OPINION
The defendant John E. Potter, Postmaster General (the “Government”) has moved under Rule 56, Fed.R.Civ.P., to dismiss the complaint of plaintiff Lisa Lucenti (“Lu-eenti”), alleging discrimination while employed by the United States Postal Service (“Postal Service”). For the reasons set forth below, the motion is granted.
Prior Proceedings
Lucenti filed her complaint on June 12, 2003, alleging that she was subjected to a hostile work environment pn the basis of gender and disability and was retaliated against for complaining about the alleged discrimination, that the Postal Service
Discovery proceeded, and the action was referred for settlement, which was not achieved.
The Government filed the instant motion for summary judgment on June 16, 2005. Lucenti filed her opposition on October 25, 2005. The motion was marked fully submitted upon the filing of the Government’s reply on January 6, 2006.
The Facts
The facts as set forth below are contained in the Government’s Statement of Undisputed Facts pursuant to Local Rule 56.1 (“Government Statement”) and the Plaintiffs Rule 56.1(b) Statement (“Plaintiff Statement”) and are not in dispute except as noted.
Lucenti worked at the Postal Service’s Lenox Hill facility (“Lenox Hill”), located in New York, New York, and joined the Postal Service in or about 1987 as a “sub carrier.” By 1988, Lucenti was a regular carrier, and by 1990 she was a truck driver at the Lenox Hill facility in Manhattan, assigned to mail collection. In 1993, Lu-centi’s job changed from truck driver to foot carrier.
Lucenti bid for and obtained the position of an “auxiliary” letter carrier or “auxiliary end.” Her position is also referred to as a “day router.” An auxiliary end is a carrier who is assigned to assist on a route that has more mail volume than one person can handle in an eight-hour workday, but not enough volume to justify assigning two people to that route full-time.
Lucenti provided auxiliary assistance to Route 2149, usually referred to as “Route 49,” by casing, ie., sorting and delivering mail.
On or about October 1, 1992, Lucenti contacted an Equal Employment Opportunity (“EEO”) counselor about her allegations that she had been subjected to harassment by Carrier Supervisor Walter Fox (“Fox”). According to Lucenti, she was told she did not have a case and did not pursue the EEO process. The matter was closed on October 15, 1992. Fox was transferred out of Lenox Hill.
According to Lucenti, the transfer resulted from Fox’s sexual harassment of her and another female carrier. Fox acknowledged the accusations that he had discussed with co-employees Lucenti’s complaint, that he had called Lucenti a “stiff,” meaning someone who does not do their work, and that he spoke to other supervisors and informed Lois Hughes (“Hughes”), a subsequent supervisor of Lucenti, that Lucenti was part of the reason for his transfer.
In approximately calendar year 2002 or 2003, Fox spoke to acting manager David Pryor (“Pryor”) of Lenox Hill and told Pryor that Lucenti had been part of the reason for his transfer from Lenox Hill. Pryor stated to Fox that Lucenti was a problem and that it was possible that he had spoken to Lucenti’s supervisor Jan-kowski and other supervisors about Lucen-ti.
In 1995, Lucenti complained of being harassed by supervisor Edward Rossi (“Rossi”). According to Lucenti, Rossi stated that she had nice legs and commented on her breasts. Rossi ceased being her supervisor in 1995. Rossi informed Fox that “... he had a similar problem with Lucenti that I had,” that Lucenti had also filed a sexual harassment claim against him and that was the reason that he was transferred to Grand Central Station.
After Rossi left his position as carrier supervisor in 1995, Lucenti told her co
After Rossi departed, Lucenti was supervised by Hughes. Lucenti Dep. Tr. at 289:3-12. Lucenti testified that Hughes remarked that Lucenti was “the type of girl that should have a little puppy dog with her little skirt.” Lucenti Dep. Tr. at 289:18-291:2. After these comments, Lu-centi spoke to Hughes and asked her to be fair to her, after which Hughes and Lucen-ti got along well. Lucenti has conceded that Hughes did not discriminate against her on any proscribed ground, and that Lucenti never filed an EEO complaint against Hughes. Hughes wrote one disciplinary notice for Lucenti.
In 1996, station manager Phil Mazzio (“Mazzio”) and area manager Roberto Agostini (“Agostini”) were assigned to Le-nox Hill and denied Lucenti’s request for vacation time. Lucenti alleged that Maz-zio and Agostini harassed her and filed a grievance regarding the denial of vacation time. Lucenti also filed an EEO complaint against Mazzio and Agostini, which was dismissed. Lucenti admits that in or around 1996, Agostini ceased communicating with her after an EEO representative spoke to Agostini about verbal harassment of Lucenti.
Lucenti has stated that during the calendar year 1998, any harassment subsided.
Lucenti has made no allegation of harassment or any discriminatory activity from the 1996 alleged incident with Mazzio and Agostini up through April 1999 when she was briefly supervised and allegedly harassed by Michael Harricharan (“Harri-charan”),. who wrote up a disciplinary charge on which, according to Lucenti, she was exonerated. According to Lucenti, Harricharan asked Lucenti out on a date, made lewd comments regarding her physical appearance, and would “eye” Lucenti with sexual overtones which made her feel very uncomfortable. Harricharan left Le-nox Hill shortly after supervising Lucenti. Lucenti never filed an EEO complaint with respect to the alleged actions of Harrichar-an.
According to Lucenti, supervisor Michael Berger (“Berger”) commented to her that her position on Route 49 was not an 8-hour assignment, criticized her for working too slowly, belittled her, made degrading comments, and increased her assignments unnecessarily.
Lucenti has alleged that in 1999 Pryor, supervisor Stephen Jankowski (“Jankow-ski”), and supervisor Valerie Barksdale (“Barksdale”) pushed her to finish her work on Route 49, yelled at her, criticized her and called her a “stiff’ because she was not working as quickly as they believed she should and, from time to time, would move her from Route 49 to other routes. She has alleged that Pryor would stand and watch how she worked, would yell and threaten to fire her because she wasn’t “putting up the mail fast enough for him,” and that “the way [Pryor] used to stare at me” was “sexual.” Lucenti has alleged that Pryor moved the “route” — the work area where the carriers for Route 49 sorted and cased mail — into the middle of the work floor so that Lucenti and her partner would be seen at all times. Lu-centi has claimed that Pryor “planted” first class mail that should already have been delivered in her mail tubs and falsely accused her of failing to deliver this mail, and that Pryor said that her workload on Route 49 was not a full-time job and instructed her to deliver mail in an additional building that was not on Route 49.
Barksdale issued a notice of removal to Lucenti on March 10, 2000, which stated in part as follows:
You are the Day Router for Route 21049 [ie., Route 49] when the volume warrants at Lenox Hill Station in New York City. You have been observed on several occasions finishing this end at 12:30 P.M.; and customers have stated while myself and T.S.P.O. Steve Jankowski went on a 3999 [annual observation of carrier by management] with you, that you always finish between 12:00 and 12:30 P.M. when your end tour is 3:00 P.M. Since this observation was brought to your attention you have purposely extended your office time allowing for the completion of your end to finish later in the day. Because of this observation Management has instructed you to begin the 350 East 77th Street building since December 1999, on Route 2150 avoiding this route from going into overtime and allowing you to absorb an eight hour day. Since this instruction has been given to you, you have failed to follow it and maintain schedule. I, Barksdale, you[r] immediate supervisor have on several occasions asked you have you started the 350 East 77th building, each reply was “NO.” You have been found to be insubordinate in following management instructions to you.
Lucenti has alleged that Barksdale harassed her by saying she “did not have enough mail in [her] hands,” taking some personal items from Lucenti, and telling her on another occasion to get her outdoor gear from her locker so she could leave early to deliver mail. Lucenti also has alleged that Barksdale on one occasion instructed Lucenti to take lunch at a particular time and to tell other carriers to take their lunch at that time as well. Lu-centi has admitted that she used the bathroom frequently and has alleged that Barksdale followed her to the bathroom and indicated to her that she should hurry and, further, told her that if she needed to use the bathroom, she would need a doctor’s note. According to Lucenti, Barks-dale accompanied her on her route, yelled at her, and threatened to fire her, as a consequence of which Lucenti suffered anxiety attacks and required hospitalization on three occasions.
On or about February 23, 2000, Lucenti contacted an EEO counselor regarding Barksdale and Pryor. On March 21, 2000, Lucenti signed a form withdrawing her EEO complaint, stating, “Personal Business, I drop the case.” The form of withdrawal, signed by Lucenti, stated that “I fully understand that by withdrawing the complaint or allegation(s) I have withdrawn, I am waiving my rights to any further appeal of this allegation(s) through the EEO process. I further stipulate that my withdrawal did not result from threat, coercion, intimidation, promise or inducement.”
Before Lucenti’s return on or about October 13, 2000, Pryor was transferred from Lenox Hill and Keith Yenzer (“Yenzer”) returned as station manager. Compl. ¶ 27.
On April 2, 2001, Lucenti approached a group of supervisors, including Vega and Jankowski, who were engaged in a discussion, to hand a medical note to Jankowski. According to Lucenti, Vega “screamed” at her to leave and pushed her shoulder, “not hard, he didn’t push me hard or anything like that.” Lucenti Dep. Tr. at 220:16-23. Lucenti testified that she called the police and filed a complaint against Vega, but that the entire matter was dropped. An investigation by the Postal Service was conducted into the incident and a notice of suspension was issued to Lucenti on June 21, 2001.
On September 13, 2001, Lucenti contacted the EEO office regarding the June 21, 2001 notice of suspension. On November 12, 2001, Lucenti withdrew her EEO complaint regarding this matter. The withdrawal form stated that,
I, Lisa Lucenti, do hereby voluntarily withdraw my EEO complaint in its entirety. I fully understand that by withdrawing the complaint I waive my rights to any further appeal through the EEO process. I further stipulate that my withdrawal did not result from any threat, coercion, intimidation, promise or inducement.
Lucenti has conceded that she had no problems with Yenzer, the station manager at Lenox Hill, during the 1997 to 1999 period. She has conceded that after Yen-zer returned to Lenox Hill to replace Pryor as station manager Yenzer was not “aware of what I went through, the medication and all that stuff,” and that “[w]hen he came back I wasn’t performing my job duties like I used to.” Id. at 65:20-21. Lucenti also has admitted that after Yen-zer returned her work was and continues to be poor: “My work performance has failed constantly.” According to Lucenti, she had problems in 1999 with Carrier Supervisor Harricharan and when Berger and Pryor began supervising the plaintiff.
Lucenti has admitted that after Yenzer returned he didn’t “realize all the doctor’s notes that were there, [could not] understand the medical condition that I was under ...,” and that Yenzer would tell her that her route “has no mail” and she should finish, and that Yenzer instructed supervisors to write her up.
On April 26, 2001, management for the Postal Service and representatives of the National Association of Letter Carriers (“NALC”) entered into an agreement regarding Lucenti’s day router position on Route 49, stating as follows:
As per staffing meeting held above date between the NALC and management regarding the day router assignment for Rt. # 2149 assigned to L. Lucenti. It is agreed by all parties that the above day router assignment will be established as no more than a four hour assignment if volume warrants, along with other carrier duties to be assigned by management. This agreement is in effect immediately as per signatures of all parties below.
Martin Decl. Ex. P.
Lucenti has alleged that Yenzer tried to “abolish” her position on Route 49 and has testified that her position on Route 49 was not abolished, but was reduced from an
In September 2001, Ayanna Kofi (“Kofi”) began working at Lenox Hill as Lucenti’s supervisor in Section D and met Lucenti for the first time. Kofi supervised Lucenti for approximately one year. According to Lucenti, Kofi frequently moved her off of her route to assist on other routes, told her not to “sit on the route,” told her that her breaks were too long, followed her to the bathroom, or instructed her to get back to her work station if she walked off the work floor.
On October 5, 2001, a hearing was held by arbitrator Garry J. Wooters (“Woot-ers”) on a grievance filed on Lucenti’s behalf by Branch 36, National Association of Letter Carriers, AFL-CIO, regarding the alleged harassment from Pryor, Jan-kowski, and Barksdale. An opinion and award was issued by Wooters on November 4, 2001, and received by the Union on November 13, 2001.
In his award summary, Wooters found the following:
Management violated the National Agreement when supervisors and managers acted in an inappropriate manner by yelling at the grievant and inappropriately threatening her with discipline. Management should cease and desist from this conduct and should make supervisors aware of their obligations in such cases.
In the arbitration award, Wooters noted that a number of employees testified that Supervisor Pryor had raised his voice to Lucenti; had yelled at her; that Lucenti was told not merely to limit her bathroom breaks,- but that she could not go to the bathroom at all; and that Lucenti was accused of not working, yet a fellow employee stated that she had been working continuously.
On November 29, 2001, Kofi moved to terminate Lucenti by issuing a notice of removal regarding incidents occurring in September and October 2001. The notice of removal was challenged in a grievance proceeding and ultimately was rescinded because it was not issued in a timely fashion.
Lucenti has alleged that on March 18, 2002, Kofi screamed at her not to “sit on the route,” clocked her work, threatened to remove her from her job, and followed her to the restroom, and that on March 19, 2002, Kofi singled her out to tell her to do her job differently.
Kofi issued a letter of warning to Lucen-ti on October 10, 2002. Lucenti instituted a grievance regarding the letter of warning, which was reduced to a “discussion.”
With respect to the EEO proceedings underlying this lawsuit, Lucenti first contacted an EEO counselor on March 4, 2002, alleging that she had been discriminated against from 1990 to the time that she contacted the EEO office. The parties agreed to mediation, which was unsuccessful, and Lucenti filed her formal EEO complaint on September 10, 2002. On March 17, 2003, the EEO office dismissed Lucenti’s complaint for lack of timeliness and for failure to state a claim.
Lucenti has alleged that supervisors Wiggs, Stensland, Murtha, and Tripp, who supervised her after she contacted the EEO office regarding the above-captioned lawsuit, watched her work and/or criticized her work performance as too slow. Lu-centi has conceded that supervisors Wiggs, Stensland, and Tripp did not discriminate against her. Lucenti’s actions regarding these supervisors were not made part of the EEO complaint that was filed by Lu-centi and underlies the above-captioned
Discussion
I. The Standard for Summary Judgment
In deciding a motion for summary judgment, a court shall render judgment “forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see also Celotex Corp. v. Catrett,
The moving party has the initial burden of showing that there are no material facts in dispute,
Adickes v. S.H. Kress & Co.,
The Court “must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion.”
Lopez v. S.B. Thomas, Inc.,
II. Only The Claims Regarding Events Of March 18 And 19, 2002 Are Timely And Properly Exhausted
The vast majority of Lucenti’s claims — those involving events occurring between 1990 and January 17, 2002 — are untimely because Lucenti failed to timely exhaust her administrative remedies. Title VII is the exclusive remedy available to federal employees who allege discrimination on the basis of gender, national origin, religion, or race.
Brown v. Gen. Servs. Admin.,
Timely exhaustion of administrative remedies requires that a federal employee comply with applicable EEOC regulations.
See
29 C.F.R. § 1614;
Dillard v. Runyon,
Courts must strictly adhere to such procedural requirements for gaining access to the federal courts. These timing requirements, though not jurisdictional, “are not to be disregarded by courts out of a vague sympathy for particular litigants.”
Baldwin County Welcome Ctr. v. Brown,
In the EEO proceedings underlying the instant case, Lucenti contacted an EEO counselor on March 4, 2002 regarding events allegedly occurring between 1990 and January 17, 2002. Applying the forty-five-day rule, the only timely allegations in the complaint are those that are alleged to have occurred on or after January 18, 2002. The only acts alleged by Lucenti in her formal EEO complaint (filed on September 10, 2002) that fall within that time period are the alleged acts of Kofi occurring on March 18 and 19, 2002.
Further, Lucenti’s prior contacts with the EEO office of the Postal Service on October 1, 1992 (regarding Fox), July 31, 1996 (regarding Mazzio and Agostini), February 23, 2000 (regarding Pryor and Barksdale), and September 13, 2001 (regarding Vega) establish the untimeliness of Lucenti’s claims arising from these events. She failed to exhaust her claims pursuant to the administrative requirements.
See Brown v. Coach Stores, Inc.,
In addition, Lucenti affirmatively waived any claims she may have had with respect to: (1) 1999-2000 allegations involving Pryor, Barksdale, Berger, and Jankowski; and (2) the April 2, 2001 incident involving Vega. “[T]he withdrawal of an EEO complaint must be considered as a waiver of any underlying discrimination claims.”
Littlejohn v. Henderson,
No. 01 Civ. 2772(JG),
With respect to the 1999-2000 events, Lueenti explicitly withdrew her EEO complaint, stating: “Personal business, I drop the case.” The form of withdrawal, signed by Lueenti, stated, “I fully understand that by withdrawing the complaint or allegation^) I have withdrawn, I am waiving my rights to any further appeal of this allegation^) through the EEO process. I further stipulate that my withdrawal did not result from threat, coercion, intimidation, promise or inducement.” Id.
Similarly, with respect to her claim regarding the April 2, 2001 incident involving Vega and the June 21, 2001 notice of suspension, Lueenti on November 12, 2001 explicitly withdrew her EEO complaint regarding these matters. The withdrawal form stated:
I, Lisa Lueenti, do hereby voluntarily withdraw my EEO complaint in its entirety. I fully understand that by withdrawing the complaint I waive my rights to any further appeal through the EEO process. I further stipulate that my withdrawal did not result from any threat, coercion, intimidation, promise or inducement.
Accordingly, Lueenti affirmatively waived any claim arising from events alleged in either of these withdrawn complaints and thus cannot maintain any such claim in this lawsuit.
In her complaint and in deposition, Lueenti alleges additional acts by Kofi and other individuals that post-date the EEO complaint underlying this lawsuit. Specifically, she complains that Kofi issued her a letter of warning on October 10, 2002, and that other supervisors who succeeded Kofi, ie., Supervisors Wiggs, Murtha, Stensland, and Tripp, would watch her and/or criticize her work performance as too slow. These acts, however, were not brought before the EEO office for investigation or mediation or otherwise considered by the EEO office in its dismissal of her EEO complaint. Thus, Lueenti has failed to exhaust these claims as required. See 29 C.F.R. § 1614.105(a)(1) and 106(a) and (b).
Furthermore, these actions are not reasonably related to Lucenti’s current complaints. Lueenti has specifically conceded that neither Wiggs, Stensland, nor Tripp were discriminating against her. Thus, no connection between these admittedly nondiscriminatory actions and those of Kofi, which Lueenti alleges to be discriminatory, has been established.
A. The Continuing Violations Doctrine Does Not Apply
Lueenti contends that the continuing violations doctrine permits actions occurring prior to January 18, 2002 to form the basis for Government liability. The continuing-violation doctrine “extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination even if those acts, standing alone, would have been barred by the statute of limitations.”
Quinn v. Green Tree Credit Corp.,
In support of her claim of continuous harassment, Lucenti has cited
Petrosino v. Bell Atlantic,
Lucenti’s opposition indicates that the majority of her allegations regarding the nature of the pre-2002 conduct are allegations of sexually explicit harassment. See, e.g., PI. Aff. at ¶¶ 5 and 6 (Fox, supervising from 1990-93, “stated sexual words to me and began asking me sexual and private questions. That he would rub his body against me and he would tell me to go out with him.”); id. at ¶¶ 12-13 (Rossi, supervising during 1995, commented in front of male co-workers that Lucenti had “nice legs,” and reprimanded her for wearing white socks; co-workers harassed her in 1995 by posting “lewd and sexually explicit pictures with [her] name written on it” and asked her questions such as “what color panties do you have on”); PI. Dep. Tr. at 107:7-13 (Pryor stared at Lucenti in a “sexual” way).
In contrast, the alleged harassment by Kofi bears no similarity to those allegations. Indeed, given the sexually explicit nature of Lucenti’s allegations regarding the conduct of Fox, Rossi, and her coworkers, she cannot assert that Kofi’s alleged conduct shares the same nature as any pre-2002 alleged conduct that could reasonably be construed as discriminatory.
Lucenti has sought to create a connection between these discrete incidents by asserting that,
Fox was instrumental in informing one supervisor and co-employee after another that he had been forced to leave Lenox Hill as a result of the accusations of sexual harassment by both the plaintiff and another female letter carrier. What followed was that supervisors intimidated, ridiculed, insulted and treated the plaintiff in a hostile manner.
PI. Opp. at 6. Lucenti has asserted that Fox spoke to various of her supervisors about her, including Rossi and Pryor. However, with respect to Rossi and Pryor, the conversations they had with Fox took place after they had left Lenox Hill and ceased contact with Lucenti. See Fox Dept. Tr. at 54:18-25 (Fox spoke with Rossi after 1996); id. at 67:11-19 (Fox spoke with Pryor after 2002). Fox further testified that he never spoke with Kofi. Id. at 73:22-24. Thus, the evidence fails to show any causal connection between Fox and the alleged conduct of any succeeding supervisor, including Kofi.
Here, the nature of the conduct alleged by Lucenti in this case, the frequent turnover of Lucenti’s supervisors and the substantial breaks of time between periods of alleged harassment, all demonstrate that no reasonable juror could conclude that Lucenti was subjected to one
III. Employment Discrimination Has Not Been Established
Title VII makes it unlawful “for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual ... because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). The Rehabilitation Act reads in relevant part: “No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity ... conducted by ... the United States Postal Service.” 29 U.S.C. § 794(a). Here, Lucenti has alleged that she was subjected to a hostile work environment because of her race, gender, and alleged disability; that she was retaliated against because of her prior EEO activity; and that the Government failed to reasonably accommodate her alleged disability.
To determine whether employers have violated the Rehabilitation Act, courts use the standards set forth in the Americans with Disabilities Act, 42 U.S.C. § 12101
et seq.
(“ADA”). 29 U.S.C. § 794(d);
Jackan v. New York State Dep’t of Labor,
Under the burden shifting framework established in
McDonnell Douglas Corp. v. Green,
A. Lucenti Has Not Established a Prima Facie Case of a Hostile Work Environment
Title VII prohibits employers from, among other conduct, “requiring people to work in a discriminatorily hostile or abusive environment.”
Harris v. Forklift Systems, Inc.,
Although Lucenti alleges that she was subjected to a hostile work environment based on race, gender, and disability, the undisputed evidence fails to demonstrate that her workplace was permeated with “discriminatory ‘intimidation, ridicule, and insult ... that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.’ ”
Howley v. Town of Stratford,
As the Second Circuit recently noted, [e]veryone can be characterized by [their] sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.
Alfano v. Costello,
In this case, there is no evidence of a “linkage or correlation,”
Alfano,
However, there is no allegation that any actions or statements made by Kofi on March 18 and 19, 2002 were related to Lucenti’s race or disability. Lucenti conceded that Kofi never made any comments about her race or any alleged disability. Lucenti Dep. Tr. at 287:13-23. Lucenti’s basis for believing that Kofi was discriminating against her on the basis of her alleged disability was simply that Kofi purportedly knew about her “medical condition.” Id. at 287:22-288:11. Other than Lucenti’s unsubstantiated speculation that the conduct was animated by her race and/or disability, there is no allegation of any specific instance of conduct that reveals or even suggests animus based upon either protected ground. To the contrary, all evidence — including Lucenti’s admission that she was working poorly, see Lu-centi Dep. Tr. at 65:20-23; 110:15-111:5— indicates that Kofi’s action were animated by Lucenti’s failure to perform her job adequately and because the volume on Route 49 did not warrant Lucenti working eight hours per day on that route. Indeed, it is undisputed that on April 21, 2001, the NALC and management agreed that Lucenti’s position as a day router on Route 49 was “established as no more than a 4 hour assignment if volume warrants, along with other carrier duties to be assigned by management.”
Lucenti has submitted affidavits from four co-workers, Ernest Twomley, Anthony Ciccone, Karl Middleton, and William Foley. While these four affiants conclu-sorily stated that Lucenti was treated “differently” from other workers, they fail to establish that she was singled out on any proscribed ground, be it race, gender, disability, or because of prior EEO activity. None of these affiants ascribe any imper missible — ie., discriminatory — motives to Kofi, nor do they provide any evidence regarding such motives. These affidavits do not establish Lucenti’s discrimination claim.
Lucenti has contended that the November 4, 2001 arbitration decision shows that she was subjected to a hostile work environment. That decision, however, addressed Lucenti’s grievance brought in the context of union proceedings and did not purport to resolve questions of whether management discriminated against Lucenti on a proscribed ground or whether a hostile work environment actionable under a federal discrimination statute existed. The arbitrator found that Pryor’s actions were undertaken in an attempt “to advance supervisory objectives,” Arb. Dec. at 19, and that “much of the evidence of ‘harassment’ suggests a continuing effort to improve Lucenti’s performance with Lu-centi resisting passively and actively,” id. at 17.
Allegations of even constant reprimands and work criticism by themselves are not sufficient to establish a hostile environment claim.
See, e.g., Nwanji v. City of New York,
98 Civ. 4263(RLE),
Even if it is assumed that Lucenti could support an inference of animus based on disability, race, or gender, no reasonable jury could find that the alleged conduct was objectively severe enough to constitute a hostile work environment.
See Richardson,
B. Lucenti Has Not Established a Prima Facie Case of Retaliation
Lucenti has asserted that Kofi’s alleged actions were undertaken in retaliation for Lucenti’s prior EEO activity. 2 See Lucenti Dep. Tr. at 131:18-132:9. Title VII prohibits an employer from discriminating against an employee who takes action in opposition to an unlawful employment practice. See 42 U.S.C. § 2000e-3(a). In order to establish a prima facie case of retaliation under Title VII, a plaintiff must show:
(1) that she was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the employer was aware of that activity; (3) that she suffered adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action.
Holtz v. Rockefeller & Co., Inc.,
Lucenti cannot prevail on a retaliation claim with respect to Kofi’s alleged actions on March 18 and 19, 2002 because there is no showing that Kofi’s alleged conduct constituted an adverse employment action. Courts in this district have found that to qualify as an adverse employment action, employer conduct must subject plaintiff to a “ ‘[m]aterially adverse change in the terms or conditions of [her] employment.]’ ”
Medwid v. Baker,
752
Second, Lucenti has not established a causal connection between her prior EEO activity and Kofi’s alleged conduct. Lu-centi never testified as to any comment by Kofi regarding Plaintiffs EEO claims. Indeed, as discussed above, the record indicates that Kofi’s actions were motivated by a concern over Lucenti’s job performance. In sum, Lucenti has not presented evidence sufficient for a jury reasonably to find that Kofi’s actions on March 18 and 19, 2002 constituted retaliation in violation of Title VII.
C. Lucenti Has Failed to Establish a Reasonable Accommodations Claim
Lucenti has contended that the Postal Service failed to make reasonable accommodations for her alleged disability of anxiety disorder. In order to establish a
prima facie
case under the Rehabilitation Act, Lucenti must show that (1) she is an individual with a disability within the meaning of the statute; (2) the Postal Service had notice of her disability; (3) she was otherwise qualified to meet the program requirements; and (4) the Postal Service refused to make reasonable accommodations.
See Stone v. City of Mount Vernon,
The term “individual with a disability” is defined for the purposes of the Rehabilitation Act as any person who “(i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment.” 29 U.S.C. § 705(20)(B). The Second Circuit utilizes a two-prong inquiry to determine whether one is disabled under the Act.
Heilweil v. Mount Sinai Hosp.,
According to the regulations promulgated under the Act, “major life activities” include “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 45 C.F.R. § 84.3(j)(2)(ii);
see also
28 C.F.R.
Assuming, arguendo, that Lucenti can establish that she has an “impairment” for purposes of the Rehabilitation Act, there is no evidence that she is substantially limited in performing any major life activity. Indeed, Lucenti’s own testimony demonstrates that she is capable of walking and jogging. See Lucenti Dep. Tr. at 375:15-25. Further, Lucenti’s psychiatrist, Dr. Zedek, testified that she was able to take care of herself, walk, jog, work, wash, and feed herself. See Zedek Dep. Tr. at 1676:19-167:4. Although Dr. Zedek testified that Lucenti was from time to time (approximately eight to ten times per year) anxious and unable to enjoy sex, watch television, read, jog, or attend work, he testified that these periods were transient and shortlived. Zedek Dep. Tr. at 167:5-16,169:10-21.
Additionally, Lucenti has not established that the Postal Service failed to make reasonable accommodations. Under the Rehabilitation Act, an employer must make a “reasonable accommodation” for a disabled employee, unless the accommodation would impose an “undue hardship” on the employer:
“Reasonable accommodation” means the changes and modifications which can be made in the structure of a job or employment and training program, or in the manner in which a job is performed or an employment and training program is conducted, unless it would impose an undue hardship on the operation of the recipient’s program. Reasonable accommodation may include: ... Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.
29 C.F.R. § 32.3; see also 29 C.F.R. § 1630.2(o) (similar definition under ADA). 4
While an employer must “make a reasonable accommodation” of an employee’s disability, the Rehabilitation Act does not require an employer either to “make ‘fundamental’ or ‘substantial’ modifications” in order to eliminate the disadvantages of a disability or to “provide every accommodation the disabled employee may request.”
Fink v. New York City Dep’t of Pers.,
IV. The Claim For Intentional Inñiction Of Emotional Distress Lacks Subject Matter Jurisdiction
Lucenti’s claim for intentional infliction of emotional distress must be dismissed for lack of subject matter jurisdiction. Title VII and the Rehabilitation Act are the exclusive remedies available to federal employees who allege employment discrimination.
See, e.g., Brown,
Conclusion
For the reasons set forth above, the Government’s motion is granted and the complaint is dismissed.
It is so ordered.
Notes
. For purposes of this discussion, the Court assumes, arguendo, that Lucenti has a disability within the meaning of the Rehabilitation Act.
. Lucenti also has alleged that Fox, Agostini, Mazzio and Rossi retaliated against her. Lu-centi Dep. Tr. at 131:23-132:4. However, any claim Lucenti may have had as a result of any such retaliation has not been exhausted and has long since been extinguished under the limitation period applicable in this case.
. The definition of an "individual with a disability” in the ADA is virtually identical to the definition of "individual with a handicap” under the Rehabilitation Act. 29 C.F.R. Pt. 1630, App., 56 Fed.Reg. 35726, 35740 (July 26, 1991);
see Chandler v. City of Dallas,
. An “undue hardship” is defined at 29 C.F.R. § 32.13. See also 29 C.F.R. § 1630.2(p) (similar definition under ADA).