Pierre v. Napolitano

• Decision Date: 24 July 2013
• Docket Number: No. 11 Civ. 4935(HBP).,11 Civ. 4935(HBP).
• Citation: 958 F.Supp.2d 461
• Parties: Maurice PIERRE, Plaintiff, v. Janet NAPOLITANO as Secretary of the United States Department of Homeland Security, Defendant.
• Court: U.S. District Court — Southern District of New York

958 F.Supp.2d 461

Maurice PIERRE, Plaintiff,

v.Janet NAPOLITANO as Secretary of the United States Department of Homeland Security, Defendant.

No. 11 Civ. 4935(HBP).

United States District Court,

S.D. New York.

July 24, 2013.

Louis D. Stober, Jr., Law Office of Louis D. Stober, Jr. LLC, Garden City, NY, for Plaintiff.

Rebecca Sol Tinio, Cristine Irvin Phillips, United States Attorney Office, New York, NY, for Defendant.

OPINION AND ORDER

PITMAN, United States Magistrate Judge.

I. Introduction

Plaintiff, a Special Agent employed by United States Immigration and Customs Enforcement (“ICE”), commenced this action for employment discrimination on July 19, 2011, alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act of 1990 (“ADA”),¹42 U.S.C. § 12101 et seq. and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. (Complaint, dated July 19, 2011 (Docket Item 1) (“Compl.”)). Plaintiff also alleged intentional and negligent infliction of emotional distress (Compl. ¶ 137). The parties have consented to my exercising jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c).

On November 21, 2012, defendant moved for summary judgment on plaintiff's employment discrimination claims and for dismissal of plaintiff's tort claims for lack of subject matter jurisdiction (Memorandum of Law in Support of Defendant's Motion for Summary Judgement, dated Nov. 21, 2012 (Docket Item 18) (“Def. Mem.”)). For the reasons set forth below, defendant's motion is granted in all respects.

II. Facts

Plaintiff was born on July 12, 1961, and is currently 52 years old (Transcript of Deposition of Maurice Pierre, dated May 16, 2011 (“Pl. Dep.”) at 6, annexed as Ex. A Declaration of Rebecca S. Tinio, Esq., dated Nov. 21, 2012 (Docket Item 20) (“Tinio Decl.”)). In 1990, plaintiff began working for the Immigration and Naturalization Service (“INS”), part of the United States Department of Justice (Pl. Dep. at 13). In 1996, plaintiff became a Special Agent with the INS (Pl. Dep. at 15). From 1996 through June 2010, plaintiff worked in the Manhattan office of the INS (“SAC NY”) (Pl. Dep. at 15). In 2003, INS was incorporated into ICE, then newly created, within the Department of Homeland Security.² In June 2010, plaintiff transferred to a field office in Castle Point, New York (“RAC Castle Point”) (Pl. Dep. at 15–16), where he continues to work to the present day (Affidavit of Maurice Pierre, dated Jan. 16, 2013 (“Pl. Aff.”) at ¶ 1, annexed as Ex. A to Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated Jan. 18, 2013 (Docket Item 25) (“Pl. Mem.”)).

On May 22, 2008, plaintiff injured his neck and back in an on-duty automobile accident (Pl. Aff. ¶ 2).³ Plaintiff was placed on off-duty continuation of pay (“COP”) status until July 7, 2008 (Compl. ¶ 21).⁴

While plaintiff was on COP status, Karen Pace, plaintiff's group supervisor, informed plaintiff of the potential consequences of an extended absence from work, including the loss of his job “series” (Ex. D to Tinio Decl.). In particular, she informed plaintiff that his job series required him to meet certain physical standards, and that if he was on leave for an extended period, ICE could require him to take a fitness for duty test to retain his job series (Ex D. to Tinio Decl.). According to plaintiff, on July 7, 2008, his last day of COP eligibility, Karen Pace and Milagros Pabon, a mission support specialist, gave him a choice of “whether to come back to work or to use [his] own sick leave or to utilize the Workers' Compensation” (Pl. Dep. at 60). Plaintiff elected to receive workers' compensation benefits (Pl. Dep. at 60). Plaintiff switched from COP status to leave without pay (“LWOP”) status, and continued to be on LWOP status until May 2009 (Pl. Dep. at 73). While on LWOP status, plaintiff received workers' compensation payments in the amount of three-fourths of his regular salary (Pl. Dep. at 73; Ex. F to Tinio Decl.).

On March 11, 2009, plaintiff was examined by Dr. Robert Mantica, a referee examiner for the United States Department of Labor (“DOL”) (Ex. G to Tinio Decl. at P000914–17). Dr. Mantica diagnosed plaintiff with “degenerative disk disease in the lumbar spine” and stated that plaintiff “still ha[d] the limitation from working full duty in that he [could not] be put in a situation where he would be in an altercation because of his work as a special agent in the violent crime group” (Ex. G to Tinio Decl. at P000915). However, Dr. Mantica found that plaintiff could perform light duty and that “the light duty that [plaintiff] could assume would be desk work” (Ex. G to Tinio Decl. at P000915). Dr. Mantica noted that he expected plaintiff to be able to “return to his regular duties in approximately one to two months” (Ex. G to Tinio Decl. at P000915).

On April 3, 2009, Lisa White, a claims examiner for the DOL's Office of Workers' Compensation Programs (“OWCP”), relying on Dr. Mantica's findings, informed SAC N.Y. that plaintiff could return to work with restrictions and recommended that SAC N.Y. make an offer of light duty to plaintiff (Ex. G to Tinio Decl. at P000913).

On May 6, 2009, SAC N.Y. extended to plaintiff an offer of light duty, which entailed working at SAC NY's duty desk and performing administrative tasks (Ex. H to Tinio Decl. at P000502–03). The offer letter, signed by Peter Smith, Special Agent in Charge, stated that “the medical documentation provided by Dr. Mantica is sufficient to support your return to limited duties for a brief period of time” (Ex. H to Tinio Decl. at P000502–03). The offer letter also stated as follows:

As a Criminal Investigator you receive Law Enforcement Availability Pay (LEAP). To qualify for LEAP, 5 U.S.C. § 5545a(d)(2) and 5 C.F.R. § 550.183(a) require a Criminal Investigator perform a minimum annual average of 2 hours of unscheduled duty per regular workday. In order for you to continue to receive LEAP, you are required to satisfy the foregoing provisions.

(Ex. H to Tinio Decl. at P000502).

Plaintiff accepted the offer by letter dated May 7, 2009, but stated that he was “going to use Sick Leave, effective May 11, 2009 in order to complete the injection treatments” (Ex. H to Tinio Decl. at P000501).

On May 13, 2009, plaintiff met with Peter Fox, Assistant Special Agent in Charge, who told plaintiff that while he was on light duty, he would not receive Law Enforcement Availability Pay (“LEAP”) (Pl. Dep. at 111–13). ⁵ LEAP comprised 25% of plaintiff's compensation. During a conference call on June 29, 2009, Fox learned from a supervisor that his determination as to plaintiff's LEAP eligibility was erroneous (Ex. K to Tinio Decl. at Govt001400–01). Fox thus rescinded his denial of plaintiff's LEAP pay, and plaintiff received LEAP retroactively for the period from May to June 2009 (Ex. K to Tinio Decl. at Govt001401; Pl. Dep. at 121).

From May 13 through May 15, 2009, plaintiff attended work. Plaintiff states that he did not have a service vehicle at the time and commuted “a total of 2–3 hours each way,” which “caused [his] lower back to suffer from severe stress and pain and crippled [him] by the time the weekend had come” (Pl. Aff. ¶¶ 9–11).

On May 18, 2009, plaintiff submitted a request for six weeks of sick leave “in order to continue treatment and physical therapy prescribed by my physician,” from May 18, 2009 through June 26, 2009 (Exs. L, M to Tinio Decl.). Peter Fox asked Karen Pace to inform plaintiff that federal regulations required him to submit medical documentation in support of his leave request (Ex. L to Tinio Decl. at Govt000944). During this time period, Karen Pace left plaintiff several voicemail messages stating that if he did not provide additional documentary support for his sick leave requests, he would be placed on Absence Without Leave (“AWOL”) status (Exs. N, O to Tinio Decl.). Pace further stated that being placed on AWOL status “was not a disciplinary action” (Exs. N, O to Tinio Decl.).

On May 28, 2009, plaintiff sent an “Excuse Slip” signed by Dr. Mitchell Rosen to SAC N.Y. (Ex. Q to Tinio Decl.). The slip stated that plaintiff would be out of work from May 18, 2009 through June 26, 2009 (Ex. Q to Tinio Decl.). A checkbox labeled “is unable to return to work at this time because” was unchecked, and the slip did not explain why plaintiff was unable to work (Ex. Q to Tinio Decl.).

After submitting the slip to SAC NY, plaintiff was told by Karen Pace that he needed to provide additional information, particularly, that the box indicating that he was unable to return to work needed to be checked off and information about his medical condition and treatment needed to be provided (Pl. Dep. at 129–30). On June 1, 2009, plaintiff resubmitted the Excuse Slip with the above-mentioned box checked and the following statement: “lower back pain—phy therapy + treatment” (Ex. R to Tinio Decl.). An e-mail from Peter Fox to Claudette Castillo indicates that on June 1, 2009, SAC N.Y. again advised plaintiff that the Excuse Slip “did not contain sufficient information to justify his request for extended Sick Leave,” and was asked to provide additional information about his alleged back injury, including whether it was new or related to the prior back injury, for which he had received clearance to work from the DOL examiner (Pl. Dep. at 146–47; Ex. S to Tinio Decl.). Plaintiff responded that the injury referenced in the Excuse Slip was his pre-existing back injury (Pl. Dep. at 146–47).

Peter Fox again denied plaintiff's sick leave request (Ex. T to Tinio Decl.). He offered several reasons for his denial, including the fact that (1) the DOL examiner had cleared plaintiff to work, (2) plaintiff had accepted the light duty assignment, (3) plaintiff could receive up to four hours' leave each day to attend doctors' appointments and (4) plaintiff had failed to provide sufficient...