Opinion
No. 98 CV 6924 (RCC).
February 7, 2001.
OPINION AND ORDER
Plaintiff Rosalie Barrack Connelly ("Plaintiff' or "Connelly") brings this suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, against Defendant Togo D. West, Jr. ("Defendant" or "West"), in his capacity as the Secretary of the Department of Veterans Affairs ("the Department"), alleging employment discrimination based on sex, hostile work environment, and retaliation. Defendant now moves for summary judgment. For the reasons set forth below, the motion is granted.
I. Background
The following facts are undisputed unless otherwise noted. In February 1991, Plaintiff was hired in a GS-7 position as the Credentialing and Privileging ("CP") Coordinator at the Castle Point, New York V.A. Medical Center ("Castle Point"). She was responsible for organizing each doctor's credentials, which involved gathering information on the doctor's employment, education, licensing background, and privileges, which are the procedures each doctor is allowed to perform at the hospital.
A. New Combined Position and Request for Grade Increase
Plaintiff worked at Castle Point until September 1996, when the hospital began merging with Montrose V.A. Medical Center ("Montrose"). At that time, the Director of Montrose, William D. Montague ("Montague"), informed Connelly that, as of October 1, 1996, her job would be combined with the CP position at Montrose and she would be expected to split her time between the two hospitals. Montague asked Plaintiff to submit a revised job description for her new position.
Plaintiff alleges that Montague told her the new combined job would be a GS-9 position. On December 5, 1996, however, Plaintiff learned that she would not receive a grade increase. In response, Plaintiff informed the Chief of Human Resources at Castle Point, James Kelly ("Kelly"), that she would appeal the decision and sent a memo to Montague challenging his opinion that her new responsibilities did not merit an upgrade. Plaintiff now contends that she was discriminated against when she did not receive the grade increase.
B. Lack of Support
On December 10, 1996, Connelly advised Dr. Richard Donn, the Acting Chief of Staff of Montrose ("Donn"), that she would need computer software and a clerical assistant to cope with the demands of her doubled workload. She was not granted either request. Defendant states, however, that up until March 1997, when Connelly was detailed to the payroll position, Dr. Robert De Filippi, another Acting Chief of Staff ("De Filippi"), was researching computer software that could assist Plaintiff. Additionally, Plaintiff alleges that she was not given a computer or chair at Montrose until some time in December 1996 or January 1997. Plaintiff contends that this lack of support was a form of retaliation and discrimination against her.
C. Deadlines
On January 17, 1997, Connelly sent a memorandum to Montague, Donn, De Filippi, Mel Hooker, the Chief of Personnel at Montrose ("Hooker"), and Kelly, in which she outlined her initial review of Montrose's CP files and the violations and deficiencies she had discovered. In response to her report, Plaintiff received a memo from Donn on January 23, 1997, informing her that she should complete her review of Montrose's CP files by March 1, 1997. Plaintiff told Donn the deadline was unrealistic and now contends the deadline was discriminatory.
D. Disciplinary Actions
On March 10, 1997, Donn gave Plaintiff a letter of performance counseling. He expressed concern with her "hostile and contentious" attitude and her inability to meet the March I deadline. Donn advised Connelly that De Filippi shared his concerns about her performance. Plaintiff responded on March 24, 1997. She informed Donn that she was subject to a hostile work environment and unrealistic work demands. The following day, March 25, Donn responded with a letter of admonishment based on failure to follow supervisory instructions. Plaintiff replied to the admonishment letter with a memo to Donn, De Filippi, Montague, Hooker, and Kelly, in which she stated she had been facing continuing harassment and intended "to submit a formal grievance not only for this letter of admonishment to me, but for the onerous situation that led up to this." Schreffler Decl., Ex. 21. In her complaint, Plaintiff claims that the March 10 letter was discriminatory and retaliatory and the March 25 letter was a form of harassment and retaliation. See Complaint at ¶¶ 23, 28.
"An admonishment remains in an employee's Official Personnel File for two years and is considered in promotion and salary increase requests. Dep't of Veterans Affairs Policy on Discipline and Adverse Actions, Schreffler Decl., Ex. 20.
E. Detail
On March 17, 1997, a week before Plaintiff responded to the March 10 performance counseling letter, Hooker informed Plaintiff that she would be detailed to a payroll job at Montrose, a GS-6 position. Although Plaintiff continued to be paid at the GS-7 level, she claims the detail was retaliatory. While still in her detail position, Plaintiff applied for and received a GS-S position as a secretary at the Department's Bay Pines, Florida facility.
"A detail is the temporary assignment of an employee to a different position for a specified period of time with the employee returning to their regular work duties at the end of the detail. Details are intended only for the needs of the Department's work requirements when necessary services cannot be obtained by other desirable or practicable means." Dep't of Veterans Affairs Policy on Details, Reassignments, and Temporary Promotions, Schreffler Decl., Ex. 14.
F. Shuttle Bus
Plaintiff alleges that De Filippi retaliated and discriminated against her when he told her in April 1997 — after she learned of her full-time detail to Montrose's payroll department — that she could not use the shuttle bus that took employees and patients between the Castle Point and Montrose hospitals. Plaintiff testified during her deposition that she never tried to use the shuttle bus after the alleged conversation with Dr. De Filippi, she never spoke with anyone else about the shuttle bus, and she did not believe that she needed a supervisor's approval to use the bus. See Connelly Dep. Trans. at 311-313, Serpe Decl., Ex. A.
G. Request for Wedding Leave
In October 1996, Plaintiff requested permission from De Filippi for leave beginning May 23, 1997 for her wedding in Scotland. Through April 1997, Plaintiff repeated her requests verbally and in writing. During an April 29, 1997 meeting with Hooker, Plaintiff alleges Hooker brought up her Equal Employment Opportunity ("EEO") complaint and told her he would remove the March 25 letter of admonishment and grant her request for leave "if things went smoothly." Plaintiff wrote a memo to Maryanne Musumeci, the Acting Director of Montrose ("Musumeci"), recording the events of her meeting with Hooker. Musumeci ordered Hooker to approve Plaintiffs leave, which he did on May 7, 1997. Plaintiff alleges that the delay in approving her leave was an act of reprisal.
H. Performance Reviews
In July 1997, Plaintiff received a performance review from De Filippi. According to Plaintiff the initial review of"minimally successful" was raised to "fully successful" after she met with Musumeci. Plaintiff alleges that prior to her EEO complaint she always received reviews of "highly successful" or "outstanding" and that her July 1997 review was an act of reprisal.
I. Job Applications
During March and April 1997, Plaintiff applied for five different positions at Montrose for which she was not accepted. According to Plaintiff, these rejections are examples of retaliation. Three of these positions, however, were filled before Plaintiff filed her amended EEO complaint on April 28, 1997. The other two were filled prior to Plaintiffs final EEO complaint, filed on August 28, 1997. Only one position would have been a promotion from her GS-7 level.
J. Plaintiffs Equal Employment Opportunity Complaints
1. March 18, 1997 Counseling Session
On March 18, 1997, the day after she was notified of her detail to the payroll position at Montrose, Plaintiff contacted EEO officer Jessica Weyant ("Weyant"). According to Weyant, the basis of Connelly's complaint was reprisal relating to the assignment of her duties, reassignment, demotion, admonishment, harassment, failure to promote, time and attendance, and performance appraisal. Weyant Decl. Additionally, Weyant states she did not inform anyone in the Department's management about Connelly's complaint until after March 18. Further, in her deposition, Plaintiff testified that she did not tell Weyant that she was being discriminated against based on her sex. Connelly Dep. Trans. at 255-56, Serpe Decl., Ex. A.
2. April 21, 1997 Complaint
On April 21, 1997, Plaintiff filed her first formal EEO complaint in which she claimed discrimination based on sex and alleged unspecified sexual harassment commencing December 1996. Schreffler Decl., Ex. 15.
3. April 28, 1997 Complaint
One week later, on April 28, Plaintiff amended her EEO complaint only to withdraw her allegation of sexual harassment and change the basis of her complaint from "sex" to "reprisal for prior EEO activity." Miller Decl., Ex. E. She wrote on the top of the April 28 complaint that it was intended to "amend" the April 21 complaint. Otherwise, the April 28 complaint is identical to that of April 21. On November 7, 1997, the EEO analysis recommended a finding of discrimination on the basis of reprisal with respect to Plaintiffs April complaints, but it found insufficient evidence that Defendant's actions were related to Connelly's sex. Investigative Summary and Analysis, Schreffler Decl., Ex.28.
3. August 28, 1997 Complaint
On August 28, 1997, Plaintiff filed another formal EEO complaint alleging reprisal for prior EEO activity based on her performance review from De Filippi in July 1997. Miller Decl., Ex. F. She did not allege this review was the result of gender discrimination. Id. On November 7, 1997, the EEO analysis found no discrimination on the basis of reprisal with respect to Plaintiffs August 28 complaint. Investigative Summary and Analysis, Schreffler Decl., Ex.30.
4. November 4, 1997 Amendment
On November 4, 1997, Plaintiff submitted an "Addendum to Testimony" that she requested be part of her affidavit of EEO testimony. In this addendum Connelly wrote:
During my testimony, I was asked several times by the investigator if I felt that this harassment was directed at me because I was female, and my response each time was no. I maintain that response, but wish to expand upon it. I firmly aver that the reason for this continued harassment was because I was a strong person, honest and forthright, not easily intimidated, able to stand firm on principles, willing to challenge those that wantonly abused their authority.
Addendum to Testimony, Miller Decl., Ex. G.
K. Reprisal for CP Testimony
While in her position as CP Coordinator, Plaintiff testified on several occasions regarding the alleged misconduct of physicians. During her interview with EEO Investigator Barbara Ortique ("Ortique"), Plaintiff stated these hearings involved patient complaints and not employment discrimination. Nov. 3, 1997 Connelly Int. Trans. at 37-40, Miller Decl., Ex. C; see also Connelly Dep. Trans. at 272, Serpe Decl., Ex. A (same). Plaintiff alleges she was retaliated against because of her testimony and believed her testimony regarding doctor impropriety was EEO activity. Nov. 3, 1997 Connelly Int. Trans. at 31. Additionally, Plaintiff stated her claim of reprisal had nothing to do with her having sought EEO counseling in the past. Id. at 36-37.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate where the parties' submissions demonstrate "that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (explaining when summary judgment is appropriate). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). In evaluating a summary judgment motion, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Anderson, 477 U.S. at 255. Summary judgment is improper if the record provides a basis for a reasonable inference in favor of the nonmoving party. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). Where the employer's intent is at issue in an employment discrimination claim, the court must be especially cautious about granting summary judgment. Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
B. Sex Discrimination and Hostile Work Environment Claim
In her complaint, Connelly alleges that she was discriminated against based on her sex and subject to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. See Complaint at ¶¶ 42, 45. A plaintiff claiming sexual discrimination in the workplace must demonstrate membership in the protected class, qualification for the position, an adverse employment decision or discharge, and that the adverse action or discharge took place under circumstances giving rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (applying McDonnell Douglas to Title VII sex discrimination cases where there is "no direct or overt evidence of discriminatory conduct"). Additionally, "[a] prima facie case of hostile work environment sexual harassment requires showing that the workplace is `objectively and subjectively' offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.'" Trezza v. Dilenschneider Group, 2000 WL 1702029, *3 (S.D.N.Y. Nov. 14, 2000) (quoting Faragher v. City of Boca Raton, 524 U.S. 771, 779 (1998)).
Plaintiff does not clarify the type of discrimination that provides the basis for her hostile work environment claim. See Complaint at ¶¶ 44-46. The Court assumes, however, that her complaint is based on sex. Regardless of the basis of her claim, Plaintiff must exhaust the administrative remedies available and plead harassment within Title VII's protections. Ortega v. New York City Off-Track Betting Corp., 1999 WL 342353, *4 (S.D.N.Y. May 27, 1999) (dismissing hostile work environment claim because facts failed to support a hostile work environment that was "created by race-related, ethnicity-related, or sex-related conduct on the part of the defendant," which is a "fundamental and necessary element of a hostile work environment claim under Title VII").
Before bringing these Title VII claims in district court, however, a plaintiff must first exhaust the available administrative remedies. See Pauling v. Secretary of the Interior, 160 F.3d 133, 134 (2d Cir. 1998) (noting Title VII requires the litigant to "exhaust available administrative remedies in a timely fashion"); see also 29 C.F.R. § 1614.101-1614.607 (outlining substantive and timing requirements of administrative remedies). Indeed, courts in this district routinely dismiss claims of discrimination when the exhaustion requirement is not satisfied. See German v. Pena, 88 F. Supp.2d 216, 220 at n. 2 (S.D.N.Y. March 10, 2000) (dismissing certain allegations of discrimination because plaintiff failed to include them in administrative complaint);Baber v. Runyon, 1998 WL 912065, at *5.6 (S.D.N.Y. Dec. 30, 1998) ("Although not yet addressed by the Second Circuit, courts considering whether a plaintiff who withdraws an administrative complaint have concluded that the withdrawal constitutes a failure to exhaust administrative remedies") (citing Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993); Wren v. Secretary. Dep't of Veterans Affairs, 918 F.2d.1073, 1078 (2d Cir. 1990) (agreeing with reasoning that "[a]llowing a plaintiff to abandon the administrative remedies he has initiated would tend to frustrate the ability of the agency to deal with the complaints"); Rivera v. United States Postal Serv. 830 F.2d 1037, 1039 (9th Cir. 1987); Doe v. Odili Technologies. Inc., 1997 WL 317316, at *6 (D. Conn. 1997); Brown v. City of New York, 869 F. Supp. 158, 170 (S.D.N.Y. 1994)); Hinds v. Magna Fabrics. Inc., 1997 WL 309378, at *5 (S.D.N.Y. June 9, 1997) (dismissing age discrimination claim because it was not included in EEOC charge)); Waterman v. New York Tel. Co., 1984 WL 1482, at *5 (S.D.N.Y. Feb. 24, 1984) (dismissing race claim because plaintiff failed to check "race" box on EEOC complaint); See also Shah v. Mt. Zion Hosp. Med. Ctr., 642 F.2d 268, 271-72 (9th Cir. 1981) (affirming district court's dismissal for lack of subject matter jurisdiction of Title VII claims not raised in plaintiffs EEOC complaint).
In the instant case, Plaintiff withdrew her initial EEO complaint in which she alleged her sex was the basis for discrimination and claimed sexual harassment. She did not include those allegations in any of her subsequent administrative complaints and relies solely on "reprisal for prior EEO activity" as her basis for discrimination in her April 28 and August 28 complaints. Miller Decl., Exs. D-F. Further, during her interview with EEO Investigator Ortique Connelly stated under oath that she was not subject to sexual harassment. See Sept. 30, 1997 Connelly Int. Trans. at 6, Miller Decl., Ex. B ("And there is another form after this that I amended it, taking that off because there was not sexual harassment."). Additionally, on November 7, 1997, plaintiff filed an addendum to her EEO testimony and reiterated that she did not believe she was discriminated against based on her sex. Addendum to Testimony, Miller Decl., Ex. G. Thus, in its final agency decision, the Office of Employment Discrimination in the Department stated that it did not consider Connelly's sex discrimination claim since she had changed the basis of the alleged discrimination from gender to reprisal. Final Agency Decision, Miller Decl. Ex. H at n. 1. Plaintiff did not exhaust her administrative remedies with regard to her sex discrimination and hostile work environment claims. Therefore, this court lacks subject matter jurisdiction and summary judgment is granted in favor of the Defendant on these claims.
In fact, there was no finding of discrimination in the final agency decision. Final Agency Decision, Miller Decl., Ex. H.
Plaintiff attempts to survive summary judgment on these two issues by arguing that she relied on an October 9, 1997 memorandum prepared by the Department's Office of General Counsel, in which the issues for the EEO investigation are outlined and sexual discrimination is included.See Office of General Counsel Memo, Schreffler Decl., Ex. 17. The Court is not persuaded by this argument, however, because Plaintiffs November 7, 1997 Addendum to Testimony, in which she reemphasises that she was not alleging discrimination based on sex post-dates the Office of General Counsel Memo. See Addendum to Testimony, Miller Decl., Ex. G.
Additionally, the Plaintiff relies on precedent from the Northern District of Iowa to support her position that her failure to check the "sexual harassment" box on her EEO complaint does not ring the death knell for her complaint. Again, the Court is not persuaded by authority directly opposite to controlling precedent from the Southern District of New York holding failure to check the appropriate box on an EEO complaint is fatal to a plaintiffs case. See e.g., Baber v. Runyon, 1998 WL 912065, at *5-6 (S.D.N.Y. Dec. 30, 1998) (dismissing discrimination claim not exhausted by EEO procedures); Waterman v. New York Tel. Co., 1984 WL 1482, at *5 (S.D.N.Y. Feb. 24, 1984) (same); but cf. Dirks v. J.C. Robinson Seed Co., 980 F. Supp. 1303, 1310 (N.D. Iowa 1997) (finding failure to mark appropriate box on the EEOC complaint does not preclude court from considering the claim).
C. Retaliation Claim
Plaintiff also claims that she suffered discrimination in the form of retaliation. See Complaint at ¶¶ 47-49. Title VII prohibits employers from discriminating against employees who have opposed an "unlawful employment practice." 42 U.S.C. § 2000e-3(a). An "unlawful employment practice" is defined, in part, as the failure or refusal "to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . ." 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of retaliation, the Plaintiff must show that she was engaged in a protected activity, the Department was aware of the protected activity, she suffered an adverse employment action, and there was a causal connection between the protected activity and the adverse employment action. Reed v. Lawrence, 95 F.3d 1170, 1178 (2d Cir. 1996). The Department then has the opportunity to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 892. If the Department is successful, the burden would shift back to the Plaintiff to prove that the Defendant's asserted reason was pretextual.See id.
Here, "`protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination." Cruz v. Coach Stores. Inc., 202 F.3d 560, 566 (2d. Cir. 2000). The action does not have to be a formal written complaint, as complaining to management, protesting discrimination in general, and supporting co-workers who have filed formal charges are considered examples of protected activity in this context. Id. at 566. The employer, however, "must have understood, or been able to understand, that plaintiffs opposition was directed at conduct prohibited by Title VII." Velasquez v. Goldwater Mem'l Hosp., 88 F. Supp.2d 257, 264 (S.D.N.Y. 2000). To prove she was engaged in a protected activity, Plaintiff must demonstrate that she had a "good faith and reasonable belief' that the Department's actions she challenged violated Title VII. Reed, 95 F.3d 1170, 1178 (2d Cir. 1996) (noting plaintiff does not have to prove that the conduct in question in fact violated Title VII); but see Brands-Kousaros v. Banco Di Napoli S.P.A., 1997 WL 790748, at *5 (S.D.N.Y. Dec. 23, 1997) (stating the protected activity must involve a complaint about the type of discrimination prohibited by Title VII).
While Plaintiff does not clearly allege in her complaint or papers her protected activity, she does assert the following examples of retaliation: the lack of clerical support for her combined position; the March 10, 1997 performance counseling letter; Dr. De Filippi's comment about the shuttle bus; the detail to the Montrose payroll department; the delay in approving her wedding leave; Dr. De Filippi's July 1997 performance evaluation; and her several unsuccessful job applications.See Complaint at ¶¶ 21, 23, 24, 28, 36, 37, 39. Plaintiff does not allege, however, that she had a "good faith" belief that the supposed retaliatory actions by the Department were in response to her Title VII-protected activity. While Connelly now claims she was discriminated against based on her sex, she cannot demonstrate that she believed that at the time of her complaints to the EEO. As outlined above, Plaintiffs interview with EEO Investigator Ortique and the withdrawal her sex discrimination claim demonstrate that she did not have a "good faith" belief that she was being discriminated against because of her gender. See Nov. 3, 1997 Connelly Int. Trans. at 36-37, Miller Decl., Ex. C.
Further, in her deposition, Plaintiff testified that she believed she was being retaliated against for her testimony at hearings regarding the credentialing and privileging of physicians. Connelly Dep. Trans. at 272, Serpe Decl., Ex. A. Plaintiffs testimony at CP hearing, however, is not a Title VII protected activity. See 42 U.S.C. § 2000e-2(a) (prohibiting discrimination against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin);Adeniji v. Administration for Children Servs., NYC, 43 F. Supp.2d 407, 421 (S.D.N.Y. 1999) (noting Title VII does not protect whistleblowers). Thus, since Plaintiff cannot demonstrate that she was involved in protected activity and satisfy the first element of the prima facie case, the Defendant's motion for summary judgment is granted on the retaliation claim.
III. Conclusion
For the forgoing reasons, the Defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close the case.
So ordered.