Risco v. McHugh

• Decision Date: 14 June 2012
• Docket Number: No. 10 Civ. 6314(ER).,10 Civ. 6314(ER).
• Citation: 868 F.Supp.2d 75
• Parties: Anya Juan RISCO, Plaintiff, v. John M. McHUGH, Secretary of the Army, Defendant.
• Court: U.S. District Court — Southern District of New York

868 F.Supp.2d 75

Anya Juan RISCO, Plaintiff,

v.John M. McHUGH, Secretary of the Army, Defendant.

No. 10 Civ. 6314(ER).

United States District Court,

S.D. New York.

June 14, 2012.

Michael H. Sussman, Sussman & Watkins, Goshen, NY, for Plaintiff.

Preet Bharara, United States Attorney for the Southern District of New York, for Defendant.

David Bober, on the brief, Assistant United States Attorney for the Southern District of New York, for Defendant.

OPINION AND ORDER

RAMOS, District Judge.

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.¹ (Compl. ¶ 46). Plaintiff also alleges that Defendant discriminated against her by terminating her employment because of her race and color, her disability and/or perceived disability and in retaliation for engaging in protected activity. ( Id. ¶ 47). Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) arguing that all of Plaintiff's claims against the Army should be dismissed. For the reasons stated herein, Defendant's motion is GRANTED in full.

I. Background

The following facts are undisputed unless otherwise indicated. ² Risco is a dark-skinned Hispanic woman who is currentlyfifty years old. (Def.'s Stmt. UndisputedFacts Pursuant to Local R. 56.1 (“Def.'s 56.1 Stmt.”) ¶ 1.³) Prior to her employment with the Army, Risco served in the United States Navy for over twenty years, and was honorably discharged in 2001. (Bober Decl. Ex. B (Risco Dep. 11:22–13:16).⁴) Risco completed her bachelor's degree in 2004, and held various part time jobs from 2005 through 2008. ( Id. 14:7–15:5.)

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.⁵ (Def.'s 56.1 Stmt. ¶ 2.) As a probationary guidance counselor intern, Risco assisted military personnel who were interested in pursuing educational opportunities that were available to them through the Army. ( Id. ¶ 3.) Risco's permanent appointment was subject to the satisfactory completion of a one-year probationary period. ( Id. ¶ 5.) The purpose of the probationary period was to determine Risco's fitness for a permanent guidance counselor position. ( Id. ¶ 5.) Federal regulations provide that the employer “shall terminate [an employee's] services during this period if [she] fails to demonstrate fully [her] qualifications for continued employment.” 5 C.F.R. § 315.803. Termination can be based on unsatisfactory performance or conduct. 5 C.F.R. § 315.804.

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. ⁶

Defendant argues that Risco began to exhibit erratic behavior shortly after she was hired, and that her inappropriate behavior escalated over time, notwithstanding her supervisor's efforts to correct the behavior through informal counseling.⁷ (Def.'s Mem. 2, 5–8, 23; Def.'s Reply Mem. 1–3.) Plaintiff claims that neither of her supervisors raised any serious issues concerning her performance or conduct from September 28, 2008 through March 8, 2009. (Compl. ¶ 14; Pl.'s Aff. ¶ 11.)

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 people: 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?” ⁸ (FFC Tr. 143:17–19.) Risco was offended by McPeak's comment and subsequently told Byrd: “where I come from, she [McPeak] would be disciplined by her mother, father, brother, sister, she would be slapped by her mother, brother, father, sister.” (Def.'s 56.1 Stmt. ¶ 9; ⁹ Risco Dep. 96:14–19; FFC Tr. 144:1–9.) Byrd immediately counseled Risco in person about this statement. (Def.'s 56.1 Stmt. ¶ 9; FFC Tr. 144:6–7, 148:2–3.) Byrd also counseled McPeak about the incident. (FFC Tr. 280:10–19.) McPeak did not recall making the comment but assured Byrd that it wouldn't happen again. ( Id. 280:15–22.) Risco continued to refer to this incident repeatedly over the next four to five months, despite directions from both Byrd and Bilello to “drop it.” ( Id. 282:16–283:13.)

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. ¶ 8.¹⁰) Although the parties disagree as to the frequency and duration of this practice (Pl.'s 56.1 Response ¶ 8), it is undisputed that Risco did use these nicknames, and that both Byrd and Bilello had to ask Risco to stop referring to them by pet names. (FFC Tr. 244:1–18, 245:5–246:19; 438:20–441:3.) Risco states that she stopped using the pet names as soon as she was asked to do so. (Pl.'s 56.1 Response ¶ 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.¹¹ (Def.'s 56.1 Stmt. ¶ 10.¹²) Risco also expressed her belief that she was being assigned duties that were beyond the scope of her job as a guidance counselor intern. (Bober Decl. Ex. D; Pl.'s 56.1 Response ¶ 10.) In response, Byrd explained that he was giving her duties beyond the narrow scope of her position in an effort to expose Risco to the broad range of tasks that she would encounter as a permanent guidance counselor, and to ensure that he was providing her with the “proper education, training and tools to accomplish the robust mission that ACES is charged with.” (Bober Decl. Ex. D, at 2.) He also explained that he was sincerely trying to help her and wanted her to succeed. (Def.'s 56.1 Stmt. ¶ 11.) In addition, Byrd noted that Risco's workload was only a fraction of that of other Education Center personnel. ( Id.)

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 co-workers were “far too superior and professional to engage in gossip.” (Def.'s 56.1 Stmt. ¶ 12; Bober Decl. Ex. E.) Byrd verbally counseled Risco about sending this email, which he believed was inappropriate and accusatory in nature.¹³ (FFC Tr. 314:5–316:3.) Several of Risco's co-workersalso reported to Byrd that they found Risco's email to be accusatory and harmful to the work environment. (Def.'s 56.1 Stmt. ¶ 13; ¹⁴ Bober Decl. Ex. F, at 2–4; see also FFC Tr. 774:3–775:8.) Byrd and Bilello were unable to determine what motivated Risco to send the email (FFC Tr. 314:10–316:3, 661:1–662:3), and Risco claims that she was not accusing her co-workers or supervisors of engaging in gossip.¹⁵ (FFC Tr. 248:13–15, 249:5–250:21.)

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. ¹⁶ (FFC Tr. 432:3–432:17, 662:10–663:1, 664:1–11.) Both Byrd and Bilello described the message as unusual in nature, and neither supervisor understood the impetus behind the messages, if any.¹⁷ (FFC Tr. 434:21–22, 435:20–437:8, 663:10:665:2.) Risco's belief that others were commenting on her relationship with the business owner was also reported by one of her co-workers, who similarly found Risco's seemingly unfounded concerns to be unusual. (Bober Decl. Ex. F, at 3–4.)

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...