Nadel v. Shinseki

• Decision Date: 30 September 2014
• Docket Number: No. 12–CV–1902 VSB.,12–CV–1902 VSB.
• Citation: 57 F.Supp.3d 288
• Parties: Larry NADEL, Plaintiff, v. Eric K. SHINSEKI Secretary Department of Veterans Affairs, Defendant.
• Court: U.S. District Court — Southern District of New York

57 F.Supp.3d 288

Larry NADEL, Plaintiff

v.Eric K. SHINSEKI Secretary Department of Veterans Affairs, Defendant.

No. 12–CV–1902 VSB.

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

Signed Sept. 30, 2014.

Stewart Lee Karlin, Stewart Lee Karlin, Attorney–at–Law, New York, NY, for Plaintiff.

Patricia L. Buchanan, Susan D. Baird, U.S. Attorney's Office, SDNY, New York, NY, for Defendant.

MEMORANDUM & ORDER

VERNON S. BRODERICK, District Judge:

Defendant's Motion for Summary Judgment is granted in its entirety because Plaintiff fails to state a claim of disability discrimination, retaliation, and hostile work environment under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.

Before the Court is the Motion of Defendant Eric Shinseki, as former Secretary of Veterans Affairs (“VA”), for summary judgment and to dismiss Plaintiff Larry Nadel's Complaint. (Doc. 20.) Plaintiff alleges that Defendant discriminated against him on the basis of his disability or perceived disability by unlawfully terminating his employment, retaliating against him for engaging in protected activity, and creating a hostile work, all in violation of the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) and the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. For the reasons set forth below, the Court grants Defendant's Motion in its entirety, and all of Plaintiff's claims are dismissed.

I. Background

A. Facts

The following facts are uncontested, unless otherwise noted. Plaintiff was hired by the VA on April 25, 2010 as a GS Grade 11 accountant in the Administrative Services Fiscal Service division located in New York, New York. (Buchanan Decl. Ex. A, at US0143; Pl. 56.1 ¶¶ 1–3.)¹ Pursuant to VA regulations, Plaintiff's appointment was subject to a one-year probation period. (Pl. 56.1 ¶¶ 5, 14.) Angela Micalizzi was Plaintiff's supervisor during his employment with the VA. (Id. ¶ 4.)

Plaintiff ruptured his left knee patellar tendon two months after he began working at the VA, and was consequently on medical leave from June 23, 2010 to September 28, 2010. (Id. ¶ 16.) Dr. Ronald Light, Plaintiff's orthopedic surgeon, wrote a letter stating Plaintiff could return to work without stating any restrictions. (Id. ¶¶ 22–23; Buchanan Decl. Ex. F.) Plaintiff returned to work on September 29, 2010. (Pl. 56.1 ¶ 24.) At no point did Plaintiff request an accommodation. (Id. ¶ 25.)

Plaintiff walked with a limp and used a cane; however, his knee injury did not affect his ability to perform his job. (Nadel Decl. ¶¶ 23, 27; Pl. 56.1 ¶ 18.)² Although Plaintiff may have subjectively viewed himself as being disabled, he admits that no VA employee made any direct or indirect comments suggesting that he was regarded as disabled. (See Pl. 56.1 ¶¶ 19–21.)

As an accountant, Plaintiff was responsible for overseeing the accurate input of financial transactions and ensuring that sufficient funds were available. (Buchanan Decl. Ex. C, at US0541.) Specifically, Plaintiff's duties included, among other tasks, maintaining a Work–in–Process (“WIP”) report, which tracked the payment status for ongoing projects, (Pl. 56.1 ¶ 9; Buchanan Decl. C, at US0545; Buchanan Decl. Ex. J, at 86–87),³ and managing the Online Certification System (“OLCS”), a program that monitored the outstanding liability invoices for the various hospital departments, (see Pl. 56.1 ¶¶ 9–10, 54–58; Buchanan Decl. B, at 55; Buchanan Decl. Ex. J, at 79).⁴

Prior to injuring his knee and going out on medical leave, Plaintiff began exhibiting performance problems in June 2010. (Id. ¶ 38.) Plaintiff was responsible for processing a WIP report by June 15, 2010, yet he failed to do so. (Buchanan Decl. Ex. I, at US0570.) On June 17, 2010, Plaintiff's supervisor, Angela Micalizzi, verbally counseled him concerning his failure to complete this assignment. (Id. )

Plaintiff's performance problems continued after his return from medical leave. As a result, Micalizzi continued to regularly counsel Plaintiff concerning chronic errors in his WIP reports, and advised him that the accurate maintenance of these reports was a critical part of his job responsibilities. (Id. at US0569–570, US0592, US0595, US0625.) Micalizzi also advised Plaintiff on several occasions that she expected him to work with FCP users to manage their budget and accurately use the OLCS. (See id. at US0586–87.)

Despite all of this counseling, Plaintiff's performance did not improve. (Buchanan Decl. Ex. K, at US0093.) As a result, Micalizzi issued Plaintiff a written counseling memorandum on January 7, 2011 describing, among other issues, his failure to maintain accurate WIP reports and properly manage the OLCS, and again advising him of her expectations for his work. (Id. ) Following the written counseling memorandum Plaintiff continued to exhibit the same performance problems. (Buchanan Decl. Ex. I, at US0629–33.) Finally, on February 17, 2011 Micalizzi recommended that Plaintiff's employment be terminated for unsatisfactory work. (Id. at US0634.) Plaintiff's employment was then terminated for unsatisfactory work on April 13, 2011, prior to the expiration of his probation period. (Pl. 56.1 ¶¶ 85–90.) Plaintiff does not dispute that VA policy required Micalizzi to observe and monitor a probationary employee's performance, provide training or counseling to correct deficiencies, and take action to terminate a probationer who failed to demonstrate the qualifications for continued employment. (Id. ¶¶ 4, 12–15.)

On November 30, 2010 Plaintiff filed a complaint alleging employment discrimination with the VA's Equal Employment Opportunity (“EEO”) Office. (Id. ¶ 26.) That complaint attached a copy of an October 29, 2010 email sent by Plaintiff to Micalizzi's supervisor complaining about eight instances of alleged “harassment” by Micalizzi, including her: (1) refusing to discuss Plaintiff's medical situation with his wife on June 23, 2010; (2) sending Plaintiff a letter on August 9, 2010, which took an unreasonable tone, and contained “accusations” that his medical documentation was “not enough”; (3) instructing Plaintiff to obtain passwords in an “accusatory tone”; (4) counseling Plaintiff concerning his work performance on October 5, 2010, and stating that he should not need help with his work because he is a GS Grade 11; (5) sending Plaintiff an email on October 6, 2010 that compared his work performance to that of a GS Grade 4 employee; (6) sending Plaintiff an email on October 20, 2010 instructing him to comply with the VA's leave procedures; (7) stating “you're ridiculous” during a counseling session on October 21, 2010; and (8) pointing out to Plaintiff that he was questioning her authority during a counseling session on October 26, 2010. (Pl. 56.1 ¶¶ 26–37; Buchanan Decl. Ex. H, at US0416.)

B. Procedural History

Plaintiff initiated the EEO process on November 30, 2010, (Buchanan Decl. Ex. H, at US0416), and filed a formal EEO complaint alleging a hostile work environment on February 27, 2011, (id. at US0413). Plaintiff then filed the instant Complaint asserting claims of disability discrimination, retaliation, and hostile work environment in violation of the ADA, 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., on March 15, 2012. (Compl. ¶ 1.)⁵ Defendant answered the Complaint on July 18, 2012 (Doc. 5.) On January 15, 2014, Defendant moved for summary judgment and to dismiss the claims asserted against him in Plaintiff's Complaint, (Doc. 20), Plaintiff opposed Defendant's Motion on February 26, 2014, (Doc. 34), and Defendant submitted his Reply on March 19, 2014, (Doc. 37).

II. Legal Standard

Summary judgment is appropriate when “the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir.2002) ; see Fed.R.Civ.P. 56(a). “[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial,” id. at 256, and to present such evidence that would allow a jury to find in his favor, see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000). Under Rule 56.1(a) of the Local Rules of the United States District Court for the Southern and Eastern Districts of New York (“Local Civil Rule”) the moving party must submit a “short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.”⁶ Local Civil Rule 56.1(a).

To defeat a summary judgment motion, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed.R.Civ.P. 56(c)(1). As such, Local Civil Rule 56.1 requires a party opposing a motion for summary judgment to include in its response a statement containing “a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving...