LAUDADIO v. Johanns

• Decision Date: 08 January 2010
• Docket Number: No. 07-CV-782 (CBA)(RER).,07-CV-782 (CBA)(RER).
• Citation: 677 F. Supp.2d 590
• Parties: Anthony LAUDADIO, Plaintiff, v. Mike JOHANNS, Secretary of Agriculture, Defendant.
• Court: U.S. District Court — Eastern District of New York

677 F.Supp.2d 590

Anthony LAUDADIO, Plaintiff, v. Mike JOHANNS, Secretary of Agriculture, Defendant.

No. 07-CV-782 (CBA)(RER).

United States District Court, E.D. New York.

January 8, 2010.

Barbara Matthews, St. James, NY, Neil Frank, Frank & Associates, P.C., Farmingdale, NY, for Plaintiff.

Susan L. Riley, United States Attorneys Office, Eastern District of New York, Central Islip, NY, for Defendant.

OPINION & ORDER

RAMON E. REYES, JR., United States Magistrate Judge:

INTRODUCTION

On February 23, 2007, plaintiff Anthony Laudadio brought this action for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ?? 2000e et seq. ("Title VII") against Mike Johanns, in his official capacity as Secretary of the United States Department of Agriculture ("defendant"). Laudadio alleges that defendant discriminated against Laudadio on the basis of his race (white) and national origin (Italian-American) and retaliated against him for seeking Equal Employment Opportunity ("EEO") counseling and filing a complaint with the Equal Employment Opportunity Commission ("EEOC").¹

On August 25, 2008, defendant moved for summary judgment, arguing that plaintiff failed to (1) exhaust his administrative remedies and timely bring this action as to his first EEO complaint, (2) contact an EEO counselor timely regarding his second EEO complaint, and (3) establish his retaliation claim.² For the reasons set forth below, the motion is denied in its entirety.

FACTS

Plaintiff Anthony Laudadio is currently employed by the United States Department of Agriculture's ("USDA") Food Safety Inspection Service ("FSIS") as a Consumer Safety Inspector. (Defendant's Amended³ Statement of Undisputed Facts pursuant to Local Civil Rule 56.1 ("Def.'s 56.1 Stmt.") ? 1.)⁴ Plaintiff has worked in this position since June 1990. (Id. ? 2.) He is responsible for inspecting meat processing plants and distributors throughout the five boroughs of New York City. (Id. ? 3.) Inspectors are assigned to a certain plant or distributor on a four-month basis (or, according to plaintiff, on a six-month basis as of 2002). (Def.'s 56.1 Stmt. ? 4; Plaintiff's Rule 56.1 Counterstatement of Material Facts ("Pl.'s 56.1 Stmt.") ? 4.) Along with the location change, an inspector's supervisor also changes on a four or six-month basis. (Def.'s 56.1 Stmt. ? 5; Pl.'s 56.1 Stmt. ? 5.) During the relevant time period, plaintiff had three direct supervisors: Salah Ibrahim ("Ibrahim"), Dr. Mohammad Qureshi ("Dr. Qureshi"), and Anthony Rossano ("Rossano"); and one Deputy District Manager: Michael Washington. (Def.'s 56.1 Stmt. ?? 6-7.)

Laudadio's First EEO Complaint

In December 2000, plaintiff's wife was diagnosed with cancer, and unfortunately passed away on May 25, 2001. (Def.'s 56.1 Stmt. ?? 8-9.) Because of his increased child care responsibilities, plaintiff was on leave from January 2001 until September 2001. (Def.'s 56.1 Stmt. ? 10.) At some point during that period, plaintiff exhausted his sick and annual leave, so he applied for and was placed on the leave donor plan, a pool which allows employees to donate their annual leave for use by colleagues in need. (Def.'s 56.1 Stmt. ? 11; Pl.'s 56.1 Stmt. ? 11.)

After returning to work in September 2001, plaintiff had no difficulty obtaining accommodations to his work schedule. (Def.'s 56.1 Stmt. ? 13.) However, in July 2003, plaintiff made a verbal request (and according to plaintiff, received a verbal approval) to exchange work assignments with a co-worker named Frank Lenna. (Def.'s 56.1 Stmt. ? 14; Pl.'s 56.1 Stmt. ? 14.) Plaintiff wanted to exchange assignments with Lenna in order to meet plaintiff's child care demands more easily (Lenna's assignment would have spared Laudadio overtime assignments and a lengthy commute to the Bronx from Laudadio's residence in the southern most part of Brooklyn). (Def.'s 56.1 Stmt. ? 15; Pl.'s 56.1 Stmt. ? 15; Declaration of Neil M. Frank in Opposition to Defendant's Motion for Summary Judgment ("Frank Decl."), Ex. P.)

Plaintiff's union contract required employees to submit requests for assignment exchanges to their immediate supervisor(s) in writing at least four weeks in advance. (Def.'s 56.1 Stmt. ? 16; Pl.'s 56.1 Stmt. ? 16.) Dr. Qureshi and Ibrahim were the two supervisors whose permission plaintiff needed. (See Def.'s 56.1 Stmt. ? 16, 19, 21; Pl.'s 56.1 Stmt. ? 18.) Defendant claims that Laudadio failed to comply with this requirement because he submitted his written request via email less than four weeks before the proposed assignment exchange was to occur. (Def.'s 56.1 Stmt. ?? 17, 18; Pl.'s 56.1 Stmt. ?? 17, 18.) Plaintiff claims that he "wrote" his email request four weeks in advance, but contends that the e-mail arrived three days late due to a "black out." (Pl.'s 56.1 Stmt. ?? 17, 18.) Laudadio also contends that, ordinarily, FSIS would readily waive the written requirement. (Pl.'s 56.1 Stmt. ? 16.) In any event, at some point, plaintiff was informed that Dr. Qureshi denied the exchange request because it was not made in compliance with the four-week notice provision in the union contract. (Def.'s 56.1 Stmt. ? 22; Pl.'s 56.1 Stmt. ? 22.)

On September 12, 2003, plaintiff requested EEO counseling based on the denial of his request for assignment exchange, claiming that the denial was a result of race and national origin discrimination. (Def.'s 56.1 Stmt. ? 23; Pl.'s 56.1 Stmt. ? 23.) On January 30, 2004, plaintiff filed a formal EEO complaint alleging discrimination on the basis of race (white) and national origin discrimination (Italian-American), and reprisal for plaintiff's informal EEO counseling. (Def.'s 56.1 Stmt. ? 24; Pl.'s 56.1 Stmt. ? 24.) On April 9, 2004, the USDA accepted and referred for investigation plaintiff's claim that he had been subjected to harassment (based on prior EEO activity) and was discriminated against on the basis of race, national origin, and family status when: (1) on August 30, 2003, he was denied his assignment-exchange request, (2) from July 2003 to January 2004, he was subjected to ethnically derogatory remarks, (3) in September 2003 he was threatened with being reassigned to a Long Island duck farm, (4) from October through November 2003, he was denied certain leave, and (5) from September 2003 through January 2004, he was denied performance appraisals. (Def.'s 56.1 Stmt. ? 25; Pl.'s 56.1 Stmt. ? 25.)

On August 15, 2004, Laudadio requested a hearing before the EEOC. (Def.'s 56.1 Stmt. ? 26; Pl.'s 56.1 Stmt. ? 26.) On October 19, 2004, the law firm of Zabell & Associates, LLP appeared on plaintiff's behalf in connection with the EEOC case. (Def.'s 56.1 Stmt. ? 27; Pl.'s 56.1 Stmt. ? 27.) On October 20, 2004, plaintiff failed to appear at a deposition that had been noticed by the USDA on October 7, 2004. (Def.'s 56.1 Stmt. ? 28; Pl.'s 56.1 Stmt. ? 28; Frank Decl., Ex. C at 2.) On October 21, 2004, the USDA moved to compel discovery, impose sanctions, and disqualify plaintiff's counsel. (Frank Decl., Ex. C at 2.) On November 3, 2004, plaintiff opposed the motion, arguing that the deposition was improperly noticed and his failure to appear was not in bad faith. (Id.) He also stated his intent to file suit in federal district court. (Id.)

On December 6, 2004, the EEOC Administrative Law Judge ("ALJ") issued a decision on the USDA's motion. (Id.) The ALJ found that the USDA had properly noticed the deposition, the plaintiff did not have a good cause for failing to appear, and it was appropriate to draw an adverse inference against the plaintiff on that basis. (Id.) The ALJ did not disqualify plaintiff's counsel. (Id.) The ALJ also indicated that if plaintiff wanted to withdraw his EEOC complaint, such a request must be submitted in writing. (Id.) Thereafter, the EEOC would dismiss the case and return it to the USDA's jurisdiction for a Final Agency Decision ("FAD") on the merits. (Id.)

On December 15, 2004, plaintiff's counsel withdrew his request for a hearing and requested a FAD. (Def.'s 56.1 Stmt. ? 29; Pl.'s 56.1 Stmt. ? 29.) On December 17, 2004, the ALJ dismissed Laudadio's request for an EEOC hearing and returned the case to the USDA for further action. (Def.'s 56.1 Stmt. ? 30; Pl.'s 56.1 Stmt. ? 30.) The USDA did not issue its FAD with respect to Laudadio's first EEO complaint until August 21, 2007, almost six months after Laudadio commenced this action in federal court. (See Frank Decl., Ex. E.; Dkt No. 1.) The FAD dismissed the claim pursuant to 29 C.F.R. ? 1614.107(a)(3) as a "compliant that is the basis for a pending civil action in a United States District Court." (Frank Decl., Ex. E.) See also 29 C.F.R. ? 1614.107(a)(3) (2007).

Laudadio's Second EEO Complaint

Between April 19, 2004 and July 20, 2004, plaintiff took unscheduled leave (either sick or annual) on approximately thirty occasions. (Def.'s 56.1 Stmt. ? 32; Pl.'s 56.1 Stmt. ? 32.) Plaintiff claims that the vast majority of these occasions were authorized. (Pl.'s 56.1 Stmt. ? 32.) On May 13 and July 16, 2004, Ibrahim counseled and warned plaintiff about his use of leave time. (Def.'s 56.1 Stmt. ?? 33-34; Pl.'s 56.1 Stmt. ?? 33-34.) On July 22, 2004 Ibrahim gave plaintiff a Leave Restriction Notice limiting his use of unscheduled annual leave and requiring plaintiff to request annual leave at least as far in advance as the amount of leave requested, except in emergency situations ("Leave Restriction"). (Amended Declaration of Assistant United States Attorney Susan Riley in Support of Motion for Summary Judgment ("Riley Decl."), Ex. 17.) The notice further stated that sick leave will be granted only upon submission of a medical certificate, while emergency annual leave will require proof of an emergency situation. (Id.) The Leave Restriction Notice also informed plaintiff that taking leave without proper approval would be considered Absent Without Leave ("AWOL"). (Id.; Def.'s 56.1 Stmt. ? 39; Pl.'s 56.1 Stmt. ? 39.)

Plaintiff claims that on July...