 23-1 at ¶¶ 86, 89, 130; Dkt. 28-1 at ¶¶ 86, 89, 130). Notably, "several courts have found that heavy lifting is itself an essential function of a postal worker position." Atencio v. United States Postal Serv., 198 F. Supp. 3d 340, 359 n.9 (S.D.N.Y. 2016) (collecting cases); see also Bunis v. Runyon, No. 92 Civ. 6577 (JFK), 1994 WL 445722, at *4 (S.D.N.Y. Aug. 17, 1994) ("plaintiff has been restricted from pushing, pulling, or lifting anything over ten pounds with her right hand since October of 1985 and with her left hand since February of 1987. Letter carriers are required to lift, pull and box mail over ten pounds. In fact, letter carriers are required to be able to move packages up to 70 pounds. Eliminating these requirements is unreasonable." (citations omitted)), aff'd, 60 F.3d 810 (2d Cir. 1995). In other words, Plaintiff has not established that with reasonable accommodation, she could have performed the functions of a city carrier.
At her deposition, Plaintiff also complained that the Postal Service did not offer her a different job. Plaintiff testified that she was "sure there's other stuff at the post office that's light duty," including working as a retail clerk selling stamps; however, Plaintiff further testified that "she never asked" if it was possible to transfer into such a position, or inquired about the requirements for such a position. (See Dkt. 23-12 at 35, 135:25-136:23). Plaintiff's argument in this respect misses the mark, because other jobs at the post office do not amount to a reasonable accommodation—rather, they involve performing a different job altogether. See, e.g., Luckiewicz v. Potter, 670 F. Supp. 2d 400, 409-10 (E.D. Pa. 2009) ("[t]he requests Plaintiff describes—to stay at Olney station, to deliver express mail, to work on certified mail notifications, to pick up collections—are not 'accommodations' within the meaning of the Rehabilitation Act because they would not have enabled Plaintiff to perform the essential function of his job of delivering mail along a regular route"); see also Carter, 2008 WL 1848639, at *6 (where the plaintiff complained that the Postal Service failed to assign her to "entirely different jobs performing different functions," explaining that "this accommodation would do away with [plaintiff's] duties entirely and assign her completely different duties. If the only accommodation [plaintiff] can suggest involves performing other duties altogether, then she cannot demonstrate that with a reasonable accommodation she can perform her duties."). Accordingly, Plaintiff has failed to establish a prima facie case for failure to accommodate, and Defendant is entitled to summary judgment as to this claim.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment (Dkt. 23) is granted, and Plaintiff's complaint is dismissed.
SO ORDERED.