Fiorillo v. Pena Government's Memorandum of Law

    UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
. . - . - - - - - - - - ........ x
ANNE M. FIORILLO, :

Plaintiff,
v . 96 Civ. 3967 (JGK)

FEDERICO F. PENA, SECRETARY, 
UNITED STATES DEPARTMENT OF 
TRANSPORTATION,

Defendant.
x

GOVERNMENT'S MEMORANDUM OF LAW 
IN SUPPORT OF ITS MOTION 

FOR JUDGMENT ON THE PLEADINGS 
AND FOR A STAY OF DISCOVERY

MARY JO WHITE
United States Attorney for t 
Southern District of New Yor 
Attorney for Defendant 
Federico F. Pena, Secretary 
United States
Department of Transportation

JENNIFER K. BROWN (JB-4222) 
Assistant United States Attorney

Of Counsel



TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................ ii
PRELIMINARY STATEMENT......................................  1
STATEMENT OF F A C T S ........................................  2
POINT I PLAINTIFF'S CLAIMS CONCERNING

PREPARATION FOR THE MSPB HEARING 
AND THE "LESSONS LEARNED" MEMO 
ARE BARRED FOR FAILURE
TO EXHAUST ADMINISTRATIVE REMEDIES .......... 6

POINT II PLAINTIFF FAILS TO STATE A CLAIM
CONCERNING MR. MARTIN'S EEO COMPLAINT
OR HER PERFORMANCE RATING   8
A. A Retaliation Complaint Must

Allege An Adverse Employment Action . . .  8
B. The Filing Of An EEO Complaint

Is Not An Adverse Employment Action . . .  9
C. Plaintiff's Meritorious Rating Was

Not An Adverse Employment Action . . .  10
POINT III PLAINTIFF FAILS TO STATE A CLAIM

CONCERNING THE PROCESSING OF
HER EEO COMPLAINT........................11

POINT IV DISCOVERY SHOULD BE STAYED
PENDING DETERMINATION OF THIS MOTION......14

CONCLUSION.............................................. 15

i



TABLE OF AUTHORITIES
CASES

Benford v. Frank. 943 F.2d 609 (6th Cir. 1991) .... 7
Briones v. Runyon. 101 F.3d 287 (2d Cir. 1996) .... 12
Brown v. Bentsen. 921 F. Supp. 1 (D.D.C. 1995) .... li
Brown v. General Servs. Admin.. 425 U.S. 820 (1976) 6, 12
Butts v. City of New York Pep11 of Hous.. Preserv.

& Devel.. 990 F.2d 1397 (2d Cir. 1993) ...... 6
Cano v. United States Postal Serv.. 755 F.2d 221

(1st Cir. 1985) .............................  7
Carlson v. United States Pep11 of Health and Human

Servs.. 879 F. Supp. 545 (D. Md. 1995) ...... 12
Contemporary Mission, Inc, v. United States Postal

Serv. . 648 F.2d 97 (2d Cir. 1981) ...........  14
Guice-Mills v. Brown. 882 F. Supp. 1427 (S.D.N.Y.

1995) .......................................  7
Hannon v . Chater. 887 F. Supp. 1303 (N.D. Cal.

1995)   12
Jensen v. Frank. 912 F.2d 517 (1st Cir. 1990) .... 7
Johnson v. Frank. 828 F. Supp. 1143

(S.D.N.Y. 1993)   6
Johnson v. United States Treasury Den't. 27 F.3d

* 415 (9th Cir. 1994)   7
Mackey v. Sullivan. 1991 WL 128510 (D.D.C. March

28, 1991)   13
Marinoff v. U.S. Dep't of Housing and Urban Dev..

892 F. Supp. 493 (S.D.N.Y. 1995), aff'd. 78
F.3d 64 (2d Cir. 1996)   12

Meredith v. Beech Aircraft Corp.. 18 F.3d 890 (10th
Cir. 1994) ..................................  10, 11

Murray v. New York Univ. College of Dentistry. 57
F.3d 243 (2d Cir. 1995).....................  8

ii



15
O'Brien v. Avco Corp.. 309 F. Supp. 703 (S.D.N.Y.

1969) .......................................
Olivares v. NASA. 934 F. Supp. 698 (D. Md. 1996) .. 13
Pacheco v. Rice. 966 F.2d 904 (5th Cir. 1992) .... 7
SCM Corp. v. Brother Int11 Corp.. 316 F. Supp. 1328(S.D.N.Y. 1970)   14
Shaw v. Frank. 1989 WL 146794 (S.D.N.Y. Nov.

30, 1989)   14
Sneer v. Rand McNally & Co.. 1996 WL 667810 (N.D.

111. Nov. 15, 1996)   10
Vergara v. Bentsen. 868 F. Supp. 581 (S.D.N.Y.

1994) .......................................  7, 9, 10
Wanamaker v . Columbian Rope Co.. 907 F. Supp. 522

(N.D.N.Y. 1995)   8
Ward v. Equal Employment Opportunity Comm'n. 719 

F.2d 311 (9th Cir. 1983), cert, denied. 466 
U.S. 953 (1984)   13

Warren v. Norman Realty Co.. 513 F.2d 730 (8th
Cir.), cert, denied. 423 U.S. 855 (1975)   13

Williamson v. Northeast Regional Postmaster Gen..
1988 WL 170447 (D.N.J. July 5, 1988), aff1d.
872 F.2d 415 (3d Cir.), cert, denied.
493 U.S. 832 (1989) .........................  14

Wrenn v . Secretary, Dep't of Veterans Affairs, 918 
F.2d 1073 (2d Cir. 1990), cert, denied, 499 
U.S. 977 (1991) .............................  7

Young v. Sullivan. 733 F. Supp. 131 (D.D.C. 1990), 
aff'd. 946 F.2d 1568 (D.C. Cir. 1991), cert, 
denied. 508 U.S. 918 (1992) .................  13

STATUTES. REGULATIONS AND RULES 
Administrative Procedure Act,

5 U.S.C. §§ 551-559 & 701-706................ 11
5 U.S.C. §§ 555 (b) and 706 (1).....................  1
5 U.S.C. § 704 ..............................  12

iii



Age Discrimination in Employment Act, 29 U.S.C.
§§ 621-634 .................................  1

29 U.S.C. § 623 (d) ...............................  8
29 U.S.C. § 633a (a) ..............................  6
Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e-16 (b)........................  1, 6
42 U.S.C. § 2000e-3 (a) ...........................  8
29 C.F.R. §§ 1614.101-1614.607 .................  5-6
29 C.F.R. § 1614.107(b) ..........................  5, 6
Fed. R. Civ. P. 26(c) ............................  14



UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
- - - - - - - -  ........  - - - - - x
ANNE M. FIORILLO, :

Plaintiff, :
v.

FEDERICO F. PENA, SECRETARY, 
UNITED STATES DEPARTMENT OF 
TRANSPORTATION,

96 Civ. 3967 (JGK)

Defendant.
x

GOVERNMENT'S MEMORANDUM OF LAW 
IN SUPPORT OF ITS MOTION 

FOR JUDGMENT ON THE PLEADINGS AND FOR A STAY OF DISCOVERY
PRELIMINARY STATEMENT

Defendant Federico F. Pena, Secretary of the United 
States Department of Transportation, by his attorney, Mary Jo 
White, United States Attorney for the Southern District of New 
York (hereinafter, the "Government"), respectfully submits this 
memorandum of law in support of his motion for judgment on the 
pleadings or, in the alternative, for summary judgment, and for a 
stay of discovery pending the determination of this motion.

Plaintiff, a civilian employee of the United States 
Coast Guard, brought this action under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-16(a) ("Title 
VII"), the Age Discrimination in Employment Act, 29 U.S.C. §§ 
621-634 ("ADEA") and the Administrative Procedure Act, 5 U.S.C.
§§ 555(b) and 706(1). Plaintiff claims that her supervisor 
discriminated against her on the basis of her age and her sex in 
several respects, that her supervisor initiated an EEO complaint



against plaintiff in retaliation for her protected EEO activity, 
that a performance evaluation given by another supervisor should 
have been "distinguished" rather than "meritorious," and that the 
agency EEO officer failed to timely process her EEO complaint.
The Court lacks subject matter jurisdiction over plaintiff's 
claims of alleged discrimination by her supervisor because 
plaintiff failed to exhaust administrative remedies as to those 
claims. Plaintiff's claim concerning her supervisor's EEO 
complaint must be dismissed for failure to state a claim because 
the supervisor's complaint was not an adverse employment action. 
Her claim regarding her performance evaluation likewise must be 
dismissed because it involves no adverse action: plaintiff's 
evaluation was not only positive, and prepared by a different 
supervisor, but three months after receiving it she was promoted 
to a higher grade position. The allegations concerning the 
processing of plaintiff's EEO complaint also fail to state a 
claim. The complaint should therefore be dismissed in its 
entirety.

STATEMENT OF FACTS
Anne Fiorillo is a career federal employee who came to 

the United States Coast Guard in 1991 as a civilian GS-12 
Personnel Management Specialist. (First Amended Complaint 
("Complaint"), at 1 8). From 1991 through November 1995, she 
worked in the Personnel Office at the Coast Guard's Maintenance 
and Logistics Command, Atlantic (North), at Governor's Island, 
New York. (Id.). In November 1995, plaintiff was promoted to a 
GS-13 position as chief of the training branch at the Military

2



Personnel Command, Civilian Personnel Management Division in 
Washington, D.C., where she remains. (Id. & Notification of 
Personnel Action, Exhibit A1).

According to her complaint, plaintiff was assigned in 
September 1994 to represent the Coast Guard at a hearing before 
the Merit Systems Protection Board ("MSPB"). (Complaint ^  12, 
15). At that time, Vincent Martin was plaintiff's supervisor.
(Id. 1 12). Plaintiff had never before represented the Coast 
Guard at such a hearing. (Id. 1 15). Plaintiff contends that 
from the time she got the assignment until the hearing was held 
December 1 and 2, 1994, she repeatedly and unsuccessfully 
requested greater guidance and assistance from Mr. Martin than he 
provided. (Id. 1 24). She further contends that Mr. Martin 
better supported her younger colleagues performing similar 
assignments. (Id. 51 19-23).

After the MSPB hearing, where plaintiff successfully 
represented the Coast Guard, plaintiff requested compensatory 
time for after-work hours allegedly spent in preparation. (Id.
11 29, 31). Plaintiff alleges that this request was denied, and 
that similar requests by younger female employees had been 
granted. (Id. 11 33-34). Plaintiff then, in January 1995, wrote 
a several page memorandum which she described as a "lessons 
learned" memo, documenting what she contended was inadequate 
support and training provided her to serve as agency

1 Except as noted, referenced exhibits are attached to 
the Declaration of Jennifer K. Brown, executed February 21, 1997, 
and submitted herewith.

3



representative for the MSPB hearing. (Id. 11 38-39) . She 
alleges that during January 1995, Mr. Martin investigated this 
memorandum. (Id. 1 42).

According to plaintiff, in March 1995 she became aware 
that Mr. Martin had sought informal counseling about the 
possibility of filing an EEO complaint concerning plaintiff's 
"lessons learned" memo and related matters. (Id. H 47). Mr. 
Martin was no longer plaintiff's supervisor after this point, 
following a reorganization of office staff in late 1994.
(Memoranda of Oct. 31, 1994, and Nov. 7, 1994, Exhibit B). 
Plaintiff contends that Mr. Martin's EEO complaint was in 
retaliation for her "lessons learned" memo. (Complaint K 48). 
Plaintiff then determined to file an EEO complaint herself, and 
on April 6, 1995, contacted the EEO officer, James Whack, to 
initiate the complaint process. (Id. 5 51). Plaintiff alleges 
that claimed deficiencies in Mr. Whack's processing of her 
informal EEO complaint delayed the filing of her formal 
complaint. (Id. U5 52-62, 64).

On or about August 16, 1995, plaintiff received a 
performance evaluation issued by her new supervisor, Denise 
Regalbuto. (Id. 1 52 & Performance Appraisal Form, Exhibit C, at 
1). Her rating was "meritorious." (Id.).2 She immediately 
sent a memorandum to Mr. Whack, the EEO Officer, stating that she 
was filing a complaint of reprisal based on the "meritorious"

z The appraisal system then in use provided five levels 
for the summary performance rating: Distinguished, Meritorious, 
Proficient, Needs Improvement, and Unsatisfactory. (Ex. C at 1).

4



rating. (Memorandum of Aug. 16, 1995, Exhibit D). On September 
6, 1995, plaintiff filed a formal EEO complaint. (Complaint 
57, 59).

On February 26, 1996, the Department of Transportation 
issued a final agency decision rejecting plaintiff's complaints 
concerning her preparation for the MSPB hearing, the "lessons 
learned" memo, and Mr. Martin's EEO complaint, and accepting for 
investigation plaintiff's allegations concerning her performance 
evaluation. (Decision of U.S. Department of Transportation, 
dated Feb. 26, 1996 ("Agency Decision"), First Amended Complaint 
Exhibit B, at 4). The MSPB hearing allegations were rejected as 
untimely, because plaintiff failed to seek EEO counseling about 
these alleged acts of discrimination within 45 days of their 
occurrence, as required by Part 29 of the Code of Federal 
Regulations, section 1614.107(b). (Id. at 2-3). The "lessons 
learned" allegations were rejected in part because they did not 
state any adverse employment action, and thus did not state a 
claim under either Title VII or the ADEA. (Id. at 3). The 
allegation that Mr. Martin's EEO complaint was retaliatory also 
did not entail any adverse action and thus failed to state a 
claim. (Id. at 3-4). In addition, the agency noted that the 
"lessons learned" memo was not protected EEO action, as it did 
not claim that plaintiff's supervisor failed to give her adequate 
support because of her age or her sex. (Id. at 4). Thus, the 
agency found that Mr. Martin's EEO compliant could not be in 
retaliation for protected EEO activity, and moreover, that it did 
not chill plaintiff in pursuing her EEO remedies: she filed an

5



EEO complaint after Mr. Martin's. (Id.). Plaintiff filed this 
action on or about May 24, 1996.

ARGUMENT 
POINT I

PLAINTIFF'S CLAIMS CONCERNING PREPARATION FOR THE MSPB HEARING 
AND THE "LESSONS LEARNED" MEMO 

ARE BARRED FOR FAILURE 
TO EXHAUST ADMINISTRATIVE REMEDIES

Both Title VII and the ADEA protect federal employees 
from discrimination in employment. 42 U.S.C. § 2000e-16(a); 29 
U.S.C. § 633a(a). A federal employee who wishes to file a claim 
of discrimination must comply with the procedures promulgated by 
the Equal Employment Opportunity Commission ("EEOC") under the 
authority of Title VII, 42 U.S.C. § 2000e-16(b), which are set 
forth in Part 1614 of the Code of Federal Regulations, 29 C.F.R. 
§§ 1614.101-1614.607. The regulations require, among other 
things, that an aggrieved person contact an agency EEO counselor 
within 45 days of the allegedly discriminatory action. Id. § 
1614.105(a)(1).

Title VII does not permit plaintiffs to institute an 
action in district court unless they have first exhausted 
administrative remedies. Brown v. General Servs. Admin., 425 
U.S. 820, 832 (1976); Butts v. City of New York Dep't of Hous., 
Preserv. & Devel.. 990 F.2d 1397, 1401 (2d Cir. 1993); Johnson v. 
Frank. 828 F. Supp. 1143, 1149 (S.D.N.Y. 1993) (the "right to 
bring court action regarding equal employment in the federal 
government is predicated on the timely exhaustion of 
[administrative] remedies"). These regulations are equally

6



applicable to an ADEA plaintiff who, like plaintiff, initiates an 
agency EEO complaint. Wrenn v. Secretary, Pep11 of Veterans 
Affairs. 918 F.2d 1073, 1078 (2d Cir. 1990), cert, denied. 499 
U.S. 977 (1991) . Thus courts have repeatedly dismissed 
discrimination claims for failure to contact an EEO counselor 
promptly after the occurrence of an allegedly discriminatory 
event. See, e.g.. Johnson v. United States Treasury Dep't. 27 
F.3d 415 (9th Cir. 1994); Pacheco v. Rice. 966 F.2d 904 (5th Cir. 
1992); Benford v. Frank. 943 F.2d 609, 612 (6th Cir. 1991);
Jensen v. Frank. 912 F.2d 517 (1st Cir. 1990); Cano v. United 
States Postal Serv.. 755 F.2d 221 (1st Cir. 1985); Guice-Mills v. 
Brown. 882 F. Supp. 1427, 1430 (S.D.N.Y. 1995); Vergara v. 
Bentsen. 868 F. Supp. 581 (S.D.N.Y. 1994).

Plaintiff failed to contact an EEO counselor within 45 
days of the alleged discriminatory events connected to her MSPB 
hearing preparation and her "lessons learned" memo. Mr. Martin's 
allegedly discriminatory treatment of her during her preparations 
for the MSPB hearing took place between September 1994, when she 
got the hearing assignment, and December 6, 1994, when Mr. Martin 
allegedly denied her request for compensatory time. (Complaint 
11 12, 35). As of December 6, 1994, plaintiff believed Mr. 
Martin's treatment of her was discriminatory based on her age. 
(Id. 1 35). She did not, however, initiate an EEO complaint 
until April 6, 1995 (id. 1 51), far later than the 45 days 
permitted by law for her to institute an EEO complaint.

Mr. Martin's allegedly discriminatory "investigation" 
of plaintiff's "lessons learned" memo occurred during January

7



1995- (Id. 1 42). Plaintiff did not initiate an EEO complaint 
as to this action until April 6, 1995 -- again, far later than 
the 45 days permitted by law. Plaintiff's claims relating to the 
MSPB hearing and the "lessons learned" memo must therefore be 
dismissed for failure to exhaust administrative remedies.

POINT II
PLAINTIFF FAILS TO STATE A CLAIM 

CONCERNING MR. MARTIN'S EEO COMPLAINT ______OR HER PERFORMANCE RATING______
A. A Retaliation Complaint Must

Allege An Adverse Employment Action
Both Title VII and the ADEA prohibit an employer from 

discriminating against an employee because the employee has 
opposed a discriminatory practice. 42 U.S.C. § 2000e-3(a); 29 
U.S.C. § 623(d). A plaintiff claiming that an employer has 
violated these provisions by retaliating against the plaintiff 
for engaging in prior EEO activity must make a prima facie 
showing of three elements: the defendant employer was aware that 
the plaintiff had engaged in some "protected activity" opposing 
an allegedly discriminatory practice; the plaintiff suffered some 
adverse employment action; and there is a causal connection 
between the protected activity and the "adverse employment 
action." Murray v. New York Univ. College of Dentistry, 57 F.3d 
243, 250 (2d Cir. 1995) (Title VII retaliation claim), cited in 
Wanamaker v. Columbian Rope Co.. 907 F. Supp. 522, 534 (N.D.N.Y. 
1995) (ADEA retaliation claim). "[T]o establish that the 
employer's conduct toward the plaintiff constitutes an adverse 
action, the plaintiff must prove that the conduct 'affected the

8



terms, privileges, duration, or conditions of the plaintiff's
employment" Vergara v. Bentsen. 868 F. Supp. 581, 592 
(S.D.N.Y. 1994) (quoting Rooney v. Witco Corp.. 722 F. Supp.
1040, 1046 (S.D.N.Y. 1989)).

B. The Filing Of An EEO Complaint
Is Not An Adverse Employment Action

Plaintiff's complaint fails to establish a prima facie 
case that Mr. Martin's filing of an EEO complaint violated the 
prohibition against retaliation for an employee's protected EEO 
activity. (Complaint 1 48). Plaintiff has not alleged any way 
in which the filing of this complaint adversely affected the 
"terms, privileges, duration, or conditions" of her employment, 
Vergara, 868 F. Supp. at 592, and there is no evidence to support 
such a claim. Notably, at the time that Mr. Martin spoke to an 
EEO counselor about the possibility of initiating an EEO 
complaint, he was no longer plaintiff's supervisor. (Ex. B). As 
the Department of Transportation observed in its decision 
rejecting this aspect of plaintiff's administrative claim of 
discrimination, "Complainant was not chilled from filing her own 
informal complaint of discrimination, which she did the following 
month, nor did she identify suffering any specific consequences" 
as a result of Mr. Martin's complaint. (Agency Decision, 
Complaint Ex. B at 4).

Moreover, the implication of this aspect of plaintiff's 
claims -- that the filing of an EEO complaint concerning a fellow 
employee's activities could be construed as an "adverse 
employment action" against that person -- would itself tend to

9



chill employees from resort to the EEO process and would 
therefore undermine the viability of the federal sector EEO 
mechanism. Plaintiff therefore fails to state a claim as to the 
allegation that Mr. Martin's EEO activity constituted an adverse 
employment action against her.
C. Plaintiff's Meritorious Rating WasNot An Adverse Employment Action

Plaintiff likewise fails to make out a prima facie 
claim that her August 1995 performance evaluation was an unlawful 
act of retaliation. (Complaint 5 52). While an "unjustifiably 
negative" performance evaluation can, in some circumstances, be 
considered an adverse action, Vergara, 868 F. Supp. at 592, 
plaintiff's "meritorious" evaluation was in no way negative; it 
was the second-highest rating available. What is more, where a 
plaintiff has received an objectively satisfactory evaluation and 
can show no negative consequences flowing from the evaluation, 
she fails to establish a prima facie case.

For example, in Meredith v. Beech Aircraft Corp.. 18 
F.3d 890, 896 (10th Cir. 1994), where the plaintiff's evaluation 
was "meets expectations" and where there was no evidence of 
adverse action relating to the evaluation, the Tenth Circuit held 
that plaintiff's allegation that her rating was negative did not 
satisfy the "adverse action" requirement of the prima facie case. 
Similarly, in Speer v. Rand McNally & Co.. 1996 WL 667810 (N.D. 
111. Nov. 15, 1996), the court rejected the plaintiff's claim 
that a performance evaluation -- in which she received a 3.5 on a 
5 point scale and a raise, albeit smaller than she expected --

10



was a retaliatory adverse action, because she presented
"absolutely no proof . . . that the performance evaluations were, 
in fact, "bad" and/or in any way affected her employment." Id. 
at *3, *7-8. See also Brown v. Bentsen. 921 F. Supp. 1, 2 
(D.D.C. 1995) ("The fact that plaintiff received lower 
performance evaluations than she thought she deserved does not 
necessarily constitute adverse action sufficient to make out a 
nrima facie case. Plaintiff did not point to any negative 
consequences that flowed from the allegedly low evaluations.").

Plaintiff here, like the plaintiffs in Meredith. Speer 
and Brown, fails to state a prima facie case of retaliation, 
because the performance evaluation she received in August 1995 
was positive, and she does not show any adverse action connected 
to the evaluation. Rather, just three months after receiving 
this evaluation, plaintiff was promoted to a Grade 13 position as 
chief of training for the Coast Guard's Washington, D.C. office. 
(Ex. A). Plaintiff therefore fails to state a claim of 
retaliation based on her employment evaluation.

POINT III
PLAINTIFF FAILS TO STATE A CLAIM CONCERNING THE PROCESSING OF HER EEO COMPLAINT

Plaintiff's allegations concerning the processing of 
her EEO complaint also fail to state a claim. To the extent 
plaintiff claims that the processing of her EEO complaint was 
discriminatory because it was "untimely" and "lacked 
evenhandedness" in violation of the Administrative Procedure Act, 
5 U.S.C. §§ 551-559 & 701-706 (Complaint 11 80-82), she fails to

11



state a claim because Title VII is the exclusive remedy for 
federal employees' claims of employment discrimination. Brown v. 
General Servs. Admin.. 425 U.S. 820 (1976); Briones v. Runyon.
101 F.3d 287, 289 (2d Cir. 1996); see also Hannon v. Chater. 887 
F. Supp. 1303, 1319 (N.D. Cal. 1995) (dismissing as futile 
federal employee's motion to amend Title VII action to include 
claim under APA because Title VII is exclusive remedy for federal 
employment discrimination); Carlson v. United States Pep't of 
Health and Human Servs.. 879 F. Supp. 545, 549 (D. Md. 1995)
(dismissing APA claim from federal employee's discrimination 
suit) .

Nor may plaintiff claim that the processing of her EEO 
complaint, even if not discriminatory, nonetheless violated the 
APA (Complaint 11 80-82), because the APA provides judicial 
review only for "final agency action for which there is no other 
adequate remedy in a court." 5 U.S.C. § 704. The alleged delay 
in processing plaintiff's EEO claim is not final agency action; 
the final agency action on her claim is the decision embodied in 
Exhibit B, attached to her complaint. Moreover, there is plainly 
an "adequate remedy in a court" for the final agency action on 
plaintiff's EEO complaint: plaintiff has filed the instant 
action.^ Review of the agency's processing of her complaint is 
therefore not available under the APA. See Marinoff v. U.S.

 ̂ The alleged delay in processing plaintiff's EEO 
complaint arose after plaintiff initiated that complaint. 
Therefore, the fact that her substantive claims are barred 
because she did not timely initiate the EEO complaint does not 
affect the point made here, that she has an adequate judicial 
remedy for the "final agency action" on her EEO complaint.

12



Dep't of Housing and Urban Dev.. 892 F. Supp. 493, 496-97 
(S.D.N.Y. 1995) (holding HUD's determination on housing 
discrimination complaint not reviewable under APA because 
plaintiff retained right to proceed in federal court on 
underlying claim of discrimination), aff1d. 78 F.3d 64 (2d Cir. 
1996) ; see also Mackey v. Sullivan. 1991 WL 128510 (D.D.C. March 
28, 1991), at *2 (holding that "there is no separate cause of 
action under the APA or otherwise to challenge the handling of an 
EEO complaint").

To the extent that plaintiff claims the allegedly 
untimely processing of her EEO complaint (or the allegedly 
"favorable" processing of Mr. Martin's EEO complaint) violates 
Title VII (Complaint  ̂ 72), she fails to state a claim. "Title 
VII creates only a cause of action for discrimination. It does 
not create an independent cause of action for the mishandling of 
an employee's discrimination complaints." Young v. Sullivan. 733 
F. Supp. 131, 132 (D.D.C. 1990), aff'd. 946 F.2d 1568 (D.C. Cir. 
1991), cert, denied. 508 U.S. 918 (1992); Olivares v. NASA. 934 
F. Supp. 698, 704 (D. Md. 1996) (holding there is no separately 
recognized cause of action for failure to process a 
discrimination complaint); Mackey. 1991 WL 128510 at *2 (same); 
see also Ward v. Equal Employment Opportunity Comm'n. 719 F.2d 
311, 313-14 (9th Cir. 1983) (holding that neither Title VII nor 
APA created cause of action against EEOC for allegedly negligent 
processing of plaintiff's EEO complaint), cert, denied. 466 U.S. 
953 (1984); Warren v. Norman Realty Co.. 513 F.2d 730, 731 n.l 
(8th Cir.) (dismissing for failure to state a claim allegation

13



that Air Force's failure to process housing discrimination 
complaint in accordance with its regulations violated federal 
civil rights laws), cert, denied. 423 U.S. 855 (1975); cf. Shaw 
v. Frank. 1989 WL 146794 at *2 (S.D.N.Y. Nov. 30, 1989) 
(dismissing for failure to state a claim allegation that EEOC's 
failure to process discrimination complaint according to 
applicable statues or regulations violated Due Process Clause); 
Williamson v. Northeast Regional Postmaster Gen., 1988 WL 170447 
(D.N.J. July 5, 1988), at *12 (holding no cause of action under 
Federal Tort Claims Act for alleged failure to process 
discrimination complaint in accordance with federal regulations) 
aff'd. 872 F.2d 415 (3d Cir.), cert, denied, 493 U.S. 832 (1989)

POINT IV
DISCOVERY SHOULD BE STAYED 

PENDING DETERMINATION OF THIS MOTION
This Court should exercise its power to grant appropri 

ate orders to deny, limit or qualify discovery in order to 
protect a party from oppression or undue burden or expense, Fed. 
R. Civ. P. 26(c), and stay all discovery until after the dis­
position of this motion for judgment on the pleadings.

Courts in this Circuit have consistently noted the 
appropriateness of such a stay where the adjudication of a dis­
positive motion could render discovery moot. See._e.g. .
Contemporary Mission, Inc, v. United States Postal Serv.. 648 
F.2d 97, 104-07 (2d Cir. 1981) (affirming district court's 
issuance of stay of discovery pending determination of motion); 
SCM Corp. v. Brother Int'1 Corp.. 316 F. Supp. 1328, 1336 n.9

14



(S.D.N.Y. 1970) (discovery stayed during pendency of motion to 
dismiss); O'Brien v. Avco Corp.. 309 F. Supp. 703, 705 (S.D.N.Y. 
1969) .

A stay of discovery pending the determination of this 
motion is needed to avoid substantial and potentially unnecessary 
expenditures of time and effort by the parties, as they are 
otherwise scheduled to take and defend numerous depositions 
during the next eight weeks. The burden of this discovery will 
fall especially hard on the Government, as all but one of the 
noticed depositions call for production of Government witnesses, 
and the time needed to prepare for and hold those depositions 
will take employees away from their regular duties. The Court 
should therefore stay discovery until this motion is decided.

CONCLUSION
For the foregoing reasons, the Government respectfully 

requests that the Court stay discovery and dismiss plaintiff's 
complaint.
Dated: New York, New York

February 20, 1997
MARY JO WHITEUnited States Attorney for the 
Southern District of New York 
Attorney for Defendant 
Federico Pena, Secretary 
United StatesDepartment of Transportation

Jennifer k . brown \j b -^222) 1 
Assistant United States Attorney 
100 Church Street, 19th Floor 
New York, New York 10007 
Tel.: (212) 385-6360

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