OPINION AND ORDER
Plaintiff, Anya Juan Risco, brought suit against Defendant, John M. McHugh, Secretary of the Army (“Defendant” or the “Army”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e-2000e-17, alleging that Defendant, acting by and through his agents, discriminated against her on the basis of her race, color, disability and/or perceived disability, and in retaliation for her initiation of protected activity, by subjecting Plaintiff to a hostile work environment.
I. Background
The following facts are undisputed unless otherwise indicated.
A. Risco’s Employment
Risco began her employment with the Army on September 28, 2008, as a probationary Guidance Counselor Intern in the U.S. Army Civilian Training Education Development System (“ACTEDS”) at the United States Military Academy, West Point, New York.
Risco’s immediate supervisor at West Point was David Byrd, Director of the Education Center. (Def.’s 56.1 Stmt. ¶ 4.) Byrd was also the individual who selected Risco for the intern position in September 2008 from a list of candidates provided to him by ACTEDS. (FFC Tr. 29:22-30:18; Risco Dep. 17:10-23.) Byrd’s immediate supervisor was Michael Bilello, Director of Human Resources. (FFC Tr. 272:5.) Byrd and Bilello are both white males. (Def.’s 56.1 Stmt. ¶4.) As a probationary guidance counselor intern, Risco was also supervised by a number of individuals in the Installation Management Command (“IMCOM”) and Army Continuing Education (“ACES”)/ACTEDS chain of command.
On July 10, 2009, after approximately nine months of employment, Risco was told she was being terminated from the internship program by Ileen Rogers, the director of ACES. (Def.’s 56.1 Stmt. ¶ 26.) The stated basis of the termination was Risco’s “fail[ure] to exhibit the requisite behavior to perform successfully as a guidance counselor.” (Bober Decl. Ex. O, at 1.) The termination was effective on July 25, 2009. (Id) Of the numerous individuals involved in the decision to terminate Risco’s probationary employment, Risco imputes improper motives to only two peopie: Byrd and Bilello. (Compl. ¶ 38; Risco Dep. 79:5-8.)
B. Risco’s Behavior
Defendant has identified various instances of Risco’s behavior that her supervisors and co-workers deemed inappropriate, unusual, or disruptive to the workplace, which formed the basis for Risco’s termination. (Def.’s Mem. 5-8; Def.’s Reply Mem. 2-4.) Plaintiff does not dispute the occurrence of the incidents recounted below.
The first conduct-related incident occurred in late 2008 or early 2009. On that occasion, after learning that Risco was scheduled to accompany Byrd on a work trip to Hawaii, Victoria McPeak, one of Risco’s co-workers, is alleged to have said to Byrd: “Well, what does your wife think of you taking [Risco] to Hawaii?”
During the first five months of her employment, Risco was also in the habit of referring to her co-workers and superiors by pet names such as “Aunties,” “Papa” and “Don.” (Def.’s 56.1 Stmt. ¶8.
On March 8, 2009, Risco sent Byrd an email stating that she was feeling “overwhelmed” by her work assignments, and that her health issues were distracting her from work and affecting her productivity level.
On March 22, 2009, Risco sent an email to her supervisors and co-workers with the subject line “Proffessionalism [sic] and Etiquette in the Workplace,” stating that she “observed many departments ... diminish their professionalism, productivity and positive work environment due to malicious gossip,” and that she hoped her coworkers were “far too superior and professional to engage in gossip.” (Def.’s 56.1 Stmt. ¶ 12; Bober Deck Ex. E.) Byrd verbally counseled Risco about sending this email, which he believed was inappropriate and accusatory in nature.
In March of 2009, Risco also left several voicemail messages for Byrd and Bilello which they considered unusual. (FFC Tr. 430:3-7, 431:8-11, 433:6-8, 434:4-435:1, 662:10-665:2.) In one such message, Risco expressed concerns that her co-workers were misinterpreting her platonic relationship with a local business owner, and made a comment about all New Yorkers being ignorant.
On March 24, 2009, without explanation, Risco sent Byrd and Bilello an email informing them that she was “submitting her two-week resignation letter.” (Def.’s 56.1 Stmt. ¶ 16; Bober Decl. Ex. G.) Three days later Risco sent an email to Byrd and Bilello rescinding her resignation, again without explanation. (Def.’s 56.1 Stmt. ¶ 18; Bober Decl. Ex. I.)
On April 24, 2009, Risco sent Bilello an email to request Army regulations regarding monitoring civilian personnel email accounts, explaining that she believed that Byrd was accessing her email account. (Def.’s 56.1 Stmt. ¶ 19; Bober Decl. Ex. J.) In the email, Risco alleged that Byrd had told her on several occasions that he was capable of reading Risco’s email messages, and she claimed that Byrd had repeated some of her email messages to her verbatim. (Bober Decl. Ex. J.) Byrd testified that those conversations never occurred. (FFC Tr. 505:8-506:10.)
C. Risco’s Initial Contact with the Army EEO Office in March 2009
In March 2009, Risco contacted the Army Equal Employment Opportunity (“EEO”) office for the purpose of obtaining information about the rules relating to disabled employees working for the government (Def.’s 56.1 Stmt. ¶¶ 27-28), and because she wanted someone to speak to Byrd about her training, their communication issues, and Byrd’s unprofessional conduct.
During this time period, Burnett had a separate meeting with Byrd to address the unprofessional behavior about which Risco had complained.
On March 24, 2009, Risco forwarded her resignation email to Burnett with the message: “I finally decided to follow my conscious [sic] and resign!” (Def.’s 56.1 Stmt. ¶ 17; Bober Decl. Ex. H.) On March 27, 2009, Risco sent another email to Burnett to inform her about a comment that she claims Byrd made on March 24, 2009.
D. Personnel Actions and Risco’s Termination
By March 2009, Byrd had become sufficiently concerned about Risco’s behavior to raise the issue with his director supervisor, Bilello, as well as Risco’s supervisors in the ACES/ACTEDS reporting chain. Specifically, he spoke with Anthony Clark, the IMCOM Intern Coordinator, and Renee Mongo-Jenkins, an ACES Education Services Specialist who was responsible for the intern training program. (FFC Tr. 316:5-16.) In addition, in late March or early April, Byrd and Bilello met with William Riddle, a labor-management employee relations specialist at the Civilian Personnel Advisory Center. (Id. 457:13-19, 865:8-10.) After hearing Byrd’s concerns, Riddle, Clark, Mongo-Jenkins and David Rood (IMCOM Northeast Education Chief) all directed Byrd to collect statements from any of Risco’s co-workers who had directly witnessed the conduct at issue. (Id. 288:18-289:3, 317:9-19, 466:13-473:22, 637:8-11.)
Pursuant to these instructions, in late April and early May, Byrd collected written statements from Risco’s co-workers in the Education Center. (Id. 317:3-19, 467:4-468:5; Bober Decl. Ex. F.) The statements include descriptions of the incidents summarized above, as well as other examples of Risco’s conduct that they considered unusual and inappropriate, and which they believed had negatively affected their working environment. (Def.’s 56.1 ¶¶ 14-15;
Based on the reports of the conduct described above, IMCOM initially decided to terminate Risco’s probationary employment in late April or early May 2009. (Compl. ¶ 32; FFC Tr. 850:6-8, 854:17-855:9.) On May 1, 2009, Byrd sent a memo to the West Point Garrison Commander, Colonel Daniel V. Bruno recommending Risco’s termination on the basis
On May 7, 2009, Risco sent Bilello a memo requesting a transfer from the Education Center, and complaining that Byrd had subjected her to “discrimination,” which she did not otherwise define, and retaliation for “going up the Chain of Command.”
On May 14, 2009, Risco was informed that IMCOM was not going to approve any more training or a transfer for her. (Suss-man Aff. Ex. 9.) On the same day, Risco was placed on paid administrative leave pending a termination decision. (Def.’s 56.1 Stmt. ¶ 23.) Risco alleges that when she called Riddle to ask why she had been placed on administrative leave, she was told it was because of concerns about violence in the workplace, which she described as a “wholly baseless accusation.” (PL’s Aff. ¶ 32.) The following day, on May 15, 2009, Risco contacted the Army EEO office to make an informal complaint of discrimination, in which she alleged that Byrd had been subjecting her to racial harassment since February 2009, and that she had been placed on administrative leave because of discrimination. (Sussman Aff. Ex. 13; Def.’s 56.1 Stmt. ¶30.
Plumley also instructed Bilello to provide Risco with written counseling about their expectations for her performance and conduct when she returned to work. (Compl. ¶ 31; FCC Tr. 400:15-401:13, 620:7-13.) Accordingly, when Risco returned to work on May 29, 2009, Bilello provided her with a written counseling statement. (Def.’s 56.1 Stmt. ¶ 24; Bober Decl. Ex. M.) On June 5, 2009, Bilello provided Risco with a second counseling statement that had been prepared by Byrd, which documented the instances of inappropriate conduct that occurred prior to Risco’s administrative leave. (Def.’s 56.1 Stmt. ¶ 26; Bober Decl. Ex. N; see also FFC Tr. 621:10-20, 625:13-19, 654:11-14). The June 5 counseling statement specifically referenced the prior threatening statements and Risco’s failure to follow supervisory instructions.
On June 26, 2009, Risco filed a Formal Complaint of Discrimination with EEO alleging that both Byrd and Bilello had subjected her to discrimination and harassment because of her race, color and an unspecified physical disability.
In addition, Risco claimed that she was subjected to retaliation for initiating the formal complaint, when: (1) Bilello presented her with a written counseling statement (that had been prepared by Byrd) on June 5, 2009; (2) Byrd denied her request for training on June 16, 2009; and (3) from May 28, 2009 through the date of her formal complaint, Byrd refused to return her office keys.
Risco received a termination notice from Ileen Rogers on July 10, 2009. (Def.’s 56.1 Stmt. ¶ 26.) The notice stated that Risco was being discharged because she had failed to demonstrate the requisite fitness and qualification for continued employment as a guidance counselor. (Def.’s 56.1 Stmt. ¶26; Bober Deck Ex. O.) Rogers’ determination that Risco was not a suitable intern for the career program was based on Byrd’s May 1 memo to Colonel Bruno, the statements written by Risco’s co-workers, and individual conversations with Byrd and Risco.
Risco supplemented her Formal Complaint of Discrimination apparently to add a claim of retaliation after she received the termination notice on July 10, 2009. (Pl.’s Aff. ¶ 39.
E. Administrative Proceedings
On September 10 and 25, 2009, a fact finding conference was conducted at the Army EEO office in West Point, New York. (Bober Deck Ex. C.) Plaintiff was represented by counsel at the hearing, during which she had the opportunity to examine witnesses, present evidence, and
On May 28, 2010, the EEO Compliance and Complaints Review office issued the Army’s Final Agency Decision, finding that Risco was not the victim of discrimination or retaliation. (Def.’s 56.1 Stmt. ¶ 32; Bober Decl. Ex. R.)
II. Summary Judgment Standard
A. General Summary Judgment Standard
Summary judgment is only appropriate where “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 judgment as a matter of law.” Fed.R.Civ.P. 56(c). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno,
The burden then shifts to the party opposing summary judgment to present evidence that is sufficient to satisfy every element of the claim and “designate specific facts showing that there is a genuine issue for trial.” Celotex Corp.,
In deciding a motion for summary judgment, the Court must “ ‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ” Brod v. Omya, Inc.,
B. Additional Summary Judgment Standards for Employment Discrimination Cases
Courts are cautious in granting summary judgment in employment discrimination cases where the employer’s intent is at issue, Holcomb v. Iona College,
“[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiffs position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error.” Danzer v. Norden Sys.,
III. Legal Standard for Title VII Claims
The parties agree that Risco’s Title VII discrimination and retaliation claims are properly analyzed under the three-step burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green,
Under the McDonnell Douglas framework, a plaintiff alleging discrimination under Title VII must first demonstrate a prima facie case of discrimination. McDonnell Douglas Corp.,
If a plaintiff successfully presents a prima facie case of discrimination, the defendant must then rebut the presumption by offering legitimate and nondiscriminatory reasons for the adverse employment action demonstrated in plaintiffs prima facie case. Abdu-Brisson,
“If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted,” and “drops from the case.” Id. at 255, 255 n. 10,
IV. Discrimination on the Basis of Race and Color
Title VII prohibits employment-related discrimination on the basis of race, color, religion, sex or national origin. 42 U.S.C.A. § 2000e-2(a).
A. Prima Facie Case of Discrimination
In order to state a prima facie case of discrimination, a plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for the position in question; (3) she suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. Ruiz v. Cnty. of Rockland,
The Second Circuit has explained that a plaintiff seeking to meet her initial burden by a showing of disparate treatment must demonstrate that she is “similarly situated in all material respects” to the individuals with whom she seeks to compare herself. Graham v. Long Island R.R.,
In addition to identifying similarly situated employees who are subject to the same performance evaluation and discipline standards, a plaintiff must also show that those employees engaged in acts of comparable seriousness but were not punished as severely as plaintiff. Graham,
A plaintiff may also present a disparate treatment discrimination claim based on her employer’s failure to train her or provide her with equal access to training. To prevail, a plaintiff must show that her employer offered the training to similarly situated employees, and that she was denied that training under circumstances that give rise to an inference of discrimination. Fincher,
B. Claims of Discrimination
Risco does not claim that she suffered any discrimination prior to March 2009; nor is there any indication in the record that Risco complained of discriminatory conduct prior to that time.
Risco claims that the Defendant discriminated against her on the basis of her race and color when she was terminated for behaving erratically, threatening others with violence, and failing to perform her work in an adequate manner, because Plaintiff claims that she did not behave erratically, threaten anyone with violence, or under-perform at work. (PL’s Mem. 5-6.) Plaintiff also alleges that she was subject to disparate treatment as compared to “white males who did not suffer from any disability,” based on the fact that Byrd failed to timely provide her with performance standards or a mid-year performance review, that she was denied training opportunities, and that Byrd relied on allegedly false statements regarding her conduct in recommending her termination. (Id. 6-8.)
Risco further alleges that she was treated differently than her co-workers because she was the only Hispanic, “dark-skinned person” in the Education Center. (Id. 7; see, e.g., Risco Dep. 55:18-21, 77:11-14; FFC Tr. 35:12-16, 88:13-89:5.
Defendant argues that he is entitled to summary judgment on Plaintiffs race and color discrimination claims because: (1) Risco has failed to identify any similarly situated employee outside her protected group who was treated more favorably, and (2) Plaintiff fails to satisfy the fourth element of a prima facie case in that she cannot offer any direct evidence sufficient to give rise to an inference of discrimination on the basis of race or color.
C. Discussion
1. Disparate Treatment
With respect to Plaintiffs claims of disparate treatment, Risco has failed to identify any comparators with whom she claims she was similarly situated. She has provided “no factual support that a single alleged comparator performed similar job functions, was subjected to, the same disciplinary standards, engaged in similar conduct, or was treated more favorably.” Abdul-Hakeem v. Parkinson, No. 3:10-cv747 (JBA),
Apart from the assertion that she behaved “as others did when she called coworkers ‘pet names’ early in her employ
With respect to Risco’s claim of disparate treatment based on unequal access to training, the only specific training opportunity that Risco claims she was denied is a conference that was scheduled to occur in July or August 2009. (Risco Dep. 73:19-75:8; FFC Tr. 339:19-341:8; Sussman Aff. Ex. 9) While Risco did not identify any other employees who were offered that training, let alone employees who she claims were similarly situated, a review of the entire record reveals that Risco previously testified that Neil Sakumoto, a permanent guidance counselor, received the training that she was denied. (Risco Dep. 75:9-21.
Risco’s conclusory assertion that “[o]n June 16, 2009, Byrd denied my request for training” (Pl.’s Aff. ¶ 37), is too vague and general to give rise to an inference of discrimination. Meiri,
Without the necessary evidence of similarly situated comparators, Risco cannot meet her burden of demonstrating facts that give rise to an inference of discrimination on the basis of race or color under a disparate impact theory. Fincher,
2. Other Evidence of Discrimination
Since Risco has failed to demonstrate disparate treatment, her claims of discrimination on the basis of race and color can only survive if she can point to some direct evidence that creates a genuine issue of fact as to whether her termination was motivated by racial bias or animus. The record is devoid of any such evidence — beyond her simply saying it is so — because Risco has not shown that any of the actions taken by Byrd or Bilello were because of her race or color. For example, Risco cites Byrd’s failure to timely provide documentation concerning the performance standards for her position as evidence of discrimination; however, Risco has admitted that she did not think she was being subjected to discrimination during the first five months of her employment, notwithstanding Byrd’s undisputed failure to give her the written performance standards for her position. (Def.’s 56.1 Stmt. ¶ 29; FFC Tr. 963:12-17.) There is otherwise no evidence that Byrd failed to give Risco the performance standards because of her race or color. She has also offered no evidence to support her assertions that she was denied training opportunities because of her race or color.
Risco’s claim that she was “falsely accused of workplace violence,” and “subjected to false write-ups” (PL’s Mem. 6-7), also does not give rise to an inference that Byrd’s conduct was motivated by bias. As a matter of law, Risco’s disagreement with her employer’s evaluation of her behavior or performance is not evidence of discriminatory intent. Jimoh v. Ernst & Young,
The fact that Risco was the only Hispanic, dark-skinned employee in the Education Center during the ten months of her employment, and her unsupported assertion that Byrd would have treated her differently if she had been a light-skinned Caucasian, also does not supply sufficient evidence to establish a prima facie case of discrimination. Anderson v. Hertz Corp.,
Risco’s general assertion that she was “stripped [ ] of her job duties” (Pl.’s Aff. ¶ 30), is not supported by any evidence in the record. Moreover, such an allegation, standing alone, would not give rise to an inference of discrimination even if she had submitted evidence to support this claim, especially in light of Risco’s complaint to Byrd in March 2009 about being “overwhelmed” by her responsibilities and assigned duties that were beyond the scope of her job.
With respect to the immediate circumstances surrounding Riseo’s termination, there is no evidence in the record to support an inference of racial animus on the part of Ileen Rogers, the ultimate decision-maker. See Patterson v. Cnty. of Oneida,
An employer has the prerogative to discharge an employee on the basis of subjective business judgments, for any reason that is not discriminatory; it is not the job of the Court to question the employer’s means to achieve a legitimate goal. Fleming v. MaxMara USA
In sum, Risco has not submitted any evidence to show that any of the conduct she complains of was undertaken because of her race or color. Plaintiff merely describes her “alleged mistreatment and ask[s] the court to conclude that it must have been related to [her] race. This is not sufficient.” Grillo,
Moreover, even if, assuming arguendo, Plaintiff had established a prima facie case of discrimination, the Court finds that summary judgment is still appropriate, because Defendant’s assertion that Risco was fired because of her increasingly erratic conduct is sufficient to satisfy the burden of producing a legitimate, non-discriminatory reason for the termination,
Y. Disability Claims
With respect to Risco’s discrimination, retaliation and hostile work environment claims on the basis of a physical and/or perceived mental disability, the Court finds sua sponte that Risco has failed to state any cognizable claims on this basis.
Although Plaintiff refers to her “ADA claim” in opposing Defendant’s Motion for Summary Judgment (PL’s Mem. 9), the Complaint does not contain any references to the Americans with Disabilities Act (“ADA”), let alone a claim that Defendant violated the ADA. Even if the Complaint contained such a claim, it would not survive a motion to dismiss. As a federal employee, Risco has no remedy for employment discrimination under the ADA. See 42 U.S.C. § 12111(5)(B) (explicitly excluding the United States from the definition of “employer”). Her sole claim for discrimination on the basis of disability would be under Section 501 of the Rehabilitation Act (“RHA”), if anywhere. 29 U.S.C. § 794a. However, Risco has not alleged any violations of the RHA in either her Complaint or in her summary judgment papers. Therefore, Risco has failed to state a cognizable claim for discrimination, retaliation, or a hostile work environment on the basis of a physical or perceived mental disability. Clark v. City of Dublin,
Even if Risco had stated a cognizable claim for disability discrimination under the RHA, summary judgment would be appropriate because she has not established a prima facie case of discrimination on the basis of a disability. In order to state a prima facie case of discrimination under the RHA, a federal employee must show, among other things, that she is disabled within the meaning of the RHA. De La Rosa v. Potter,
While Risco avers that her physical impairments prevented her from “engaging in activities like lifting and running and other major life activities of a physical nature” (PL’s Aff. ¶ 10), this assertion is expressly contradicted by her prior sworn testimony. Specifically, Risco previously testified that her physical disabilities did not impede her ability to walk (FFC Tr. 61:10-12, 63:10-14, 193:2-3); jog (id. 194:4-5); lift up to 35 pounds (id. 193:6-7); bend (id. 193:6); sit for long periods of time (id. 193:7); use stairs (id. 195:12-16); exercise (id. 191:17-20); talk (id. 61:13-15, 193:6-7); eat (id. 61:19-21); see (id. 193:10); hear (id. 193:11); take care of herself (id. 61:16-18); or interact with other people.
Plaintiff has also failed to state a prima facie case of discrimination under the “regarded as” prong of the RHA, because she has not shown that she was subjected to an adverse employment action because of a perceived mental impairment that is not both transitory and minor. 29 C.F.R. § 1630.2(g), (l). Even under the expanded definition of disability set forth in the ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (Sept. 25, 2008), Risco’s assertions that Byrd referred to her inability to do a task as a
Q: Well, did you believe that she was suffering from some kind of psychological illness at [the time Risco left the unusual voice message]?
A: No. I don’t know. I’m not qualified to say.
Q: .... My question is whether you
believe because of that voicemail or other alleged erratic behavior that [Risco] was suffering from some kind of psychological illness.
A: I don’t think she’s mentally ill. I’ve never implied that.
FFC Tr. 435:7-19.
Additionally, Risco has offered no evidence to show that she was terminated because Byrd regarded her as being mentally impaired. “Establishing that an individual is ‘regarded as having such an impairment’ does not, by itself establish liability. Liability is established under title I of the ADA only when an individual proves that [her employer] discriminated on the basis of disability within the meaning of section 102 of the ADA, 42 U.S.C. 12112.” 29 C.F.R. § 1630.2(Z )(3). An isolated remark made approximately four months before Risco’s termination outside of the relevant decision-making context, and a description of Risco’s conduct as “erratic,” are not evidence of discriminatory intent. Danzer,
It is undisputed that Risco' was terminated because her employer concluded that she had failed to demonstrate the requisite fitness and qualification for continued employment as a guidance counsel- or based on behavior that Defendant deemed inappropriate. (Def.’s 56.1 Stmt. ¶ 26.) “[0]n-the job misconduct and poor work performance always constitute legitimate and nondiscriminatory reasons for terminating employment, even where the misconduct is caused by an undivulged psychiatric condition.” Canales-Jacobs v. N.Y. State Office of Court Admin.,
Therefore, even if Risco had stated a claim for discrimination under the RFIA, the claim still would not survive the instant motion.
VI. Retaliation Claim
Title VII also makes it unlawful for an employer to discriminate against an employee by retaliating against her because she has “opposed” a practice that Title VII forbids. 42 U.S.C.A. § 2000e-3(a). An employer violates Title VII when a retaliatory motive contributes to an adverse employment action, even if it is not the sole cause of the action. Terry v. Ashcroft,
Risco asserts that she engaged in protected activity on March 27, 2009 when “she plainly complained to the agency EEO officer of disability-related discrimination.” (PL’s Mem. 11.) Risco alleges that Defendant retaliated against her for contacting the EEO office when, “within six weeks of complaining to her employer’s EEO officer on March 27, 2009,” Byrd: (1) solicited adverse statements about her from her co-workers; (2) recommended her termination for “false, concocted reasons, including the highly disparaging claim she was a threat to the workplace;” (3) placed her on paid administrative leave; (4) prepared two “false” counseling memoranda about her; (5) stripped her of her job duties following the paid administrative leave; (6) isolated her at work; and (7) ultimately terminated her probationary employment.
A. Prima Facie Case of Retaliation
Retaliation claims under Title VII are evaluated under the McDonnell Douglas three-step burden-shifting test. Jute v. Hamilton Sundstrand Corp.,
1. Protected Activity
While a protected activity generally involves the filing of a formal complaint of discrimination with an administrative agency, Kotcher v. Rosa & Sullivan Appliance Ctr.,
However, a plaintiff is not required to show that the conduct she opposed was in fact unlawful; it is sufficient if the plaintiff had a good faith, reasonable belief that she was opposing a practice prohibited by Title VII. Kessler v. Westchester Cnty. Dep’t of Soc. Servs.,
Risco’s assertion that she engaged in protected activity on March 27, 2009 when she “plainly complained to the agency EEO officer of disability-related discrimination” is not supported by any evidence offered by Plaintiff. In fact, her assertion is “plainly” contradicted by her sworn and undisputed testimony that she did not believe she was being discriminated against when she contacted the Army EEO office in March 2009. (Def.’s 56.1 Stmt. ¶ 29 (citing Risco Dep. 40:6-9).)
In any event, Risco’s March 27, 2009 email cannot satisfy the “protected activity” requirement of her prima facie case for two reasons. First, Risco’s complaint was too generalized. See Rojas II,
Therefore, the Court finds that the first instance of “protected activity” for the purpose of demonstrating a prima facie case of retaliation was the informal complaint of discrimination that Risco made on May 15, 2009.
2. Employer Knowledge
In order to satisfy the requirement of employer knowledge, an employee must have made it clear that she was opposing activity made illegal by Title VII. Galdieri-Ambrosini
The Second Circuit has established that general corporate knowledge is sufficient to satisfy the second element of a prima facie case of retaliation. Id. An individual decisionmaker’s lack of knowledge of Risco’s protected activity does not undermine Defendant’s knowledge of her informal EEO complaint. Alston v. N.Y. City Transit Auth.,
3. Materially Adverse Employment Action
A materially adverse action for purposes of a retaliation claim is one that “a reasonable employee would have found ... materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
The Supreme Court also emphasized the importance of applying an objective standard for judging the alleged harm, referring to how a reasonable employee would react rather than to the plaintiffs subjective reaction. Id. at 67-69,
None of the actions Plaintiff identified as “prohibited retaliation” constitute adverse actions under the governing case law in this Circuit. The first three purportedly adverse actions Risco identified — soliciting adverse statements from her co-workers, recommending her termination, and placing her on administrative leave — occurred prior to her protected activity on May 15, 2009 and therefore cannot be considered retaliatory. The preparation of two counseling memoranda, which does post-date May 15, 2009, is insufficient to establish a materially adverse action as a matter of law. Cody v. Cnty. of Nassau,
4. Causation
To satisfy the fourth requirement for a prima facie case of retaliation a plaintiff can establish the causal connection between the protected activity and an adverse employment action either directly, by offering evidence of retaliatory animus, or indirectly, by demonstrating that the protected activity was followed in close proximity by the adverse treatment. Cobb v. Pozzi
At the prima facie stage, a plaintiff can rely solely on temporal proximity to establish the requisite causal connection between her protected activity and the materially adverse action that she allegedly suffered in retaliation for engaging in that activity. Here, the less than two-month temporal relationship between the protected activity and Risco’s termination is sufficiently proximate to support an inference of causation. Gorman-Bakos,
The evidence submitted by Risco demonstrates that, at the very latest, Byrd had taken steps to discharge Risco as a probationary employee by May 1, 2009. (PL’s Aff. ¶ 25; Sussman Aff. Ex. 3.) Since Risco has established that her supervisors began the process of terminating her employment before she engaged in protected activity, she cannot rely on temporal proximity to satisfy the causal connection element of a prima facie case of Title VII retaliation. Breeden,
Risco has offered no other evidence of a retaliatory motive to satisfy the casual connection requirement; therefore, she has not made a prima facie case of Title VII retaliation. “[A] plaintiff may not rely on conclusory assertions of retaliatory motive to satisfy the causal link. Instead, [s]he must produce ‘some tangible proof to demonstrate that [her] version of what occurred was not imaginary.’ ” Cobb,
VII. Hostile Work Environment
The Supreme Court has “repeatedly made clear that although [Title VII] mentions specific employment decisions with immediate consequences, the scope of the prohibition is not limited to economic or tangible discrimination, and that it covers more than terms and conditions in the narrow contractual sense.” Nat’l R.R. Passenger Corp. v. Morgan,
Courts analyzing hostile work environment claims look at “all of the circumstances,” including: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 23,
A. Prima Facie Case
In order to state a prima facie case of a hostile work environment because of discrimination on the basis of race or color, a plaintiff must show that: (1) the workplace was permeated with discriminatory harassment or intimidation that was sufficiently severe or pervasive to alter the conditions of her working environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer. Mack v. Otis Elevator Co.,
“The first element of a hostile work environment claim has both an objective and subjective component: ‘the misconduct 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.’ ” Carter,
Defendant argues that summary judgment is appropriate because the conduct Risco complains of is insufficient to demonstrate an objectively hostile work environment, and because Risco cannot establish that any of the conduct occurred because of her race or color.
B. Discussion
Risco claims that she was subjected to a hostile work environment because, within a short period of time, Byrd: (1) took statements from her co-workers; (2) recommended her termination; (3) placed her on paid administrative leave; (4) “reluctantly returned to her supervision;” (5) caused her to be given two “false” counseling memoranda; (6) stripped her of her duties; (7) refused to allow her further training; and (8) isolated her. (Pl.’s Mem. 10.) On their face, these actions are race-neutral. While facially race-neutral incidents “may sometimes be used to establish a course of [race]-based discrimination— for example, where the same individual is accused of multiple acts of harassment, some overtly [racial] and some not,” Alfano v. Costello,
In order for facially race-neutral incidents to be included in the totality of the circumstances considered by a court in analyzing a hostile work environment claim, there must be some basis for a reasonable fact-finder to conclude that those actions were in fact based on Risco’s race. “[T]his requires some circumstantial or other basis for inferring that incidents [raee]-neutral on their face were in fact discriminatory.” Id. at 378. Here, based on the evidence presented by Plaintiff, there is no reason to believe that any of Byrd’s conduct was due to Risco’s race or color. As the Second Circuit explained in Alfano:
Everyone can be characterized by 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 diserimina*117 tion. Otherwise, the federal courts will become a court of personnel appeals....
Moreover, many personnel decisions can be ascribed to discrimination no matter what the supervisor does-. Thus, it is easy to claim animus whether a supervisor resorts to counseling (if this is seen as a form of discipline) or not (if lack of guidance is deemed to set up an employee for harsher discipline). Similarly, it is easy to ascribe animus whether an employer prepares a memo after an event of discipline (if the memo is deemed an escalation in severity) or not (if the failure to prepare a memo is deemed a cover-up).
Id. at 377-78 (internal citations omitted).
Even if Risco had offered some proof that Byrd’s conduct was motivated by racial animus, she cannot establish the existence of a hostile environment because the conduct she complains of was too isolated and limited in duration to establish an objectively hostile work environment. Lopez,
Plaintiff also completely fails to support her assertion that the conduct leading up to her discharge was sufficiently severe or pervasive to alter the conditions of her employment under the objective and subjective standards set forth in Petrosino v. Bell Atlantic,
Indeed, Risco’s claims do not even approach the level of conduct present in other cases where courts have found insufficient evidence of severe or pervasive conduct to support a hostile work environment claim. See Alfano,
VIII. Conclusion
For the reasons discussed above, Defendant’s motion for summary judgment is GRANTED.
The Clerk of the Court is respectfully directed to enter judgment in favor of Defendant.
It is SO ORDERED.
Notes
. Plaintiffs pleadings do not clearly set forth whether she intends the term "hostile work environment” to represent an independent claim for relief under Title VII. The Complaint contains only two causes of action, which each appear to contain multiple claims. (Compl. ¶¶ 46-47.) The term "hostile work environment” appears in the first cause of action, which states:
By subjecting plaintiff to a hostile work environment on account of her race and color, her disability and/or perceived disability and in retaliation for her initiation of protected activity, defendant, acting through and by his agents, created a hostile work environment and do [sic] discriminated against plaintiff in violation of Title VII of the Civil Rights Act of 1964.
(Id. ¶ 46.) Since the parties have addressed Plaintiff’s reference to a “hostile work environment” as a separate claim in their summary judgment papers, and Plaintiff did not use the term "hostile work environment” in discussing her retaliation or discrimination claims, (Pl.’s Mem. Opp. Def.’s Mot. Summ. J. ("PL’s Mem.”) 5-8, 11-12), the Court will also analyze Plaintiff’s hostile work environment arguments as a separate claim.
. In answering a motion for summary judgment pursuant to Fed.R.Civ.P. 56, litigants in this District are required by our Local Rules to specifically respond to the assertion of each purported undisputed fact by the movant and, if controverting any such fact, to support its position by citing to admissible evidence in the record. See Local Rule 56.1(b), (d); see also Fed.R.Civ.P. 56(c) (requiring reliance on admissible evidence in the record in supporting or controverting a purported material fact). My Individual Practices further require the party opposing a motion for summary judgment to reproduce each entry in the moving party’s Rule 56.1 Statement and set out her response directly beneath it. See Individual Practices Rule 2(C)(1). These rules-simple to understand and apply-are designed to assist the Court by narrowing the scope of the issues to be adjudicated and identifying the facts relevant and admissible to that determination. Holtz v. Rockefeller & Co.,
Unfortunately, Plaintiff's counsel in this case has once again failed to comply with these straightforward requirements. Plaintiff’s Response to Defendant’s Rule 56.1 Statement (the "Statement”) is deficient in several significant respects. (See Pl.’s Response Def.’s Rule 56.1 Stmt. ("Pl.'s 56.1 Response”), Doc. 21.) First, it frivolously purports to deny certain factual assertions that a review of the record establishes have previously been admitted by Plaintiff in sworn testimony, or otherwise relied on by Plaintiff. See, e.g., infra notes 9, 16 (discussing Pl.'s 56.1 Response ¶¶ 9, 21). Indeed, in one response, counsel both "admits” and "denies” the same asserted fact. (Pl.'s 56.1 Response ¶ 25.)
Second, the Statement fails to comply with Fed.R.Civ.P. 56(c) and Local Rule 56.1 in that it fails to support many of Plaintiff’s purported denials with any citations to admissible evidence or with citations to evidence that actually support her contentions. See, e.g., infra notes 8, 9, 16, 17, 30 (discussing Pl.’s 56.1 Response ¶¶ 9, 21, 25); see also Holtz,
Third, the Statement improperly interjects arguments and/or immaterial facts in response to facts asserted by Defendant, without specifically controverting those facts. See, e.g., infra notes 9, 10, 12, 14, 16, 17, 23, 25, 30 (discussing Pl.’s 56.1 Response ¶¶ 8, 9, 10, 13-15, 21, 25); Costello,
Fourth, the Statement improperly asserts new allegations or arguments not otherwise made. See, e.g., infra note 16 (discussing Pl.’s 56.1 Response ¶ 21). Fifth, though admittedly less important, the Statement fails to conform to my Individual Practices which require litigants to reproduce each entry in the moving party's Rule 56.1 Statement and set out the opposing party’s response directly beneath it. Individual Practices Rule 2(C)(1). This requirement is also contained in the individual rules of other judges in this District and in this courthouse before whom Plaintiff's counsel frequently appears.
The balance of counsel's submissions in no way serve to cure the deficiencies in Plaintiff's 56.1 Statement and, indeed, Plaintiff’s other submissions simply serve to add to the Court's burden. For example, Plaintiff's Affidavit is replete with improper averments, including statements not based on personal knowledge and assertions that are explicitly contradicted by admissible evidence in the record (including Plaintiff's prior sworn testimony) and Plaintiff’s other submissions. See, e.g., infra notes 7, 16, 52 (discussing Pl.’s Aff. Opp. Def.’s Mot. Summ. J. (“Pl.'s Aff.”) ¶¶ 4, 13, 24, 29-30); see also Amnesty Am. v. Town of West Hartford,
Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment, while loaded with factual arguments which could conceivably have- raised a genuine issue of material fact, does not contain one single citation to the record, and, in certain instances, Plaintiff's factual assertions are expressly contradicted by admissible evidence in the record. See, e.g., infra notes 50, 52 (discussing Pl.’s Mem. 7, 10-11). By way of further example, counsel devotes approximately one and one-half pages of Plaintiff's Memorandum to defending a purported Americans with Disabilities Act ("ADA”) claim. (Pl.’s Mem. 8-9). There are two problems with this argument, one factual the other legal. The factual problem is that there is no ADA claim in the Complaint. Plaintiff arguably raises two causes of action in her Complaint, both sounding in Title VII violations. (Compl. ¶¶ 46-47). The legal problem with Plaintiffs "ADA claim,” had it actually been asserted, is that there can be no ADA claim against the federal government. See infra Section V. (Defendant’s papers fared no better in this regard, it devoted three-and-one-half pages to opposing a non-existent Rehabilitation Act claim. (Mem. Supp. Def.'s Mot. Summ. J. ("Def.'s Mem.”) 15-17; Reply Mem. Supp. Def.’s Mot. Summ. J. ("Def.’s Reply Mem.") 4-5.)) Plaintiff’s Memorandum also contains references to discrimination and hostile work environment claims on the basis of age, national origin and gender. (See, e.g., Pl.'s Mem. at 5, 8, 10.) These also are not among the claims that Plaintiff has asserted in the instant case. As these references appear to be mistakes, the Court has disregarded all references to age, gender and national origin.
In addition, unlike the usual attorney affirmations which merely attach copies of documents alleged to be relevant and admissible, and identifies those documents for the Court, Plaintiff's counsel submitted an affirmation which includes arguments and factual assertions. (Aff. of Michael H. Sussman, Esq. ("Sussman Aff.”), Doc. 22.) The affirmation is patently improper in that he could not possibly have personal knowledge of the matters discussed, as evidenced by the fact that the affirmation — unlike counsel’s other submissions — actually contains citations to the record (see, e.g., Sussman Aff. ¶¶ 2-7), and because counsel attaches documents that contain inadmissible hearsay or that are inadmissible by virtue of the fact that they are nowhere properly identified, much less authenticated. (See, e.g., Sussman Aff. Exs. 6-8, 12, 14); see also Fed.R.Civ.P. 56(c)(4) (an affidavit or declaration used to oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant
Although the court is not required to search the record for genuine issues of material fact that the party opposing summary judgment failed to bring to the Court's attention, Holtz,
In sum, for the reasons set forth above, and explained further below where necessary, in analyzing the instant motion, the Court has disregarded: (1) averments in Plaintiff's 56.1 Statement that are not denials of the specifics facts asserted by Defendant, or not supported by citations to admissible evidence in the record, or that are contradicted by other admissible evidence in the record, or that are improper legal arguments; (2) improper assertions and arguments contained in Plaintiff's counsel’s affirmation that are clearly not based on personal knowledge; (3) inadmissible evidence attached as exhibits to Plaintiff's counsel’s affirmation; and (4) the improper portions of Plaintiff's Affidavit.
As noted, this is not the first time a member of this Court has had to take the extraordinary step of admonishing Plaintiff's counsel concerning his obligations to follow the Local and Individual Rules of this Court. The admonitions date back as far as five years and as recently as two months. See, e.g., Tomlins v. Village of Wappinger Falls Zoning Bd. of Appeals,
It simply will not do for counsel to say that genuine issues of material fact exist and then rely on the Court to go find them. Much more is expected from an experienced member of the bar of this Court and will henceforth be strictly required.
. Pursuant to Local Rule 56.1(c), each factual statement set forth in Defendant's Rule 56.1 statement “will be deemed to be admitted for purposes of this motion unless specifically controverted by a correspondingly numbered paragraph” in Plaintiff's Response to the Rule 56.1 Statement. See supra note 2. Where possible, the Court has relied on the undisputed facts in Defendant’s 56.1 Statement; however, direct citations to the record have also been used where relevant facts were not included in either of the parties' Rule 56.1 submissions.
. “Bober Decl.” refers to the December 13, 2011 Declaration of David Bober in support of Defendant’s Motion for Summary Judgment. (Doc. 15.) Citations to "Risco Dep.” refer to the transcript of the August 31, 2011 deposition of Risco. (Bober Decl. Ex. B.) Citations to "FFC Tr.” refer to the transcript of the fact finding conference conducted to investigate Plaintiff’s complaint of discrimination at the Army’s Equal Employment Opportunity Office in West Point, New York, on September 10 and 25, 2009. (Bober Decl. Ex. C.) Plaintiff's attorney chose to rely on testimony from this administrative proceeding in lieu of conducting depositions in the instant case. (Def.’s Mem. 4 n. 1.) Short excerpts from the transcripts of Plaintiff’s deposition and the FFC hearing were also submitted as part of Plaintiff’s evidence. (Sussman Aff. Exs. 1,2.)
. ACTEDS is an Army civilian training program which recruits and selects candidates for the guidance counselor career program that Risco participated in as an intern at West Point. (Def.'s Mem. 4 n. 1.)
. The relationship between IMCOM and ACES/ACTEDS is not explained in the record.
. Although Risco now avers that she did not receive any written or verbal counseling prior to March 8, 2009 (Pl.’s Aff. ¶ 13), she previously testified about verbal counseling that she received from Byrd in relation to various incidents in late 2008 and again in March 2009. (See, e.g., FFC Tr. 129:12-130:1, 144:6-7, 148:2-3.) See supra note 2. Further, as a probationary employee, Risco was not subject to the same disciplinary procedures as permanent employees, and written counseling was not required. (FFC Tr. 852:6-853:22.) See also Sampson v. Murray,
. Although Risco claims that McPeak made this comment to Byrd, Plaintiff has not cited admissible evidence to support her assertion. (Pl’s 56.1 Response ¶9 (citing testimony of Bilello who repeatedly stated that he did not witness the incident (FFC Tr. 628:9-12, 711:19-22))); see supra note 2. Byrd testified that he did not remember McPeak making any comment about Risco going to Hawaii, but that he "took [Risco] at her word that she was offended by a statement.” (FFC Tr. 280:11-15, 281:11-18.)
. Plaintiff’s Response purports to deny paragraph 9 of Defendant’s 56.1 Statement, which directly and accurately quotes her deposition as the source of the statement, but then alleges that the statement was willfully taken out of context and misrepresented by Byrd. (PL's 56.1 Response ¶ 9.) Thus, Plaintiff's Response does not specifically controvert the fact set forth in Defendant’s Statement, which is deemed admitted for purposes of this motion. See supra note 2. Additionally, Risco's assertion that her comment "did not lead to counseling from her supervisors” is not supported
. Plaintiff’s Response purports to deny paragraph 8 of Defendant's 56.1 Statement “as - incomplete and irrelevant’’ (Pl.’s 56.1 Response ¶ 8), but Plaintiff does not specifically controvert the fact set forth in Defendant's 56.1 Statement. See supra note 2.
. The record reflects that Risco suffers from tri-compartmental osteoarthritis in her knees, and a history of hypertension, hyper-lipidemia and coronary artery disease. (Pl.’s Aff. ¶ 10.)
. Plaintiff's Response to Defendant’s 56.1 Statement regarding this email ("[ajdmit that the email so stated but deny as incomplete”) does not specifically controvert the facts that Defendant claims are undisputed. (Pl.’s 56.1 Response ¶ 10.) See supra note 2.
. Risco provided different descriptions of her conversation with Byrd on each of the two occasions on which she gave sworn testimony. (Compare FFC Tr. 129:12-130:5 (testifying that Byrd told her the email was accusa
. Plaintiff’s Response purports to dispute the characterization of the facts set forth in Defendant’s 56.1 Statement, but does not specifically controvert Defendant’s Statement. (Pl.'s 56.1 Response ¶ 13.) See supra note 2.
. The Court notes that the EEO Counselor’s Report documenting Risco's informal complaint of discrimination includes allegations that Risco made about "malicious gossip being spread about [her] in the office.” (Suss-man Aff. Ex. 13, at 6.) A written statement prepared by Nancy Judd, a permanent guidance counselor in the Education Center, also states that, in a later conversation, Risco said that "contract employees had been 'gossiping' ... and implied that the gossip concerned her.” (Bober Decl. Ex. F, at 3.)
. Although Plaintiff avers that "the only messages [she] left related to specific complaints of discrimination” (Pl.’s Aff. ¶ 4), this claim is contradicted by Plaintiff's assertion that Byrd used the voicemail message described above, and referenced in Defendant's 56.1 Statement, as "evidence of plaintiff's allegedly erratic behavior.” (Pl.'s 56.1 Response ¶21.) Plaintiff's 56.1 Response also includes an assertion that her voicemail messages should have been treated as protected activity. (Id.) At the outset, this allegation is improperly presented for the first time in Plaintiff's 56.1 Response Statement. See supra note 2. Moreover, Plaintiff has not submitted any evidence of voicemail messages containing complaints of discrimination, nor identified any adverse actions that Risco claims to have suffered in retaliation for leaving these messages. Notwithstanding these deficiencies, the Court has considered the assertion in the interest of deciding this motion on the merits. Based on examination of the entire record, including evidence submitted by Defendant, it appears that Plaintiff's claim relates to voicemail messages that Risco left for Bilello in late June 2009, as distinguished from the March 2009 voicemails referenced in Defendant's 56.1 Statement, wherein she complains that Byrd is ignoring her and asserts that his behavior amounts to racial discrimination. (See FFC Tr. 670:2-672:4, 674:7-675:14, 677:6-16.) Contrary to Risco's claim that Bilello "never attempted to independently verify her claims” (Pl.’s 56.1 Response ¶21), the evidence that Plaintiff cites demonstrates that Bilello discussed the concerns contained in the late June voicemails with both Risco and Byrd. (FFC Tr. 707:11-707:21.) Based on those conversations, Bilello determined that any actions taken by Byrd had been for legitimate, nondiscriminatory reasons (id. 685:9-22, 707:1-4), and that Risco was not complaining of any type of discrimination prohibited by Title VII. (Id. 686:5-687:15, 708:12-17.)
. Plaintiff's assertion that "Bilello did not consider the voicemails to show anything ‘erratic’ ... [n]or did he believe their content unusual” (Pl.'s 56.1 Response ¶21), is not supported by the testimony that Plaintiff cites. Moreover, this assertion is not properly included as a response to Defendant’s State
. At the fact finding conference, Risco testified that she went to the Army EEO office to complain about her training, Byrd’s practice of asking other employees if they liked her, and because Byrd had misunderstood two emails that she sent in March. (FFC Tr. 33:19-34:7, 54:3-55:8.) At her deposition, Risco testified that she contacted the Army EEO office to get information about regulations for disabled workers (Risco Dep. 35:9-23, 40:23-41:3, 47:19-21, 48:12-16), and because of “concerns of unprofessionalism by [her] supervisor, Mr. Byrd.” (Id. 42:11-14, 44:17-19, 45:14-15.) When asked to identify Byrd’s "unprofessional” conduct, Risco alleged that he had made disparaging comments about people with disabilities (id. 46:5-19, 48:12-14); however, she could not recall any disparaging remarks that Byrd made pri- or to her initial EEO visit (id. 46:9-47:13), and she said that she did not have any complaints about how Byrd treated her prior to her initial EEO visit (see, e.g., id. 40:6-9, 41:9-23, 44:25-46:18), except that Byrd was “standoffish” when Risco approached him about her need to take leave to attend medical appointments. (Id. 36:3-6, 41:3-7.)
. Byrd could not recall the date of his meeting with Burnett and there is no written documentation of the meeting in the record, but Byrd testified that the meeting occurred before the decision to terminate Risco was made. (FFC Tr. 427:10-15, 458:4-460:4.)
. Although Plaintiff’s Affidavit states that this incident occurred on March 27, 2009 (PL’s Aff. ¶ 21), the email itself — which was submitted as part of Plaintiff’s evidence — alleges that this occurred on March 24, 2009. (Sussman Aff. Ex. 5.)
. Byrd denies making the statement. (FFC Tr. 538:7-11.)
. See infra note 28.
. Risco denies that some of the additional incidents occurred, and disputes her co-workers’ characterization of other incidents; however Plaintiff’s Responses do not specifically controvert Defendant’s 56.1 Statement. (PL's 56.1 Response ¶¶ 13-15.) The incidents that Risco denies have not been considered for purposes of this Motion.
. The parties have failed to explain why Byrd sent the memo to Bruno to recommend Risco's termination after initiating tire personnel action with Risco's IMCOM and ACES/ACTEDS supervisors. As West Point Garrison Commander, Bruno was Byrd's ultimate supervisor, but Risco was not a West Point employee. (FFC Tr. 856:12-15.) There is contradictory evidence in the record about whether anyone at West Point had the authority to terminate Risco. (Compare id. 343:11-344:6 (Byrd testifying that no one at West Point had the authority to approve Risco’s termination) with id. 856:16-857:8 (Riddle testifying that both Bilello and IMCOM had the authority to terminate Risco's employment).)
. Plaintiff's Response to Paragraph 21 in Defendant's 56.1 Statement begins “Deny as to the claims,” and cites to a paragraph in Risco’s Affidavit in which she avers that "... none of the incidents cited in [] paragraph [21] ever happened.” (PL's 56.1 Response ¶21 (citing Pl.’s Aff. ¶ 4).) However, Plaintiff's 56.1 Response does not dispute the fact set forth in Defendant's 56.1 Statement. See supra note 2.
. Plaintiff submitted only the first two pages of Byrd's memo, which contains his recommendation to discharge Risco. (Sussman Aff. Ex. 3.) Defendant’s Exhibit K contains additional pages, which describe specific examples of conduct in support of Byrd’s recommendation, including statements written by Risco’s co-workers. (Bober Decl. Ex. K, at 3-10.) While some of the events described by Byrd are undisputed, the Court has not relied on the additional pages of Byrd's Memorandum in analyzing the instant motion.
. See infra note 51 for the complete text of the May 7 transfer request.
. Although Defendant's 56.1 Statement indicates that Risco’s informal complaint was made on the basis of "race/color and actu
. While IMCOM decided to end Risco’s employment in late April or early May (Compl. ¶ 32; FFC Tr. 850:6-8), they did not begin the official termination process with ACES until after Colonel Bruno overruled Bilello’s decision to discharge Risco. (FFC Tr. 854:17-855:9, 856:2-11.)
. Plaintiff's Response to this portion of Defendant’s 56.1 Statement, which begins "Admit but incomplete/deny,” does not contain any statements that specifically controvert the facts in Defendant’s Statement. (Pl.’s 56.1 Response ¶ 25.) Moreover, Plaintiff does not cite to any evidence to support her assertions. (Id.) Accordingly, the Court will disregard these assertions. See supra note 2.
. Risco checked the box for discrimination on the basis of a physical disability in her Formal EEO Complaint (Bober Decl. Ex. Q, at 1), but did not include any information about a physical disability or any allegations of disability-based discrimination in the complaint. Additionally, Risco did not make any claims of discrimination on the basis of a physical disability in opposing the instant motion, and Risco has not stated a cognizable claim for discrimination on this basis. See infra Section V.
. Although Defendant's 56.1 Statement states that Risco's formal complaint also included a claim of discrimination based on a perceived mental disability (Def.’s 56.1 ¶ 31), this is not supported by the evidence to which Defendant cites. (Bober Decl. Ex. Q). Other evidence in the record indicates that Risco may have added a claim of discrimination on the basis of perceived mental disability in an amended EEO complaint (see, e.g., FFC Tr. 12:17-13:5; Bober Decl. Ex. R, at 1, 8, 24), but the amended complaint is not part of the record. See infra note 35.
. Although Risco does not rely on Byrd’s refusal to return her office keys as evidence of retaliation in the instant proceedings, the Court notes that Risco testified that she did not ask Byrd or Bilello to return her keys. (FFC Tr. 254:19-255:8.)
. Rogers testified that she spoke to Risco about "the statements provided [and] the allegations of misconduct” and that Risco "denied that things happened the way they were [sic] and generally said that what was described in the written documentation wasn’t really her and that she just didn’t do [ ] any of the things that were mentioned in the letters.” (FFC Tr. 921:15-22) Risco did not make any claims to Rogers about discrimination or retaliation. (Id. 922:1-5, 943:10-944:13, 948:10-950:7.)
. The transcript of the fact finding conference indicates that Risco’s complaint was amended on July 16, 2009. (FFC Tr. 6:10.) It appears that the Risco added a retaliation claim based on her termination (Id. 14:5-17:14); however, the transcript is unclear, and there is no other evidence regarding the amended complaint in the record.
. In Fields, the Second Circuit explained that;
Though there are sentences in some opinions to the effect that a Title VII plaintiff must prove "both that the [defendant’s proffered] reason was false, and that discrimination was the real reason,” these decisions do not require a finding of pretext in addition to a finding of discrimination; they make the quite different point that a Title VII plaintiff may not prevail by establishing only pretext, but must prove, in addition, that a motivating reason was discrimination. But though a plaintiff may not prevail only by showing that a proffered explanation is a pretext, it is not required to make such a showing.115 F.3d at 121 (internal citations omitted) (quoting St. Mary’s Honor Ctr.,509 U.S. at 515, 511 ,113 S.Ct. 2742 ); see also Gordon,232 F.3d at 117 ("It is*100 therefore now settled that a plaintiff in a Title VII action need not disprove a defendant's proffered rationale for its adverse actions in order to prevail.'').
. Although the EEO Counselor's Report of Risco’s informal complaint refers to harassment starting in February 2009 (Sussman Aff. Ex. 13, at 2), the report also lists May 14, 2009, the day she was placed on administrative leave, as the date of the alleged discrimination. (Id. at 1.)
. The initial date of Risco's contact with the Army EEO office is not identified in the record.
. Although Risco testified about being treated differently on this basis during the fact finding conference and at her deposition, she failed to submit that testimony as part of her evidence. See supra note 2. The Second Circuit has instructed courts to consider only the plaintiff's evidence in determining whether she has met her initial burden under the McDonnell Douglas framework. This direction arose, however, in reversing a district court’s finding that plaintiff had failed to make a prima facie case because the plaintiff had not submitted evidence to rebut evidence offered by the defendant that was harmful to plaintiff. Graham,
. Defendant also disputes the sufficiency of allegations that Risco made during sworn testimony about purportedly derogatory comments she attributes to Byrd (Def.'s Mem. 13), which were not included in either of her EEO complaints, and which she no longer relies on. The testimony describing the remarks was not included in the evidence submitted by Plaintiff. See also infra note 54. However, even if Risco had relied on the incidents addressed by Defendant, the Second Circuit has held that stray remarks alone do not constitute sufficient evidence of discrimination to survive a motion for summary judgment. Danzer,
. Since the ultimate burden of persuading the trier of fact that Defendant intentionally discriminated against her is on Risco, Defendant can meet its burden of demonstrating that there is no genuine issue of material fact for trial by pointing to a lack of evidence to support an essential element of Plaintiff’s claim. Cordiano,
. Sisco testified that one more senior coworker at the Education Center had called Byrd “Papa Bird,” but Risco did not know the co-worker’s name and testified that the individual was transferred to a different office to work under Bilello shortly after Risco was hired. (Risco Dep. 86:17-87:7.)
. Here, again, because Plaintiff has failed to submit evidence that supports her prima facie case, the Court relies on evidence submitted by Defendant that is helpful to Plaintiff. See supra notes 2, 39.
. As discussed further below, the only adverse employment action that Risco conceivably suffered was her termination. See infra Section VI.C.3.
. The Second Circuit has recognized that,
. The RHA defines disability by incorporating the definition set forth in the ADA, 29 U.S.C. § 705(20)(B), and the standards used to determine whether section 501 of the RHA has been violated are the standards set forth in the regulations concerning the ADA. 29 U.S.C. § 794(d); 29 C.F.R. § 1614.203(b); see also Stone v. City of Mount Vemon,
. While Risco also testified that she could not lift "over 50 pounds” (FFC Tr. 61:6-9), this limitation would not constitute a substantial impairment within the meaning of the RHA. 29 C.F.R. § 1630.2(j)(l)(ii) (“An impairment is a disability within the meaning of [the ADA] if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.”).
. Although the prior sworn testimony cited above was not included with Plaintiff’s evidence — which consisted of short and confusingly excerpted selections of her prior testimony and the testimony of others at the FFC hearing — the Second Circuit’s instruction in Graham, see supra note 39, cannot mean that a Plaintiff who submits an affidavit that contradicts her prior sworn testimony can establish a prima facie case of discrimination by deliberately omitting the inconsistent portions of her prior sworn testimony from the evidence submitted to the Court. See also Rojas,
. Although not included as part of Plaintiffs evidence, the Court notes that when Byrd was asked if he ever formed the opinion that Risco was suffering from some type of mental condition because of her "paranoid tendencies,” he again testified: “No, I don't think she’s mentally ill.” (FFC Tr. 508:6-11.)
. Contrary to Plaintiff's assertion that the alleged retaliation occurred during a six-week period beginning on March 27, 2009 (PL's Mem. 11), the evidence in the record establishes that the conduct complained of — at least the conduct that Plaintiff properly established — occurred between late April and early July 2009. See supra note 2; infra note 52. As noted below, only the conduct that occurred after Risco made her informal EEO complaint on May 15, 2009 could conceivably be considered retaliatory. See infra note 52.
. Risco has not claimed that the memo she sent to Bilello on May 7, 2009, requesting a transfer and complaining that Byrd had subjected her to discrimination and retaliation (Def.'s 56.1 Stmt. ¶ 22), satisfies the protected activity element of her prima facie case, and there is no admissible evidence of the memo in Plaintiff’s submissions. See supra note 2. However, the Court has considered the May 7 memo (which was properly submitted as admissible evidence by Defendant) sua sponte and finds that it is too generalized to have provided Defendant with reasonable notice that Plaintiff was complaining of any conduct prohibited by Title VII. Rojas II,
. The only evidence submitted by Plaintiff to support her claim that Byrd stripped her of any job duties is contained in Plaintiff's Affidavit, wherein Risco avers that this diminution in job responsibilities occurred by late April or early May. (PL’s Aff. ¶¶ 29-30). In addition to being wholly conclusory, this allegation places the allegedly retaliatoiy conduct prior to Risco’s protected activity, rendering it immaterial to her Title VII retaliation claim. The Court notes, but is required to disregard, Plaintiff's inconsistent and unsupported assertion in her Memorandum of Law that Byrd stripped her of her job duties upon her return from administrative leave at the end of May. (PL’s Mem. 7.) The claim that Byrd "isolated her at work” is similarly based solely on Plaintiff's Affidavit wherein she avers that "Byrd alienated other unit employees from me by asking them to provide adverse and critical statements about me.” (PL's Aff. ¶ 24.) Since Risco does not have personal knowledge of Byrd’s solicitation of such statements from her co-workers, the Court must disregard her characterization of the solicited statements. See supra note 2. Additionally, the admissible evidence in the record establishes that Byrd was instructed to collect the statements in the second half of March 2009, and that all of the statements were written between April 21, 2009 and May 4, 2009. (FFC Tr. 317:3-19, 466:14-468:5, 475:2-476:2, 479:15-480:3; Bober Decl. Ex. F.) Since the statements were solicited and written prior to May 15, 2009, they cannot be relied on as evidence of retaliation for Risco’s May 15, 2009 informal complaint.
. "Hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment.” Morgan,
. In discussing Risco’s hostile work environment claim, Defendant again discusses the stray derogatory remarks that Risco alleged during prior sworn testimony. (Def.’s Mem. 18.) Risco does not rely on these allegations to support her hostile work environment claim. See also supra note 40. However, even if Risco had relied on the incidents addressed by Defendant, the Supreme Court has held that occasional off-color or inappropriate remarks with racial or ethnic undertones are insufficient to create an actionable hostile work environment under Title VII. Breeden,
. The Court notes that Risco also has not identified any single incident that is sufficiently severe to alone constitute an intolerable alteration of her work environment. Cruz,