Ehrhard v. Lahood

GARY M. EHRHARD, Plaintiff,

v. THE HONORABLE RAYMOND H. LAHOOD, SECRETARY OFTHE U.S. DEPARTMENT OF TRANSPORTATION, Defendant.

No 09-1793 (JFB) (AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: March 28, 2012

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Gary M. Ehrhard ("Ehrhard" or "plaintiff') brought this civil rights action against his employer, the Honorable Raymond H. Lahood, the Secretary of the United States Department of Transportation ("Lahood," "Department" or "defendant") alleging the following: (1) employment discrimination on the basis of gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"); and (2) unlawful retaliation for engaging in activities protected by the aforementioned statute. In particular, plaintiff, who is an air traffic controller, asserts that female air traffic controllers were entitled to special arrangements for requesting leave for child care purposes, and such arrangements were not made available to him even when he requested and was denied leave for child care in June and August 2007. Moreover, plaintiff contends that, when he complained about this disparate treatment, he was retaliated against in a number of ways including, inter alia, the following: (1) the denial of leave in August 2007; (2) being required to provide a medical certificate for sick leave; (3) being temporarily charged AWOL in October 2007; (4) having his annual leave cancelled in November and December 2007; (5) the failure to investigate a co-worker's verbal assault; (6) failure to investigate plaintiff's claims of vandalism; and (7) being sent home for violations of the dress code (which, according to plaintiff, was not enforced against other employees).plaintiff seeks actual, compensatory and punitive damages, attorney's fees and other costs.

The defendant now moves for summary judgment. For the reasons set forth below, the motion is granted in part and denied in part. Specifically, defendant is entitled to summary judgment for the gender discrimination claim based upon the June 27, 2007 denial of leave because such claim is time-barred and because plaintiff elected an administrative remedy. However, the defendant's motion is denied in all other respects. Construing the evidence in the light most favorable to plaintiff, plaintiff has pointed to sufficient evidence to create a disputed issue of material fact as to whether plaintiff was subject to gender discrimination in connection with his August 2007 leave request, and whether he was subject to retaliation for complaining about gender discrimination in connection with leave requests.

I. BACKGROUND

A. The Facts

The facts, construed in the light most favorable to plaintiff, the non-moving party, see Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005), are as follows:

1. Plaintiff's Request for Leave on June 27,

2007

Plaintiff is employed by the Federal Aviation Administration ("FAA"), a division of the Department of Transportation ("DoT"), as an air traffic controller at the New York Center in Ronkonkoma, New York. (Pl.'s 56.1 Counter Statement ¶ 2.)¹ Ehrhard is married with two daughters who, in 2007, were 8 and 11 years old. (Id. ¶ 5.) Unless a family member was available, plaintiff's wife provided care for the children. (Id.) Before September 2006, plaintiff would take annual leave or convert "credit hours" into annual leave to care for his daughters when his wife or family members were not available for child care. (Id. ¶ 6.) After a New Collective Bargaining Agreement went into effect in September of 2006, employees could no longer accrue an unlimited amount of credit hours. (Id. ¶ 7.) Plaintiff contends that, when he took annual leave before September 2006, he did not have to request that the leave was for child care purposes. (Id. ¶ 6.)

On June 25, 2007, plaintiff made a request to his direct supervisor, Charles Grandison ("Grandison"), for three hours of Leave Without Pay ("LWoP") on June 27, 2007. (Id. ¶ 8.) Defendant contends that this request was made orally, while plaintiff states that he made his request both verbally and in writing. (Id., Def.'s 56.1 Statement ¶ 8.) Plaintiff does not recall if this was his first request for LWoP. (Pl.'s 56.1 Counter Statement ¶ 8.) According to plaintiff, Grandison told him to submit a written request to John Azzarone ("Azzarone"), the operations Manager at the time, while his similarly situated female co-workers had their requests for child care routinely approved without submitting a written request every time leave was needed. (Id. ¶ 9.) Conversely, defendant states that Grandison told plaintiff that LWOP requests could only be approved by the Facility Manager, David LeCates ("LeCates"), uponsubmission of an advance, written request, which provided a sufficient reason for the request. (Def.'s 56.1 Statement ¶ 9.) According to plaintiff, defendant failed to respond to his request for LWOP until he filed his complaint in this action. (Pl.'s 56.1 Counter Statement ¶ 10.) Moreover, when plaintiff did not go to work for the three hours requested, he was charged annual leave rather than LWOP. (Id.) Plaintiff also contends that he complained to Grandison that his requests for leave were either denied or ignored, while requests by his similarly situated female co-workers were routinely granted. (Id.)

On July 14, 2007, plaintifffiled a grievance. (Id. ¶ 12.) Plaintiff's grievance complaint was that 17 days had passed since he submitted his request to convert the three hours of leave he used on June 27, 2007 from annual leave to LWOP and he still had not received a response. (Id.) According to defendant, plaintiff's grievance was settled by a Grievance Settlement Agreement dated August 14, 2007. (Def.'s 56.1 Statement ¶ 14.) Pursuant to the Grievance Settlement Agreement, plaintiff's LWOP request was approved, and his time and attendance recorders were amended. (Id.)

Plaintiff complained to Grandison that he was treated differently from three similarly situated female controllers, Tracey Acampora ("Acampora"), Susan Barrett (also known as Susan Molloy) ("Molloy" or "Barrett") and Elizabeth Eddy ("Eddy") because "the females in my area were getting it [LWOP and FMLA leave] approved on a regular basis and here I am asking for three hours and they are giving me the runaround, they are not answering me, they are delaying." (Id. ¶ 15.) Plaintiff's belief was based on viewing the daily staffing sheets and co-worker comments. (Pl.'s 56.1 Counter Statement ¶ 16.)

According to the defendant, before 2007, Acampora, Molloy and Eddy were former part-time employees. (Def.'s 56.1 Statement ¶ 18.) In April 2007, LeCates eliminated part-time schedules. (Id.) In order to accommodate the former part-time employees' child care needs, LeCates permitted the former part-time employees, and others, to submit to him a single open-ended request for LWOP for child care purposes. (Id.) LeCates then approved the respective requests for open-ended LWOP in writing and delegated the authority to approve the requests on a case-by-case basis to the employees' direct supervisor. (Id.) According to plaintiff, his female co-workers were able to verbally request LWOP for child care without any documentation to their direct supervisor and their requests were almost always approved. (Pl.'s 56.1 Counter Statement ¶ 18.)

2. Plaintiff's Request for Leave on August

24, 2007

On June 26, 2007, plaintiff made a written request for annual leave for the week of August 20 through 24, 2007. (Id. ¶ 21.) The request was approved for August 20 and 22, but was not approved August 21, 23 and 24. (Id.) On August 8, 2007, plaintiff requested annual or sick leave under the FMLA for August 24, 2007 to care for his children. (Id. ¶ 22.) Grandison denied his request on August 23, 2007. (Id.) By letter dated August 28, 2007, plaintiff asked Grandison to explain why his request for leave was denied. (Id. ¶ 23.) Plaintiff explained in his letter that he did not believe he was receiving equal employment opportunities since leave under FMLA was being used on a regular basis by other controllers. (Id.)

Defendant contends that leave was denied because plaintiff did not claim that his children required care due to a serious health condition. (Def.'s 56.1 Statement ¶ 24.) Plaintiff, however, claims that his similarly situated female colleagues did not need to make a distinction between the LWOP and FMLA for child care purposes when making a leave request. (Pl.'s 56.1 Counter Statement ¶ 24.)

3. Alleged Retaliation as to Leave and

Attendance

a. Temporarily Charged AWOL onAugust 24, 2007

According to plaintiff, Ehrhard requested leave to care for his children on August 24, 2007, but his request was denied. (Id. ¶ 27.) Plaintiff then advised the supervisor on duty that he had no choice but to stay home. (Id.) Plaintiff was subsequently charged with AWOL. (Id.) Being charged with AWOL can result in loss of pay and/or disciplinary action. (Id.) The AWOL charge was eventually converted to another form of leave, but plaintiff was not paid for said day until a future pay period. (Id. ¶ 28.)

b. Sick Leave Medical Certificate

Memorandum

According to the defendant, at a meeting on September 10, 2007, Grandison gave plaintiff a memorandum dated August 23, 2007 (the "memorandum") which advised plaintiff that he made questionable use of his sick leave from August 2006 to August 2007 and that he was directed to provide a medical certificate for each absence due to illness or injury to his supervisor of the first shift upon returning from an absence. (Def.'s 56.1 Statement ¶ 29.) Plaintiff states that, in the sixteen years of employment with the defendant, he never received a letter like this. (Pl.'s 56.1 Counter Statement ¶ 29.) This requirement was imposed after plaintiff complained to his supervisors that he believed he was being treated differently than his similarly situated female...