Nakis v. Potter

• Decision Date: 31 March 2006
• Docket Number: No. 03 Civ. 8604(HBP).,03 Civ. 8604(HBP).
• Citation: 422 F.Supp.2d 398
• Parties: Helene NAKIS, Plaintiff, v. John E. POTTER, Postmaster General, United States Postal Service, Defendant.
• Court: U.S. District Court — Southern District of New York

422 F.Supp.2d 398

Helene NAKIS, Plaintiff, v. John E. POTTER, Postmaster General, United States Postal Service, Defendant.

No. 03 Civ. 8604(HBP).

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

March 31, 2006.

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Antonia C. Kousoulas, Kousoulas & Associates P.C., New York, NY, for Plaintiff.

Andrew Damian O'Toole, U.S. Attorney's Office, New York, NY, for Defendant.

OPINION AND ORDER

PITMAN, United States Magistrate Judge.

I. Introduction

This is an employment discrimination action brought under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. Plaintiff, a former employee of the United States Postal Service (the "Postal Service"), alleges that due to her age, disability and prior Equal Employment Opportunity ("EEO") activity, she was subjected to numerous acts of disparate treatment, retaliation and was constructively discharged. The parties have consented to my exercising plenary jurisdiction over this action pursuant to 28 U.S.C. § 636(c).

Defendant moves for summary judgment dismissing the complaint on a variety of different grounds. For the reasons set forth below, defendant's motion is granted in all respects.

II. Facts

Plaintiff's employment history and much of the back-ground surrounding plaintiff's claims are contained in my Opinion and Order in Nakis v. Potter, 01 Civ. 10047(HBP), 2004 WL 2903718 at *1-*7 (S.D.N.Y. Dec. 15, 2004) ("Nakis I"), familiarity with which is assumed. Nakis I dealt with the allegations contained in plaintiff's 1998 and 1999 EEO complaints, while this action involves the claims asserted in plaintiffs January 21, 2000 EEO complaint ("2000 EEO Complaint"). I reiterate here only those facts from Nakis I that are relevant to the disposition of the pending motion.

A. Events Giving Rise to Plaintiffs Claims in Her 2000 EEO Complaint

1. Plaintiffs Relocation to Another Cubicle and the Reassignment of Her Desk to a Younger, Non-Disabled, Male Employee

In March 1999, plaintiff had a disagreement with a co-worker—Harold "Bud" Keller—concerning a window in an office they shared; plaintiff claimed it was open too wide and created a draft (Transcript of the Deposition of Helene Nakis, taken October 29, 2004, at 98, 102-03, 110, annexed as Ex. EA ("O'Toole Ex. EA") to the Declaration of Andrew D. O'Toole, dated June 14, 2005 ("O'Toole Decl."); E-mail from Plaintiff to Mark Stein dated March 4, 1999, annexed as Ex. BT ("O'Toole Ex. BT") to the O'Toole Decl.). Plaintiff spoke to her immediate supervisor, Mark Stein, about the incident, and Stein, in turn, spoke with Keller (O'Toole Ex. BT). The following morning, March 4, 1999, Keller approached plaintiff at her desk and asked: "Helene, don't you have any work to do? Just go stick your nose to the screen." Plaintiff responded: "What right do you have to talk to me like that?" He replied: "Because I'm a supervisor." At that point, plaintiff responded: "Not mine, you are not." Plaintiff alleges that Keller came closer to her cubicle and stated: "Oh yeah, you see what's going to happen, just wait and see" (O'Toole Ex. BT).

Sometime in March 1999, Stein informed plaintiff that he was moving her desk to a nearby cubicle as a result of the dispute over the window draft (O'Toole Ex. EA at 104-10). However, before her desk could be moved, plaintiff filed an injury claim alleging that she experienced traumatic stress due to alleged harassment by Stein when he denied plaintiffs request for annual leave (Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, dated March 19, 1999, annexed as Ex. AM to the O'Toole Decl.; Complaint ¶ 21). As a result of the claimed stress, plaintiff did not attend work from March 10, 1999 through August 16, 1999 (O'Toole Ex. EA at 107; Exhibit B to Stein Decl.).

When plaintiff returned work in August 1999, she was informed that her work station had been moved to a cubicle in the middle of the office (O'Toole Ex. EA at 84-85, 114-15). Plaintiff alleges that Stein did not personally inform her of relocation when she returned; rather, a co-worker told her where her new desk would be (O'Toole Ex. EA at 116-18). Plaintiff made no complaint about the relocation of her work station and, moreover, Stein approved plaintiffs subsequent request to relocate to another desk within the same cubicle (O'Toole Ex. EA at 118-19). Plaintiff, however, complained that her new location was isolating, did not afford her as much opportunity to interact with and learn from her co-workers and was located too close to the office's facsimile machines and printers (O'Toole Ex. EA at 109-10).

Plaintiff also claims that, upon her return to work, Richard Capobianco—a younger, non-disabled, male employee—occupied the desk she had occupied prior to her March 1999 leave of absence (O'Toole Ex. EA at 112-13).

2. The Deletion of Plaintiffs Name from an E-mail List During Her Six-Month Absence

Plaintiff further alleges that her computer had been tampered with during her six-month absence because her name had been deleted from an e-mail distribution list (O'Toole Ex. EA at 174-76). Plaintiff notified Michael J. Farrell, Manager of Distribution Networks of the deletion and, within a day, plaintiffs name was restored to the e-mail distribution list (O'Toole Ex. EA at 174-76; E-mails from Plaintiff to Farrell and from Farrell to Plaintiff, dated August 26, 1999 annexed as Ex. BV to the O'Toole Decl.).

3. Plaintiff Was Denied Permission to Retake an Excel Class She Already Attended

In early 1998, plaintiff attended five, eight-hour computer training courses, including a February 4, 1998 course on Excel 7.0 for Windows, 95 (Transcript of the Deposition of Helene Nakis, taken June 16, 2003 at 771-73, annexed as Ex. A ("O'Toole Ex. A") to the O'Toole Decl.; Certificates of Completion from Productivity Point, annexed as Ex. AX to the O'Toole Decl.).

On or about September 23, 1999, Stein refused to allow plaintiff to retake the same Excel course because she had failed to inform Stein that she had taken the course already (O'Toole Ex. A at 783-84). Plaintiff claims that Stein accused her of lying about whether she had taken the Excel course previously (O'Toole Ex. A at 785). By letter dated October 4, 1999, Stein advised plaintiff that one of plaintiffs co-workers—Gerald Ross—was willing to assist her with Excel (Letter from Mark Stein to Plaintiff, dated October 4, 1999, annexed as Ex. BC to the O'Toole Decl.).

4. The Adequacy of the Lighting at Plaintiffs Desk

On September 24, 1999, plaintiff had an argument with Stein concerning the adequacy of the lighting at plaintiffs desk (Letter from plaintiff to Mark Stein, dated September 25, 1999, annexed as Ex. BW ("O'Toole Ex. BW") to the O'Toole Decl.).

Plaintiff claims that a fluorescent light over her desk needed to be replaced because it was flickering (O'Toole Ex. BW). Nakis alleges that, while Stein was inquiring into the light's location and the frequency of the flickering, he told her: "You do not need more light, you have desk lamp" (O'Toole Ex. BW). Plaintiff also contends that Stein harassed her by saying: "What do you need more light for? You have no work. You have no assignments" (O'Toole Ex. BW).

5. Various Disputes with Farrell, Lee and Stein During Plaintiffs Last Week of Work and Comments Concerning Plaintiffs Age

Also during the week of September 24, 1999, plaintiff had an argument with Michael Farrell's secretary—Carol Lee—concerning plaintiffs time records. When Stein approached Lee concerning the matter, plaintiff also approached Lee's desk. Lee told plaintiff, "I do not take orders from you. I take orders from Mark Stein. He is my supervisor." Stein then said to plaintiff in a loud voice, "I am giving you a direct order. Go back to your desk, now!" Plaintiff replied, "Yes sir, Mr. Stein. I will obey your direct order and go to my desk." Plaintiff took great offense at receiving a direct order in "full view" of the secretarial staff (Letter from Plaintiff to Mark Stein, dated September 27, 1999, annexed as Ex. BX to the O'Toole Decl.).

On September 29, 1999, plaintiff had another heated conversation with Lee concerning the manner in which Lee had signed for a certified letter. Plaintiff alleges that Lee told another postal employee, "[T]ell this person who always creates problems to go to hell" during some petty exchanges concerning the matter. Plaintiff then complained to Farrell who told plaintiff that she "should not send so many [c]ertified letters, and that some of these subjects could be handled by talking, [instead]." Farrell also told plaintiff that she "cannot tell people what to do." After speaking to Mr. Farrell, plaintiff sought medical attention for elevated blood pressure and left work on September 29, 1999, never to return (Letter from Plaintiff to Mark Stein, dated October 2, 1999, annexed as Ex. BY to the O'Toole Decl.).

Plaintiff also claims that Robert Cossaro, a Postal Service human resources specialist, made the following comments about plaintiff's age in or about January 1999: "Your bones are getting old, Helene. . . . You have the age. Why don't you get out." (O'Toole Ex. A at 857-59; O'Toole Ex. EA at 149-51). Plaintiff further alleges that in or around March 1999 and September 1999 both Farrell and Stein commented that plaintiff had the requisite age and years of service and asked her why she did not retire (O'Toole Ex. A at 859-60; O'Toole Ex. EA at 148, 151-52).

6. Alleged Mishandling of Plaintiffs 1998 EEO Complaint and Falsification of Records Concerning Her OWCP Claims

Plaintiff makes the broad and unspecified averment that the Postal Service mishandled and "totally twisted around" her 1998 EEO complaint (EEO Complaint of Discrimination in the Postal Service, dated January 21,...