Miller v. Geren, No. 1:2009cv07425 - Document 43 (S.D.N.Y. 2011)

Court Description: OPINION AND ORDER re: 30 MOTION for Summary Judgment filed by Pete Geren. For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk is directed to close this motion [Docket No. 30] and this case. (Signed by Judge Shira A. Scheindlin on 9/14/2011) (mro)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK .--------------------------------------------------- )( MARYTHERESE MILLER, OPINION AND ORDER Plaintiff, 09 Civ. 7425 (SAS) - againstJOHN McHUGH, SECRETARY OF THE ARMY, USDC~nNY DOCUNIENT Defendant. . ErJiCr~{ON1(,ALLY _-------------------------------------------------- SHIRA A. SCHEINDLIN, U.S.D.J.: I. )( FILED ',' ' \. rr . D< . .'" l4.. DATE FlLEO;- Y) 111/1 } .-- INTRODUCTION Marytherese Miller, a legal technician in the Office of the Staff Judge Advocate ("OSJA") for the United States Military at West Point, New York ("West Point"), brings suit against her employer, John McHugh, Secretary of the Army (the "Government"). 1 Miller primarily alleges employment discrimination on the basis of her disability, failure to accommodate her disability and unlawful retaliation, in violation of the Rehabilitation Acf as modified by the Americans John McHugh has been automatically substituted as defendant during the course of these proceedings pursuant to Fed. R. Civ. P. 25(d). 2 29 U.S.C. § 701, et seq. 1 with Disabilities Act ( ADA )3 and Title VII of the Civil Rights Act of 1964 ( Title VII ).4 Miller further alleges that the Government maintained a hostile work environment in violation of Title VII and that her personal information was disclosed in violation of the Privacy Act.5 The Government moves for summary judgment on the grounds that: (1) Miller cannot establish a prima facie case of discrimination because she is not disabled under the meaning of the ADA; (2) Miller cannot establish a prima facie case of discrimination based on failure to accommodate because her requests for accommodation were granted; (3) Miller cannot establish a prima facie case of retaliation because the Government s actions preceded any of Miller s protected acts and because Miller suffered no adverse employment actions; (4) the Government has offered legitimate, non-discriminatory reasons for its actions; (5) Miller cannot establish a prima facie case of hostile work environment; and (6) Miller cannot establish a prima facie case of a Privacy Act violation. For the reasons set forth below, the Government s motion is granted in full and this case is 3 42 U.S.C. § 12101, et seq. 4 Id. § 2000e, et seq. 5 5 U.S.C. § 552a. Following a Stipulation and Order of Partial Dismissal entered on 6/23/10, Miller agreed not to pursue additional claims based on the Family and Medical Leave Act ( FMLA ), 29 U.S.C. § 2611, et seq., and the Federal Employee Compensation Act ( FECA ), 5 U.S.C. § 8101, et seq. 2 dismissed. II. BACKGROUND6 Miller has been employed as a legal technician for the OSJA at West Point since approximately 1987.7 The duties of a legal technician are similar to those of a court reporter and include: recording and transcribing hearings, preparing records and cases, making exhibits, and preparing legal reviews and 6 Both parties submitted written statements of facts pursuant to Local Civil Rule 56.1. See Rule 56.1(a)-(d); see also Rodriguez v. Schneider, No. 95 Civ. 4083, 1999 WL 459813, at *1 n.3 (S.D.N.Y. June 29, 1999). Although Miller s response to Defendant s 56.1 statement contains correspondingly numbered paragraphs admitting or denying defendant s facts, Miller frequently adds argumentation, as does defendant, and bases certain factual statements on a contemporaneously submitted affidavit by Miller. See Defendant s Statement Pursuant to Local Civil Rule 56.1 ( Def. 56.1 ); Plaintiff s Statement of Facts Law [sic] pursuant to local civil rule 56.1 ( Pl. 56.1 ); 7/8/11 Affidavit of Marytherese Miller ( Miller Aff. ), Ex. A to 7/8/11 Verification of Peter J. Cresci, Esq. ( Cresci Ver. ). Miller s affidavit, however, is often inconsistent with her earlier deposition testimony taken on March 9, 2011. See 3/9/11 Deposition of Marytherese Miller ( Miller Tr. ), Ex. A to 6/8/11 Declaration of Jaimie L. Nawaday ( Nawaday Decl. ). Any material that first appears in the affirmation and that contradicts earlier deposition testimony must be ignored for the purposes of this motion. See Estate of Hamilton v. City of New York, 627 F.3d 50, 54 (2d Cir. 2010); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) ( factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff s affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony. ). Accordingly, I deem defendant s 56.1 statement admitted or denied as set forth by plaintiff except insofar as plaintiff relies on facts contained in Miller s affidavit that contradict earlier deposition testimony. 7 See Pl. 56.1 ¶ 1; Miller Tr. at 21:10-11; Miller Aff. ¶ 3. 3 action documents in cadet hearings and investigations.8 In 1992, Miller became a lead legal technician,9 a position with responsibilities including those of a legal technician as well as additional supervisory functions, including serving as a working leader over three employees. 10 The lead legal technician is also responsible for balancing and distributing the caseload, training new employees and preparing a superintendent s report.11 Until the Spring of 2005, Miller participated in cadet hearings that were held on the fourth floor of Nininger Hall, a building with no elevator.12 A. Miller s First Surgery and Initial Requests for Worksite Accommodations After a meniscus tear in February 2005, as well as significant knee pain, Miller underwent knee surgery in April 2005.13 Miller returned to work after 8 See Miller Tr. at 22:12-19; see also Position Description: Legal Technician, Ex. F to Cresci Ver. 9 See Pl. 56.1 ¶ 1; Miller Tr. at 29:2-3. 10 See Position Description: Lead Legal Technician, Ex. F to Cresci Ver.; Miller Aff. ¶ 7. 11 See Miller Tr. at 111:16-19. 12 See Pl. 56.1 ¶ 2. 13 See Miller Tr. at 42:21-43:8, 47:20-48:4. 4 three weeks with a leg brace and crutches.14 Upon returning to work, Miller presented a doctor s note which limited her use of stairs.15 Due to her surgery, Miller verbally requested to not have to climb the stairs. 16 In response, all of Miller s court hearings were moved from the fourth floor of Nininger Hall to Building 606 (the OSJA Courtroom), a handicapped accessible location and the building in which Miller s desk is located.17 In September 2005, Miller procured an additional doctor s note providing that she should engage in minimal stair climbing while at work. 18 Beginning in September 2006, Miller was told by her supervisors, Colonel Brendan Donahoe and Captain Ann Ching, that she would need to use the stairs and that she would be subject to a fitness for duty hearing.19 Miller contacted another supervisor, Colonel Robin Swope, on October 25, 2006, to protest having 14 See id. at 48:7, 54:19-20. 15 See id. at 55:13-19, 56:21-25; see also 4/11/05 Doctor s Note, Ex. C to Cresci Ver. The April 11 Doctor s Note does indicate disability, though it does not specify restrictions on stair climbing. 16 See 11/1/07 Testimony of Marytherese Miller ( Miller EEO Test. I ), Ex. O to Cresci Ver. at 38:23-40:13. 17 See Miller Tr. at 53:16-23. 18 See 9/15/05 Doctor s Note, Ex. C to Nawaday Decl. 19 See Miller EEO Test. I at 41:20-44:5. 5 to walk up stairs and to request an explanation regarding the fitness for duty hearing.20 Swope instructed Miller to get her medical accommodations properly documented so that the OSJA could act in accordance with regulations. 21 Miller was informed that if she provided proper documentation, she would not be required to climb stairs or to submit to a fitness for duty investigation.22 On November 7, 2006, Miller filed a formal written request for medical accommodation asking that she not be required to use the stairs at Nininger Hall.23 In her written request, Miller also advised the OSJA that she would need a second surgery [w]ithin the next six months. 24 Miller also provided a new doctor s note ordering [m]inimal 20 See 10/26/06 E-mail Communications with Col. Swope ( Swope Comm. ), Ex. D to Nawaday Decl.; also included as Ex. N to Cresci Ver. 21 Id. Accord Miller Tr. at 71:16-25 ( [Mr. Billelo] contacted my supervisor and told her that that is the correct procedure that has to be done for an accommodation request. ). 22 See Miller Tr. at 71:16-25. See also 5/8/07 EEO Informal Complaint ( Informal EEO Complaint ), Ex. J to Nawaday Decl. at Testimony of CPT Ann Ching ( he thought they had to hold a Fitness for Duty because they had no office documentation about [] her accommodation ). 23 See 11/7/06 Memorandum, Subject: No Elevator at Nininger Hall ( Formal Memo ), Ex. E to Nawaday Decl.; also included as Ex. N to Cresci Ver. Describing her situation, Miller stated, I do not believe that I am disabled or that I am truly a qualified individual with a disability, under Title II of the ADA . . . since none of my major life activities are limited. See id. ¶ 3. Specifically, Miller claimed to be in need of a temporary situation. See id. 24 See id. ¶ 7. 6 stairs please. 25 Miller s request for a temporary worksite accommodation was granted on November 17, 2006.26 Miller has never participated in any hearings on the fourth floor of Nininger Hall since returning from surgery in 2005.27 Her hearings have been mainly held in the OSJA Courtroom, and since sometime in early 2010, some hearings have also been held in the Red Reeder Room,28 a handicapped accessible location approximately one half mile from Miller s desk in Building 606.29 Miller declined certain accommodations related to traveling to the Red Reeder Room.30 B. Miller s Requests for Parking Accommodation 25 See 11/2/06 Doctor s Note, Ex. E to Nawaday Decl. 26 See 11/17/06 Temporary Worksite Accommodation ( Worksite Accommodation ), Ex. F to Nawaday Decl.; also included as Ex. N to Cresci Ver. 27 See Miller Tr. at 165:6-8. 28 See Miller Aff. ¶ 18; see also 4/29/10 Proposed Amendment, Ex. N to Cresci Ver. ¶ 2 ( The commandant determined that the Staff Judge Advocate (SJA) courtroom was not a suitable primary alternate HIH and CAB location. The Honor Committee now schedule the Red Reeder Room as the secondary HIH location. ). 29 See Miller Tr. at 165:9-12. 30 See 5/24/11 Medical Exam by Dr. Sally Dorfman, Ex. D to Cresci Ver. ( You declined the accommodation. ). The accommodation afforded was some form of a scooter. See Defendant s Reply in Support of Its Motion for Summary Judgment at 6 n.7. 7 Miller verbally requested a parking accommodation by phone before returning from work in order to avoid the stairs in West Point s parking lot.31 Captain Daniel Greiser, her supervisor, advised Miller that such a permit would be too difficult to secure.32 Instead, Greiser informed Miller that it would be easier to secure a handicapped parking pass from New York State, which Miller did.33 This pass expired in October 2005, and Miller had to take the stairs in the parking lot between October 2005, and February 2007.34 During this time, Miller made additional verbal requests for parking accommodations by the OSJA, but was denied.35 On February 7, 2007, Miller submitted her first formal written request to West Point for a Reserved Parking Spot.36 In response, Miller was granted a 31 See Miller Tr. at 48:12-20. 32 See id. at 48:24-49:10. 33 See id. at 49:22-50:13; see also Miller EEO Test. I at 40:15-41:4. 34 See Miller Tr. at 58:8-19. Even while Miller had a valid New York State Parking Pass, she was not always able to avoid the parking lot stairs. The New York State Pass, unlike the West Point Pass, entitles its holder to a handicapped space generally rather than to an assigned parking space, and West Point did not have enough handicapped spots. See id. at 50:14-52:2. 35 See id. at 77:20-23. 36 See 2/7/07 Request for Reserved Parking Spot ( Parking Request ), Ex. G to Nawaday Decl. 8 temporary reserved parking space on February 13, 2007, for one year.37 No other formal parking accommodation requests were filed by Miller with West Point until June 2, 2011, at which time Miller was again granted handicapped parking accommodations by West Point.38 Miller did not attempt to renew her New York State Parking pass until November 2009, at which point her request was granted.39 C. Miller s Job Reclassification In 2006, Miller s supervisor, Captain Greiser, was in the process of updating OSJA job descriptions.40 Miller had requested in 2003 that her job description be updated to better match her actual job responsibilities.41 Since approximately 1993, Miller had been the lead legal technician in charge of two other legal technicians.42 According to the position description maintained by 37 See 2/13/07 Reasonable Parking Accommodation ( Parking Request Grant ), Ex. C to Cresci Ver. This information was then communicated to Miller on February 20, 2007, see 2/20/07 Request for Reserved Parking, Ex. G to Nadaway Decl. 38 See 6/2/11 Reasonable Parking Accommodation, Ex. C to Cresci Ver. 39 See Miller Tr. at 81:15-23, 89:14-90:15. 40 See id. at 98:18-23. 41 See id. at 99:6-20. 42 See id. at 109:2-110-21. 9 OSJA, a lead legal technician serves as a working leader over three employees. 43 In accordance with this description, Captain Ching, Miller s new supervisor, reclassified Miller as a legal technician rather than a lead legal technician by a memorandum dated April 5, 2007.44 Miller was informed of this reclassification by e-mail on May 3, 2007.45 The reclassification took effect on July 8, 2007.46 Miller experienced no decrease in grade or salary at the time of her reclassification.47 Her duties, however, changed, as she no longer distributed the caseload, conducted trainings, or was solely responsible for superintendent s reports and red book pages.48 Moreover, as lead legal technician, Miller was required to have a higher pay grade than other legal technicians, but as a legal technician, she would not be entitled to an automatic promotion once other legal technicians were promoted.49 43 See Position Description: Lead Legal Technician, Ex. F to Cresci Ver. This standard is maintained pursuant to the General Schedule Leader Grade Evaluation Guide, HRCD-5 June 1998, Ex. E to Cresci Ver., at 2. 44 See 4/5/07 Change in Position Description, Ex. M to Nawaday Decl. 45 See Miller Tr. at 112:19-113-2. 46 See 7/8/07 Notification of Personnel Action, Ex. F to Cresci Ver. 47 See Miller Tr. at 133:16-134:11. 48 See id. at 131:18-132:9. 49 See id. at 133:6-134:11. 10 D. Miller s Second Surgery and Informal EEO Complaint In Miller s Formal Memo requesting worksite accommodation, she notified the OSJA that she would need a second surgery.50 On April 26, 2007, Miller submitted a formal written request to her supervisor, Captain Ching, for eighty-eight hours of advanced annual leave on or about May 17, 2007, in order to undergo the second surgery.51 Captain Ching denied this request after a meeting with Col. Swope, Lt. Donahoe and Ms. Doughty (West Point s Labor Counselor), and provided a written memo explaining the decision on May 8, 2007.52 Captain Ching s memo explained that Miller was not eligible for advanced annual leave, but that Miller could take time off using either leave without pay ( LWOP ) or borrowing donated leave from other employees.53 Miller did not opt to use either of these options and instead cancelled her surgery.54 50 See Formal Memo ¶ 7. 51 See 4/26/07 Request for Advance Annual Leave, Ex. H to Nawaday Decl. 52 See 5/8/07 Denial of Request for Advanced Annual Leave, Ex. I to Nawaday Decl.; Informal EEO Complaint, Witness Statement of CPT Ann Ching. In addition to the denial, Captain Ching asserted that Miller had backdated her written request for advanced annual leave. See Denial of Request for Advanced Annual Leave ¶ 3. 53 See 5/8/07 Denial of Request for Advanced Annual Leave ¶¶ 6-7. 54 See Miller Tr. at 122:21-127:15. 11 On May 8, 2007, Miller filed an informal complaint with the West Point Equal Employment Opportunity ( EEO ) Office.55 In her complaint, Miller alleged that she was discriminated against when her request for advanced leave was not approved.56 After being denied her request for advanced leave, Miller stated that she then contacted the COL Colpo the Chief of Staff and CPAC [who] told her she had enough to borrow. 57 Miller further stated that she believed that she had enough advanced leave, that she had been allowed advanced leave for preoperative tests, that another employee was granted advanced leave, and that she was reprised against because she went to the Chief of Staff about their continue [sic] pattern of treatment. 58 Miller underwent her second surgery on April 26, 2008.59 Following this surgery, Miller received doctor s notes prohibiting stair climbing, walking on inclines and walking long distances.60 She also received continued doctor s orders 55 See Informal EEO Complaint. 56 See id. at Section V- Matter(s) Giving Rise to Complaint. 57 Id. 58 Id. 59 See Miller Tr. at 131:10-12. 60 See 3/18/09 Doctor s Note, Ex. C to Cresci Ver. ( No stair climbing, no long distance walking and please allow to park close to bldg. ); 1/21/10 Doctor s Note, Ex. C to Cresci Ver. ( No stairs or incline. Level walking only. ); 12 to park near the building.61 More recently, the West Point medical staff also concluded that Miller has a permanent limiting condition such that she cannot walk up and down stairs, cannot walk on an incline or for long distances, and cannot endure prolonged standing. 62 Nonetheless, Miller s difficulties do not affect her ability to perform her job.63 E. Miller s 2007 Performance Evaluation and Other Employee Counseling On June 22, 2007, Miller received her annual performance evaluation.64 This was the first annual evaluation that Miller received from her new supervisor, Captain Ching.65 While Miller had received evaluation scores of excellent (one out of five, or the highest rating) in years preceding 2007, her 2007 evaluation resulted in an overall performance score of successful (two out 3/24/11 Doctor s Note, Ex. C to Cresci Ver. ( Continue no stairs or incline. ). 61 See 5/6/10 Doctor s Note, Ex. D to Cresci Ver. ( Please allow [Miller] to park close to the building. ). 62 5/24/11 Medical Exam by Dr. Sally Dorfman. 63 See Miller Tr. at 43:9-11. 64 See 6/22/07 Base System Civilian Evaluation Report ( 2007 Evaluation ), Ex. B to Nawaday Decl. 65 See Miller Tr. at 157:8-16. 13 of five).66 Captain Ching explained that the performance evaluation was based on the fact that Miller had vocalized for me on more than one occasion that she felt she did not need to participate in the same training as the other employees and it would be basically a waste of time and money, that the software shouldn t be used anymore and so forth. 67 As a result of her performance evaluation score, Miller received a sixteen-hour time off award instead of the forty-hour time-off awards she had received in years in which her performance evaluation score was excellent. 68 Miller also received periodic employee counseling and guidance sessions during 2007-2008.69 No disciplinary actions or changes in Miller s 66 See Collected Base System Civilian Evaluation Reports of Marytherese Miller from 2003-2010, Ex. B to Cresci Ver. 67 EEO Fact-Finding Transcript of Captain Ching ( Ching Tr. ), Ex. K to Nawaday Decl., at 274:16-22. 68 See Miller Tr. at 153:25-155:4; see also OSJA Evaluation and Performance Awards, Ex. L to Cresci Ver. 69 See 2/27/07 Employee Counseling Regarding an Argument from Captain Ching, Ex. L to Nawaday Decl. ( This is not a disciplinary counseling ); 8/2/07 Employee Counseling Regarding Confrontation from Maj. Sutherland, Ex. L to Nawaday Decl. ( Any further misconduct of this nature may result in disciplinary action. ); 8/24/07 Job Performance Guidelines and Expectations from Captain Adams, Ex. L to Nawaday Decl.; 9/10/07 Work Standards for Success and Excellence from Captain Adams, Ex. L to Nawaday Decl.; 1/17/08 Job Performance Counseling from Captain Adams, Ex. L to Nawaday Decl. 14 employment status resulted from these meetings or the associated memoranda.70 F. Miller s Formal EEO Complaints On July 9, 2007, Miller filed her first formal EEO complaint.71 The complaint alleged discrimination, retaliation and the creation of a hostile work environment based on her supervisors: (1) denying her leave for the second surgery; (2) reclassifying her position; (2) participating in negative counseling sessions; (3) downgrading her evaluation; (4) discussing medical issues with coworkers present in violation of the Privacy Act; (5) requiring excessive justification for requested leave; and (6) causing her mental and emotional distress.72 Miller filed a second formal EEO complaint on March 21, 2008.73 This complaint further alleged discrimination, retaliation and the creation of a hostile work environment and included a detailed list of instances of alleged 70 See Employee Counseling and Work Guidance Memos, Ex. L to Nawaday Decl. 71 See 7/9/07 Formal Complaint of Discrimination ( First EEO Complaint ), Ex. N to Nawaday Decl.; also included as Ex. K to Cresci Ver. 72 See id. Issues ¶¶ 1-7. 73 See 3/21/08 Formal Complaint of Discrimination ( Second EEO Complaint ), Ex. O to Nawaday Decl.; also included as Ex. K to Cresci Ver. 15 harassment and discrimination.74 Among the specific workplace incidents referred to in the second EEO complaint as well as in the subsequent Amended Complaint are: (1) Captain Greiser s comments in May 2005, asking Miller whether she would be ready to climb Storm King Mountain for an office outing, and his repeated questioning over a month;75 (2) a comment by Corrine Barnes, a member of the OJSA management team, how would you like me to kick your leg and see how it hurts?; 76 (3) a statement by co-worker Christine Laiso, Everyone hates you, I hate you!; 77 and (4) a picture that Captain Brian Adams sent around by email of himself with the caption, you will remember me! 78 Miller also claims that her unlisted telephone number was released without her consent on an office roster.79 Miller commenced the present action on August 24, 2009. III. LEGAL STANDARD 74 See id. Section V- Matter(s) Giving Rise to Complaint. 75 Plaintiff s Amended Complaint ( Am. Compl. ) ¶ 8. 76 Second EEO Complaint, Section V- Matter(s) Giving Rise to Complaint; see also Miller Aff. ¶ 24(c). 77 Miller Aff. ¶ 24(d). 78 See id. ¶ 24(a); see also Picture Exhibit, Ex. G to Cresci Ver.; Sworn Testimony of Christine Laiso, Ex. H to Cresci Ver. at 45:15-46:17 (stating that the picture was sent to several employees and was probably a joke). 79 See Plaintiff s Brief in Opposition to Summary Judgment ( Opp. Mem. ) at 24. 16 A. Summary Judgment Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. 80 An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law. 81 The moving party bears the burden of establishing the absence of any genuine issue of material fact. 82 When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant s claim. 83 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, the non-moving party must do more than simply show that there is some metaphysical doubt as to the material 80 Fed. R. Civ. P. 56(a). 81 Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008)). 82 Zalaski v. City of Bridgeport Police Dep t, 613 F.3d 336, 340 (2d Cir. 2010). 83 Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009). 17 facts, 84 and may not rely on conclusory allegations or unsubstantiated speculation. 85 In deciding a motion for summary judgment, a court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant. 86 However, [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. 87 The role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried. 88 B. Summary Judgment and Employment Discrimination [S]ummary judgment is appropriate even in discrimination cases, 84 Brown v. Eli Lilly & Co., F.3d , 10 Civ. 512, 2011 WL 3625105, at *10 (2d Cir. Aug. 18, 2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). 85 Id. (quoting Federal Deposit Ins. Corp. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)). 86 Brod v. Omya, Inc., F.3d , No. 09 Civ. 4551, 2011 WL 2750916, at *7 (2d Cir. July 18, 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). 87 Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)) (emphasis removed). 88 Brod, 2011 WL 2750916, at *7 (quoting Wilson v. Northwestern Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). 18 for . . . the salutary purposes of summary judgment avoiding protracted, expensive and harassing trials apply no less to discrimination cases than to other areas of litigation. 89 Indeed, [i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases. 90 Because direct evidence of an employer s discriminatory intent will rarely be found, motions for summary judgment in employment discrimination actions should be evaluated with caution. However, even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment. 91 Courts must . . . carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture. 92 89 Lu v. Chase Inv. Serv. Corp., 412 Fed. App x 413, 415 (2d Cir. 2011) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), superseded by statute on other grounds as stated in Ochei v. Coler/Goldwater Mem l Hosp., 450 F. Supp. 2d 275, 282 (S.D.N.Y. 2006)). Accord Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). 90 Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (quoting Abdu-Brisson, 239 F.3d at 466). 91 Gear v. Department of Educ., No. 07 Civ. 11102, 2011 WL 1362093, at *2 (S.D.N.Y. Mar. 30, 2011) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)). 92 Fall v. New York State United Teachers, 289 Fed. App x 419, 420 (2d Cir. 2008) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999)). 19 [T]he plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action . . . . To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination. 93 IV. APPLICABLE LAW A. Failure to Accommodate A federal employee s sole claim for discrimination on the basis of disability is under the Rehabilitation Act, if anywhere. 94 Section 501 of the Rehabilitation Act provides that: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity Accord Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir. 2003) ( [P]urely conclusory allegations of discrimination, absent any concrete particulars, are insufficient to satisfy an employee s burden on a motion for summary judgment.) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). 93 Tori v. Marist Coll., 344 Fed. App x 697, 699 (2d Cir. 2009) (quoting Weinstock, 224 F.3d at 42) (original emphasis removed). 94 Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998). The ADA, by contrast, provides no remedy for discrimination by the federal government, see 42 U.S.C. § 12111(5)(B)(i). 20 receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.95 Under the Rehabilitation Act, a plaintiff may allege failure to make reasonable accommodations, and such claims are analyzed under the familiar burden-shifting analysis established for employment discrimination cases under Title VII of the Civil Rights Act of 1964 by McDonnell Douglas Corporation v. Green.96 Under the McDonnell framework, a plaintiff must first establish a prima facie case of discrimination. 97 A plaintiff makes out a prima facie case of failure to accommodate by showing (1) that he is an individual who has a disability within the meaning of the statute, (2) that an employer covered by the statute had notice of his disability, (3) that with reasonable accommodation, he could perform the essential functions of the position sought, and (4) that the employer has refused to make such accommodations. 98 The Rehabilitation Act defines an [i]ndividual with a disability by 95 29 U.S.C. § 794(a). 96 Regional Econ. Cmty Action Program, Inc. v. City of Middletwon, 294 F.3d 35, 48-49 (2d Cir. 2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)). 97 Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). 98 Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997). 21 reference to the ADA.99 The ADA defines a disability as either: (A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 100 Under this definition, a court must determine: (1) whether plaintiff suffers from a physical or mental impairment, (2) whether the impairment affects major life activities, and (3) whether the impairment substantially interferes with the major life activity identified.101 Major life activities are those of central importance to daily life and include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 102 The impairment must also substantially limit[] the major life activity 99 See 29 U.S.C. §§ 705(20)(B), 794(d); see also Stone, 118 F.3d at 96 ( The terms common to both [the ADA and the Rehabilitation Act] are to be interpreted in the same way. ). 100 42 U.S.C. § 12102(1). For the purposes of this motion the Court will ignore the 2009 amendments to the ADA regarding all actions taken prior to the amendments, see Wega v. Center for Disability Rights, Inc., 395 Fed. App x 782, 784 n.1. (2d Cir. 2010) ( [T]here is no indication that Congress intended the ADA Amendments to have retroactive effect. ). 101 See Colwell v. Suffolk County Police Dep t, 158 F.3d 635, 641 (2d Cir. 1998) (quoting Bragdon v. Abbott, 524 U.S. 624, 631 (1998)), superseded by statute as stated in Ragusa v. Malverne Union Free School Dist., 381 Fed. App x 85, 88 (2d Cir. 2010). 102 Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005) (quoting 29 C.F.R. § 1630.2(I)). Accord Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002). 22 rather than cause trivial disruptions.103 Factors included in determining whether interference is substantial include: (i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 104 [I]t is the responsibility of the individual with a disability to inform the employer that an accommodation is needed. 105 However, at times the employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation. 106 When accommodating an employee, the employer is not required to provide every accommodation the disabled employee may request or to provide the employee with the accommodation of her choice. 107 It is sufficient that the accommodation 103 See 29 C.F.R. § 1630.2(j)(1)(i)-(ii). 104 Id. § 1630.2(j)(2)(i)-(iii). 105 Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008) (citing Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006)). 106 Brady, 531 F.3d at 135. 107 Fink v. New York City Dep t of Personnel, 53 F.3d 565, 567 (2d Cir. 1995). 23 provided is reasonable. 108 If the plaintiff succeeds in establishing a prima facie case of discrimination, then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.109 Finally, if the employer articulates a non-discriminatory reason for the challenged action, the burden shifts back to the plaintiff to demonstrate that the defendant s explanation was pretextual.110 B. Retaliation Title VII makes it unlawful for an employer to discriminate against an employee because he [or she] has opposed any practice made an unlawful employment practice by this subchapter, or because he [or she] has made a charge . . . in an investigation, proceeding, or hearing under this subchapter. 111 Claims of unlawful retaliation can be brought under the Rehabilitation Act and are analyzed under the same burden-shifting framework established for Title VII cases under McDonnell.112 108 Id. Accord Gronne v. Apple Bank For Sav., 1 Fed. App x 64, 67 (2d Cir. 2001); Querry v. Messar, 14 F. Supp. 2d 437, 445 (S.D.N.Y. 1998). 109 See Ruiz, 609 F.3d at 492. 110 See id. 111 Kaytor, 609 F.3d at 552 (quoting 42 U.S.C. § 2000e-3(a)). 112 Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). 24 A prima facie case of retaliation is established by showing: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. 113 An allegation of retaliation is separate from and independent of whether or not plaintiff is disabled.114 Actions are materially adverse if they are harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. 115 To show that an employer s retaliation resulted in an adverse action, a plaintiff must proffer objective indicia of material disadvantage; subjective, personal disappointment[] is not enough. 116 A plaintiff may demonstrate causation in a retaliation claim: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate 113 Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (quotation marks and citations omitted). 114 See Sarno v. Douglas Elliman-Gibbon & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999). 115 Hicks, 593 F.3d at 165 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). 116 Beyer v. County of Nassau, 524 F.3d 160, 164 (2d Cir. 2008) (quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). 25 treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by defendant. 117 The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close. 118 At the summary judgment stage, if the plaintiff presents at least a minimal amount of evidence to support the elements of the claim, the burden of production shifts to the defendant to proffer a legitimate non-retaliatory reason for the adverse employment action. 119 If the employer produces such evidence, the employee must, in order to avoid summary judgment, point to evidence sufficient to permit an inference that the employer s proffered non-retaliatory reason is pretextual and that retaliation was a substantial reason for the adverse employment action. 120 117 Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (citing Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993)). 118 Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (quotation marks and citations omitted). 119 Kaytor, 609 F.3d at 552-53. 120 Id. at 553 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). 26 C. Hostile Work Environment An employee seeking to bring a hostile work environment claim must demonstrate that: (1) she is a member of a protected class; (2) she suffered unwelcome harassment; (3) she was harassed because of her membership in a protected class; and (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.121 In order to prevail on a hostile work environment claim, a plaintiff must make two showings: (1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim s employment and create an abusive working environment and (2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer. 122 Evaluating a hostile environment involves reviewing the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee s work performance. 123 121 See Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567, 584 (S.D.N.Y. 2008) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) and Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995)). 122 Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (quoting Feingold, 366 F.3d at 149-50). 123 Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). 27 The question is whether a reasonable person would have found the environment to be hostile and if the plaintiff perceived it as such.124 [A] plaintiff need not show that her hostile working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered her working conditions. 125 D. Exhaustion EEOC regulations require an employee suing the federal government under the Rehabilitation Act to exhaust certain administrative remedies before initiating a suit in the district court. 126 [A]n aggrieved agency employee must first seek EEO counseling within forty-five days of the allegedly discriminatory act. The employee must then file an EEO complaint with the agency that allegedly discriminated against the complainant. 127 In the Title VII context, the Second Circuit has held that the claims forming the basis of such a suit must first 124 See Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir. 2004) (citing Brennan v. Metropolitan Opera Ass n, 192 F.3d 310, 318 (2d Cir. 1999)). 125 Pucino v. Verizon Wireless Commc ns, 618 F.3d 112, 119 (2d Cir. 2010) (emphasis in original). 126 Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000). 127 Id. (quoting 29 C.F.R. §§ 1614.105(a)(1), 1614.106). 28 be presented in a complaint to the EEOC or the equivalent state agency. 128 Claims not raised in an EEOC complaint, however, may be brought in federal court if they are reasonably related to the claim filed with the agency. 129 The Second Circuit considers claims reasonably related when: (1) the claim would fall within the reasonably expected scope of an EEOC investigation of the charges of discrimination; (2) it alleges retaliation for filing the EEOC charge; or (3) the plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge. 130 E. The Privacy Act The Privacy Act provides, in pertinent part, Whenever an agency . . . fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this 128 Williams v. New York City Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (citing 42 U.S.C. § 2000e-5(e)(1) and Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001)). 129 Williams, 458 F.3d at 70. 130 Alfano v. Costello, 294 F.3d 365, 381 (2d Cir. 2002) (quoting Butts v. New York Dep t of Hous., Pres. & Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998)). 29 subsection. 131 To state a Privacy Act claim a plaintiff must show that: 1) the information at issue is a record contained within a system of records; 2) the agency violated the Act with respect to that record; 3) the disclosure had an adverse effect on the plaintiff; and 4) the violation was willful or intentional. 132 The Privacy Act defines a record as any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name . . . or other identifying particular. 133 The alleged adverse affect must stem from a willful violation of the Act, and not from mere administrative error. 134 V. DISCUSSION A. Miller s Disability Claims Miller s failure to accommodate claims include three alleged violations: (1) failure to accommodate her parking needs up until February 2007, 131 5 U.S.C. § 552a(g)(1)(D). 132 International Union, Sec., Police, and Fire Prof ls v. U.S. Marshal s Serv., 350 F. Supp. 2d 522, 528 (S.D.N.Y. 2004). 133 Bechhoefer v. United States Dep t of Justice D.E.A., 209 F.3d 57, 60 (2d Cir. 2000) (quoting 5 U.S.C. § 552a(a)(4)) (emphasis in original). 134 Dowd v. IRS, 776 F.2d 1083, 1084 (2d Cir. 1985). 30 (2) failure to provide her with advanced leave for her second scheduled surgery in May 2007, and (3) the movement of certain hearings to the Red Reeder Room rather than OSJA courtroom sometime after her second surgery. Miller s failure to accommodate claims fail as a matter of law because (1) she has not produced evidence showing that she was disabled under the meaning of the ADA at the time of the requested parking accommodations and advanced leave, and (2) she has failed to produce evidence sufficient to raise a factual dispute as to whether she was reasonably accommodated regarding the advance leave and the hearings at Red Reeder. 1. Miller Was Not Disabled Under the ADA Prior to Her Second Surgery Miller s request for advanced leave and inability to secure parking accommodations both occurred in 2006 and 2007, prior to Miller s second surgery.135 To determine whether these claims can survive summary judgment, the Court must first address the threshold issue of whether Miller was disabled in the relevant time period. When a plaintiff fails to offer any medical evidence substantiating the specific limitations to which he claims he is subject due to his condition, he cannot establish that he is disabled within the meaning of the 135 After Miller s February 7, 2007, request was granted, she had no need for further parking accommodation. See Def. 56.1 ¶¶ 9-10; Pl. 56.1 ¶ 9. 31 ADA. 136 Thus the Court looks to the medical evidence of Miller s disability found in the record. Miller relies on her knee surgery and doctor s notes to support the claim that she was disabled under the ADA.137 However, prior to May 2007, Miller had only two doctor s notes detailing her required accommodations at work, one stating minimal stair climbing while at work and the other [m]inimal stairs please. 138 Miller further testified that between October 2005 and February 2007, she frequently walked up a significant number of stairs in the parking lot.139 Moreover, in Miller s formal request for accommodations on November 7, 2006, she specifically asked for temporary accommodations.140 It was not until Miller s doctor s notes and her physical exam at West Point in 2009 and later after her second surgery that Miller was absolutely prohibited from climbing stairs, walking long distances and on inclines, and was told by the West Point medical 136 Baerga v. Hospital for Special Surgery, No. 97 Civ. 0230, 2003 WL 22251294, at *6 (S.D.N.Y. Sept. 30, 2003) (quoting Johnson v. Saint Clare s Hosp. & Health Ctr., No. 96 Civ. 1425, 1998 WL 236235, at *8, (S.D.N.Y. May 13, 1998)). Accord Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir. 1994). 137 See Opp. Mem. at 9-11. 138 See 9/15/05 Doctor s Note, and 11/2/06 Doctor s Note respectively. 139 See Miller Tr. at 58:11-13, 87:8-10. 140 See Formal Memo ¶ 3. 32 staff that she had a permanent injury. 141 Miller thus provides insufficient medical evidence in the record to suggest that before May 8, 2007, her difficulties at work extended beyond hardship climbing stairs.142 While Miller s condition prior to her second surgery may have constituted an impairment, this impairment did not substantially interfere with her ability to engage in a major life function as required by the ADA. Though there is some dispute in this Circuit regarding whether the inability to climb stairs alone constitutes a major life function, the authority weighs against it.143 More 141 See 3/18/09 Doctor s Note; 1/21/10 Doctor s Note; 3/24/11 Doctor s Note; 5/24/11 Medical Exam by Dr. Sally Dorfman. 142 Miller s affirmation further adds that she has difficulties in her abilities to bend, stand, lift, prolonged standing, and sit for long periods of time. See Pl. 56.1 ¶ 11; Miller Aff. ¶ 11. This statement can be read to refer to Miller s condition since 2005. This description, however, lacks medical substantiation in the record and appears to contradict Miller s earlier deposition testimony. See Miller Tr. at 43:5-21 ( Q: Is there anything that you re prevented from doing because of your trouble with your leg? A: You know, I can t climb the stairs to Nininger Hall, nor the parking lot. ). The Court also notes Miller s assertions in her EEO testimony that as of November 2007, she had trouble sitting for long periods of time, lifting heavy objects, and was unsteady in her walking. See Miller EEO Test. I at 28:16-31:24. Despite these hardships, Miller s only request for accommodation at work at that time was [t]o not have to climb the stairs. See id. at 39:23. 143 Contrast Watson v. Arts & Entm t Television Network, No. 04 Civ. 1932, 2008 WL 793596, at *11 (S.D.N.Y. Mar. 26, 2008) ( To the extent plaintiff is relying on the limitation of her ability to climb stairs, climbing stairs is not a major life activity. ) with Sussle v. Sirina Prot. Sys. Corp., 269 F. Supp. 2d 285, 299 (S.D.N.Y. 2003) ( Climbing stairs likewise qualifies as a major life activity. ). 33 importantly, though, it is well settled that difficulty climbing stairs or temporary hardship and fatigue do not alone constitute a substantial impairment to a major life activity. 144 Based on Miller s medical evidence of her difficulty climbing stairs between October 2005 and May 2008, she has not shown that she was substantially limited in a major life function. Miller s Rehabilitation Act claims based on failure to accommodate her parking needs and request for advance leave therefore cannot survive summary judgment. a. Miller Was Not Regarded by Her Employer as Disabled Miller has also not shown that her employer regarded her as disabled for purposes of the ADA.145 While the Government made certain accommodations for Miller prior to May 2007, such as moving her hearings out of Nininger Hall, See also Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996) (climbing stairs is not a sufficiently basic, necessary function . . . to qualify as a major life activity under the ADA ); Missick v. City of New York, 707 F. Supp. 2d 336, 352-53 (E.D.N.Y. 2010) (same); Addoo v. New York City Bd. of Educ., No. 04 Civ. 2255, 2006 WL 5838977, at *8 (E.D.N.Y. Dec. 18, 2006) (same). 144 See Rogers v. City of New York, 359 Fed. App x 201, 203 (2d Cir. 2009) ( an inability to climb stairs, at least in the circumstances alleged, is not a substantial limitation of a major life activity so as to render Rogers disabled under the ADA ); Sussle, 269 F. Supp. 2d at 312 ( The inability to walk long distances or to climb stairs does not in itself substantially limit an individual s ability to perform a major life activity. ) (citations omitted) (collecting cases). 145 See 42 U.S.C. § 12102(1)(c). 34 Miller has not shown that the Government regarded [her] as disabled within the meaning of the ADA. 146 Prior to May 2007, Miller was only granted temporary accommodations based on hardship climbing stairs, for instance moving the hearings and granting a parking pass.147 Because these accommodations do not demonstrate that the Government believed that Miller was suffering from a disability that substantially limited her ability to engage in a major life function, Miller cannot properly show that she was disabled under the ADA. 2. Miller Has Not Shown She Was Not Reasonably Accommodated Miller has also failed to raise facts showing that the Government did not properly accommodate her need for a second surgery and to avoid climbing stairs. In response to Miller s request for eighty-eight hours of advanced annual leave, Captain Ching responded by written memo on May 8, 2007, informing Miller that the request could not be granted because there was a low likelihood that 146 Colwell, 158 F.3d at 646 (emphasis in original). Accord Jacques v. DiMarzio, Inc., 386 F.3d 192, 201 (2d Cir. 2004). 147 See, e.g., 11/17/06 Temporary Worksite Accommodation (granting temporary relocation of hearings so that Miller could limit her climbing of stairs ). 35 Miller could pay back the advanced hours. 148 Ching also informed Miller that she had two options to take off time for her surgery: (1) leave without pay, or (2) donated leave.149 Miller declined to use these options, and instead cancelled her surgery.150 Because it is undisputed that leave without pay or borrowed leave would have enabled Miller to undergo her second surgery, Miller fails to raise facts showing that she was not accommodated. Miller s only allegation of failure to accommodate that arose after her second surgery concerns the movement of certain hearings to the Red Reeder Room, rather than Building 606.151 While Miller s medical evidence from that time does raise a genuine issue of material fact concerning her disability status under the ADA, Miller has failed to show that she was not reasonably accommodated. Miller testified in her deposition that the Red Reeder Room is handicapped accessible, and it is undisputed that she declined an accommodation to help her travel to that location.152 While Miller understandably preferred that all 148 5/8/07 Denial of Request for Advanced Annual Leave, Ex. I to Nawaday Decl. ¶ 6. 149 See id. ¶ 7. 150 See Miller Tr. at 123:14-127:15. 151 See Miller Aff. ¶ 18. 152 See Miller Tr. at 165:6-12; 5/24/11; 5/24/11 Medical Exam by Dr. Sally Dorfman. Though Miller alleges in her affidavit that the Red Reeder Room 36 hearings be held in Building 606, the Government is not required to provide Miller with any particular accommodations she requests only ones that are reasonable. Because the Red Reeder location was handicapped accessible and Miller was offered assistance traveling to that location, she has failed to raise a triable issue of fact as to whether the Government failed to reasonably accommodate her. B. Miller s Retaliation Claims Miller alleges four instances of retaliation by her employer in response to her complaints and EEO filings: (1) her job reclassification; (2) her lowered performance evaluation grade; (3) the movement of certain hearings to the Red Reeder Room; and (4) various employee counseling sessions and other worksite guidance given to her. Miller s claims of retaliation fail as a matter of law because (1) her job reclassification occurred before any protected activity; (2) Miller has failed to rebut the non-retaliatory reasons put forward by the Government for Miller s evaluation; (3) Miller has not shown any causal connection between protected events and the movement of certain hearings to the Red Reeder Room; and (4) her counseling sessions did not include any adverse cannot be accessed without having to stand for a prolonged period of time, climb stairs or inclines, Miller Aff. ¶ 18, this appears to conflict with her deposition testimony, and Miller s submissions do not address why she rejected a proposed accommodation. 37 employment consequences. 1. Miller s Job Reclassification Predated Any Protected Activity Miller s job title was reclassified by Captain Ching on April 5, 2007.153 Miller was informed of this change by e-mail on or about May 3, 2007.154 Miller did not file her first informal EEO complaint until May 8, 2007.155 Despite the fact that the reclassification did not take effect until July 8, 2007, the decision to reclassify predated any EEO or other internal complaints.156 While [t]he plaintiff's burden at the beginning of the case is a light one, the plaintiff must show that the protected activity preceded the adverse action in order to satisfy the causation requirement. 157 The failure to submit evidence establishing any protected activity on or before May 7, 2007, is therefore 153 See 4/5/07 Change in Position Description, Ex. M to Nawaday Decl. 154 See Miller Tr. at 112:12-113:12. 155 See Miller s Informal Complaint. According to the informal complaint, Section V- Matter(s) Giving Rise to Complaint, as well as Miller s affidavit she also previously contacted Colonel Colpo, the Chief of Staff at some point on May 7, 2007, after receiving no satisfaction from her immediate superiors. Miller Aff. ¶ 5. 156 Miller s claim that she was only informed of the reclassification on July 8, 2007, see Pl. 56.1 ¶ 19 (citing Miller s affidavit), flatly contradicts her deposition testimony, see Miller Tr. at 112:12-113:12. 157 Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001). 38 fatal to Miller s prima facie case of retaliation based on her job reclassification. 2. Miller Has Not Rebutted the Government s Non-retaliatory Reason for Her Evaluation Score Miller received performance evaluation scores of successful on her 2007 and 2008 evaluations, whereas she had received scores of excellent for at least the previous four years.158 In June 2007, Miller was evaluated by Captain Ching, whereas previous annual evaluations were done by other supervisors.159 Miller alleges that this creates a prima facie case of retaliation and that Captain Ching retaliated against her for scheduling her surgery as well as for her informal and formal EEO complaints. Miller bases this claim primarily on the proximity of her protected activity to the alleged retaliation Miller filed her first EEO complaint naming Captain Ching on May 8, 2007, and was evaluated by Captain Ching on June 22, 2007.160 As an initial matter, Miller cannot base a claim of retaliation on her scheduled surgery.161 A prima facie case of retaliation involves an employer s 158 See Miller s Base System Civilian Evaluation Reports from 20032008, Ex. B to Cresci Ver. 159 See id. 160 See Miller Aff. ¶ 23(f); see also Miller s 2007 Evaluation. 161 See Miller EEO Test. I at 97:24-98:3. 39 retaliation against an employee for engaging in protected activity. 162 Protected activities include opposing a practice made unlawful by Title VII or any activity that the employee has a good faith reason to believe is unlawful.163 Miller s prima facie case for discrimination must instead rest upon her EEO complaints or other internal complaint letters. Drawing all inferences in Miller s favor, her submissions make out a prima facie case of retaliation based on her EEO complaint and Captain Ching s subsequent evaluation. Proceeding to step two of the McDonnell framework, the Government offers a non-retaliatory reason for Miller s evaluation score her reluctance to participate in staff trainings.164 At the time of the evaluation, Ching considered the fact that when it came to trying new things and seeking self-employment I had taken into account that she [Miller] had vocalized for me on more than one occasion that she felt she did not need to participate in the same trainings as the other employees and it would be basically a waste of time and money. 165 Miller 162 Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998). 163 Id. Accord Jute, 420 F.3d at 175 ( Congress enacted the anti-retaliation clause to shield an employee from employer retaliation following the employee s attempt to challenge discriminatory conduct. ). 164 See Ching Tr. at 274:7-275:7. 165 Id. 40 likewise stated during her EEO fact-finding conference testimony that Ching had explained to her that the evaluation score was based upon the fact that I [Miller] was resistant to training. 166 The Government has thus met its burden in coming forth with a non-retaliatory reason for Miller s evaluation score. The third step of the McDonnell framework requires that the plaintiff must then produce evidence that the proffered reason is a pretext. 167 To defeat summary judgment, it is not enough that Miller claims that Captain Ching s true purpose was retaliation, she must point to admissible evidence that raises a genuine issue of material fact.168 However, there are no facts in the record supporting the assertion that Miller s evaluation score was a form of retaliation. Captain Ching had never given Miller a higher annual evaluation score in the past, and Miller cites to no remarks or behavior by Ching that suggest her reasons were 166 11/1/07 Testimony of Marytherese Miller ( Miller EEO Test. II ), Ex. P to Nawaday Decl. 73:22-74:2. 167 McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). 168 See Fall, 289 Fed. App x at 420; see also El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) ( The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext. ); Robinson v. American Int l Group, Inc., No. 08 Civ. 1724, 2009 WL 3154312, at *8 (S.D.N.Y. Sept. 30, 2009). 41 disingenuous. Therefore, Miller s retaliation claims fail to raise a triable issue of fact and cannot survive summary judgment. 3. Miller Fails to Allege Causation Regarding the Hearings in the Red Reeder Room All of Miller s protected activity, complaint letters, EEO complaints, and the filing of this civil suit took place between May 8, 2007 and August 24, 2009.169 While Miller states that certain hearings were moved to the Red Reeder Room, she does not indicate when this occurred.170 Reading the record in the light most favorable to the plaintiff, this practice may have begun in January 2010.171 To prove that this change of location was retaliatory in nature, Miller must show either a direct causal connection between the protected activities and the retaliation, or some circumstantial evidence, such as proximity, that suggests retaliation.172 169 See Informal EEO Complaint; First EEO Complaint; Second EEO Complaint; Plaintiff s First Complaint filed on 8/24/09. 170 See Miller Aff. ¶ 18. 171 See Miller Tr. at 164:7-13. The change of location does not appear in any official documentation until April 2010. See 4/29/10 Proposed Amendment, Ex. N to Cresci Ver. ¶ 2. The accommodation offered to help Miller travel to the Red Reeder Room is not mentioned in the record until even later. See 5/24/11 Medical Exam by Dr. Sally Dorfman. 172 See Gordon, 232 F.3d at 117. 42 Miller has not put forward evidence that raises a genuine issue of fact about what caused the movement to the Red Reeder Room. There is no evidence in the record that directly establishes that the move was motivated by a retaliatory purpose. In terms of circumstantial evidence, Miller can only point to the fact that the change was authorized some months after she began to engage in protected activity. However, temporal proximity must be sufficiently close in order to substantiate a charge of retaliation.173 In the absence of any further evidence suggesting retaliation, months of separation between protected activity and alleged retaliation cannot be considered very close.174 Here, the protected activity and the alleged retaliation were at least five months apart and there is no other evidence showing that the move was motivated by animus toward Miller. Therefore, Miller has not raised a factual issue of causation in the Government s moving certain hearings to the Red Reeder Room. 4. Miller s Counseling Sessions and Other Guidance Involved No Adverse Employment Action Miller s counseling sessions and other guidance memoranda detailing 173 Ballard v. Children s Aid Soc y, No. 09 Civ. 5263, 2011 WL 1664980, at *6 (S.D.N.Y. Apr. 28, 2011). 174 See Dixon v. International Fed n of Accountants, 416 Fed. App x 107, 110 (2d Cir. 2011) (four-month separation between protected activity and alleged retaliation alone fails to make out a prima facie case of causation). 43 her responsibilities as an employee do not rise to the level of adverse employment action.175 Though a plaintiff must only make a de minimis showing of conduct by an employer that would dissuade a reasonable worker from making or supporting a charge of discrimination, the Second Circuit has still required that there be some injury or harm. 176 Many of the documents submitted by Miller state explicitly that they are not intended as discipline, and that they are standardized guidance documents.177 Because adverse impact is an element of a prima facie case of retaliation, its absence is fatal to Miller s claim. C. Miller s Hostile Work Environment Claims Miller bases her hostile work environment claims on three inappropriate comments made by co-workers: (1) Captain Greiser s asking Miller whether she would be ready to climb Storm King Mountain for an office outing, ; (2) co-worker Barnes asking Miller how would you like me to kick your leg and see how it hurts? ; (3) co-worker Laiso s remark, Everyone hates you, I hate 175 See Counseling Sessions and Guidance Memos, Ex. L to Nawaday 176 Hicks, 593 F.3d at 164-65 (citations omitted). Decl. 177 See Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006) ( [A]n employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner. ). 44 you! , as well as a picture that Captain Adams, a superior, sent by e-mail to Miller and some of her co-workers.178 However, Title VII does not establish a general civility code for the American workplace and [s]imple teasing, offhand comments, or isolated incidents of offensive conduct (unless extremely serious) will not support a claim of discriminatory harassment. 179 Despite the inappropriateness and offensiveness of the comments referred to by Miller, they fail to describe conditions sufficiently severe or pervasive to alter the conditions of [her] employment. 180 In addition, to make out a prima facie case for a hostile environment, a plaintiff must establish that she was harassed because of her membership in a protected class. 181 Only two of the comments noted by Miller, however, relate to her disability Greiser s and Barnes . Two comments over at least a two-year period are insufficient to constitute a discriminatory environment that is pervasive or severe. Moreover, although employees may not appreciate receiving a picture 178 See Miller Aff. ¶ 24. Miller also alleges that she was frozen out of meetings, but neither the affidavit nor the moving papers provide examples of such behavior. See id. 179 Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir. 2004) (citations omitted). 180 Id. (citations omitted). 181 Monterroso, 591 F. Supp. 2d at 584. 45 of a supervisor by e-mail, Captain Adams e-mail had nothing to do with Miller s disability and it was not just sent to Miller.182 Accordingly, Miller s hostile work environment claim fails as a matter of law. D. Miller s Privacy Act Claim Miller argues that the Government has violated the Privacy Act by disclosing information about her condition to co-workers and by providing her phone number on an office roster without her consent.183 To survive summary judgment, Miller must provide facts that support the elements of the claim including evidence showing that a record was disclosed and that she suffered an adverse effect.184 While Miller maintains that the Privacy Act elements have been met, these conclusions are unsupported. For instance, the only incident in the record of co-workers discussing Miller s medical conditions concerns a request by Captain Adams that a co-worker, Christine Henderson, write a statement based on 182 See Picture Exhibit, Ex. G to Cresci Ver., showing Captain Adams fully clothed and striking what Miller refers to as an Adonis Pose while facing away from the camera. See Miller Aff. ¶ 24(a). 183 See Miller Aff. ¶ 25. 184 See International Union, Sec., Police, and Fire Prof ls, 350 F. Supp. 2d at 528. 46 what Miller had told her about her knee injuries. 185 While this suggests that co workers had discussed Miller's condition, it fails to show that the government released records, or information from records, concerning Miller. Miller also fails to explain why the release of her telephone number had any adverse impact upon her. Because Miller fails to provide evidentiary support for the necessary elements of her Privacy Act claim, the Government is entitled to summary judgment on this claim. v. CONCLUSION For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk is directed to close this motion [Docket No. 30] and this case. Dated: New York, New York September 14, 2011 See 9/23/08 EEOC Testimony of Christine Henderson, Ex. J to Cresci Ver., at 31 :2-32: 17. 185 47 - Appearances For Plaintiff: Peter Jonathan Cresci , Esq. Cresci & Black LLC P.O. Box 74, 830 Avenue A Bayonne, NJ 07002 (201) 436-4126 For Defendant: Jaimie Leeser Nawaday Assistant United States Attorney United States Attorney s Office 86 Chambers Street, 3rd Floor New York, NY 10007 (212) 637-2528 48

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